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EXHIBIT 10.77
AGREEMENT
This agreement ("Agreement") is made this 18th day of May, 1998,
between SPACEHAB, Incorporated ("SHI"), a Washington state corporation with its
principal office located in Vienna, Virginia and Mitsubishi Corporation, with
its principal office located in Tokyo, Japan ("MITSUBISHI"), as contractor to
the Japan Broadcasting Agency ("NHK") ("BUYER").
WHEREAS MITSUBISHI desires to procure SPACEHAB pressurized module
services ("SPACEHAB" or "Module") and retain SHI to act as the carrier and
interface between the U.S. National Aeronautics and Space Administration's
("NASA") Space Shuttle fleet and the NHK-provided camera hardware aboard a
SPACEHAB Module Mission currently manifested as STS-95;
WHEREAS SHI desires to supply to MITSUBISHI such services and to act as
the carrier and interface between the NASA Space Shuttle fleet and the
NHK-provided camera hardware aboard a SPACEHAB Module Mission currently
manifested as STS-95 ("Mission");
WHEREAS SHI must immediately begin to perform certain tasks associated
with the analytical and physical integration of the NHK-provided camera hardware
into the SPACEHAB Module in order to complete these tasks prior to the
anticipated launch date; and
WHEREAS MITSUBISHI, NHK and SPACEHAB have mutually agreed to the
Experiment Chargeable Mass policy presented in the Exhibit B table.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties agree as follows:
1. STATEMENT OF WORK
SHI will provide, at the times and locations set forth therein and
pursuant to the terms and conditions of this Agreement, the supplies
and services described in the Statement of Work ("SOW") in Exhibit C.
NHK shall provide to SHI the camera (hand-held) and all of its
associated support hardware to include, but not limited to, lenses,
microphone and cables.
2. PRICE AND TERMS OF PAYMENT
MITSUBISHI shall pay SHI a fixed price of 1998 US$280,000 for flight of
all NHK-provided camera hardware and all SPACEHAB-provided NHK camera
stowage hardware (chargeable mass 10 kg).
- 98US$ 140,000.00 upon execution of this agreement
- 98US$ 70,000.00 upon completion of the Interface Control Document
98US$ 40,000.00 upon delivery of the flight certified camera and associated support
hardware to the SPPF
98US$ 28,000.00 STS-95 landing plus one month
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Total $280,000.00
The actual Chargeable Mass for the NHK-provided camera hardware and its
supporting flight hardware shall be determined by SHI using a
calibrated scale at the time of installation of each experiment into
the module. Any upward deviation in the total measured Chargeable Mass
flown on the mission from the Chargeable Mass referred to in Section 1
above shall result in an upward price adjustment for that experiment at
the rate of $28,000/kg. The cumulative total of all experiment upward
price deviations, which shall not exceed $300,000, shall be paid to SHI
at the time of final contract payment above, in addition to the final
payment amount, also indicated above.
3. PAYMENT TERMS AND CONDITIONS
SHI shall send a Final Accounting/Billing to MITSUBISHI as promptly as
possible after completion of the last service provided by SHI under
this Agreement. The Final Accounting/Billing will contain a final
accounting under the Agreement and address additional payment
requirements, if any, from MITSUBISHI. If, as a result of final
Accounting/Billing, an additional MITSUBISHI payment is required, such
payment shall be due 60 days after the billing date of the Final
Accounting/Billing.
4. MISSION DELAYS
In the event STS-95 is delayed, suspended, or postponed, there may be
additional charges to MITSUBISHI as specified in the following
circumstances:
a. Delay caused by NASA
MITSUBISHI pays only additional service costs, if any,
required/provided by NASA and/or SHI.
b. Delay caused by SHI
MITSUBISHI pays only additional service costs, if any,
required/provided by NASA.
c. Delay caused by MITSUBISHI/NHK
MITSUBISHI pays any additional NASA costs charged to SHI which
may be required or caused by any delay, suspension or
postponement of the launch in excess of the 72 hours allowable
delay for which NASA does not charge.
- MITSUBISHI pays for any additional costs incurred by SHI
for services provided by NASA and/or SHI.
5. OPTIONAL SERVICES
There are no defined optional services.
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6. APPLICABILITY OF NASA/SHI SPACE SHUTTLE AGREEMENTS
SHI and MITSUBISHI acknowledge that performance of the services
described in this Agreement and the SOW depends upon the agreement(s)
governing NASA's lease of the Module for STS-95 or any other missions
covered herein ("NASA Contracts"). Any changes to these NASA/SHI
agreement(s) that are imposed by NASA and which prevent SHI from
providing the services described herein shall not constitute a breach
of this Agreement by either SHI or MITSUBISHI. In the event of such
changes by NASA, SHI, and MITSUBISHI agree to negotiate an equitable
adjustment to this Agreement that satisfies both parties as well as
NASA's new requirements. If there are any conflicts between this
Agreement and the requirements of the NASA Contracts applicable to this
Agreement, the NASA Contracts terms and conditions shall take
precedence.
7. EXCHANGE OF DOCUMENTATION AND INFORMATION
SHI and BUYER shall exchange all documents and information required for
each party to fulfill its responsibilities under this Contract in
accordance with the SPACEHAB/NASDA/NHK STS-95 Confidentiality &
Nondisclosure Contract.
8. PERMITS AND LICENSES
SHI shall obtain any permit or license that may be required to provide
the services to be furnished under this Agreement. MITSUBISHI will be
responsible for obtaining any permit or license that may be required to
perform an activity unique to the NHK-provided camera that is not
included in the foregoing, such as tests involving use of radioactive
materials or particular requirements of MITSUBISHI's own government(s),
or governmental authorities outside the United States.
9. ALLOCATION OF CERTAIN RISKS AND LIMITATION OF LIABILITY
a. a. Inter-Party Waiver of Liability.
In carrying out this Agreement, SHI, ESA/INTOSPACE, and NASA,
will respectively utilize their property and employees in the
SPACEHAB Payload Processing Facility ("SPPF"), NASA facilities,
and during payload processing activities and STS Operations in
close proximity to one another and to others. Furthermore, the
parties recognize that all participants are engaged in the
common goal of meaningful exploration, exploitation and
utilization of outer space. In furtherance of this goal, the
parties hereto agree to a no-fault, no-subrogation, inter-party
waiver of liability pursuant to which each party agrees not to
bring claims in arbitration or otherwise against or sue the
other party or other customers of SHI, and agrees to absorb the
financial and any other consequences arising out of damage to
its own property and employees as a result of participation in
the payload processing activities and STS Operations,
irrespective of whether such damage is caused by SHI, ESA,
INTOSPACE, other SHI customers, NASA, or other NASA customers
participating in payload processing activities and STS
Operations and regardless of whether such damage arises through
negligence or otherwise.
b. Extension of Inter-Party Waiver.
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The parties agree that this common goal will also be advanced
through extension of the inter-party waiver of liability to
other participants in the payload processing activities and STS
Operations. Accordingly, the parties agree to extend the waiver
as set forth in Section 8a above to the other party's and NASA's
contractors and subcontractors at every tier, as third party
beneficiaries, whether or not such contractors or subcontractors
causing damage bring property or employees to SHI's SPPF or
retain title to other interest in property provided by them to
be used, or otherwise involved, in the payload processing and
Launch Activity. Specifically, the parties intend to protect
these contractors and subcontractors from claims, including
"products liability" claims, which might otherwise be pursued by
the parties, or the contractors or subcontractors of the
parties, or other customers of SHI or the contractors or
subcontractors of such other customers. Moreover, it is the
intent of the parties that each will take all necessary and
reasonable steps to foreclose claims for damage by any
participant in a payload processing and Launch Activity, under
the same conditions and to the same extent as set forth in
Section 8a above, except for claims between INTOSPACE and its
contractors or subcontractors and claims between SHI and its
contractors and subcontractors.
c. Broad Construction of Inter-Party Waiver.
The parties intend that the inter-party waiver of liability set
forth above be broadly construed to achieve be intended
objectives.
d. Definitions of "payload processing activity" and "STS
Operations".
"Payload processing activity" means all activity conducted at
the SPPF or a NASA facility associated with the preparation of
the payload(s) (including but not limited to the Exhibit A
experiments) for launch and SHI and/or NASA storage of all or a
portion of the payload(s), and the handling and transportation
of all or a portion of the payload(s) outside the confines of
SHI's facility by SHI, NASA, or their contractors or
subcontractors:
"STS Operations" means:
A. All Space Shuttle System Activity
B. All payload operations
C. Use of all tangible personal property (including ground
support, test, training and simulation equipment
related to A & B above).
D. Research, design, development, test, manufacture,
assembly, integration, transportation, or use of
materials related to the above items, A, B & C.
E. Performance of any activities related to A through D.
e. The protection of cross waiver of liability for STS Operations
herein agreed to shall cover a period of time during which STS
Operations are being performed as follows:
Beginning with the signature of an Agreement or Arrangement with
NASA for Space Transportation System services and (i) when any
employee, payload or property arrives at a United States
Government Installation, or (ii) during transportation of such
to the installation by a United States Government Conveyance, or
(iii) at ingress of such into an
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Orbiter, for the purpose of fulfilling such Agreement or
Arrangement, or (iv) the commencement of extravehicular
activities by the Shuttle Crew for the purpose of retrieval of
the payload, whichever occurs first and Ending with regard to
any employee, payload or property, when such employee, payload
or property departs (i) a U.S. Government Installation, or (ii)
the Orbiter if it lands at other than such Installation, or
(iii) a U.S. Government conveyance which transports the employee
and/or payload and related property from such Installation or
Orbiter.
f. Risk of Patent Infringement
(i) SHI agrees to indemnify MITSUBISHI, its officers,
employees and agents against any United States Patent
infringement costs (including, but not limited to, any
judgment against MITSUBISHI by a court of competent
jurisdiction, reasonable administrative and litigation
costs, and settlement payments made as a result of an
administrative claim) incurred by MITSUBISHI which are
attributable to products, processes or articles of
manufacture used in the facilities and Services to be
furnished to MITSUBISHI by SHI hereunder.
(ii) MITSUBISHI agrees to indemnify SHI and NASA, their
officers, employees and agents against any United
States Patent infringement costs (including, but not
limited to, judgment against SHI by a court of
competent jurisdiction, reasonable administrative and
litigation costs, and settlement payments made as a
result of an administration claim) incurred by SHI
and/or NASA which are attributable to products,
processes or articles of manufacture used in Exhibit A
experiments and any supporting equipment and facilities
brought to the SHI SPPF by MITSUBISHI or MITSUBISHI's
contractors or subcontractors and any activity
performed at SHI or NASA facilities by MITSUBISHI or
MITSUBISHI's contractors or subcontractors and any
activity performed at SHI or NASA facilities by
MITSUBISHI or MITSUBISHI's contractors or
subcontractors.
g. Limitation of SHI and MITSUBISHI Liability
Notwithstanding any other provisions herein, to the extent that
a risk of damage is not dealt with expressly in this Agreement,
SHI's and MITSUBISHI's liability under this Agreement, whether
or not arising as a result of an alleged breach of this
Agreement, shall be limited to direct damages only and shall not
include any loss of revenue, profits or other indirect or
consequential damages.
10. ASSISTANCE WITH THIRD PARTY CLAIMS
In the event a third party claim is asserted against SHI or MITSUBISHI
as a result of patent infringement, use of proprietary data, or damage,
including claims of their respective contractors or subcontractors,
arising from or in connection with the Services provided by SHI under
this Agreement, SHI and MITSUBISHI each agree to give prompt notice to
the other of any such claim and agree to provide each other with any
assistance practicable in the defense against such claim. If a claim
asserted against one party is a claim under this Agreement, the party
who has agreed to indemnify shall have the right to intervene and
defend, the right to control litigation of, and the right to determine
the appropriateness of any settlement related to such claim.
11. WARRANTIES
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SHI makes no warranties of any kind, express or implied, including any
implied warranty of merchantibility or fitness for a particular
purpose.
12. PUBLICITY RELATING TO AGREEMENT
In cases where one Party intends to use results obtained from this
Agreement or advertise his role in this Agreement, it shall first
request the other Party for its prior written approval, which shall not
be unreasonably withheld.
13. APPLICABLE LAW
The Agreement shall be governed by the law of the State of Virginia.
14. ARBITRATION/DISPUTES
Disputes arising out of the interpretation or execution of this
Agreement which cannot be resolved by negotiation shall, at the request
of either Party, (after giving 30 days notice to the other Party) be
submitted to arbitration. The arbitration tribunal shall sit in
Hannover, Germany. Disputes shall be finally settled in accordance with
the Rules of Conciliation and Arbitration of the International Chamber
of Commerce by one or more arbitrators designated in conformity with
those Rules. The decision to submit a dispute shall not excuse either
party from the timely performance of its obligations hereunder which
are not the subject matter of the dispute. Further, if the lack of
resolution of the matter in dispute will adversely impact the timely
completion of preparation for launch activities, MITSUBISHI and SHI
will perform the matter in dispute in the manner determined by SHI,
within the framework of this Agreement and without prejudice to the
final resolution of the matter in dispute.
15. TERMINATION OF SERVICES
Both parties have the right to terminate this Agreement pursuant to the
following conditions only:
a. SHI may terminate this Agreement:
(i) In the event NHK delivers any payload described in the
SOW so late beyond the mutually agreed upon delivery
date that SHI, in its sole reasonable judgment, is
unable to process such payload in time to meet the
launch schedule, SHI will terminate this Agreement and
shall retain all payments made by MITSUBISHI to the date
of termination, and MITSUBISHI is further liable for all
costs incurred by SHI as a result of such NHK failure,
or
(ii) in the event of a material breach by MITSUBISHI which
MITSUBISHI fails to cure within a reasonable time after
written notice received from SHI (or immediately upon a
non-curable breach), in which case SHI shall retain all
payments made to the date of the termination, and
MITSUBISHI is further liable for all costs incurred by
SHI resulting from MITSUBISHI's breach of the Agreement
or,
(iii) as a result of any actions or inactions by NASA which
prevent the manifesting of the Exhibit A experiments on
STS-95, in which case SHI shall be entitled to all
applicable payments hereunder received, plus the
Integration and Optional Services (if any) actual costs
incurred up to the time of termination, as well
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as all termination charges which may be imposed by
third parties (such as NASA or SHI subcontractors).
b. MITSUBISHI may terminate this Agreement:
(i) without cause at any time before installation of the
Exhibit A experiments into the SHI module upon
sufficient written notification to SHI of such intent,
in which case MITSUBISHI shall be liable for and SHI
shall retain all applicable payments hereunder received,
plus the Integration and Optional Services (if any)
actual costs incurred up to the time of termination, as
well as all termination charges which may be imposed by
third parties (such as NASA or SHI subcontractors), or,
(ii) in the event of material breach by SHI which SHI fails
to cure in a reasonable time after written notice of
such material breach is received from MITSUBISHI, in
which case MITSUBISHI will be relieved from making any
further payments to SHI subsequent to the material
breach hereof.
c. Termination In Special Cases: MITSUBISHI may at any time
terminate this Agreement by giving written notice with immediate
effect in any of the following events:
(i) if SHI becomes insolvent or if its financial position is
such that within the framework of its national law,
legal action leading towards bankruptcy may be taken
against it by its creditors;
(ii) if SHI resorts to fraudulent practices in connection
with the contract, especially by deceit concerning the
nature, quality or quantity of the supplies, and the
methods or processes of manufacture employed or by the
giving or offering of gifts or remuneration for the
purpose of bribery to any person in the employ of an NHK
Member State or of NHK or acting on its behalf,
irrespective of whether such bribes or remuneration are
made on the initiative of SHI or otherwise.
16. ASSIGNMENTS
No party shall assign to another person or entity any part of its
rights under this Agreement, including but not limited to rights for
services related to scheduled launches, unless otherwise expressly
agreed to by the other party in writing, or as may be required pursuant
to law.
17. NOTICES
All notices, requests, demands, and other communication hereunder shall
be in writing and shall be either (1) personally delivered, (2) sent by
mail or reputable overnight delivery service, or (3) transmitted by
facsimile machine as follows:
To SHI: Nelda Wilbanks
Contracts Administrator
SPACEHAB, Inc.
1595 Spring Hill Road, Suite 360
Vienna, VA 22182
To MITSUBISHI: Kazushi Ochi
Mitsubishi Corporation
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2-6-3 Marunouchi, Chiyoda-ku
Tokyo, Japan 100-86
The effective date of each notice, demand, request or other
communication shall be deemed to be: (1) the date of receipt if
delivered personally or by mail or overnight delivery service, or (2)
the date of transmission if by facsimile. Either party may change its
address or designee for purposes hereof by informing the other party in
writing of such action and the effective date of such change.
18. FORCE MAJEURE
Neither party shall be liable for delays or breaches hereof resulting
from events or acts beyond the control of such party, including but not
limited to acts of God, strikes, lockouts, riots, acts of war,
epidemics, governmental regulations, and natural disasters. Upon the
occurrence of such event, the party whose performance is affected shall
use reasonable efforts to notify the other party of the nature and
extent of any such condition and negotiate its affects.
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19. COMPLETE AGREEMENT
This Agreement constitutes the complete agreement and understanding
with respect to the subject matter hereof between the parties.
Mitsubishi Corporation SPACEHAB, Inc.
BY: By:
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Name: Kazushi Ochi Name: Nelda Wilbanks
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General Manager
Title: Space Systems Unit Title: Contracts Administrator
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EXHIBIT A
EXPERIMENT LIST
1. NHK CAMERA (HAND-HELD) AND ALL ASSOCIATED SUPPORT HARDWARE, INCLUDING,
BUT NOT LIMITED TO, LENSES, CABLES AND MICROPHONE.
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EXHIBIT C
SHI-MITSUBISHI (NHK) STATEMENT OF WORK:
I. GENERAL DESCRIPTION OF SHI INTEGRATION AND FLIGHT SERVICES
SHI will provide and maintain a pressurized module ("SPACEHAB") that
fits in the cargo bay of the National Aeronautics and Space
Administration's ("NASA") Space Shuttle Orbiter ("Shuttle") to act as
the carrier and interface between the Shuttle and the NHK-provided
camera hardware. The camera will be analytically, physically and
operationally integrated with other user payloads into the SPACEHAB.
Standard SHI services will include launch into orbit, in-orbit
operation by a trained flight crew, return to the launch site and to
the SPACEHAB Payload Processing Facility (SPPF), deintegration, and
return of camera hardware to NHK. No optional service requirements such
as experiment hardware late access and early retrieval will be provided
by SPACEHAB.
II. RESPONSIBILITIES OF SPACEHAB, INC. (SHI)
PROVISION OF STANDARD SERVICES
In support of the flight of the NHK-provided camera aboard the SPACEHAB
module on STS 95, SHI shall perform the following "standard" services.
1. SHI will negotiate and execute all agreements with NASA, which are
required to manifest the camera aboard SPACEHAB on STS 95.
2. SHI will provide a primary point of contact (Payload Coordinator)
to assist NHK in the provision of the required information and
hardware to support STS-95 mission integration milestones and to
facilitate all aspects of the mission integration process with
NHK.
3. In cooperation with NHK, SHI will develop an Interface Control
Document which defines all required technical and operational
interfaces between the NHK camera and the SPACEHAB module.
4. SHI will integrate the NHK camera into the STS-95 mission
operations timeline to accomplish all required video recording
objectives. The camera will hand-held only, with all images
recorded onboard for post-flight utilization (i.e., no real-time
TV downlink will be baselined or provided). Note: SPACEHAB will
continue to assess the technical feasibility of connecting the NHK
TV camera to our video downlink system so that we may identify any
issues should the flight crew desire to use the camera for
real-time video at a later time. This will be a secondary
objective only.
5. SHI will develop and publish flight procedures which enable the
flight crew to perform all required mission objectives. The NHK
camera will be flown as a "shared camcorder" and, consequently,
may be used by the flight crew to document other experiment
requirements (NASA and commercial) as required to support
integrated mission objectives. Best efforts will be made by
SPACEHAB to satisfy unique NHK video requirements which will be
fully documented in the ICD.
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6. SHI will physically prepare the NHK camera hardware for flight at
the SPACEHAB Payload Processing facility and stow all camera
hardware in a suitable containment compartment onboard the
SPACEHAB module.
7. SHI will provide the required flight operations support to the NHK
camera in-flight operations and work any issues with respect to
flight crew schedule or hardware performance for the duration of
the mission.
8. SHI will provide for the post-flight return of the NHK camera and
all related hardware to NHK as soon as possible following the
Shuttle landing.
9. SHI will designate a contract development and implementation
manager who will be responsible for coordinating with a
Mitsubishic counterpart all financial, scheduling, implementation
progress reporting and policy matters related to this contract.
III. RESPONSIBILITIES OF MITSUBISHI
Mitsubishi will serve as NHK's administrative agent for establishing a
contract relationship with SHI. Therefore, it is Mitsubishi's
responsibility to establish and maintain this contract directly with
SHI, on NHK's behalf, in order for NHK to obtain from SHI the necessary
lease and integration services required for the successful flight of
the camera in the SPACEHAB module. Acting in this capacity, Mitsubishi
will:
A. Facilitate NHK's completion of the following critical preparatory
functions in support of the flight of the Experiments:
1. Timely delivery of the NHK-provided camera hardware and materials to
the SPPF for preflight processing.
2. NHK support to meetings, teleconferences, flight crew training
sessions, integrated mission simulations and real-time missions
operations
3. Designation of NHK technical points of contact that will be
responsible for coordinating with the SHI Payload Coordinator all
technical activities to be performed under this Agreement
B. Designation of an Mitsubishi Contract Development and Implementation
Manager (CDIM) who will be responsible for coordinating with the SHI
CDIM all financial, scheduling, implementation progress reporting and
policy matters related to this contract.
C. Establishment and maintenance of the required contract(s) with NHK
to facilitate NHK sponsorship of the flight of the camera on STS 95.
D. Establishment and maintenance of the required contract with SHI to
obtain SHI lease and integration services necessary for the flight of
the Experiments in SPACEHAB on STS 95.
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E. Receipt of established contract milestone payments from NHK and
provision of established contract milestone payments to SHI for
performance of these required services.
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