1
EXHIBIT 10.22
OGS-IMI-C-01-301
ORBIMAGE GROUND STATION CONTRACT
FOR
NTT DATA CORPORATION
BETWEEN
IMAGE MEASUREMENTS, INC.
AND
ORBITAL IMAGING COPORATION
(C) Copyright Orbital Imaging Corporation, 1999
All Rights Reserved
21700 Atlantic Boulevard
Dulles, Virginia
[ORBIMAGE GLOBAL IMAGING INFORMATION LOGO] 20166
Telephone (703) 406-5800
Fax (703) 406-5552
- --------------------------------------------------------------------------------
RESTRICTION ON USE, PUBLICATION, OR
DISCLOSURE OF PROPRIETARY INFORMATION
This document contains information proprietary to Orbital Imaging Corporation to
its subsidiaries, affiliates, or to a third party to which Orbital Imaging
Corporation may have a legal obligation to protect such information from
unauthorized disclosure, use or duplication. Any disclosure, use or duplication
of this document or of any of the information contained herein for other than
the specific purpose for which it was disclosed is expressly prohibited, except
as Orbital Imaging Corporation may otherwise agree to in writing. Consistent
with the export control regulations of the United States, this document must be
returned to Orbital Imaging Corporation within one year from the date of
shipment or upon demand by Orbital Imaging Corporation.
2
ORBIMAGE GROUND STATION CONTRACT
CONTRACT NUMBER: OGS-IMI-C-01-301
THIS ORBIMAGE GROUND STATION CONTRACT (the "Contract") is entered
into as of July 26, 1999 by and between ORBITAL IMAGING CORPORATION
("ORBIMAGE"), a Delaware corporation, with its principal place of business
located at 21700 Atlantic Boulevard, Dulles, Virginia 20166, and IMAGE
MEASUREMENTS INC. ("CUSTOMER"), a Japanese corporation, with its principal place
of business located at Nishi Shinjuku Sanko Building, 7-22-35, Nishi Sinjuku,
Tokyo, Japan.
RECITALS
WHEREAS, CUSTOMER desires to purchase a turnkey ORBIMAGE Ground
Station ("OGS") capable of OrbView-3 and OrbView-4 data reception, recording,
archiving, cataloging, ordering and product generation for the panchromatic and
multispectral sensors on the OrbView-3 and OrbView-4 satellites; and
WHEREAS, CUSTOMER intends to purchase the OGS System on behalf of
NTT Data Corporation ("NTT Data"); and
WHEREAS, upon execution of the On-Site Acceptance Certificate (as
described herein) and payment in full for the OGS, CUSTOMER shall transfer title
to the OGS, and assign all of its rights and obligations under this Contract to
NTT Data, including, without limitation, the Licenses described in GC-15; and
WHEREAS, ORBIMAGE desires to provide said OGS based upon the terms
and conditions set forth in this Contract.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties, intending to be
legally bound, hereby agree as follows:
ARTICLE 1.0 THE CONTRACT
This Contract shall consist of the Exhibits set forth below, which
are hereby incorporated and made part of this Contract by this reference. Any
inconsistency between or among this Contract and the Exhibits attached hereto
shall be resolved in the following order of precedence:
(i) This Contract;
ORBITAL IMAGING CORPORATION
CONFIDENTIAL AND PROPRIETARY INFORMATION
3
(ii) Exhibit A - General Conditions;
(iii) Exhibit B - Price Schedule and Payment Terms;
(iv) Exhibit C - Statement of Work;
(v) Exhibit D - Technical Specification.
(vi) Exhibit E - Contract Data Requirements List (CDRL)
(vii) Exhibit F - Preliminary List of Contract Deliverables
ARTICLE 2.0 WORK TO BE PERFORMED
Except as specified elsewhere in this Contract, ORBIMAGE shall
furnish all labor, materials, tools, supplies, equipment, transportation,
supervision, technical, professional and other services, and, shall serve as the
prime integrator and perform integration, delivery, installation and other
technical services in accordance with this Contract.
ARTICLE 3.0 CONTRACT TYPE, EFFECTIVE DATE; PERIOD OF PERFORMANCE
(a) Work authorized under this Contract shall be performed on a Firm
Fixed Price ("FFP") basis as set forth in Exhibit B.
(b) The Effective Date of this Contract shall be the date first
above written.
(c) The Period of Performance for this Contract shall be specified
in Exhibit B (Price Schedule and Payment Terms). The Period of Performance for
this Contract may only be extended in writing by mutual agreement of the parties
hereto.
ARTICLE 4.0 CONSIDERATION; LETTER OF CREDIT
For ORBIMAGE's satisfactory and complete performance of this
Contract, CUSTOMER shall pay ORBIMAGE in accordance with the payment terms set
forth in Exhibit B (Price Schedule and Payment Terms) hereto. As a condition
precedent to ORBIMAGE's commencement of work hereunder, CUSTOMER shall open an
irrevocable letter of credit valid through December 31, 2001 with Sanwa Bank for
the benefit of ORBIMAGE (or its designee) for the full amount of this Contract
as set forth in Exhibit B, which letter shall be in such form as is reasonably
acceptable to
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ORBITAL IMAGING CORPORATION
CONFIDENTIAL AND PROPRIETARY INFORMATION
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ORBIMAGE (or its designee). In the event of a dispute, as specified in GC-18,
the letter of credit shall be maintained by CUSTOMER until such dispute is
resolved.
IN WITNESS WHEREOF, the parties have caused this Contract to be
executed as of the date first above written.
IMAGE MEASUREMENTS INC. ORBITAL IMAGING CORPORATION
By: By:
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Name Name
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Title Title
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ORBITAL IMAGING CORPORATION
CONFIDENTIAL AND PROPRIETARY INFORMATION
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OGS-IMI-C-01-301
EXHIBIT A
---------
GENERAL CONDITIONS
TO
ORBIMAGE GROUND STATION CONTRACT
FOR
NTT DATA CORPORATION
BETWEEN
IMAGE MEASUREMENTS, INC.
AND
ORBITAL IMAGING COPORATION
(C) Copyright Orbital Imaging Corporation, 1999
All Rights Reserved
21700 Atlantic Boulevard
Dulles, Virginia
[ORBIMAGE GLOBAL IMAGING INFORMATION LOGO] 20166
Telephone (703) 406-5800
Fax (703) 406-5552
- --------------------------------------------------------------------------------
RESTRICTION ON USE, PUBLICATION, OR
DISCLOSURE OF PROPRIETARY INFORMATION
This document contains information proprietary to Orbital Imaging Corporation to
its subsidiaries, affiliates, or to a third party to which Orbital Imaging
Corporation may have a legal obligation to protect such information from
unauthorized disclosure, use or duplication. Any disclosure, use or duplication
of this document or of any of the information contained herein for other than
the specific purpose for which it was disclosed is expressly prohibited, except
as Orbital Imaging Corporation may otherwise agree to in writing. Consistent
with the export control regulations of the United States, this document must be
returned to Orbital Imaging Corporation within one year from the date of
shipment or upon demand by Orbital Imaging Corporation.
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ORBIMAGE GROUND STATION CONTRACT
CONTRACT NUMBER: OGS-IMI-C-01-301
EXHIBIT A
General Conditions
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GC-1 DEFINITIONS
As used in this Contract, each of the following terms has the
meaning set forth thereafter, such meaning to be equally applicable both to the
singular and plural forms of the terms herein defined:
"Acceptance Test Procedures" or "ATPs" means the procedures developed to test
the Technical Specifications of the OGS System as required under this Contract,
which can be designated by ORBIMAGE as "Factory," "On-Site," "System" or
otherwise as appropriate to describe the type of test to be conducted.
"Contract Line Item Number" or "CLIN" means the individual line items available
under this Contract as specified in Exhibit B.
"Commercial-Off-The-Shelf" or "COTS" means, for the purposes of GC-14
(Intellectual Property Rights), proprietary software products and/or tools owned
or under the control of its respective owner or exclusive licensee that is
offered to the public for sale at published prices and includes the availability
of post delivery support services at published prices.
"Contract" means this ORBIMAGE Ground Station Contract (i.e., Contract No.
OGS-IMI-C-01-301) between ORBIMAGE and CUSTOMER, dated _____________, 1999, and
all Exhibits thereto as specified in Article 1.0 of the Contract.
"Contractor Hardware" means hardware owned by ORBIMAGE for which title does not
transfer to CUSTOMER.
"Destination Country" means Japan.
"Developed Item" or "DI" means for the purposes of GC-14 (Intellectual Property
Rights), a software program or tool developed by ORBIMAGE or its Subcontractors
for the first time under this Contract.
"Factory Acceptance Certificate" means an official written statement signed by
CUSTOMER indicating that part or all of the OGS System has been implemented,
completed and tested satisfactorily according to the Factory Acceptance Test in
accordance with this Contract.
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ORBITAL IMAGING CORPORATION
CONFIDENTIAL AND PROPRIETARY INFORMATION
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"Factory Acceptance Test" or "FAT" means the test undertaken at ORBIMAGE's or
its Subcontractor's or suppliers' facility to certify that the Supply, Service
or Goods meets the functional requirements of Exhibit D (Technical
Specification).
"Goods", "Equipment", "Supplies" or "Works" means the System, System Hardware
and Software, Firmware, Equipment and relevant documentation and handbooks to be
furnished to CUSTOMER or services to be rendered by ORBIMAGE and/or its
Subcontractor(s) under this Contract.
"Incoterms" means the international rules for the interpretation of trade terms
as published by ICC Publishing SA, 38 Cours Albert 1er, 75008 Paris, France, as
first published in 1953 and reprinted in 1967, 1974, 1976, 1980 and in 1990. All
shipping terms referred to herein, such as FOB, CIF, CIP and the like means
those terms pursuant to Incoterms 1990.
"MacDonald Dettwiler" means MacDonald Dettwiler and Associates Ltd., a Canadian
corporation and a subsidiary of Orbital Sciences Corporation.
"Modified COTS" and "Modified NDI" for the purposes of GC-14 (Intellectual
Property Rights), refers to Commercial-Off-the-Shelf and Non-Development Items
to which significant modifications are made such that the identity, function and
form of the original proprietary software product or tool is lost.
"Month" means a Gregorian calendar month.
"Non-Development Item" or "NDI" means for the purposes of GC-14 (Intellectual
Property Rights), any existing proprietary software products and/or tools owned
by ORBIMAGE or its Subcontractors. With respect to MacDonald Dettwiler, NDI
include, without limitation, NDI owned by MacDonald Dettwiler or which MacDonald
Dettwiler has developed for the Canadian Government and has been granted
exclusive rights to by the Canadian Government.
"NSP" means not separately priced.
"NTT Data Corporation" or "NTT Data" means the corporation organized and
existing under the laws of Japan, appointed by ORBIMAGE to serve as a
distributor of OrbView-3 and OrbView-4 data in the Territory, pursuant to the
terms and conditions set forth in the ORBIMAGE Distribution Agreement dated
March 18, 1999 between NTT Data and ORBIMAGE.
"OSAT" means on-site acceptance test.
"OGS" has the meaning set forth in the Recitals to the Contract.
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ORBITAL IMAGING CORPORATION
CONFIDENTIAL AND PROPRIETARY INFORMATION
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"OGS System" means the Hardware, Software, Firmware and Technical Data and
includes all other materials/elements that individually or collectively
constitute the OGS. The OGS is a turnkey system which receives data from the
OrbView-3 and OrbView-4 satellites and stores, retrieves, processes and
manipulates such data to form products in accordance with Exhibit D (Technical
Specifications).
"On-Site Acceptance Certificate" means an official written statement signed by
CUSTOMER indicating that part or all of the OGS System has been implemented,
completed and tested satisfactorily according to the On-Site Acceptance Test
prescribed in this Contract.
"On-Site" Acceptance Test(s)" or "OSAT" means a test undertaken at a site or
field location to certify that the Supply, Service or Goods meets the
requirements of Exhibit D (Technical Specification). OSAT includes real time
data reception from OrbView-3 or OrbView-4, but does not include the integration
of subsystem components required to be provided by CUSTOMER hereunder.
"Period of Performance" has the meaning set forth in Article 3.0(c) of the
Contract.
"Provisional Acceptance Certificate" means a written statement signed by
CUSTOMER indicating that part or all of the OGS System has been implemented,
completed and tested satisfactorily according to the Provisional Acceptance Test
prescribed in this Contract.
"Provisional Acceptance Test" or "PAT" means the test undertaken by ORBIMAGE or
its Subcontractor(s) to certify that a separate identified part(s) of the Work
meets the requirements of this Contract.
"Site" means the actual place or places where the Goods are to be delivered and
installed, or where the Work is to be done by ORBIMAGE or its Subcontractor(s).
"Subcontract" means an agreement entered into between ORBIMAGE and another
person, company, corporation or other entity for the furnishing of materials and
services as a part of the Work.
"Subcontractor" means any party or parties (other than ORBIMAGE) to whom all or
any portion of the Goods and Work have been assigned by ORBIMAGE pursuant to a
Subcontract.
"Technical Documentation" means any and all designs, technical reports,
photographs, drawings, plans, manuals, specifications and computer software
relating to the Work.
"Technical Information" means any and all recorded information of a scientific
or technical nature relating to the Work, including, without, limitation,
experimental and test data, techniques, methods, processes, know-how,
inventions, magnetic tape, computer memory printouts or data retained in
computer memory, and any other technical data in whatever form presented and
whether or not susceptible to copyright.
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ORBITAL IMAGING CORPORATION
CONFIDENTIAL AND PROPRIETARY INFORMATION
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"Vendor Software" means for the purposes of GC-14 (Intellectual Property
Rights), Commercial Off-the-Shelf not owned by ORBIMAGE or its Subcontractors
and which is subject to the terms and conditions of licenses granted by the
vendor thereof.
"Work" means all things done or required to be done and all operations, duties
and obligations executed or to be executed by ORBIMAGE as specified, shown or
indicated in this Contract including, without limitation, all extra work,
changes, substitutions and variations in Work ordered by CUSTOMER in accordance
with this Contract.
GC-2 INDEPENDENT CONTRACTOR
ORBIMAGE shall act as an independent contractor and not as the
agent of CUSTOMER in performing the Contract, maintaining complete control over
its employees and all of its Subcontractors. Nothing contained in this Contract
or any Subcontract awarded to any Subcontractor by ORBIMAGE shall create any
contractual relationship between any such Subcontractor and CUSTOMER. ORBIMAGE
shall perform all Work in accordance with its own methods subject to compliance
with this Contract.
GC-3 AUTHORIZED REPRESENTATIVES
(a) Before commencing work under this Contract, ORBIMAGE shall
designate one or more person(s) as its authorized representative whom can
represent the overall interests of ORBIMAGE under the Contract. ORBIMAGE shall
provide the name, address, telephone and facsimile numbers of such
representative(s), and of any changes thereto, together with a clear definition
of the scope of his/her authority to represent and act for ORBIMAGE, and shall
specify any and all limitations of such authority.
(b) Before ORBIMAGE commences work under this Contract, CUSTOMER
shall designate one or more persons as its authorized representatives whom can
represent the overall interests of CUSTOMER under the Contract. CUSTOMER shall
provide the name, address, telephone and facsimile numbers of such
representative, and of any changes thereto, together with a clear definition of
the scope of his/her authority to represent and act for CUSTOMER, and shall
specify any and all limitations of such authority.
GC-4 NOTICES
All notices given under this Contract shall be in writing and
shall be given by (i) hand delivery, (ii) facsimile, (iii) by a recognized
international overnight courier guaranteeing at least three-day delivery or (iv)
by registered or certified mail, return receipt requested and postage
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ORBITAL IMAGING CORPORATION
CONFIDENTIAL AND PROPRIETARY INFORMATION
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prepaid (if available), to the persons set forth below. All such notices shall
be deemed to have been duly given: (i) when receipt acknowledged, if faxed; (ii)
five (5) business days after the date of mailing by sender, or (iii) the date of
actual receipt, if given by hand or international courier.
If to CUSTOMER:
Image Measurements Inc.
Nishi Shinjuku Sanko Bldg., 7-22-35
Nishi Shinjuku, Tokyo, JAPAN
Attn: OGS Program Manager
Telefax: 81-3-3365-3646
If to ORBIMAGE:
Orbital Imaging Corporation
21700 Atlantic Boulevard
Dulles, Virginia, 20166, USA
Attn: Program Manager
Telefax: (703) 404-8061
GC-5 WARRANTY
(a) ORBIMAGE warrants that the Equipment purchased for the OGS
System shall be of new material and of the stated performance at the time the
order is placed with the Suppliers and Vendors.
(b) ORBIMAGE hereby warrants for a period of twelve (12) months
from the date of the successful completion of the On-Site Acceptance Test for
the OGS System, as evidenced by the issuance of an On-Site Acceptance
Certificate in accordance with the Contract, that the overall performance of the
OGS System will be in accordance with the Technical Specifications set forth in
Exhibit D. The foregoing warranty does not apply to damage or defects
attributable to negligence or misuse of the OGS System, including, without
limitation, any Goods, on the part of CUSTOMER or its agents, or repair or
alteration of the OGS System (including Goods) by CUSTOMER or its agents not in
accordance with ORBIMAGE's procedures and/or instructions.
(c) ORBIMAGE hereby warrants for a period of twelve (12) months
from the date of the successful completion of the On-Site Acceptance Test for
the OGS System, as evidenced by the issuance of an On-Site Acceptance
Certificate in accordance with the Contract, that the Goods are free from
defects arising out of faulty or defective material or components, including,
without limitation, software design and inferior workmanship, excluding normal
wear and tear.
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ORBITAL IMAGING CORPORATION
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(d) Notice of all claimed defects must be provided in writing to
ORBIMAGE within the warranty period. ORBIMAGE shall determine after inspection
that the Goods were in fact, defective, and shall then promptly repair or
replace such Goods to conform with the applicable Technical Specifications set
forth in Exhibit D without any charge. ORBIMAGE shall at its option repair the
defective Goods on-site or have the said Goods returned to the original
supplier's facility. All shipping and insurance costs associated with shipment
of these items by CUSTOMER to ORBIMAGE shall be paid by ORBIMAGE, unless
ORBIMAGE determines that the damage or defects were attributable to negligence
or misuse of Goods on the part of CUSTOMER or its agents. The warranties set
forth herein is CUSTOMER's sole and exclusive remedy against ORBIMAGE for
damaged or defective Goods.
(e) CUSTOMER ACKNOWLEDGES AND AGREES THAT (I) THE LIMITED
WARRANTY SET FORTH IN THIS GC-5 IS THE SOLE AND EXCLUSIVE WARRANTY MADE BY
ORBIMAGE, (II) IS IN LIEU OF ALL OTHER WARRANTIES, AND (III) THAT ORBIMAGE DOES
NOT MAKE, NOR SHALL BE DEEMED TO HAVE MADE, ANY OTHER WARRANTIES, GUARANTEES OR
REPRESENTATIONS OF ANY NATURE WHATSOEVER WITH RESPECT TO THE CONTRACT, THE OGS
SYSTEM OR ANY OF THE GOODS OR SERVICES BEING PROVIDED PURSUANT TO THE CONTRACT,
WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE RELATING TO
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR FUNCTION AND WHETHER
ARISING OUT OF STATUTE, LAW, EQUITY, COURSE OF DEALING, USAGE OF TRADE OR
OTHERWISE.
GC-6 INSURANCE
Without limitation to its obligations and responsibilities under
this Contract, ORBIMAGE shall obtain insurance against loss or damages in such
forms as prescribed below;
(a) Freight and Transport and Installation Insurance.
ORBIMAGE shall obtain insurance for each shipment to the Site by
inland and/or overseas transportation, from the factories or any other
originating places of Goods outside or within the Destination Country, including
temporary storage and local manufacturing under the following provisions:
(i) The insurance coverage amount shall be based upon
the price of the Goods (in US dollars) added to the freight and cost
of insurance (cost insurance freight) and in-country transportation
costs.
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(ii) Insurance will be against "All Risks" of physical
loss or damage from any external cause including strikes, riots and
civil commotions risks in accordance with standard insurance
industry provisions.
The above insurance will be extended to cover installation,
testing and demonstration, as applicable, or until which time the On-Site
Acceptance Certificate is executed by CUSTOMER.
(b) Third Party Liability Insurance.
ORBIMAGE shall obtain insurance against all damage to CUSTOMER's
and/or third-party's property resulting directly from the Work done by ORBIMAGE.
ORBIMAGE's liability shall be limited to One Million Dollars (US$1,000,000) per
occasion for both property damage and personnel injury, including death. In the
event of such loss or damage, ORBIMAGE shall provide similar Goods as
replacement and such Goods shall conform to the specifications set forth herein.
(c) System Outages and Failure.
(i) In the event that the OrbView-3 satellite fails prior to the
date on which it is declared to be operational by ORBIMAGE, and upon written
demand by ORBIMAGE, CUSTOMER shall promptly return all delivered Works to
ORBIMAGE and upon receipt of such Works, ORBIMAGE shall reimburse CUSTOMER for
the cost of returning such Works.
(ii) Notwithstanding the foregoing, if prior to any such failure
CUSTOMER uses the Works, or any portion thereof furnished under this Contract
for any purpose at any time, such use shall acknowledge CUSTOMER's acceptance of
the OGS System and shall enable ORBIMAGE to present the On-Site Acceptance
Certificate for immediate payment. However, ORBIMAGE shall have the option to
require CUSTOMER to return such Works to ORBIMAGE. Upon written demand by
ORBIMAGE, CUSTOMER shall promptly return all delivered Works to ORBIMAGE and
upon receipt of such Works, ORBIMAGE shall reimburse CUSTOMER for the cost of
returning such Works.
(iii) In the event ORBIMAGE has delivered Works to CUSTOMER but
is unable to complete OSAT, ORBIMAGE shall have the right in its sole discretion
to immediately recover all delivered Works. Upon written demand by ORBIMAGE,
CUSTOMER shall promptly return all delivered Works to ORBIMAGE and upon receipt
of such Works, ORBIMAGE shall reimburse CUSTOMER for the cost of returning such
Works.
GC-7 LIMITATION OF LIABILITY
(a) ORBIMAGE'S ENTIRE LIABILITY TO CUSTOMER FOR ANY AND ALL CLAIMS,
DAMAGES, LOSSES, COSTS, EXPENSES OR OTHER LIABILITIES OF ANY
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NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, PATENT INDEMNIFICATION CLAIMS
AND ATTORNEYS' FEES, INCURRED BY CUSTOMER IN CONNECTION WITH THIS CONTRACT OR AS
A RESULT OF ORBIMAGE'S OR ITS SUBCONTRACTOR'S PERFORMANCE OF THIS CONTRACT SHALL
NOT EXCEED THE TOTAL PRICE ACTUALLY PAID BY CUSTOMER FOR THE OGS SYSTEM.
(b) ORBIMAGE shall not be held liable for bodily injury, property
damage or other losses sustained by third parties (including the employees and
agents of CUSTOMER), which may arise in consequence of the execution and/or
completion of the Work, nor for damage inflicted or loss sustained in respect of
the equipment or of any property of CUSTOMER, unless such injuries, damages or
losses are due to the sole negligence of ORBIMAGE or its Subcontractors.
(c) NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT
SHALL ORBIMAGE HAVE ANY LIABILITY OR OBLIGATION TO CUSTOMER UNDER THIS CONTRACT
FOR LOSS OF USE, REVENUE OR PROFIT, BUSINESS INTERRUPTION, OR FOR ANY SPECIAL,
EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES HEREUNDER,
WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, EVEN IF ORBIMAGE HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
GC-8 FORCE MAJEURE
(a) If there is a delay in production of any part of the Goods or
non-performance of the Work due to causes beyond either party's control,
including the consequences of the Modification or the OGS System testing, then
in any such case either party shall, for the duration of any such causes, be
relieved of its obligations to produce the part of the Goods and/or Work thereby
affected, but the provisions of this Contract shall remain fully valid with
regard to the development, integration, installation and testing of those parts
of the Goods and Work not affected by such causes.
(b) If either party at any time has reason to believe that the
Period of Performance will need to be extended by virtue of Force Majeure such
as an act of God or public enemy, governmental acts, including, without
limitation, any governmental, regulatory or administrative measures, including
export control license requirements, that impede, or otherwise delay, the
performance of the obligations of either party hereto, fire, flood, earthquake,
landslide or other damage to roads, epidemics, quarantine restrictions, strike,
lockout, sabotage, combination of workmen and freight embargoes, then the party
so affected shall promptly notify the other party within seven (7) business days
of the occurrence of such event and shall subsequently specify in writing the
actual period of delay so caused by the factor which was beyond its control,
accompanied by appropriate supporting evidence in the form of written statements
and documentation.
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(c) In the case of Force Majeure as stated above, both parties
shall be entitled to suspend execution of this Contract until such time the
Force Majeure no longer exists. In the event that such case occurs, each party
shall properly protect and secure the Goods currently under its possession and
continue to do so during the entire period of suspension. If such protection and
securing of the Goods is deemed impracticable by either party, such party shall
promptly notify the other party in writing stating in detail the reasons
preventing such security. Both parties agree to make reasonable commercial
efforts in reaching resolution to the matter
(d) In the event such Force Majeure results in a three (3) month
continuous delay, the parties hereby agree to review the terms and conditions
for performance under this Contract and mutually determine if the agreement
needs to be extended, amended or terminated in whole or in part. Any amendment
or modification hereof as a result of such Force Majeure shall be in writing by
mutual agreement of the parties. Should such suspension last more than a period
of nine (9) continuous months, either party hereto shall be entitled to
terminate this Contract with respect to the remaining work thereby affected, and
shall give written notice of termination by registered mail to the other party.
In the event of such termination, CUSTOMER shall pay ORBIMAGE for all Goods
already shipped to Country and the cost of the Work executed prior to the date
of termination. All other expenses incurred by ORBIMAGE as a result of such
termination of this Contract, shall be resolved by an equitable adjustment upon
mutual agreement of the parties.
GC-9 DEFAULT
(a) CUSTOMER may, by written notice of default to ORBIMAGE,
terminate this Contract in whole or in part if ORBIMAGE:
(i) is delayed beyond December 31, 2001 in performance of
this Contract, for causes other than Force Majeure;
(ii) notifies CUSTOMER that it is unable to complete
performance or deliver any of the Goods or Work required under this
Contract;
(iii) commits any material breach or fails to comply or
observe any article or provision set forth in this Contract; or
(iv) becomes insolvent, requests its creditors for a
moratorium, or files a voluntary petition in bankruptcy, or shall
be adjudicated as bankrupt pursuant to an involuntary petition.
(b) CUSTOMER's right to terminate this Contract may be exercised
if ORBIMAGE does not submit a formal correction plan within thirty (30) days
after receipt of such notice. Such correction plan must describe in detail
ORBIMAGE's recovery schedule and completely address all issues surrounding the
potential default. If, in the reasonable opinion of CUSTOMER, the correction
plan is
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deemed to substantially jeopardize the success of the project, and it defeats
the objectives of this Contract, CUSTOMER may terminate the contract in whole or
in part.
(c) If the On-Site Acceptance Test(s) cannot be accomplished on or
before December 31, 2001, including installation and operation according to the
Contract schedule which shall necessarily include any extensions thereto
pursuant to an amendment to the Contract under GC-19 (Changes in Work), and
provided CUSTOMER causes no delay in ORBIMAGE's ability to maintain schedule or
to perform OSAT as described in GC-9 (e) herein, CUSTOMER shall promptly return
all delivered Works and neither party shall have any liability to the other of
any nature whatsoever hereunder.
(d) Any action taken by CUSTOMER under this GC-9 shall not effect
ORBIMAGE's right to dispute such action pursuant to GC-18 (Dispute Resolution
and Arbitration). If, after notice of termination for default has been issued by
CUSTOMER, it is determined by CUSTOMER that the notice was invalid in whole or
in part, or that the default was beyond the reasonable control of ORBIMAGE or
its authorized Subcontractor(s), such notice of termination shall be deemed to
have been issued pursuant to GC-19 (Changes and Extra Work) and both parties
hereby agree to negotiate an equitable adjustment for continuation of the Work
or a final settlement for termination without cause.
(e) If following FAT, CUSTOMER causes any delay which results in
ORBIMAGE's inability to maintain schedule or to perform OSAT for a period
exceeding thirty (30) days, CUSTOMER hereby agrees to pay ORBIMAGE the
following: 1) a $10,000 per day fee assessment for any schedule delay prior to
OSAT; and 2) upon OSAT, a payment of 80% of the total contract value for any
delay of OSAT. The official OSAT date, shall be as specified in the contract
schedule, or as amended by mutual agreement in writing by the parties, and in no
event shall OSAT be earlier than fifteen (15) months after the Effective Date of
this Contract. Such causes for delay shall include, but are not limited to:
failure to provide any of the necessary facilities as specified in GC-20;
failure to obtain or delay in obtaining all necessary permits and licenses
specified in GC-15 (b). In no event shall the cumulative delays extend beyond
December 31, 2001.
GC-10 TRANSFER AND SUBLETTING
(a) ORBIMAGE shall not transfer, sell, sublet or otherwise
dispose of this Contract or any part hereof without the previous written consent
of CUSTOMER which shall not be unreasonably withheld, except that ORBIMAGE shall
have the right to assign or subcontract all or any part of the Work to a
wholly-owned subsidiary or affiliated company of ORBIMAGE, including, without
limitation, MacDonald Dettwiler, pursuant to a Subcontract. ORBIMAGE shall also
have the right, for the purpose of performing its duties under this Contract, to
undertake normal purchasing and subcontracting to acquire Goods and Services
necessary to complete the Work.
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ORBITAL IMAGING CORPORATION
CONFIDENTIAL AND PROPRIETARY INFORMATION
16
(b) ORBIMAGE shall not be relieved from any liability or
obligation under this Contract and ORBIMAGE shall be solely responsible for the
acts, defaults and neglects of any Subcontractor and its servants or agents as
fully as if they were the acts, defaults or neglects of ORBIMAGE. Nothing
contained herein shall be deemed to create any contractual relations or
commitments between any Subcontractor and CUSTOMER.
GC-11 TITLE TO GOODS AND SERVICES; RISK OF LOSS; LICENSED USE
(a) Except as may otherwise be provided herein, CUSTOMER shall
acquire title to all of the Goods and Services to be provided by ORBIMAGE in
performance of this Contract. Promptly upon completion of OSAT and payment in
full for the OGS as provided in Exhibit B, CUSTOMER shall assign its right,
title and interest in and to the OGS to NTT Data, together with all of its
rights and obligations under this Contract, including, without limitation, the
Licenses described in GC-15, pursuant to a written instrument of assignment
satisfactory to ORBIMAGE in its reasonable discretion. NTT Data shall have no
further right to assign the OGS System to any other entity without the advanced
written approval of ORBIMAGE.
ORBIMAGE warrants to CUSTOMER that it has good and marketable title to all of
such Goods and Services, and that they are and shall be free of and from any
claims, liens, charges or encumbrances of any kind. Title to such Goods and
Services shall pass to CUSTOMER upon receipt and acceptance at the place or
places designated herein as evidenced by its issue of an On-Site Acceptance
Certificate by CUSTOMER. Acceptance shall only be accomplished after receipt,
inspection and approval of the Goods and Services by CUSTOMER, and CUSTOMER
shall at all times have the right of inspection and be allowed a reasonable time
therefor. Subject to the provisions in GC-9 (e), until such title has passed to
CUSTOMER, the risk of loss to such Goods and Services shall at all times remain
with ORBIMAGE or the applicable Subcontractor.
If CUSTOMER uses any portion of the Works prior to OSAT, CUSTOMER shall be
deemed to have accepted the OGS System and ORBIMAGE shall be entitled to present
the On-Site Acceptance Certificate for immediate payment in full of the entire
price of the OGS System, which shall include all exercised CLINs, in accordance
with Exhibit B. In such event, CUSTOMER shall execute the On-Site Acceptance
Certificate immediately upon ORBIMAGE's request therefor.
(b) If any of the Goods and Services do not conform to the
requirements of this Contract, CUSTOMER may reject any or all of the Goods and
Services. Any approval by CUSTOMER of part of the Goods and Services shall not
relieve ORBIMAGE of its obligations under this Contract. Rejected goods may at
the option of CUSTOMER, be held for ORBIMAGE's disposition instructions or
returned to ORBIMAGE.
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ORBITAL IMAGING CORPORATION
CONFIDENTIAL AND PROPRIETARY INFORMATION
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(c) With respect to those Goods and Services required to be
delivered by ORBIMAGE to CUSTOMER, but for which title shall not pass to
CUSTOMER, including, without limitation, Contractor Hardware and Software and
documentation, and Vendor Software and Vendor documentation, ORBIMAGE shall
grant CUSTOMER a sublicense to use such Goods and Services solely as
specifically set forth in GC-15. The sublicense fees to be paid by CUSTOMER to
ORBIMAGE for said Sublicenses are included in CLIN 0001 of Exhibit B.
(d) In the event that any Japanese governmental authority (whether
national, regional or local) imposes or seeks to impose any withholding or
similar taxes on ORBIMAGE on any portion of the OGS System price set forth in
CLIN 0001 of Exhibit B based on the sublicense fees described in GC-11 (c),
CUSTOMER shall indemnify and hold harmless ORBIMAGE for the full amount of any
such withholding or similar taxes in excess of the first $250,000 of said OGS
System price.
GC-12 SYSTEM SUPPORT SERVICES OPTION
After the initial twelve month warranty period, CUSTOMER shall have the option
to purchase system support services for the maintenance of the OGS System from
ORBIMAGE or its designee on a yearly basis under a separate system support
services contract. A description of these services is contained in Exhibit C
(the SOW), Section 4.6. CUSTOMER must exercise its option to purchase each
yearly system support services contract at least ninety (90) days before the
commencement of the applicable year. The price for yearly system support
services contracts are set forth on Exhibit B (Price Schedule and Payment
Terms). Among other things, the system support services contract will provide
that any software releases required to maintain the continued operation of the
Developed Items, Modified Commercial-Off-The-Shelf (excluding Vendor Software)
and Modified Non-Development Items at the levels specified in Exhibit D
(Technical Specification) will be provided to CUSTOMER at no cost during the
term of the Distribution Agreement. CUSTOMER acknowledges that enhancements to
Developed Items, Modified Commercial-Off-The-Shelf (excluding Vendor Software)
or Modified Non-Development Items that add new features to Developed Items,
Modified Commercial-Off-The-Shelf (excluding Vendor Software) or Modified
Non-Development Items, as the case may be, or implement old features in new ways
shall not be covered by the system support services contract, it being
understood that CUSTOMER would have to purchase any such enhancements.
GC-13 INDEMNITY FOR PATENT INFRINGEMENT
In the event any cause, action, suit, proceeding or claim is
brought against CUSTOMER based upon actual or alleged infringement of United
States, Canadian or foreign letters patent, copyright, trade secret, or
trademark, or proprietary rights of others and resulting from sale or use of the
Goods or Services provided in this Contract by ORBIMAGE, ORBIMAGE shall at all
times
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ORBITAL IMAGING CORPORATION
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18
defend, indemnify and hold harmless CUSTOMER from and against all damages,
costs and expenses, including, without limitation, reasonable attorneys' fees
and costs CUSTOMER may sustain, pay, or incur as a result thereof. CUSTOMER will
provide ORBIMAGE with prompt written notice of any such claim, and will
cooperate fully with ORBIMAGE in furtherance of ORBIMAGE obligations herein.
ORBIMAGE obligations herein shall not apply to liabilities resulting from
CUSTOMER provided designs or specifications.
GC-14 INTELLECTUAL PROPERTY RIGHTS
(a) ORBIMAGE or its applicable Subcontractors shall have
ownership and unrestricted rights in all Developed Items, Modified
Commercial-Off-The-Shelf (excluding Vendor Software) and Modified
Non-Development Items developed under this Contract. Upon payment in full of the
Contract price as set forth in Exhibit B, ORBIMAGE shall grant, or shall cause
its applicable Subcontractor to grant, CUSTOMER a non-exclusive sublicense to
use such Developed Items, Modified Commercial-Off-The-Shelf (excluding Vendor
Software) and Modified Non-Development Items developed under this Contract, and
all supporting documentation, solely for OrbView-3 and OrbView-4 data reception,
recording, archiving, cataloging, ordering and product generation for the
panchromatic and multispectral sensors on the OrbView-3 and OrbView-4 satellites
during the term of that certain ORBIMAGE Distribution Agreement executed on
March 18, 1999 between ORBIMAGE and NTT DATA Corporation (the "Distribution
Agreement"). The term of the sublicense shall automatically terminate upon
expiration of the Distribution Agreement, or the termination of the Distribution
Agreement for any reason, without any further action required of ORBIMAGE or
CUSTOMER. Upon such expiration or any termination thereof, CUSTOMER shall
promptly destroy licensed property and provide proof of such destruction to
ORBIMAGE, and shall make no copies of, all such Developed Items, Modified
Commercial-Off-The-Shelf (excluding Vendor Software) and Modified
Non-Development Items developed under this Contract for which a sublicense was
granted to CUSTOMER pursuant to this GC-14.
(b) Any Vendor Software furnished by ORBIMAGE shall be in
accordance with the vendor's standard license for such items, except that
ORBIMAGE shall make, at the request and expense of CUSTOMER, reasonable efforts
to negotiate the terms and conditions of any such licenses where it is deemed to
be in the best interests of the project to do so.
(c) Copyright in and title to the Software at all times remains
vested exclusively in ORBIMAGE or, as applicable, a Subcontractor or any third
party licensor.
GC-15 PERMITS AND LICENSES
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ORBITAL IMAGING CORPORATION
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(a) ORBIMAGE shall obtain and maintain all registration licenses
and permits outside of the Destination Country, including United States export
licenses for the OGS System and other U.S. licenses or permits necessary for the
operation and use of the OGS System.
(b) CUSTOMER shall obtain and maintain all registration licenses,
frequency authorizations, and permits inside of the Destination Country
necessary for the operation and use of the OGS System. CUSTOMER shall assist
ORBIMAGE in obtaining all visas and/or work permits in the Destination Country
necessary or convenient for the performance of On-Site Work. CUSTOMER shall also
provide all reasonable support required by ORBIMAGE to secure and maintain
export permits, including, without limitation, the CUSTOMER Certificate if
required for the OGS System.
(c) ORBIMAGE shall assist CUSTOMER in obtaining visas and permits
for CUSTOMER personnel who are required to visit the United States, Canada or
any other country outside of the Destination Country for training and OGS System
tests.
GC-16 WAIVER
Waiver by either party hereto of the strict performance of any term,
condition, covenant, or agreement in the Contract shall not of itself constitute
a waiver of or abrogate such term, condition, covenant or agreement, nor be a
waiver of any subsequent breach of same, or any other term, condition, covenant
or agreement.
GC-17 CONFIDENTIAL INFORMATION
ORBIMAGE and CUSTOMER agree to receive and maintain as proprietary
and confidential, all Confidential Information and Industrial Property received
from the other and to protect same from disclosure to others or use by itself or
others for any purpose inconsistent with this Contract, without the prior
written consent of the other. Confidential Information and Industrial Property
shall be marked with the appropriate legend at time of disclosure. For purposes
of this Contract, "Confidential Information and Industrial Property" shall
include, without limitation, information or property falling within the scope of
ORBIMAGE's or CUSTOMER's, as the case may be, patents, copyright, trade secrets,
technical data, know-how or business information conveyed in written, graphic or
other permanent tangible form; or if conveyed orally, if promptly reduced to a
permanent tangible form and shall also include all information received by
ORBIMAGE or CUSTOMER, as the case may be, under an obligation of secrecy or
confidentiality, but shall not include information which: (i) was already known
to the receiving party and without an obligation of secrecy at the time of
disclosure under this Contract, or (ii) is lawfully in the public domain at the
time of disclosure under this Contract, or becomes lawfully within the public
domain but only after such time, or (iii) after disclosure is lawfully obtained
by the receiving party from another source without restriction upon disclosure.
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ORBITAL IMAGING CORPORATION
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GC-18 DISPUTE RESOLUTION AND ARBITRATION
(a) Dispute Resolution.
The parties hereto agree that in the event any dispute, controversy,
difference or disagreement (a "dispute") may arise from time to time between the
parties under or out of this Contract, then the following course of action set
forth herein shall be initiated in order to resolve such dispute.
(i) A dispute originating from CUSTOMER shall be
reviewed and certified in writing by the CUSTOMER's designated
representative and any dispute originating from ORBIMAGE shall be
reviewed and certified in writing by the ORBIMAGE Contracting
Officer. The party initiating the dispute shall notify the other
party's designated representative as to the nature of the dispute,
whereupon that person shall respond with a decision within ten (10)
days. At no time will work under the Contract cease as the result of
a dispute between the parties. Any disputes regarding changes in
Work pursuant to this Contract shall be initiated prior to any
authorization to proceed with such change. Work will continue based
upon the CUSTOMER's designated representative's decision pending
final resolution of any dispute. The CUSTOMER's designated
representative shall not have the power to resolve any dispute
finally, but in order to facilitate his role in attempting to solve
such disputes, the parties shall respond to his reasonable requests
to meet and present arguments and evidence bearing upon or
supporting their positions in the particular matter.
(ii) If the designated representative(s) shall fail to
resolve any dispute to the satisfaction of the parties within seven
(7) days of its submission, the dispute shall be referred to a panel
(hereinafter called the "Special Panel") comprising of a delegate
("Delegate") from each party appointed in writing. Each Delegate
will be a Senior Manager or Vice President of the respective party
and shall have full authority to commit the party to a final and
binding resolution of the dispute. Within fourteen (14) days after
said notice is delivered, the Special Panel shall meet and resolve
the dispute by a decision and such decision shall be final and
binding upon the parties. If no decision resolving the dispute is
made by the Special Panel within fourteen (14) days or such longer
period as may be mutually agreed, the dispute shall be declared
irreconcilable and will proceed to binding arbitration and the
following procedure shall apply.
(b) Arbitration.
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ORBITAL IMAGING CORPORATION
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Any and all disputes, disagreements, or questions, be they fact or
law, which may arise between CUSTOMER and ORBIMAGE in connection with the
interpretation of any provision of this Contract or the compliance or
non-compliance therewith, or the validity or enforceability thereof, or the
performance or non-performance of either party to the Contract and which cannot
be amicably settled by the parties as set forth above in this GC-18 within
thirty (30) days of notification by one party to the other in writing, shall be
adjudicated in Washington, D.C., USA by the American Arbitration Association
(AAA) in accordance with the International Rules of the AAA then in effect (to
the extent not modified by this GC-18), by a Board of Arbitration consisting of
three (3) members, the decision of which shall be final and binding upon both
parties. The parties agree that the sole method for resolving disputes hereunder
shall be as provided in this GC-18.
(i) Each party shall, within thirty (30) days of the end
of the aforesaid thirty (30) day period, appoint one arbitrator, and
the two arbitrators thus appointed shall forthwith designate a third
arbitrator. Such designation of third arbitrator shall occur within
thirty (30) days of the appointment of the two arbitrators.
(ii) In the event the two arbitrators thus selected
cannot agree upon a third arbitrator, or if either party fails to
appoint its arbitrator within the prescribed time, the deadlock
shall be referred to the AAA who shall promptly designate the
arbitrator(s), and the arbitrator(s) shall be accepted
unconditionally by both parties.
(iii) The decision of the arbitrators may be entered in
any court of competent jurisdiction and execution entered thereupon
forthwith.
(iv) Each party shall bear the cost of preparing its own
case. The Board of Arbitrators shall determine as to who shall bear
the cost of arbitration.
(v) The law of the Commonwealth of Virginia shall apply,
without giving effect to the conflict of law rules thereof or the
Convention on Contracts for the International Sale of Goods.
(vi) The language of the arbitration shall be English.
(vii) Notwithstanding the foregoing subparagraphs (i)
through (vi) inclusive, either party may seek injunctive relief from
a court having jurisdiction to prevent infringement or damage to
Confidential Information and Industrial Property Rights protected
under this Contract.
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ORBITAL IMAGING CORPORATION
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(viii) Pending settlement of any dispute or disagreement
under this GC-18, including arbitration, and so long as CUSTOMER
fully maintains the irrevocable letter of credit as required under
Article 4.0 of this Contract, ORBIMAGE shall proceed diligently with
the performance of the Work, unless the CUSTOMER delivers a notice
of suspension or termination in accordance with the terms of this
Contract.
GC-19 CHANGES AND EXTRA WORK
(a) CUSTOMER may at any time direct in writing any change
in the Work within the general scope of this Contract.
(b) If at any time ORBIMAGE believes that other acts or
omissions of CUSTOMER constitute a change to the Work not identified as such,
ORBIMAGE shall notify CUSTOMER in writing within thirty (30) days. CUSTOMER
will either issue a change or determine that a change is not required and
notify ORBIMAGE accordingly.
(c) If any change or extra work direction causes an
increase or decrease in ORBIMAGE's costs, or the time required for the
performance of Work under this Contract, an equitable adjustment shall be made
in the contract price or schedule or both and in such other provisions of the
Contract as may be affected, and the Contract shall be modified in writing
accordingly. Unless otherwise directed by CUSTOMER, ORBIMAGE shall perform
changes so that all requirements of the Contract shall be met.
(d) Changes shall not include Work reasonably required to
complete the design, supply, installation and test of the OGS System in
accordance with standard engineering practices, which have been or reasonably
should have been anticipated and included in the original total estimated
price.
(e) Any claim for an adjustment under this GC-19 must be
asserted in writing within forty-five (45) days following ORBIMAGE's receipt of
a written change. Such claim will include a complete and detailed calculation
of costs and a revised schedule in order to permit evaluation by CUSTOMER. At
all times ORBIMAGE shall keep accurate records of the actual costs of
performing each change. A failure to agree on an equitable adjustment shall be
deemed to be a dispute within the meaning of GC-18 (Dispute Resolution and
Arbitration).
(f) When any adjustment to the contract price, schedule,
performance or any other provision has been agreed, a written amendment to the
Contract shall be prepared and executed by both parties.
GC-20 PURCHASER FURNISHED UTILITIES, FACILITIES, AND SERVICES
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ORBITAL IMAGING CORPORATION
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In addition to the items designated in Exhibit C (SOW), the CUSTOMER
shall provide the following for use by ORBIMAGE and its Subcontractors in
support of the installation and testing activities associated with furnishing
the OGS System:
(i) Buildings, building services and utilities suitable
to accommodate and support the operation of the OGS System within
the operating environment for each item of Equipment furnished as a
part of the OGS System.
(ii) All permits required by government authorities of
the Site whether local or otherwise, required to or necessary to
allow any installation or operations of the OGS System.
(iii) Unrestricted access to the Site at which the OGS
System is located, or is to be located, solely for the purpose of
performing its obligations hereunder.
(iv) Supply of telephone lines, toilet facilities and
the like to support the installation works.
GC-21 DELIVERY, RISK, SECURITY INTEREST
(a) ORBIMAGE shall arrange shipping for and on behalf of
the CUSTOMER, to deliver the Goods to the CUSTOMER facility. The Equipment and
the Software will be shipped:
(i) if by Air Freight; delivery by a common carrier to
CIP point; and
(ii) if by Ocean Freight; delivery by a common carrier
to CIF point.
(b) The CUSTOMER as importer, shall effect custom clearance
and pay all import duties, withholding taxes, tariffs and any other taxes or
duties associated therewith. ORBIMAGE shall be responsible for all insurance
and transportation charges from port of entry (after customs clearances have
occurred) to the CUSTOMER's facilities.
(c) Any demurrage arising from customs clearances shall be
to the account of CUSTOMER. Any demurrage resulting from improperly prepared
shipping documents on the part of the ORBIMAGE shall be to the account of
ORBIMAGE.
(d) So long as there remains any unpaid amount by CUSTOMER
to ORBIMAGE, ORBIMAGE or its applicable Subcontractor shall retain title in the
Equipment, and the Equipment shall remain personal property. During such
period, CUSTOMER will not permit, allow, or suffer the attachment of any lien,
charge or encumbrance of any kind to the Equipment, nor so
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ORBITAL IMAGING CORPORATION
CONFIDENTIAL AND PROPRIETARY INFORMATION
24
incorporate the Equipment in real property that it loses its identity as
personal property. CUSTOMER will promptly pay when due all assessments, levies,
fees, taxes, duties or other charges against the Equipment or its use.
(e) Upon payment at shipping, CUSTOMER shall obtain a
security interest in the Equipment equal to the payment made by CUSTOMER but
ORBIMAGE shall at all times maintain full title, custody and control of such
Equipment until title shall pass pursuant to GC-11 (Title to Goods and
Services; Risk of Loss; Licensed Use).
GC-22 PACKING AND MARKING
(a) ORBIMAGE shall utilize best commercial practices in
packing the Equipment for overseas shipment so as to avoid damage during
transit to destination. ORBIMAGE shall comply with weight and size limitations
for standard air transport in accordance with IATA Regulations.
(b) The Goods shall be packed in durable wooden case(s) or
in carton(s), suitable for long distance ocean or airfreight transportation, as
applicable, and shall be able to survive storage and transport within a dry
container, vessel or building and normal handling during transport.
(c) At least thirty (30) days prior to Factory Acceptance
Testing of the OGS System, CUSTOMER shall provide ORBIMAGE with the actual
destination address for delivery of the OGS System.
GC-23 TRANSPORTATION AND INSURANCE
(a) All transportation and shipping shall be conducted
under the provisions of the "Incoterms 1990." When ready, all equipment along
with documents as required by the Contract are to be delivered addressed to:
(i) Shipping Delivery Address:
--------------------------
--------------------------
--------------------------
--------------------------
(ii) Consign to:
--------------------------
--------------------------
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ORBITAL IMAGING CORPORATION
CONFIDENTIAL AND PROPRIETARY INFORMATION
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--------------------------
--------------------------
(iii) Shipped by:
Orbital Imaging Corporation
21700 Atlantic Boulevard,
Dulles, Virginia, 20166, U.S.A.
(b) The waybills issued by public common carrier are
acceptable for negotiation purposes. Insurance of the cargo to port of entry
will be arranged by ORBIMAGE. Handing over of the equipment will be advised by
ORBIMAGE by facsimile to CUSTOMER with full details of the waybill. Along with
the equipment, copies of the following documents will be handed over by
ORBIMAGE to the carrier:
(i) Five (5) copies of the waybill;
(ii) Four (4) copies of ORBIMAGE's detached invoice
with itemized unit prices;
(iii) Four (4) copies of the Factory Acceptance
Test Certificate jointly issued by authorized Representatives of
CUSTOMER and ORBIMAGE;
(iv) Five (5) copies of the packing list;
(v) Four (4) copies of the insurance policy; and
(vi) Two (2) copies of the cablegram advising
CUSTOMER of shipping arrangements.
ORBIMAGE shall provide CUSTOMER with an itemized packing list
associated with shipment at least fifteen (15) days in advance of the expected
date of shipment.
GC-24 TARIFFS, DUTIES AND TAXES
(a) Export tariffs, duties or other taxes or charges levied
by the current or future laws of any country outside of the Destination Country
concerning the export and shipment of the OGS System shall be paid by ORBIMAGE,
and ORBIMAGE shall not demand reimbursement from CUSTOMER for any such
payments.
(b) All tariffs, duties, stamp duties, withholding or like
tax and all other taxes of any
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ORBITAL IMAGING CORPORATION
CONFIDENTIAL AND PROPRIETARY INFORMATION
26
kind and nature which might be imposed on ORBIMAGE with respect to importation
of the Goods or by virtue of the performance of the Work in the Destination
Country shall be borne by CUSTOMER.
(c) Payment of any taxes imposed by the Government of the
Destination Country on the Contract shall be made directly by the CUSTOMER
under the applicable regulations.
(d) Equipment and Materials brought into the Destination
Country by ORBIMAGE or its Subcontractors for carrying out the Contract and to
be subsequently re-exported shall be exempted from import duties, levies or
taxes. For this purpose, ORBIMAGE shall submit to CUSTOMER the list of such
necessary Equipment and Materials before shipment and CUSTOMER shall give any
assistance required to obtain the aforementioned exemptions. Any deposits that
need to be lodged with the Government of the Destination Country to secure
temporary importation of ORBIMAGE's or its Subcontractor's Equipment or
Materials shall be provided by CUSTOMER.
(e) Any Equipment and Material brought into the Destination
Country by ORBIMAGE or its Subcontractors for carrying out the Contract, but
thereafter disposed of in the Destination Country to the CUSTOMER, shall be
taxed at the current Destination Country tariffs or duties to the CUSTOMER.
GC-25 APPLICABLE LAW
This Contract shall be construed in accordance with and governed by
the laws of the Commonwealth of Virginia, without giving effect to the conflict
of law rules thereof or the Convention on Contracts for the International Sale
of Goods.
GC-26 SEVERABILITY; BINDING AGREEMENT
(a) The validity of remaining articles, sections,
provisions, terms and parts of this Contract shall not be affected by the
decision of a court, administrative board or any other proceeding of competent
jurisdiction determines that an article, section, provision, term, or part of
this Contract is illegal, unenforceable, or in conflict with any law, as long
as said remaining articles, sections, provisions, terms, and parts can be given
reasonable effect in line with the intentions of the parties.
(b) This Contract shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and duly
permitted assignees.
(c) Except as specifically permitted in this Contract,
neither party shall have the right
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ORBITAL IMAGING CORPORATION
CONFIDENTIAL AND PROPRIETARY INFORMATION
27
to assign this Contract without the prior written consent of the other party.
GC-27 LANGUAGE
The official language of this Contract shall be the English
language. All communications written or otherwise between CUSTOMER and ORBIMAGE
in connection with this Contract shall be in the English language.
GC-28 HEADINGS
Headings to any of the provisions of the Contract are for
convenience only and shall not have the effect of modifying, amending, or
altering any provision of the Contract.
GC-29 ENTIRE AGREEMENT
This Contract, including the Exhibits hereto, contains the entire
understanding between CUSTOMER and ORBIMAGE and supersedes all prior written and
oral understandings relating to the subject hereof. Any modification or
amendment of this Contract (including the Exhibits hereto) must be in writing
and signed by both parties.
GC-30 WAIVER OF SOVEREIGN IMMUNITY
Each party hereto (including any assignee or party assuming any
rights or obligations under this Contract) unconditionally and irrevocably:
(i) agrees that the execution, delivery
and performance by it of this Contract constitutes private
and commercial acts rather than public or governmental acts;
(ii) agrees that should any legal
proceedings be brought against it or its assets in relation to this
Contract or any transaction contemplated by this Contract no
immunity (sovereign or otherwise) from such legal proceedings shall
be claimed by or on behalf of itself or with respect to its assets,
to the maximum extent permitted by law;
(iii) to the maximum extent permitted by
law, waives any such right of immunity (sovereign or otherwise)
which it or its assets now has or may acquire in the future; and
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ORBITAL IMAGING CORPORATION
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28
(iv) consents in respect of the enforcement
of any judgment against it in any such proceedings to the giving of
any relief or the issue of any process in connection with such
proceedings including, without limitation, to the maximum extent
permitted by law, the making, enforcement or execution against or in
respect of any property whatsoever (irrespective of its use or
intended use) of any order or judgment which may be made or given in
such proceedings.
GC-31 PAYMENTS
All payments due and payable to ORBIMAGE hereunder shall be paid in
U.S. Dollars in immediately available funds to the bank account specified by
ORBIMAGE in writing.
GC-32 COUNTERPARTS
This Contract may be executed in two or more counterparts, each of
which shall be considered an original and all of which together shall constitute
one and the same instrument.
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ORBITAL IMAGING CORPORATION
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OGS-IMI-C-01-301
EXHIBIT B
PRICE SCHEDULE AND PAYMENT TERMS
TO
ORBIMAGE GROUND STATION CONTRACT
FOR
NTT DATA CORPORATION
BETWEEN
IMAGE MEASUREMENTS, INC.
AND
ORBITAL IMAGING CORPORATION
[*CONFIDENTIAL TREATMENT REQUESTED*]
B-1
ORBITAL IMAGING CORPORATION
CONFIDENTIAL AND PROPRIETARY INFORMATION
30
OGS-SOW-01-301
EXHIBIT C
STATEMENT OF WORK
TO
ORBIMAGE GROUND STATION CONTRACT
FOR
NTT DATA CORPORATION
BETWEEN
IMAGE MEASUREMENTS, INC.
AND
ORBITAL IMAGING CORPORATION
JULY 1999
[*CONFIDENTIAL TREATMENT REQUESTED*]
C-1
ORBITAL IMAGING CORPORATION
CONFIDENTIAL AND PROPRIETARY INFORMATION
31
OGS-TS-C-01-301
EXHIBIT D
PRELIMINARY TECHNICAL SPECIFICATION
TO
ORBIMAGE GROUND STATION CONTRACT
FOR
NTT DATA CORPORATION
BETWEEN
IMAGE MEASUREMENTS, INC.
AND
ORBITAL IMAGING CORPORATION
JULY 7, 1999
[*CONFIDENTIAL TREATMENT REQUESTED*]
D-1
ORBITAL IMAGING CORPORATION
CONFIDENTIAL AND PROPRIETARY INFORMATION
32
OGS-CL-01-301
EXHIBIT E
CONTRACT DATA REQUIREMENTS LIST
TO
ORBIMAGE GROUND STATION CONTRACT
FOR
NTT DATA CORPORATION
BETWEEN
IMAGE MEASUREMENTS, INC.
AND
ORBITAL IMAGING CORPORATION
[*CONFIDENTIAL TREATMENT REQUESTED*]
E-1
ORBITAL IMAGING CORPORATION
CONFIDENTIAL AND PROPRIETARY INFORMATION
33
EXHIBIT F
PRELIMINARY LIST OF CONTRACT DELIVERABLES
FOR THE NTT DATA ORBIMAGE GROUND STATION
[*CONFIDENTIAL TREATMENT REQUESTED*]
F-1
ORBITAL IMAGING CORPORATION
CONFIDENTIAL AND PROPRIETARY INFORMATION