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Exhibit 10.17
S-622773-JSS
Long-Term Purchase Agreement
IN CONSIDERATION OF THE PROMISES HEREINAFTER SET FORTH, THE PARTIES AGREE AS
FOLLOWS:
SCHEDULE
This Long-Term Purchase Agreement Number S-622773-JSS, hereinafter referred to
as the "Agreement", is entered into between SPACE SYSTEMS/LORAL, INC.,
(hereinafter referred to as "Buyer" or "SS/L"), a corporation organized and
existing under the laws of the State of Delaware, and having its principal
offices and place of business at 3825 Fabian Way, Palo Alto, California, 94303,
and EMCORE CORPORATION, (hereinafter referred to as "Subcontractor" or
"EMCORE"), with offices located at 10420 Research Road SE, Albuquerque, NM
87123.
This Agreement is contemplated by the following:
1. Buyer's AUTHORIZATION TO PROCEED (ATP) NO. S-622735-JSS, dated September 3,
1998.
2. The MEMORANDUM OF UNDERSTANDING (MOU) between the parties, dated October 6,
1998.
This Agreement supersedes the ATP and the MOU in their entirety and therefore
constitutes the entire agreement between the parties. Any action taken pursuant
to the ATP and the MOU shall be considered as action taken and costs incurred in
the performance of this Agreement.
This Agreement is entered into on November 16, 1998, and shall expire on
December 31, 2002, unless extended by mutual agreement of the parties.
This Agreement consists of the SCHEDULE, the TERMS AND CONDITIONS, and the
SIGNATURE PAGE.
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ARTICLE I - SCOPE OF WORK
This Agreement provides for the procurement of COMPOUND SEMICONDUCTOR
MULTI-JUNCTION HIGH-EFFICIENCY SOLAR CELLS (with by-pass diode), hereinafter
also referred to as Hardware, and Subcontractor agrees to provide the personnel,
services, materials, equipment, and facilities necessary for the accomplishment
of the tasks specified in the Exhibits cited below and any other requirements
identified elsewhere in this Agreement.
The following Exhibits are listed in their order of precedence. In the event of
a conflict or inconsistency between an Exhibit and an Article of this Agreement,
the Article shall take precedence.
Exhibit A SS/L Document No. E177493, entitled HIGH EFFICIENCY,
DUAL-JUNCTION SOLAR CELL STATEMENT OF WORK (PRELIMINARY), redlined
dated September 2, 1998.
Exhibit B SS/L Document No. E177495, entitled MULTI-JUNCTION SOLAR CELL
SOURCE CONTROL DRAWING (PRELIMINARY).
Exhibit C SS/L Document No. E177492, entitled HIGH EFFICIENCY,
DUAL-JUNCTION, SOLAR CELL PERFORMANCE SPECIFICATION.
(PRELIMINARY), redlined September 2, 1998.
Exhibit D SS/L Document No. E032894, entitled SUBCONTRACTOR PRODUCT
ASSURANCE REQUIREMENTS, Revision A, Amendment No. 1, release date
March 28, 1996.
Exhibit E SS/L Document No. SH-E023988, entitled DATA REQUIREMENTS
INSTRUCTIONS (DRI) FOR SPACECRAFT SUBCONTRACTORS, release date
October 4, 1993.
Exhibit F SS/L Document No. E060042, entitled ENVIRONMENTAL REQUIREMENTS
SPECIFICATION, release date March 27, 1995.
Exhibit G SS/L Document No. LG-E080742, DIRECT BROADCAST SATELLITES (DBS)
(FOR APSTAR, MABUHAY AND TELSTAR) PROGRAM AUTHORIZED PARTS LIST
(PAPL), Revision N/C, release date May 26, 1995.
Exhibit H SS/L Document No. LG-E076310, TELSTAR PROGRAM AUTHORIZED
MATERIALS LIST (PAML), Revision N/C, release date June 1, 1995.
Exhibit I SS/L Document No. LG-E076311, TELSTAR Program Authorized Process
List (PAPRL), Revision N/C, release date June 1, 1995.
ARTICLE II - PROVISIONS AND INFORMATION APPLICABLE TO PURCHASE RELEASES
Qualification and procurement of Hardware by Buyer pursuant to this Agreement
shall be accomplished by the issuance of Purchase Releases to the extent
sanctioned by the initial publication of this Agreement and amendments to same.
Subcontractor shall qualify, fabricate, test, and deliver Hardware in accordance
with Exhibit A through Exhibit I of Article I (SCOPE OF WORK).
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Buyer may issue Purchase Releases for work, services and/or Hardware at any time
during the effective term of this Agreement and Subcontractor shall fulfill all
requirements of such orders accordingly.
As a minimum, each Purchase Release for Hardware shall set forth the following:
1. Long-Term Purchase Agreement (LTPA) Number.
2. Purchase Release Number.
3. Description of work, services and/or quantity of Hardware ordered.
4. Program/Project Name, if applicable, associated with the Hardware.
5. Configuration, applicable documentation, part numbers and description.
6. Firm Fixed Prices in accordance with Article IV (OPTIONS).
7. Delivery of Hardware in accordance with Article IV (OPTIONS).
8. Payment stipulations pursuant to Article IV (OPTIONS).
9. Related specific and miscellaneous instructions.
ARTICLE III - PURCHASE RELEASES
PURCHASE RELEASE NO. 1
This initial Purchase Release is issued to record and definitize Buyer's
Authorization to Proceed (ATP) to Subcontractor No. S-622735-JSS, dated
September 3, 1998, for the Development and Qualification effort associated with
the High-Efficiency Solar Cell- reference JSS-EMC/98-001, September 3, 1998.
Unless otherwise indicated herein this Agreement, Subcontractor's successful
completion of the Qualification program imposes no obligation upon Buyer to
procure Hardware from Subcontractor.
This initial Purchase Release is issued by Buyer under authority of the
Agreement and sanctions Subcontractor for the QUALIFICATION OF THE
HIGH-EFFICIENCY SOLAR CELL (HESC). Pursuant to the provisions of this Purchase
Release, Subcontractor shall undertake and complete all requirements of the
qualification program in accordance with Exhibit A through Exhibit I, and any
other work herein described, as follows:
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[*] Confidential information omitted and filed
separately with the Securities and Exchange
Commission. Asterisks denote such
omissions.
A. PRICE
Subcontractor shall provide all personnel, material and resources
necessary for the proper accomplishment of the Qualification Program
tasks for the FIRM FIXED PRICE OF [*].
B. PERFORMANCE AND DELIVERY
Subcontractor shall commence the qualification effort on or about
September 2, 1998 and complete all work and tasks in accordance with
the following schedule:
ITEM NO. DESCRIPTION COMPLETION DATE
-------- ----------- ---------------
1 Develop process and tooling of High-Efficiency Solar Cell [*]
process
2 Demonstrate High-Efficiency Solar Cell Meet specifications [*]
3 Deliver [*] Solar Cells processed at RTI to Buyer for [*]
Radiation Space Qualification
4 Deliver [*] Subcontractor processed Solar Cells for Space [*]
Qualification Coupon
5 Critical Design Review (CDR) [*]
6 Deliver [*] Subcontractor processed Solar Cells for further [*]
space qualification
7 Material Readiness Review (MRR) / Final Design Review (FRR) [*]
8 Publication of Final Qualification Program Report [*]
C. PAYMENT
This Purchase Release provides for Milestone Payments as follows:
1 Develop process and tooling of High-Efficiency Solar September 15, 1998 [*]
Cell. Deliver Mask Data.
2 a) Deliver [*] Solar Cells processed at RTI for
radiation space qualification
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[*] Confidential information omitted and filed
separately with the Securities and Exchange
Commission. Asterisks denote such
omissions.
b) Deliver [*] Solar Cells processed at December 21, 1998 [*]
Subcontractor's facility for space
qualification coupon
c) Closure of Subcontractor CDR Action Items December 31, 1998 [*]
3 a) Deliver [*] Solar Cells processed at
Subcontractor's facility for further space
qualification.
b) Closure of Subcontractor MRR/FDR Action Items. March 30, 1999 [*]
4 Buyer Approval of Subcontractor Final Qualification April 7, 1999
Program Report [*]
-------------
Total Milestone Payments [*]
=============
1. All material and work covered by Milestone Payments shall become the
sole property of Buyer.
2. Upon completion of a Milestone, Subcontractor may submit an
invoice for the amounts specified provided, however, Buyer
reserves the right to inspect or otherwise verify
Subcontractor's progress to determine that performance
relative to each payment has been satisfactorily completed.
3. Subcontractor shall submit an original and one copy of
invoices to:
Space Systems/Loral, Inc. Attention: Accounts Payable
P.O. Box 10825 M/S AC-1
Palo Alto, California 94303-4697
Each invoice shall cite the LTPA Number, the Purchase Release
number, and the number and description of the milestone.
4. Payment terms shall be net 30 days after receipt of invoice,
actual milestone completion date or scheduled milestone
completion date, whichever is later.
D. ADDITIONAL UNDERSTANDINGS AND REQUIREMENTS
1. Subcontractor shall demonstrate successful qualification of
the High-Efficiency Solar Cell at the Manufacturing Readiness
Review (MRR), currently scheduled for March 15, 1999.
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[*] Confidential information omitted and filed
separately with the Securities and Exchange
Commission. Asterisks denote such
omissions.
2. Successful qualification of the laydown of the High-Efficiency
Solar Cell on a substrate furnished by Buyer is a requirement
of this process.
The qualification of the laydown will be done by a supplier to
be named by Buyer.
Qualification of the laydown of the HESC will be demonstrated
at a joint MRR between the substrate supplier and
Subcontractor.
3. Upon Subcontractor's demonstration that it has met the
requirements of this Qualification Program to the satisfaction
of Buyer, Buyer will issue and activate Purchase Release No. 2
by written notice to Subcontractor in accordance with the
stipulations of Article IV (OPTIONS). Pending Buyer's
documented ratification, Buyer assumes no liability or
obligation to Subcontractor with respect to Purchase Release
No. 2.
In the event Subcontractor is unsuccessful in achieving the
requirements of the Qualification Program, Buyer has no
obligation to procure hardware from Subcontractor.
E. EXCLUSIVITY
All information and data developed under this Qualification program
shall be deemed proprietary to Buyer and therefore shall be provided to
Buyer on an exclusive basis. Subcontractor shall have the right to use
this proprietary information and data for its own purposes.
Subcontractor shall not disclose information proprietary to Buyer to a
third party absent the written consent of Buyer.
PURCHASE RELEASE NO. 2
PURCHASE RELEASE NO. 2 IS HEREIN DOCUMENTED BY THE INITIAL PUBLICATION OF THE
AGREEMENT SOLELY FOR THE PURPOSE OF RECORDING BUYER'S INTENT TO PROCURE HARDWARE
AS DEPICTED BELOW. AT THIS WRITING, PURCHASE RELEASE NO. 2 IS NOT A CONFIRMATION
OF PURCHASE AS BUYER'S VALIDATION OF THE RELEASE IS SUBJECT TO THE CONTINGENCY
AND ANY ASSOCIATED CONDITIONS STIPULATED IN PURCHASE RELEASE NO. 1, PARAGRAPH
D.3.
Pursuant to the provisions of this Purchase Release, Subcontractor shall
fabricate, test and deliver Hardware and perform related work and services in
accordance with the requirements of Exhibit A through Exhibit I and the
stipulations of this Release.
A. PRICE
Subcontractor shall provide all Hardware, services and documentation
specified in this Purchase Release for the Firm Fixed Price of [*], as
follows:
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[*] Confidential information omitted and filed
separately with the Securities and Exchange
Commission. Asterisks denote such
omissions.
Solar Cell Solar Cell Total Quantity Unit Total
P/n Description Efficiency Rating Solar Cells Price Price
---------- ----------- ----------------- -------------- ----- ------
TBD Compound Semiconductor [*] % [*] [*] [*]
Multi-Junction HESC
B. DELIVERY
Subcontractor shall deliver Hardware and complete any work or services
procured by this Release in accordance with the following:
P/n Quantity Date Destination
--- -------- ---- -----------
TBD [*] 1 Month ABNQ(1) TBD
TBD [*] 2 Months ABNQ TBD
TBD [*] 3 Months ABNQ TBD
TBD [*] 4 Months ABNQ TBD
(1) ABNQ = After Buyer Notification of Qualification
ARTICLE IV - OPTIONS
All Hardware procured under Article III (PURCHASE RELEASES) shall be deemed to
be ordered as Options. Accordingly, in consideration of the award of this
Agreement, Subcontractor grants to Buyer unilateral and irrevocable Options to
purchase Hardware throughout the effective term of this Agreement. Any order for
optional Hardware shall be accomplished by an authorized Purchase Release
conveyed and confirmed by an amendment to this Agreement.
Except as expressly provided for, nothing in this Agreement shall be construed
as a commitment that Buyer shall purchase Hardware.
A. PRICE
The Firm Fixed Option Prices, by Calendar Year and Solar Cell
Efficiency Rating, and associated conditions applicable to Hardware
ordered under this Agreement is as follows:
Solar Cell Solar Cell Unit
Calendar Year Efficiency Rating Quantity Range Price
------------- ----------------- -------------- -----
1999 [*] % [*] [*]
[*] [*]
[*] [*]
[*] [*]
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[*] Confidential information omitted and filed
separately with the Securities and Exchange
Commission. Asterisks denote such
omissions.
2000 [*] % [*] [*]
[*] [*]
[*] [*]
[*] [*]
2001 [*] % [*] [*]
[*] [*]
[*] [*]
[*] [*]
2002 [*] % [*] [*]
[*] [*]
[*] [*]
[*] [*]
1. The foregoing Hardware unit prices are:
a. [*]
b. [*]
2. ADJUSTMENTS TO PURCHASE RELEASE UNIT PRICES
Modifications to Unit Prices shall be made on the basis of the
following:
a. If in a Calendar Year, and within a three-month period, Buyer
places a Purchase Release(s) which, when added to a previous
Purchase Release(s), in the aggregate increases the quantity
of Hardware purchased such that a higher Solar Cell Quantity
Range is achieved, the Unit Price(s) for all effected Releases
will be modified to reflect the cumulative quantity of
Hardware so purchased under these conditions.
b. If in a Calendar Year, for a incremental Purchase Release(s)
which does not fall within the three-month stipulation of
Subparagraph a., above, no adjustment will be made to the Unit
Price of the prior Purchase Release; the Unit Price applicable
to the incremental Purchase Release will, however, be adjusted
provided that (1) in the aggregate a higher Solar Cell
Quantity Range is achieved, and (2) continuity of monthly
Subcontractor delivery is maintained.
c. In the event Hardware with a higher Solar Cell Efficiency
Rating is not available during a Calendar Year as identified
in this provision, Buyer may purchase available rated Hardware
in accordance with the stipulations of Subparagraph a. and b.,
above. Under such conditions, any Hardware aggregate
limitation imposed by the definition of a Calendar Year is
waived.
Examples applicable to these subparagraphs can be found in APPENDIX I
to this Agreement.
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[*] Confidential information omitted and filed
separately with the Securities and Exchange
Commission. Asterisks denote such
omissions.
Any Purchase Release and associated conditions effected by Unit Price
adjustments will be modified accordingly.
B. [*]
C. DELIVERY / SUBCONTRACTOR CAPACITY
1. Subcontractor shall provide for the allocation of resources to
ensure Buyer the capacity to fabricate and deliver Hardware
not-to-exceed the following:
Calendar Solar Cells
Year Per Month
-------- ----------
1999 [*]
2000 [*]
2001 [*]
2002(1) [*]
(1) Through completion of orders
2. Subcontractor is not required to commence delivery of Hardware
earlier than April 1999.
D. MINIMUM ORDER QUANTITY
Except as otherwise indicated in this Agreement, each purchase release
will consist of no less than [*] Solar Cells.
E. HARDWARE REQUIREMENTS COVENANT
In consideration of the accords recorded in this Agreement, Buyer
shall, during the effective term of this Agreement, procure from
Subcontractor its requirements for Compound Semiconductor GaAs
Multi-Junction High-Efficiency Solar Cells as expressly defined by the
technical documentation cataloged in Article I (SCOPE OF WORK) of this
Agreement, provided that Subcontractor (1) perform satisfactorily in
the manufacture, test and delivery of the Hardware purchased by Buyer,
(2) sustain a level of technical and product quality competence equal
to or greater than acceptable industry standards, and (3) preserve the
guarantee declared in Paragraph B, above. In the event Subcontractor
fails to satisfy the foregoing or any other stipulation of this
Agreement, Buyer has the right to terminate this Agreement in
accordance with the terms and conditions of same.
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F. DOCUMENTATION
Documentation shall be delivered in accordance with the schedule
appearing in the Subcontract Data Requirements List (SDRL) of Exhibit A
to the delivery point identified in Article VIII (DELIVERABLE REPORTS
AND DOCUMENTATION).
If a SDRL requirement has been submitted and approved by Buyer in
conjunction with a prior Purchase Release issued under this Agreement,
Subcontractor shall submit complete reference information from the from
each submission for review and confirmation by Buyer. If a prior SDRL
submittal has been approved by Buyer, yet subsequently updated or
modified by Subcontractor in any manner whatsoever, such SDRL submittal
shall be conveyed in its entirety for review and approval by Buyer.
SUBCONTRACTOR IS RESPONSIBLE FOR CONFIRMING THAT ANY DOCUMENTATION
REQUIRING THE APPROVAL OF BUYER IS RECEIVED BY BUYER.
ARTICLE V - PAYMENT
All payment due for Hardware ordered by this Agreement shall be made in
accordance with the following:
A. Subcontractor may submit invoices on a monthly basis in accordance with
the completion of the monthly delivery stipulations of a Purchase
Release.
B. PROPERTY RIGHTS
All Hardware, work and services covered by invoice payments shall
become the sole property of Buyer or Buyer's Customer. This provision
shall not be construed as relieving Subcontractor from the sole
responsibility of all Hardware upon which payments have been made or
the restoration of any defective work in accordance with the Warranty
provisions of this Agreement, or as waiving the right of Buyer to
require fulfillment of all terms of this Agreement.
C. INVOICES
Subcontractor may, upon completion of monthly delivery requirements,
submit invoices for the amounts specified, provided however that Buyer
reserves the right to inspect or otherwise verify that Hardware for
which payment is requested complies with the requirements of this
Agreement. Payment for Hardware delivered does not relieve
Subcontractor of any obligation hereunder.
Subcontractor shall submit an original and one copy of invoices to:
SPACE SYSTEMS/LORAL, INC.
3825 Fabian Way
Palo Alto, California 94303-4604
Attention: Accounts Payable M/S AC-1
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D. PAYMENT TERMS
Payment terms are Net 30 days after receipt of invoice, scheduled
delivery date, or completion of actual delivery requirements.
E. The California Resale Registration Number for Space Systems/Loral
applicable to this transaction is SY GH 24-91636.
ARTICLE VI - INSPECTION AND ACCEPTANCE
A. The inspection of the work to be performed under this Agreement shall
be in accordance with the requirements of Exhibit A through Exhibit I
and Clause No. 19 (INSPECTION AND ACCEPTANCE) of the Terms and
Conditions. The inspection period shall culminate at such time that
Buyer provides written notice of Final Acceptance of the work
performed.
B. Authorization to make delivery of the hardware hereunder shall occur at
Subcontractor's plant upon successful completion of inspections and
testing in accordance with the requirements of Exhibit A through
Exhibit I. Subcontractor shall have demonstrated, by properly
documented inspection and test results, full compliance with the
performance requirements herein including correction by the
Subcontractor of all deficiencies and all discrepancies pertaining to
such inspections and testing and including completion of further
retesting as may be necessary to demonstrate same. The hardware
hereunder shall have been inspected by Buyer and determined to be in
full compliance with the requirements of the Agreement including
correction by Subcontractor of all deficiencies and discrepancies
pertaining to such inspection. Satisfying the requirements of Exhibit A
through Exhibit I shall not constitute waiver or release the
Subcontractor from the responsibility of meeting all of the provisions
herein.
Any waiver of a requirement granted by Buyer or acceptance of an
out-of-spec condition applies only to the specific unit(s) identified.
Said waiver or acceptance of an out-of-spec condition does not
constitute a change to or waiver of any requirement of this Agreement.
C. Final acceptance of documentation hereunder shall occur at Space
Systems/Loral, Palo Alto, California, after review and determination of
its compliance with requirements of this Agreement, including
correction by the Subcontractor of all deficiencies and discrepancies
pertaining to such items.
D. Buyer and Buyer's Customer accompanied by Buyer shall have access to
Subcontractor's facilities, drawings, specifications and descriptions
of standards or production processes for hardware or software to be
delivered hereunder to the extent necessary to ensure compliant
performance. Notice of visit by Buyer and/or Buyer's customer(s) will
be provided within 48 hours of the anticipated visit to Subcontractor's
facility and such visit will be on a non-interference basis to
Subcontractor's operations.
E. The work to be performed under this Agreement is subject to the
on-going technical monitoring and pre-shipment inspection of Buyer and
Buyer's Customer accompanied by
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Buyer on a non-interference basis. Any review, concurrence or approval
by Buyer of activities performed by Subcontractor including, but not
limited to, any SDRL item submittals in connection with the work shall
not relieve Subcontractor from fulfilling its obligations in meeting
the requirements of this Agreement.
ARTICLE VII - TERMS OF HARDWARE DELIVERY AND SHIPMENT
All shipment of Hardware shall be in accordance with the following:
A. Buyer's Purchase Release(s) shall identify the quantity and destination
of Hardware items procured under this Agreement.
B. The Initial and Final destination of all Hardware items to be delivered
hereunder is as follows:
- Initial Destination Point - International Freight Services (for Space
Systems/Loral)
1610 Rollins Road
Burlingame, CA 94010
Attention: Mr. Achim Biller
Phone: 650 259-5106
- Final Destination Point - TOSHIBA
Toshiba Corporation Attention: Mr. Isao Takahashi,
Komukai Works Space Products Manufacturing
1, Komukai, Toshiba-Cho, 210 Department: Parts Acceptance Center
Saiwai-Ku, Kawasaki, 210 Japan Building No. 7-1, 1ST Floor
- Final Destination Point - MELCO
Mitsubishi Electric Corporation Attention: Mr. Hideo Uemura,
Kamakura Works Space Systems Section
325 Kamimachiya, Kamakura Planning & Marketing Department
Kanagawa 247, Japan
- Final Destination Point - SS/L
Space Systems/Loral, Inc. Attention: Mr. Naresh Makhijami,
Receiving/Distribution Center Mail Stop G-44
1145 Hamilton Court
Menlo Park, California 94025
Mark With: LTPA S-612773-JSS
C. The FOB and Delivery Point is Carrier, as designated by Buyer, at
Subcontractor's dock,
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Albuquerque, New Mexico. Subcontractor shall be responsible for all
costs associated with transportation and insurance of Hardware to the
Delivery Point.
D. Buyer shall be responsible for all arrangements and costs associated
with the transportation and insurance of Hardware- including the
preparation and execution of any and all documentation, obtaining all
necessary permits, licenses and clearances required by either the
United States Government or the Government of Japan, the payment of
Duties, Taxes and Fees, or other such charges which may be levied by
these governments- from the Delivery Point set forth in Paragraph C,
above, to the Destination Points noted in Paragraph B, above, or to any
other delivery point within Japan required by Buyer.
E. If, by law or regulation, Buyer is required to obtain any permit,
license or clearance in its capacity as Buyer under this Agreement,
Buyer shall undertake all reasonable efforts to do so. If Buyer is
either (1) unsuccessful in obtaining any regulatory mandated sanctions,
or (2) the pursuit of same is delayed to the extent such as to endanger
the intent and purpose of this Agreement, Buyer may terminate this
Agreement.
Under such circumstances, Buyer's liability and obligation with respect
to this Agreement shall not exceed the aggregate amount of Purchase
Releases authorized by Buyer at that time.
In the event of a conflict between this paragraph and any other
stipulation appearing in this Agreement, the former shall prevail.
F. Confirmation of all shipment of Hardware, including a copy of the
packing list, shall be faxed to Buyer immediately after delivery to the
Carrier. The Carrier's delivery receipt, executed and dated by Carrier,
shall be considered as evidence of the satisfaction of delivery
requirements. This notice shall be directed to Buyer's cognizant
Subcontract Administrator as designated in Article XIV, WITH AN
INFORMATION COPY TO BUYER'S TRAFFIC DEPARTMENT FAX NO. (415) 852-6440.
G. Title to Hardware deliverable hereunder and risk of loss associated
therewith shall be assumed by Buyer when said Hardware is placed into
the hands of the Carrier at the Delivery Point noted herein and
confirmed in accordance with the requirements of Paragraph F, above.
ARTICLE VIII - DELIVERABLE REPORTS AND DOCUMENTATION
Subcontractor agrees to prepare and submit all technical and other
documentation, including documentation as required in the Subcontract Data
Requirement List (SDRL) of Article I, Exhibit A, as follows:
A. Unless otherwise directed by a Purchase Release, all documentation
required by this Agreement shall be delivered FOB Buyer's Facility,
Palo Alto, California, addressed as follows:
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SPACE SYSTEMS/LORAL, INC. Attention: Data Bank
3825 Fabian Way Mail Stop: V-86
Palo Alto, CA 94303
The transmittal letter with each item of deliverable documentation
shall reference the Agreement Number, Statement of Work Number,
Document Title, and SDRL Item Number.
B. This Agreement requires submittal of documentation, including but not
limited to design, analysis, drawings, materials and parts lists and
processes which require Buyer approval. Buyer approval, however, does
not in any manner constitute relief of the Subcontractor's
responsibility for either determining the adequacy of said items for
their intended use or Subcontractor's responsibility for satisfying all
requirements of this Agreement.
C. Subcontractor shall deliver with "unlimited" rights all technical data
and software which Subcontractor provides to Buyer in accordance with
the Subcontractor Data Requirements List set for in Article I, Exhibit
A.
D. SDRL items which require Fax submittal shall be sent to the attention
of Buyer's Data Bank at Fax (650) 852-4788, and Buyer's cognizant
Subcontract Administrator in accordance with Article XIV.
E. Subcontractor shall submit SS/L Form 1266 (FINAL RELEASE, COMPLETION
AND ROYALTY CERTIFICATION) with the final invoice submitted under this
Agreement.
ARTICLE IX - NON-DISCLOSURE OF INFORMATION
A. Neither Party, nor their employees, will disclose to any third person
any information it has acquired under, or as a result of this Agreement
or negotiations leading to it concerning a Party's plans, business
objectives, customers, personnel, products, processes, work or services
without the prior written consent of the other Party, unless such
information becomes generally known without fault of the disclosing
Party, or is obtainable from other sources; nor shall either Party
disclose or release for public dissemination any information concerning
this Agreement in advertising without prior written approval of the
other Party.
B. Subcontractor agrees to make no use of drawings, specifications and
technical information or data
(1) furnished by Buyer, or (2) prepared by Subcontractor or its
employees and agents during the course of performance of work under
this Agreement, except as required to perform hereunder.
C. Neither Party shall disclose any funding, authorization, price and
schedule details of this Agreement to anyone other than Loral Space and
Communications, Inc., or its customers, without the written consent of
the other Party, or as might be directed by a court of law.
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ARTICLE X - TECHNICAL ASSISTANCE
With the exception of the requirements of Purchase Release No. 1, Buyer makes no
implication of intent nor any representation by this Agreement that it will
provide any technical assistance to Subcontractor in order for Subcontractor to
satisfy the requirements of this Agreement.
ARTICLE XI - ADVANCE TECHNOLOGY SUPPORT
Subcontractor will provide Buyer, free of charge, a mutually agreeable and
reasonable level of engineering support in the event Buyer elects to pursue any
advance technology associated with the hardware identified in this Agreement.
ARTICLE XII - PERIODIC REVIEW OF AGREEMENT
In the interest of maintaining a good-faith, long-term relationship between
Buyer and Subcontractor as contemplated by this Agreement, Buyer and
Subcontractor shall convene no less than an annual review each calendar year to
discuss the agenda items suggested below:
1. Subcontractor's and Buyer's past performance.
2. Buyer's business projections.
3. Possible opportunities for cost savings to both parties.
4. Potential for the extension of the Agreement.
5. Other matters as deemed applicable and appropriate by the parties.
ARTICLE XIII - KEY SUBCONTRACTOR PERSONNEL CLAUSE
With respect to this Agreement and any effort leading to same, Buyer has relied
upon Subcontractor's representation that Dr. Hong Hou is designated
Subcontractor's primary technical representative for the work and tasks required
by this Agreement.
Accordingly, in the event that the above named individual becomes unavailable to
further participate in the work and tasks required by this Agreement,
Subcontractor shall replace this individual with another of a comparable level
of experience, qualifications and ability, and Subcontractor shall obtain
Buyer's written approval prior to the replacement of the individual herein
named.
ARTICLE XIV - AMENDMENTS AND NOTICES
Sole authority to make changes in or amendments to this Agreement, and to effect
waivers or deviations from the work herein specified is hereby vested in Buyer's
authorized Subcontract Department representative. Except as otherwise
specifically provided for herein, any notices to be furnished by Subcontractor
to Buyer, or by Buyer to Subcontractor, shall be sent by mail or fax addressed
respectively, as follows:
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SPACE SYSTEMS/LORAL, INC. Attention: Joseph S. Szander Phone No. (650) 852-6506
3825 Fabian Way Fax No. (650) 852-7969
Palo Alto, California 94303 Mail Station: Z53
EMCORE CORPORATION Attention: Karen L. Schneider Phone No. (505) 332-5008
10420 Research Road, SE Fax No. (505) 332-5038
Albuquerque, NM 87123
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TERMS AND CONDITIONS
In addition to the provisions set forth in the SCHEDULE of this Agreement, Fixed
Price Procurement Order Terms and Conditions SS/L P-10S Rev. 7/98 are applicable
and are incorporated herein. In the event of a conflict between these
stipulations and the provisions of the SCHEDULE, the latter shall prevail.
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SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of
the day and year first written below:
SPACE SYSTEMS/LORAL, INC.
By: /s/ JOSEPH S. SZANDER
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Joseph S. Szander
Title: Subcontract Administrator
Date: November 24, 1998
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EMCORE CORPORATION
By: /s/ KAREN L. SCHNEIDER
-----------------------------------------
Karen L. Schneider
Title: Director of Business & Administration
Date: NOVEMBER 25, 1998
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