Launch Services Agreement between ViaSat Inc. and Arianespace for ViaSat-1 Satellite
ViaSat Inc. and Arianespace have entered into an agreement for Arianespace to launch the ViaSat-1 satellite, and potentially two additional satellites, into geostationary transfer orbit using an Ariane 5 launch vehicle. The contract outlines the technical, financial, and operational responsibilities of both parties, including launch scheduling, payment terms, risk allocation, insurance, and procedures for delays or termination. The agreement also addresses confidentiality, required permits, and dispute resolution. Key obligations include ViaSat’s technical commitments and Arianespace’s provision of launch services under specified terms and conditions.
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
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TERMS AND CONDITIONS
Pages | ||||
RECITALS | 6 | |||
ARTICLE 1 DEFINITIONS | 7 | |||
ARTICLE 2 SUBJECT OF THE AGREEMENT | 13 | |||
ARTICLE 3 CONTRACTUAL DOCUMENTS | 14 | |||
ARTICLE 4 ARIANESPACES SERVICES | 15 | |||
ARTICLE 5 CUSTOMERS TECHNICAL COMMITMENTS | 19 | |||
ARTICLE 6 LAUNCH SCHEDULE | 20 | |||
ARTICLE 7 COORDINATION BETWEEN ARIANESPACE AND CUSTOMER | 22 | |||
ARTICLE 8 REMUNERATION | 23 | |||
ARTICLE 9 LAUNCH VEHICLE QUALIFICATION | 25 | |||
ARTICLE 10 PAYMENT FOR SERVICES | 26 | |||
ARTICLE 11 LAUNCH POSTPONEMENTS | 31 | |||
ARTICLE 12 RIGHT OF OWNERSHIP AND CUSTODY | 35 | |||
ARTICLE 13 REPLACEMENT LAUNCH | 36 | |||
ARTICLE 14 ALLOCATION OF POTENTIAL LIABILITIES AND RISKS | 38 | |||
ARTICLE 15 INSURANCE | 43 | |||
ARTICLE 16 OWNERSHIP OF DOCUMENTS AND WRITTEN INFORMATION CONFIDENTIALITY/PUBLIC STATEMENTS | 45 | |||
ARTICLE 17 PERMITS AND AUTHORIZATIONS | 47 | |||
ARTICLE 18 TERMINATION BY CUSTOMER | 48 | |||
ARTICLE 19 TERMINATION BY ARIANESPACE | 51 | |||
ARTICLE 20 MISCELLANEOUS | 52 | |||
ARTICLE 21 APPLICABLE LAW | 55 | |||
ARTICLE 22 ARBITRATION | 56 | |||
ARTICLE 23 EFFECTIVE DATE | 57 |
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ANNEX 1 | STATEMENT OF WORK | |
Part 1 | LAUNCH SPECIFICATIONS | |
Part 2 ARIANESPACE TECHNICAL COMMITMENTS | ||
Part 3 CUSTOMERS TECHNICAL COMMITMENTS | ||
Part 4 DOCUMENTATION AND REVIEWS | ||
Part 5 GENERAL RANGE SUPPORT (GRS) AND OPTIONAL SERVICES |
ANNEX 3 LAUNCH CERTIFICATE
ANNEX 4 ESA ARIANESPACE CONVENTION (EXTRACT)
ANNEX 5 GUARANTY AGREEMENT
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WHEREAS | CUSTOMER has approached ARIANESPACE with a view to launching the ViaSat-1 Satellite and two optional Satellites using an ARIANE Launch Vehicle, and |
WHEREAS | ARIANESPACE has proposed to CUSTOMER either a Dedicated Launch or a Double Launch, and |
WHEREAS | CUSTOMER has selected a Double Launch, being aware of the particular constraints involved in such a Launch, and |
WHEREAS | CUSTOMER and ARIANESPACE, aware of the constraints and risks involved in any Launch operation and of the complex nature of the technologies involved, have reached an agreement in accordance with the terms and conditions set forth herein, |
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a) | any individual or legal entity governed by private or public law that has directed ARIANESPACE to proceed with the Launch or has any interest in the Launch, including without limitation, a legal interest in the Launch Vehicle shall be deemed to be an Associate of ARIANESPACE | |
b) | any individual or legal entity governed by private or public law that has directed CUSTOMER to proceed with the Launch, or has any interest in the Satellite to be launched, including without limitation, insurers, any person or entity to whom CUSTOMER has sold or leased , directly or indirectly, or otherwise agreed to provide any portion of the Satellite or Satellite service shall be deemed to be an Associate of CUSTOMER; | |
c) | any individual or legal entity governed by private or public law, that has directed the Third Party Customer(s) of ARIANESPACE to proceed with the launch, or has any interest in the satellite of the Third Party Customer(s) to be launched, including without limitation, insurers, any person or entity to whom the Third Party Customer(s) has sold or leased , directly or indirectly, or otherwise agreed to provide any portion of the satellite or satellite service shall be deemed to be an Associate of Third Party Customer(s) of ARIANESPACE. |
* | Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
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a) | the performance of the various systems of the Launch Vehicle; and/or the environmental conditions to which the Satellite was subjected during the period from the instant when the Launch occurred until the instant when the activation of either the propulsion and/or orientation systems of the Satellite should have occurred; and/or | |
b) | the behaviour of the satellite of a Third Party Customer(s) of ARIANESPACE from the instant when the Launch occurred until the earlier of the following : |
| the instant when the propulsion and/or orientation systems of the satellite of the Third Party Customer(s) of ARIANESPACE are activated, or | ||
| the instant when the activation of either the propulsion and/or orientation systems of the Satellite should have occurred. |
* | Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
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a) | a total loss or destruction of the Satellite during the period extending from the instant when the Launch occurred and the instant when the Satellite is separated from the Launch Vehicle, or if such Satellite cannot be separated from the Launch Vehicle; or | |
b) | the occurrence due to a Deviation of a reduction, expressed as a percentage, of more than the Launch Failure Factor (LFF), as defined below, of the operational capability of the Satellite for CUSTOMERs intended communication purposes, using reasonable business judgment. |
* | Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
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* | Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
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* | Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
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3.1 | This Agreement consists of the following documents, which are contractually binding between the Parties: |
1) | Terms and Conditions | ||
2) | Launch Specifications (Part 1 of Annex 1) | ||
3) | ARIANESPACE Technical Commitments (Part 2 of Annex 1) | ||
4) | CUSTOMERs Technical Commitments (Part 3 of Annex 1) | ||
5) | Documentation and reviews (Part 4 of Annex 1) | ||
6) | General Range Support (GRS) and Optional Services (Part 5 of Annex 1) | ||
7) | ESA-ARIANESPACE Convention (Extract) (Annex 2) |
3.2 | All of the Agreement documents shall be read so as to be consistent to the extent practicable. In the event of any inconsistency between the terms and conditions and the Annexes, the Terms and Conditions shall prevail over the Annexes. There is no order of precedence among the documents 2 through 7 above inclusive. |
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4.1 | ARIANESPACE shall, for the Firm Launch and for the Optional Launches if the related option(s) has/have been activated by CUSTOMER, perform the Services under this Agreement including: |
4.1.1 | Launch Services. | ||
4.1.2 | Services ordered by CUSTOMER as set forth in this Agreement, and as defined in Paragraph 1 (General Range Support) and Paragraph 2 (Options Ordered by the CUSTOMER) of Part 5 of Annex 1 to this Agreement, in accordance with the conditions as specified therein. | ||
4.1.3 | Subject to any additional orders of CUSTOMER, one or more of the services as set forth in (i) Paragraph 3 (Additional Options Available to the CUSTOMER) of Part 5 of Annex 1 to this Agreement, (ii) the Ariane 5 Users Manual (M.U.A.), Issue 5, Revision 0, dated July 2008 (except for the shock spectrum which shall be as defined in Paragraph 4 of Part 1 of Annex 1 to this Agreement), in accordance with the then applicable conditions and any other services ordered by CUSTOMER and accepted by ARIANESPACE. |
4.2 | Launch Services, except for Postlaunch Services, shall be deemed to be completed by ARIANESPACE when the Launch has taken place. In the event that, for any reason whatsoever, a Launch Abort occurs, ARIANESPACE shall postpone the Launch in accordance with the conditions set forth in ARTICLE 11 of this Agreement. | |
4.3 | Launch Risk Guarantee |
4.3.1 | CUSTOMER shall have the right to exercise the Launch Risk Guarantee by electing either the Refund Option or the Reflight Option by written request received by ARIANESPACE (i) no later than [***] for the Firm Launch, and (ii) within [***] months following the activation date of each respective Optional Launch. |
4.3.1.1 | In the event CUSTOMER has elected the Reflight Option and the Launch Mission results in a: | ||
4.3.1.1.1 Launch Failure, ARIANESPACE shall perform a Reflight, in accordance with the provisions of this Agreement, provided that no further payment by CUSTOMER to ARIANESPACE shall be due for the provision of (i) Launch Services for the Launch of a replacement Satellite on condition that the maximum mass of such Satellite is substantially similar to or less than the mass of the initial Satellite and (ii) such Associated Services as are retained by CUSTOMER as of the date of execution of this Agreement, except as provided for in Paragraph 8.2 of Article 8 of this Agreement, in case of postponement. |
* | Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
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4.3.1.1.2 Partial Failure, ARIANESPACE shall pay to CUSTOMER an amount as obtained by multiplying the Guarantee Amount by the Loss Quantum if the Launch Mission has resulted in a Partial Failure. The resulting amount will be subject to a deductible equal to PFF of the Guarantee Amount provided for the launching, in accordance with the following formula : |
Notwithstanding the foregoing, if the insurance policy taken out by CUSTOMER (i) provides for a deductible higher or lower than PFF, such deductible as provided for in the said insurance policy shall apply, or (ii) does not provide for a deductible, no deductible shall apply. | |||
4.3.1.2 | In the event CUSTOMER has elected the Refund Option and the Launch Mission results in a: | ||
4.3.1.2.1 Launch Failure, ARIANESPACE shall pay to CUSTOMER an amount equal to the Launch Services Price amount, or | |||
4.3.1.2.2 Partial Failure, ARIANESPACE shall pay to CUSTOMER an amount as determined pursuant to Sub-paragraph 4.3.1.1.2 above where Guarantee Amount reads Launch Services Price. |
4.3.2 | Any amount due by ARIANESPACE to CUSTOMER under Sub-paragraphs 4.3.1.1 or 4.3.1.2 above shall be paid as soon as practicable, but in any event within (a) a SIXTY (60) day period following the date when the Parties have agreed on the occurrence of the Launch Failure or the Partial Failure and the corresponding Loss Quantum, provided CUSTOMER has paid all amounts due and payable by it under this Agreement. ARIANESPACE shall pay the CUSTOMER interest on any late or delayed payment of the foregoing sum at the Base Rate from and including the date due to but excluding the date made. The computation of interest for late payments shall be based on a year of 360 days | ||
4.3.3 | The implementation of Sub-paragraphs 4.3.1.1 or 4.3.1.2 above shall not imply any transfer of title to the Satellite to ARIANESPACE. In case of Launch Failure or Partial Failure, the rights of ARIANESPACE shall be the same of those of any entity(ies) who could cover risks related to the launch of the Satellite. Specially and not limitatively, in circumstances where salvage can be performed, ARIANESPACE will be entitled to a share in any salvage value remaining in any portion of the Satellite for which a Reflight has been performed or a cash payment has been due and paid by ARIANESPACE to CUSTOMER, and the Parties will negotiate the disposition of the Satellite if, in connection with a Launch Failure, transfer of title has been requested. | ||
4.3.4 | In the event that, after application of Sub-paragraphs 4.3.1.1 or 4.3.1.2 above due to a Launch Failure, the Satellite is placed into commercial operation and/or is sold, leased or otherwise transferred, ARIANESPACE shall be entitled to a share of any resulting revenues and/or payments, as shall be negotiated and agreed upon promptly, taking into account the specific details and circumstances of such |
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4.3.5 | There shall not be any cover for Launch Failure or Partial Failure and consequently the provisions of Sub-paragraphs 4.3.1.1 or 4.3.1.2 above shall not apply, in any of the following cases : |
4.3.5.1 | If CUSTOMER does not notify in writing ARIANESPACE of any event that would entitle CUSTOMER to any right under Sub-paragraph 4.3.2 above before the first to occur of any of the THREE (3) following events; |
(i) | the day the Satellite is put into commercial operation, | ||
(ii) | the SIXTIETH (60th) day following the date of station acquisition of the Satellite, | ||
(iii) | the NINETIETH (90th) day at zero hour following the date of the Launch. |
(a) | the launching does not conform to the specifications of the D.C.I. and the Satellite reached its final positioning such that it cannot be determined that a Launch Failure or Partial Failure has occurred and; | ||
(b) | CUSTOMERs request for extension is received before the first of the THREE (3) events specified above. |
4.3.5.2 | if the Launch Failure or the Partial Failure is caused by, or results from one or more of the following events |
A | War, hostile or warlike action in time of peace or war, including action in hindering, combating or defending against an actual, impending or expected attack by (a) any government or sovereign power (de jure or de facto), or (b) any authority maintaining or using a military, naval or air force, or (c) a military, naval or air force, or (d) any agent of any such government, power, authority or force; | ||
B | any anti-satellite device, or device employing atomic or nuclear fission and/or fusion, or device employing laser or directed energy beams; | ||
C | insurrection, strikes, riots, civil commotion, rebellion, revolution, civil war, usurpation or action taken by a government authority in hindering, combating or defending against such an occurrence whether there be a declaration of war or not; |
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D | confiscation by order of any government or governmental authority or agent (whether secret or otherwise), or public authority; | ||
E | nuclear reaction, nuclear radiation, or radioactive contamination of any nature, whether such loss or damage be direct or indirect, except for radiation naturally occurring in the space environment; | ||
F | willful or intentional acts of CUSTOMER designed to cause loss or failure of the Satellite; | ||
G | electromagnetic or radio frequency interference, except for (i) physical damage to the Satellite resulting from such interference, or (ii) interference naturally occurring in the space environment. | ||
H | any act of one or more persons, whether or not agents of a sovereign power, for political or terrorist purposes and whether the loss or damage resulting therefrom is accidental or intentional. | ||
I | any unlawful seizure or wrongful exercise of control of the Satellite made by any person or persons acting for political or terrorist purposes whether the loss or damage resulting therefrom is accidental or intentional. |
4.4 | Optional Launch(es) |
4.4.1 | Options Activation: CUSTOMER shall have the possibility to activate each of the two Optional Launches by written notice to ARIANESPACE. | ||
4.4.2 | Either or both of the Optional Launches may be assigned by CUSTOMER to Affiliates of CUSTOMER, in accordance with Paragraph 20.5 of this Agreement. | ||
4.4.3 | For purpose of clarity it is hereby agreed that any termination by CUSTOMER of the Optional Launches after activation of the related option, shall be subject to the terms of Paragraph 18.2 to this Agreement. |
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5.1 | CUSTOMER shall fulfill the Technical Commitments set forth in Parts 1 and 3 of Annex 1 to this Agreement including, without limitation, delivery of the Satellite to the Launch Base within the time limits consistent with the launch schedule set forth herein. | |
5.2 | CUSTOMER shall promptly notify ARIANESPACE in writing of any event that may cause a delay in the Launch schedule. |
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6.1 | The Launch of the Satellite(s) shall take place during the following Launch Period(s): |
6.1.1 | Firm Launch: |
6.1.2 | Optional Launches |
(i) | the first day of the requested Launch Period for Optional Launch #1 shall not be prior to [***] months following the activation date of Optional Launch #1, and being further agreed that the last day of the said Launch Period shall not be later than [***]; | ||
and | |||
(ii) | the first day of the requested Launch Period for Optional Launch #2 shall not be prior to [***] months following the activation date of Optional Launch #2, and being further agreed that the last day of the said Launch Period shall not be later than [***]. |
6.2 | Taking into account available Launch Opportunity(ies), the Launch Slot(s) within the Launch Period(es) shall be determined by mutual agreement of the Parties no later than [***] months prior to the first day of the applicable Launch Period. | |
6.3 | Based on a proposal made by ARIANESPACE, by mutual agreement of the Parties, the Launch Day within the Launch Slot shall be determined, no later than [***] months prior to the first day of the applicable Launch Slot. | |
6.4 | Based on a proposal made by ARIANESPACE, by mutual agreement of the Parties, the Launch Window set forth in Sub-paragraph 2.3 of Part 1 to Annex 1 to this Agreement shall be determined no later than the applicable Final Mission Analysis Review. |
* | Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
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6.5 | In the event that, for any reason whatsoever, the Parties fail to agree upon the Launch Slot within the Launch Period, the Launch Day, or the Launch Window, ARIANESPACE shall reasonably determine said Launch Slot, Launch Day, or Launch Window taking into account the available Launch Opportunity(ies), and the requirements and respective interests of CUSTOMER and any of the Third Party Customer(s) of ARIANESPACE. |
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7.1 | CUSTOMER and ARIANESPACE shall each designate a program director (Program Director) no later than TWO (2) months after the execution of this Agreement. | |
7.2 | The Program Director shall supervise and coordinate the performance of the Services and the Technical Commitments of the respective Parties within the Launch schedule set forth herein. | |
7.3 | Each Program Director shall have sufficient powers to be able to settle any technical issues that may arise during the performance of this Agreement, as well as any day-to-day management issues. | |
7.4 | A Party may replace its Program Director by prior written notice to the other Party, signed by an authorized official, indicating the effective date of designation of the new Program Director. | |
7.5 | If CUSTOMER is not satisfied with the performance of ARIANESPACEs Program Director, CUSTOMER may at any time request ARIANESPACE to replace such Program Director and the Parties shall mutually agree on a replacement Program Director. |
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8.1 | The remuneration of ARIANESPACE for the provision of Launch Services, as defined in Sub-paragraphs 4.1.1 and 4.1.2 of ARTICLE 4, for the Firm Launch and the two (2) Optional Launches is a fixed price, as follows: |
8.1.1 |
a) | For the Firm Launch: | ||
For the ViaSat-1 Satellite with a mass of [***]kg (without adaptor), the price shall be ONE HUNDRED SEVEN MILLION SEVEN HUNDRED FIFTY EIGHT THOUSAND United States Dollars (US$107 758 000). | |||
Any increase in mass shall be subject to a variation in the firm fixed amount stated above of [***] United States Dollars (US$ [***])for each kilogram that the Satellite mass is increased. Such amount shall escalate in accordance with Article 8.2 of this Agreement. | |||
b) | For Optional Launches: | ||
For a Satellite with a mass of [***]kg (without adaptor), the price shall be [***] Euros ([***]), as may be converted in US dollars at CUSTOMERs option, upon the exercise of each Optional Launch. | |||
For a Satellite with a maximum mass of [***] kg (without adaptor): the price shall be [***] Euros ([***]), as may be converted in US dollars at CUSTOMERs option, upon the exercise of each Optional Launch. | |||
For a reference Satellite mass between [***] kg and [***] kg, this price will be computed by linear interpolation | |||
Any increase in mass shall be subject to a variation in the firm fixed amount stated above of [***] Euros, as may be converted in US dollars at CUSTOMERs option, for each kilogram that the Satellite mass is increased. Such amount shall escalate in accordance with Article 8.2 of this Agreement. | |||
The prices for the Optional Launches shall be fixed for Launches to take place on or prior to [***]. Should the Launch Periods requested by CUSTOMER in accordance with Sub-paragraph 6.1.2 of ARTICLE 6 hereof be beyond [***] (but in no event can the Optional Launch(es) occur later than [***]), then the |
* | Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
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price shall be escalated by [***] percent per quarter from said date up to the first day of the initially requested Launch Period. |
8.1.2 | The amount mentioned in the above Sub-paragraph 8.1.1 shall be increased in a firm fixed amount as follows: |
(i) | The amount obtained by multiplying the price set forth in the above Sub-paragraph 8.1.1 by [***] PER CENT ([***]%), if CUSTOMER exercises the Reflight Option. | ||
(ii) | The amount obtained by multiplying the price set forth in the above Sub-paragraph 8.1.1 by [***] PER CENT ([***]%), if CUSTOMER exercises the Refund Option. |
8.1.3 | Commencing with the effective date of this Agreement, and up to L minus [***] months, CUSTOMER may vary the Satellite mass by a maximum total mass of [***] kg. |
8.1.3.1 | Notwithstanding the foregoing, in the event of availability of extra payload capacity of the Launch Vehicle at the time of the Final Mission Analysis is performed, CUSTOMER shall be entitled to a corresponding increase of the Satellite mass, it being further specified, in the case of an ARIANE 5 Launch, that such extra payload capacity shall be allocated to CUSTOMER based on the pro-rata between the mass of the Satellite of the CUSTOMER and the mass of satellite of the Third Party Customer of ARIANESPACE. Any mass increase pursuant to this Sub-paragraph 8.1.3.1 shall be [***]. |
8.2 | The firm fixed price, if any, for Associated Services assumes, that the Launch will be performed within [***] from the end of the Launch Period stated in Article 6.1.1 or in Article 6.1.2 as applicable. Should the Launch Period or Launch Slot assigned to CUSTOMER under ARTICLE 11 of this Agreement extend beyond [***] from the end of the Launch Period stated in Article 6.1.1 or in Article 6.1.2 whichever applicable, then the price for such Associated Services, if any, shall escalate by [***] after such time for such Associated Services that will not have been performed by the date of request for any postponement, and that would have to be performed again as a consequence of any Launch postponement. The same principle shall apply for a Reflight. | |
8.3 | All prices, expenses, and charges set forth in this Agreement shall be free from any and all taxes and other duties of any French tax authority. |
* | Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
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9.1 | ARIANESPACE shall only select a Launch Vehicle belonging to the ARIANE 5 family to perform the Launch Service(s) under this Agreement which meets or exceeds all of the following criteria: |
9.1.1 | The Launch Vehicle shall be flight proven, including all major systems, and subsystems through a minimum of [***] prior successful missions, the last of which must be accomplished no later than [***] months prior to the start of the then-current Launch Period, Launch Slot, or Launch Day; and | ||
9.1.2 | The Launch Vehicle shall not have suffered a Launch Failure in any of the [***] flights immediately preceding CUSTOMERs Launch. |
9.2 | CUSTOMER shall have the option to postpone its Launch until such time that the Launch Vehicle does comply with the requirements of Paragraph 9.1, and any such postponements shall be attributable to ARIANESPACE. | |
9.3 | In the event that ARIANESPACE cannot comply with the requirements of this Article 9, then any postponements caused by ARIANESPACE in order to allow for time to comply with the requirements of this ARTICLE 9 shall not be considered to be postponements caused by Event(s) of Force Majeure. Any such postponements will be attributable to ARIANESPACE, in accordance with Article 11.3. |
* | Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
10.1 | Payment of the remuneration under Paragraph 8.1 of ARTICLE 8 of this Agreement shall be made in accordance with the following payment schedule: |
10.1.1 | Firm Launch |
Percentage of the Launch Services price | ||
referred to in Sub-paragraph 8.1.1 a) of | ||
DATE | Article 8 of this Agreement | |
[***] | [***] |
* | Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
10.1.2 | Optional Launches |
Percentage of the Launch Services price | ||
applicable to each particular Firm | ||
Optional Launch as referred to in Sub- | ||
paragraph 8.1.1 b) of Article 8 of this | ||
DATE | Agreement | |
[***] | [***] |
10.1.3 | The price of the Reflight Option or the Refund Option shall be paid in accordance with the following payment schedule: |
Percentage of the price of the Refund or | ||
Reflight Option referred to in Sub-paragraph | ||
DATE | 8.1.2 of Article 8 of this Agreement | |
[***] | [***] |
* | Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
10.1.4 | Mass variation | ||
If CUSTOMER varies the Satellite mass under Sub-paragraph 8.1.3 of ARTICLE 8 of this Agreement, the resulting price variation shall be paid by CUSTOMER to ARIANESPACE, or refunded by ARIANESPACE to CUSTOMER, as applicable, on a pro-rata basis over the remaining payments as set forth in Sub-paragraph 10.1.1 or 10.1.2, whichever is applicable, following the receipt by ARIANESPACE of CUSTOMERs written request for mass variation. |
10.2.1 | Payment for Associated Services ordered by CUSTOMER under Part 5 of Annex 1 to this Agreement, for which a firm fixed price has been established, shall be due as of the date set forth in said Paragraph. | ||
10.2.2 | Payment for Associated Services ordered by CUSTOMER under Part 5 of Annex 1 to this Agreement, for which no total firm fixed price can be determined in advance, shall be due on the date on which CUSTOMER terminates use of the relevant Associated Services. |
10.3 | Terms and Conditions of Payment/ARIANESPACEs Invoices |
10.3.1 | Where this Agreement determines a precise payment date, payment has to be made at such date or within THIRTY (30) days from receipt of ARIANESPACEs corresponding invoice, whichever is later, except (i) for the first payment provided in Sub-paragraph 10.1.1 of ARTICLE 10 of this Agreement, for which invoice will be presented upon execution of this Agreement and paid TEN (10) days thereafter and (ii) for the first payment provided in Sub-paragraph 10.1.2 of ARTICLE 10 of this Agreement, for which invoice will be presented upon activation of the related Optional Launch and paid TEN (10) days thereafter . | ||
10.3.2 | Where the Agreement does not determine a precise payment date, such as for Associated Services, payment has to be made as of the later date of (a) the date when payment becomes due, or (b) within THIRTY (30) days of receipt of ARIANESPACEs corresponding invoice, in each case for the Associated Services rendered or to be rendered in accordance with Annex I, Part 5, whichever is later. | ||
10.3.3 | ARIANESPACE invoices shall be drawn up in TWO (2) copies (one original and one copy) and sent to the same address as specified herein for notices to CUSTOMER under Paragraph 20.2, or to such other address as CUSTOMER may notify ARIANESPACE in writing. | ||
The method for calculating the amount of each invoice shall be shown clearly. | |||
10.3.4 | Payments shall be made to the account(s) designated on the relevant invoice by bank transfer with SWIFT notice to be sent by CUSTOMER to ARIANESPACE upon |
its receipt from the issuing bank. Each SWIFT notice shall clearly state the value date to be applied which shall be the date stated in Sub-paragraph 10.1.1 or Sub-paragraph 10.1.2, as applicable, and the bank through which the funds will be made available to the receiving bank or its correspondent. | |||
Payment shall be effective as of the date on which the amount of the ARIANESPACE invoice is credited for value to the designated account(s). | |||
Notwithstanding the foregoing, the [***] Payment with respect to the Firm Launch and the Optional Launches, if activated, as identified in Sub-paragraphs 10.1.1 and 10.1.2, whichever is applicable, shall be secured by means of an irrevocable standby letter of credit (hereinafter L/C), issued in favour of ARIANESPACE by a reputable international bank and confirmed by a reputable international bank in France acceptable to ARIANESPACE. Such L/C shall be issued at CUSTOMERs cost, including the confirmation cost, substantially in the form shown in ANNEX 2 to this Agreement. CUSTOMER shall provide ARIANESPACE at [***] months with the name and details of the selected bank(s) for issuance of the L/C. Upon ARIANESPACE agreement, CUSTOMER shall promptly give instructions to this(ese) selected bank(s) for issuance and delivery of the L/C to ARIANESPACE on or prior to [***] months of each related Firm or Optional Launches. In case of a failure by the CUSTOMER to deliver to ARIANESPACE in due time the L/C meeting the above requirements at the date set forth hereabove, the last payment related to Firm Launch and/or Optional Launch as set forth in identified in Sub-paragraphs 10.1.1 or 10.1.2, whichever is applicable, shall be due and paid by CUSTOMER to ARIANESPACE prior to [***]. | |||
10.3.5 | CUSTOMERs payment(s) shall be in the amount(s) invoiced by ARIANESPACE, and shall be made net, free and clear of any and all taxes, duties, or withholdings that may be imposed in the Country of CUSTOMER and the Country from which they are paid so that ARIANESPACE receives each such payment in its entirety as if no such tax, duty, or withholding had been made. |
10.4 | Late Payment |
* | Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
10.5 | Waiver of Deferral, Withholding or Set-off |
11.1 | Each postponement of the Launch Period, the Launch Slot, the Launch Day or the Launch Time, for whatever reason, shall, for each particular Launch under this Agreement, be governed solely by the terms and conditions provided in this Article 11. The Parties hereto expressly waive, renounce, and exclude any and all rights and remedies that may arise at law or in equity with respect to postponements that are not stated in this Article 11 or elsewhere in this Agreement. |
11.2.1 | CUSTOMER shall have the right for any reason whatsoever to postpone the Launch Period and, once determined, the Launch Slot or the Launch Day. The CUSTOMERs written notice for postponement shall indicate the new requested (i) Launch Period, or (ii) Launch Slot, or (ii) Launch Day, as the case may be. For the avoidance of any doubt, CUSTOMERs existing Launch Period, Launch Slot or Launch Day (as applicable) shall not be relinquished until CUSTOMER has agreed to the new Launch Period, Launch Slot or Launch Day (as applicable) pursuant to the provisions of this Paragraph 11.2. |
11.2.1.1 | If the CUSTOMERs written request relates to a Launch Period or a Launch Slot postponement, within TWO (2) weeks of receipt of such request, ARIANESPACE shall inform CUSTOMER whether a Launch Opportunity exists within the Launch Period, or within the Launch Slot requested, or will propose a new Launch Period or Launch Slot, taking into account CUSTOMERs requests, within the next available Launch Opportunity. CUSTOMER shall have THIRTY (30) days following receipt of ARIANESPACEs proposal to consent thereto in writing. | ||
11.2.1.2 | If the CUSTOMERs written request relates to a Launch Day postponement, the choice of a new Launch Day shall be made by mutual agreement of the Parties, taking into account the technical needs and interests of CUSTOMER and any Third Party Customer(s) of ARIANESPACE, the time necessary for the revalidation of the launch assembly complex consisting of the ARIANE Launch Vehicle, the Launch Base (ELA), and the payload preparation assembly (EPCU), and meteorological forecasts. | ||
11.2.1.3 | Any postponements by CUSTOMER of the Launch Time within the Launch Window may only be requested during the countdown period. In the event that CUSTOMER has requested such postponement and technical reasons, including, without limitation, those relating to any Third Party Customer(s) of ARIANESPACE, or meteorological reasons prevent ARIANESPACE from performing the Launch in the Launch Window opening during the Launch Day, the postponement shall be considered to be a postponement of the Launch Day. | ||
11.2.1.4 | In the event that the aggregate duration of all postponements requested by CUSTOMER for a particular Launch under this Agreement, result in |
11.2.2 | If CUSTOMER requests a postponement in the Launch Period, Launch Slot or Launch Day, and ARIANESPACE, in its reasonable judgment, determines that a Launch Opportunity is not available in the time requested by CUSTOMER, and the Launch is subsequently scheduled to occur in a later Launch Period, Launch Slot or Launch Day than that requested by CUSTOMER, then the total number of calendar days of postponement originally requested by CUSTOMER shall be attributed to CUSTOMER. Any delay in the Launch schedule resulting from the determination by ARIANESPACE of the availability of a Launch Opportunity in excess of the postponement requested by CUSTOMER shall not be deemed to be attributed to CUSTOMER or ARIANESPACE. |
11.3.1 | ARIANESPACE shall have the right to postpone a Launch, for the following reasons: |
11.3.1.1 | Postponement of Launch Period and of Launch Slot. |
a) | ARIANESPACE or its Associates encounter adverse technical problems that prevent the Launch from taking place under satisfactory conditions of safety or reliability. | ||
b) | ARIANESPACE cannot perform the Launch as a Double Launch for any reason whatsoever. [***] | ||
c) | ARIANESPACE is requested to perform replacement launch(es), or to launch scientific satellite(s) whose mission(s) may be degraded in the event of postponement. | ||
d) | ARIANESPACE postpones the Launch due to postponement(s) by ARIANESPACE of satellite(s) having an earlier Launch Period or Launch Slot than CUSTOMERs Satellite, for reasons similar to the reasons set forth under this Sub-paragraph 11.3.1.1 a), b) and c). |
11.3.1.2 | Postponement of Launch Day within the Launch Slot and/or Launch Time within the Launch Window. |
* | Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
a) | For any of the reasons listed in Sub-paragraph 11.3.1.1 a), b) and c), and d) above, and | ||
b) | If following its/their integration on the Launch Vehicle, ARIANESPACE must remove the Auxiliary Payload(s) due to a threat to the Launch Mission or the Satellite Mission or the satellite mission of the satellite of the Third Party Customer of ARIANESPACE. |
11.3.2 | The Parties shall determine by mutual agreement a new Launch Period and/or a new Launch Slot as near as possible to the postponed one in accordance with the order of the following criteria : |
| possibilities of Launching, including the availability of a Launch Vehicle, the Launch Base and associated infrastructure and services necessary to perform the Launch; | ||
| Launch Rank of CUSTOMERs Satellite; | ||
| date of signature of this Agreement. |
11.3.3 | Any postponement by ARIANESPACE of the Launch Period, Launch Slot, Launch Day, Launch Window, or Launch Time due to CUSTOMERs non-fulfilment of its obligations under this Agreement, including CUSTOMERS failure to timely apply for, obtain or maintain any necessary export licenses, where despite the reasonable commercial efforts of the Parties (including implementation of work-around plans or designation of third-party consultants to transfer necessary information to ARIANESPACE in compliance with applicable laws), and such failure by the CUSTOMER renders performance of the Launch by ARIANESPACE impossible within the Launch Period, Launch Slot, or during Launch Window of the Launch Day, or at the Launch Time shall be considered to be requested by CUSTOMER in accordance with Paragraph 11.2 above as of the date of ARIANESPACEs decision to postpone the Launch. |
11.4 | Any Launch postponement requested by ARIANESPACE pursuant to Paragraph 11.3 of this ARTICLE 11 shall only occur as a last resort and following the reasonable commercial efforts of ARIANESPACE to avoid and mitigate such postponement as may be necessary for the reasons set forth in Sub-paragraphs 11.3.1.1 and 11.3.1.2 of this ARTICLE 11. |
11.5.1 | Postponements by ARIANESPACE In the event of postponement of the Launch Period, Launch Slot or Launch Day, as applicable, for the affected Launch |
11.5.2 | Postponements by CUSTOMER In the event of postponement of the Launch Period, Launch Slot or Launch Day, as applicable, for the affected Launch Service(s) is declared by CUSTOMER for any reason including Events of Force Majeure and those stated in Sub-paragraph 11.3.3, the payments set forth in Paragraph 10.1 shall remain due as if the Launch Period, Launch Slot or Launch Day, as applicable, had not been postponed. |
11.6 | If at any time following the Effective Date of this Agreement, ARIANESPACE becomes aware (including due to a notice or inquiry from CUSTOMER), to the best of its knowledge, of any material event or circumstance that could result in a delay to the then-scheduled Launch Period, Launch Slot or Launch Day, then ARIANESPACE shall within FIVE (5) days of becoming aware of such event or circumstance, inform CUSTOMER in accordance with Paragraph 20.2 of this Agreement, as to the potential or actual impact of such event or circumstance to the then-scheduled Launch Period, Launch Slot or Launch Day (as applicable). |
* | Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
12.1 | The obligations of ARIANESPACE under this Agreement are strictly limited to the Services, and CUSTOMER acknowledges and agrees that at no time shall it have any right of ownership of, any other right in, or title to, the property that ARIANESPACE shall use in connection with the Launch, or shall place at CUSTOMERs disposal for the purpose of this Agreement, including, without limitation, the Launch Vehicle and the Launch Base of ARIANESPACE. Said property shall at all times be considered to be the sole property of ARIANESPACE. |
12.2 | ARIANESPACE acknowledges and agrees that at no time shall it have any right of ownership, or any other right in, or title to, the property that CUSTOMER shall use for the Launch and the interface test(s), including, without limitation, the Satellite and all equipment, devices and software to be provided by CUSTOMER on the Launch Base in order to prepare the Satellite for Launch. Said property shall at all times be considered to be the sole property of CUSTOMER. | |
12.3 | At all times during the performance by the Parties of this Agreement, each Party shall be deemed to have full custody and possession of its own property. |
13.1.1 | CUSTOMER is entitled to request a Replacement Launch from ARIANESPACE in the event that, following the Launch, either the Launch Mission or the Satellite Mission has not been accomplished for any reason whatsoever. Replacement Launch Services are subject to the conditions set forth in this Article 13. Any and all other rights and remedies of CUSTOMER are excluded whatever their nature. | ||
13.1.2 | CUSTOMER shall be entitled to have a Launch Slot for a Replacement Launch allocated to it by ARIANESPACE in accordance with the following: |
13.1.3 | The written request for a Replacement Launch shall be received by ARIANESPACE no later than the last day of the second month following the month in which the cause of the failure of either the Launch Vehicle Mission or the Satellite Mission has been established, but in no event later than, in the case of a Satellite Mission failure, [***] months following the date of Launch. |
13.1.4 | ARIANESPACE shall inform CUSTOMER, within the month following receipt of CUSTOMERs request for a Replacement Launch, whether or not a Launch Opportunity exists within the requested Launch Period and, in any event, shall allocate a Launch Slot to CUSTOMER, the first day of which shall be before the |
* | Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
13.1.5 | The replacement Satellite shall be substantially similar to or lighter in mass than the Satellite and shall be of a bus type that has been integrated with and is compatible with the Launch Vehicle. |
13.2 | General Conditions | |
Except for a Reflight, the remuneration for the Replacement Launch Services shall be the then applicable price pursuant to the ARIANESPACE pricing policy for a Launch on the date of the Replacement Launch, adjusted for the costs of refinancing resulting from the shorter payment schedule, and including any charges incurred by ARIANESPACE for modification of equipment associated with the Launch Vehicle designated for the Replacement Launch, and any charges associated with rearrangement of the launch schedule. | ||
The remuneration for Associated Services associated with the Replacement Launch shall be the applicable price for a Launch to take place within the calendar year of the Replacement Launch. | ||
The payment schedule shall provide for the payment of the entire price for Replacement Launch Services prior to said Replacement Launch. | ||
The Replacement Launch, other than a Reflight, shall form the subject of a separate launch services agreement substantially in the form of this Agreement. |
* | Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
14.1 | Allocation of Risks for damage caused by one Party and/or its Associates to the Other Party and/or its Associates: |
14.1.1 | Due to the particular nature of the Services, the Parties agree that any liability of ARIANESPACE or of CUSTOMER arising from the defective, late, or non-performance of ARIANESPACEs Services and CUSTOMERs technical obligations under this Agreement is, in all circumstances, including termination of this Agreement or a Launch under this Agreement, strictly limited to the liability expressly provided for in this Agreement. Except as provided in this Agreement, the Parties hereto expressly waive, renounce, and exclude any and all rights and remedies that may arise at law or in equity with respect to the Services. | ||
14.1.2 | Each Party shall bear any and all loss of or damage to property and any bodily injury (including death) and all consequences, whether direct or indirect, of such loss, damage or bodily injury (including death), and/or of a Launch Mission failure and/or of a Satellite Mission failure, which it or its Associates may sustain, directly or indirectly, arising out of or relating to this Agreement or the performance of this Agreement. Each Party irrevocably agrees to a no-fault, no-subrogation, inter-party waiver of liability, and waives the right to make any claims or to initiate any proceedings whether judicial, arbitral, or administrative on account of any such loss, damage or bodily injury (including death) and/or Launch Mission failure and/or Satellite Mission failure against the other Party or that other Partys Associates arising out of or relating to this Agreement for any reason whatsoever. |
14.1.3 | In the event that one or more Associates of a Party shall proceed against the other Party and/or that Partys Associates as a result of such loss, damage or bodily injury (including death) and/or Launch Mission failure and/or Satellite Mission failure, the first Party shall indemnify, hold harmless, dispose of any claim, and defend, when not contrary to the governing rules of procedure, the other Party and/or its Associates, as the case may be, from any liability, cost or expense, including attorneys fees, on account of such loss, damage or bodily injury (including death) and/or Launch Mission failure and/or Satellite Mission failure, and shall pay all costs and expenses and satisfy all judgments and awards which may imposed on or rendered against that other Party and or its Associates. |
14.2 | Loss or Damage or Bodily Injury Caused or Sustained by any Third Party Customer(s) of ARIANESPACE or its (their) Associates |
14.2.1 | Each Party shall bear any and all loss of or damage to property and any bodily injury (including death) and all consequences, whether direct or indirect, of such loss, damage or bodily injury (including death) and/or Launch Mission failure and/or Satellite Mission failure, which it or its Associates may sustain, that is caused, in any way, by (a) Third Party Customer(s) of ARIANESPACE or its (their) Associates, directly or indirectly, arising out of or relating to the performance of this Agreement and/or the launch services agreement signed by ARIANESPACE with such Third Party Customer(s) of ARIANESPACE. | ||
14.2.2 | CUSTOMER hereby irrevocably agrees to a no-fault, no-subrogation, inter-party waiver of liability and waives the right to make any claims or to initiate any proceedings whether judicial, arbitral, administrative or otherwise on account of any such loss, damage or bodily injury (including death) and/or Launch Mission failure and/or Satellite Mission failure against Third Party Customer(s) of ARIANESPACE, and/or ARIANESPACE and/or their respective Associates for any reason whatsoever. |
14.2.3 | In the event that any Third Party Customer(s) of ARIANESPACE and/or its (their) Associates proceed against CUSTOMER and/or its Associates as a result of any loss, damage or bodily injury (including death) and/or launch mission failure and/or satellite mission failure caused in any way by CUSTOMER and/or its (their) Associates, directly or indirectly, arising out of or relating to the performance of this Agreement and/or the agreement signed by ARIANESPACE with such Third Party Customer(s) of ARIANESPACE, ARIANESPACE shall indemnify, hold harmless, dispose of any claim and defend, when not contrary to the governing |
rules of procedure, CUSTOMER and/or its Associates from any liability, cost or expense, including attorneys fees, on account of such loss, damage or bodily injury (including death), and/or Launch Mission failure and/or Satellite Mission failure, and shall pay all costs and expenses and satisfy all judgments and awards which may be imposed or rendered against CUSTOMER and/or its Associates. |
14.3 | Indemnification | |
Each Party shall take all necessary and reasonable steps to foreclose claims for loss, damage or bodily injury (including death) by any participant involved in Launch activities. Each Party shall require its Associate(s) to agree to a no-fault, no-subrogation, inter-party waiver of liability and indemnity for loss, damage or bodily injury (including death) its Associates sustain identical to the Parties respective undertakings under this ARTICLE 14. Furthermore, ARIANESPACE shall require all Third Party Customer(s) of ARIANESPACE entering into launch services agreements with ARIANESPACE to agree to the inter-party waiver and indemnities set forth in this ARTICLE 14. |
14.4.1 | Each Party shall be solely and entirely liable for all loss, damage or bodily injury (including death) sustained, whether directly or indirectly, by any Third Party, which is caused by such Party or its Associates arising out of or relating to the performance by such Party of this Agreement. | ||
14.4.2 | In the event of any proceeding, whether judicial, arbitral, administrative or otherwise, by a Third Party against one of the Parties or its Associates on account of any loss, damage or bodily injury (including death), caused by the other Party, its property or its Associates or its (their) property, whether directly or indirectly the latter Party shall indemnify and hold harmless the former Party and/or the former Partys Associates, as the case may be, and shall advance any funds necessary to defend their interests. |
14.5.1 | ARIANESPACE shall indemnify and hold CUSTOMER harmless with respect to any cost, and expense resulting from an infringement or claim of infringement of patent rights or any other industrial or intellectual property rights of any third party which may arise from CUSTOMERs use of ARIANESPACEs Services, including, without limitation, the use of any and all products, processes, articles of manufacture, supporting equipment, facilities, and services by ARIANESPACE in connection with said Services (Intellectual Property Claim); provided however , that this indemnification shall not apply to an infringement of rights as set forth above that have been mainly caused by an infringement of a right of a third party for which CUSTOMER is liable pursuant to Sub-paragraph 14.5.2 of ARTICLE 14 of this Agreement. If ARIANESPACEs ability to perform the Services is enjoined or otherwise prohibited as a result of an Intellectual Property Claim, Arianespace shall, at its option and expense (i) promptly resolve the matter so that the injunction or prohibition no longer exists; (ii) procure the right to perform the Services; and/or (iii) modify the Services so that they becomes non-infringing while remaining in compliance of the requirements of this Agreement. If |
ARIANESPACE is unable to accomplish (i), (ii) or (iii) as stated above within three (3) months of entry of the injunction or other prohibition, CUSTOMER shall have the right to terminate this Agreement without charge and receive a refund of all amounts paid to ARIANESPACE within THIRTY (30) days from receipt by ARIANESPACE of CUSTOMERs notice to that effect. |
14.5.2 | CUSTOMER shall indemnify and hold ARIANESPACE harmless with respect to any cost, and expense resulting from an infringement or claim of infringement of the patent rights or any other industrial or intellectual property rights of any third party arising out of or relating to CUSTOMER with respect to the design or manufacture of the Satellite, or ARIANESPACEs compliance with specifications furnished by CUSTOMER with respect to the Launch Mission and the Satellite Mission. | ||
14.5.3 | The rights to indemnification provided hereunder shall be subject to the following conditions: |
14.5.3.1 | The Party seeking indemnification shall promptly advise the other Party of the filing of any suit, or of any written or oral claim against it, alleging an infringement of any third partys rights, which it may receive relating to this Agreement, and upon the receipt thereof, shall provide the Party required to indemnify, at such Partys request and expense, with copies of all relevant documentation | ||
14.5.3.2 | The Party seeking indemnification shall not make any admission, nor shall it reach a compromise or settlement, without the prior written approval of the other Party, which approval shall not be unreasonably withheld or delayed. | ||
14.5.3.3 | The Party required to indemnify, defend and hold the other harmless shall assist in and shall have the right to assume, when not contrary to the governing rules of procedure, the defense of any claim or suit or settlement thereof, and shall pay all reasonable litigation and administrative costs and expenses, including legal counsel fees and expenses, incurred in connection with the defense of any such suit, shall satisfy any judgments rendered by a court of competent jurisdiction in such suits, and shall make all settlement payments. | ||
14.5.3.4. | The Party seeking indemnification may participate in any defense at its own expense, using counsel reasonably acceptable to the Party required to indemnify, provided that there is no conflict of interest and that such participation does not otherwise adversely affect the conduct of the proceedings. |
14.5.4 | In the event that ARIANESPACE, with respect to the Launch, and CUSTOMER, with respect to the Satellite, shall be the subject of the same court action or the same proceedings based on alleged infringements of patent rights or any other industrial or intellectual property rights of a third party pursuant to both Sub-paragraphs |
14.5.5 | Neither Partys execution or performance of this Agreement grants any rights to or under any of either Partys respective patents, proprietary information, and/or data, to the other Party or to any third party, unless such grant is expressly recited in a separate written document duly executed by or on behalf of the granting Party. |
15.1 | ARIANESPACE shall, for any particular Launch under this Agreement, take out an insurance policy at no cost to CUSTOMER, to protect itself and CUSTOMER against liability for property loss or damage and bodily injury that Third Parties may sustain and that is caused by the Launch Vehicle, and/or the Satellite, and/or the satellite of any Third Party Customer(s) of ARIANESPACE, and/or their components or any part thereof. Such insurance policy shall name as additional insureds: |
1) | The Government of France. | ||
2) | The Centre National dEtudes Spatiales C.N.E.S. and any launching state as such term is defined in the Convention on International Liability for Damage Caused by Space Objects of 1972. | ||
3) | The auxiliaries of any kind, whom ARIANESPACE and/or the C.N.E.S. would call for in view of the preparation and the execution of the launching operations. | ||
4) | The European Space Agency E.S.A. but only in its capacity as owner of certain facility and/or outfits located at the Centre Spatial Guyanais in Kourou and made available to ARIANESPACE and/or to the C.N.E.S. for the purpose of the preparation and the execution of the launches. | ||
5) | The firms, who have participated in the design and/or in the execution and/or who have provided the components of the Launch Vehicle, of its support equipment including propellants and other products either liquid or gaseous necessary for the functioning of the said Launch Vehicle, their contractors, sub-contractors and suppliers. | ||
6) | CUSTOMER, its contractors and subcontractors and each of their respective officers, directors, legal representatives, managing director, employees, agents and interim staff and Third Party Customer(s) of ARIANESPACE on whose behalf ARIANESPACE executes the launch services as well as their co-contractors and sub-contractors. | ||
7) | Provided they act within the scope of their duties, the officers and directors, legal representatives, managing director, employees, agents and interim staff employed by ARIANESPACE or by any of additional insured mentioned in the preceding sub-paragraphs from 1) to 6) (included) |
15.2 | The insurance referred to in Paragraph 15.1 shall come into effect as of the day of the Launch concerned, and shall be maintained for a period of the lesser of TWELVE (12) months or so long as all or any part of the Launch Vehicle, and/or the Satellite, and/or the satellite of any Third Party Customer(s) of ARIANESPACE, and/or their components remain in orbit. |
15.3 | The insurance policy shall be in the amount of [***] EUROS ([***]). Irrespective of the value of the aforementioned insurance policy, ARIANESPACE shall settle all |
* | Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
16.1 | Title to all documents, data, and written information furnished to CUSTOMER by ARIANESPACE or its Associates during the performance of this Agreement shall remain exclusively with ARIANESPACE. |
16.2 | Title to all documents, data, and written information furnished to ARIANESPACE by CUSTOMER or its Associates during the performance of this Agreement shall remain exclusively with CUSTOMER or with said Associates as to their respective documents, data, and written information. |
16.3 | Each Party shall use the documents, data, and written information supplied to it by the other Party or the other Partys Associates solely for the performance of this Agreement and any activities directly related thereto. |
16.4 | To the extent necessary for the performance of this Agreement, each Party shall be entitled to divulge to its own Associates the documents, data, and written information received from the other Party or from the other Partys Associates in connection herewith, provided that such receiving person shall have first agreed to be bound by the nondisclosure and use restrictions of this Agreement. |
16.5 | Subject to the provisions of Paragraph 16.4, neither Party shall divulge any documents, data, or written information that it receives from the other Party or the other Partys Associates if such documents and written information that are marked with an appropriate and valid proprietary or confidentiality legend from unauthorized disclosure except as provided herein, and shall protect such documents and written information in the same manner as the receiving Party protects its own confidential information; provided, however, that each Party shall have the right to use and duplicate such documents, data, and written information for any Party purpose subject to the nondisclosure requirements and use restrictions provided herein. | |
If the information disclosed by one Party to the other Party or by or to their respective Associates is deemed confidential by the disclosing Party or Associate and is verbal, not written, such verbal confidential information shall be identified prior to disclosure as confidential and, after acceptance by and disclosure to the receiving Party, shall be reduced to writing promptly, labelled confidential, but in no event later than TWENTY (20) days thereafter, and delivered to the receiving Party in accordance with this Paragraph. |
16.6 | The obligation of the Parties to maintain the confidentiality of documents, data, and written information shall not apply to documents, data, and written information that : |
| are not properly marked as confidential; | ||
| are in the public domain; | ||
| shall come into public use, by publication or otherwise, and due to no fault of the receiving Party; | ||
| the receiving Party can demonstrate were legally in its possession at the time of receipt; | ||
| are rightfully acquired by the receiving Party from third parties; | ||
| with respect to ARIANESPACE information, are commonly disclosed by ARIANESPACE or its Associates; | ||
| with respect to ARIANESPACE information, are inherently disclosed in any product or provision of any service marketed by ARIANESPACE or its Associates; | ||
| are independently developed by the receiving Party; | ||
| are approved for release by written authorization of the disclosing Party; or | ||
| are required, but only to the extent necessary, to be disclosed pursuant to governmental or judicial order, in which event the Party concerned shall notify the other Party of any such requirement and the information required to be disclosed prior to such disclosure. |
16.7 | The provisions of this ARTICLE 16 shall survive the completion of performance of Services under this Agreement and shall remain in full force and effect until said documents, data, and written information become part of the public domain; provided, however that each Party shall be entitled to destroy documents, data, and written information received from the other Party, or to return such documents, data, or written information to the other Party, at any time after Launch (or after Reflight, if any). |
16.8 | This Agreement and each part hereof shall be considered to be confidential by both Parties. Any disclosure of the same by one Party shall require the prior written approval of the other Party, which approval shall not be unreasonably withheld or delayed. |
ARTICLE 17 PERMITS AND AUTHORIZATIONS |
17.1 | ARIANESPACE shall be obligated to obtain and maintain all required licenses, permits, authorizations, or notices of non-opposition from all national or international, public or private authorities having jurisdiction over the Launch Vehicle and Launch Mission. |
17.2 | CUSTOMER shall also be obligated to obtain and maintain, or cause an Associate to obtain and maintain, all required licenses, government permits and authorizations, for delivery of the Satellite and all equipment, devices and software to be provided by CUSTOMER on the Launch Base in order to prepare the Satellite for Launch, from its country of origin to the Launch Base, and, the use of the Satellites ground stations. |
17.3 | ARIANESPACE agrees to assist and support CUSTOMER and its Associates, at no expense, with obtaining and maintaining the licenses, permits and/or authorizations required by Article 17.2, and any administrative matters related to the importation into French Guiana of the Satellite and all equipment, devices and software to be provided by CUSTOMER on the Launch Base in order to prepare the Satellite for Launch, and their storage and possible return, as well as to the entry, stay, and departure of CUSTOMER and its Associates. |
18.1 | CUSTOMER shall be entitled to terminate any particular Launch under this Agreement at any time prior to the Launch concerned. CUSTOMERs right is not subject to any condition. Notice of termination shall be given by registered letter with acknowledgment of receipt, and termination shall take effect immediately upon receipt of such letter by ARIANESPACE. | |
18.2 | In case of termination by CUSTOMER in accordance with Paragraph 18.1, ARIANESPACE shall be entitled for the Launch terminated to the following: |
18.2.1 | Basic termination fees depending of the date of termination as follows: |
Effective date of termination | Percentage of P | |
Effective Date of Contract through C-[***] Months | [***]% at EDC linearly increasing to [***]% at C-[***] | |
C-[***] Months through C-[***] Months | [***]% at C-[***] linearly increasing to [***]% at C-[***] | |
C-[***] Months through C-[***] Months | [***]% at C-[***] linearly increasing to [***]% at C-[***] | |
C-[***] Months through C-[***] Months | [***]% at C-[***] linearly increasing to [***]% at C-[***] | |
After C-[***] Months | [***]% |
Where: | ||||
P | means (i) the Launch Services price of the Launch terminated other than a Reflight, and (ii) the Guarantee Amount for a Reflight, | |||
C | means for the Firm Launch and each Optional Launch when activated, the first day of the initial Launch Period of the Launch concerned if no postponement has been requested by ARIANESPACE or otherwise the date obtained by adding to the first L of the Launch concerned the aggregate duration of Launch Period or Launch Slot postponement(s) requested by ARIANESPACE for such Launch pursuant to Sub-paragraph 11.3.1.1 of ARTICLE 11 of this Agreement. |
18.2.2 | Plus (i) any other amount(s) paid or due including, without limitation, or late payment interest under the Agreement at the effective date of termination, and (ii) the price of those Associated Services provided, at CUSTOMERs cost, which have actually been performed as of the date of termination. | ||
18.2.3 | Termination fees are due by CUSTOMER to ARIANESPACE as of the effective date of termination and payable within THIRTY (30) days of receipt by CUSTOMER of |
* | Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
the corresponding invoice from ARIANESPACE. Any amounts paid by CUSTOMER for the Launch concerned in excess of the above termination fees shall be refunded promptly by ARIANESPACE to CUSTOMER. For the purpose of this Sub-paragraph 18.2.3, in the case of a Reflight, the Guarantee Amount shall be deemed to have been a payment by CUSTOMER. |
18.3 | Notwithstanding the foregoing, in the event that the aggregate of all postponements requested by ARIANESPACE under Sub-paragraph 11.3.1.1 of ARTICLE 11 of this Agreement should result in ARIANESPACE delaying a CUSTOMERs particular Launch under this Agreement by more than [***] months (for any reason, including Events of Force Majeure), CUSTOMER shall have the right, within THIRTY (30) days of ARIANESPACEs corresponding notice of postponement, to terminate the Launch concerned, in which case ARIANESPACE shall refund to CUSTOMER all payments made by CUSTOMER for said Launch within THIRTY (30) days from receipt by ARIANESPACE of CUSTOMERs notice to that effect. In such an event, CUSTOMER shall be liable only for the payment of Associated Services performed, at CUSTOMERs cost, for the Launch terminated prior to the date of termination. For the purpose of this Paragraph 18.3, in the case of a Reflight, the Guarantee Amount shall be deemed to have been a payment by CUSTOMER. | |
However, postponements resulting from (i) any replacement launch or reflight performed or to be performed by ARIANESPACE; and/or (ii) any damage caused by CUSTOMER and/or its Associates to the property of ARIANESPACE and/or the property of its Associates and/or (iii) any bodily injury (including death) caused by CUSTOMER and/or its Associates to ARIANESPACE and/or its Associates shall not be taken into account for the computation of the above mentioned [***] month period. |
18.4 | Reserved | |
18.5 | CUSTOMER may terminate this Agreement at any time following the occurrence of one or more of the following events or conditions upon notice to ARIANESPACE: |
18.5.1 | ARIANESPACE: (i) files a voluntary petition of bankruptcy; (ii) makes a general assignment, arrangement or composition with or for the benefit of creditors; (iii) suffers or permits the appointment of a receiver for its business assets; (iv) becomes subject to involuntary proceedings under any bankruptcy or insolvency law (which proceedings remain undismissed for NINETY (90) days); (v) is liquidated or is delinquent on any material payment required pursuant to this Agreement for greater than THIRTY (30) days after written notice from CUSTOMER, except if ARIANESPACE is in good faith disputing the delinquency of the payment and the matter is referred to arbitration in accordance with the terms of ARTICLE 22. | ||
18.5.2 | In the circumstances defined in Sub-paragraph 18.5.1 of this ARTICLE 18, ARIANESPACE shall within THIRTY (30) days following receipt of CUSTOMERs notice refund to CUSTOMER all payments made by CUSTOMER for the Launch so |
* | Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
terminated. In such an event, CUSTOMER shall be liable only for the payment of Associated Services performed, at CUSTOMERs cost, for the Launch terminated prior to the date of termination as invoiced by ARIANESPACE via submission of a certified accounting to CUSTOMER. For the purpose of this Paragraph 18.5, in the case of a Reflight, the Guarantee Amount shall be deemed to have been a payment by CUSTOMER. |
18.6 | Any notice of termination under this ARTICLE 18 shall be given by registered mail or recognized air courier, with proof of delivery. Any refund required under this Article 18 shall be in United States Dollars, by wire transfer of immediately available funds to an account designated by CUSTOMER. |
19.1 | In the event that CUSTOMER fails to comply with its undisputed payment obligations pursuant to the payment schedule and other payment dates set forth in this Agreement for a Launch under this Agreement, and does not pay within THIRTY (30) days after the date of receipt of a written notice to that effect ARIANESPACE shall be entitled to terminate the Launch concerned by registered letter with acknowledgment of receipt. | |
19.2 | In the event of termination by ARIANESPACE pursuant to the provisions of this ARTICLE 19, the provisions of Paragraph 18.2 of ARTICLE 18 of this Agreement shall apply. |
20.1 | Working language | |
All communications between the Parties and between CUSTOMER and its Associates on the Launch Base, and between ARIANESPACE and its Associates on the Launch Base with CUSTOMERs personnel and that of its Associates, shall be made in English. | ||
20.2 | Notices | |
Unless expressly provided otherwise under this Agreement, all communications and notices to be given by one Party to the other in connection with this Agreement shall be in writing and in the language of this Agreement and shall be sent by registered mail, and if transmitted by telecopy or e-mail, shall be confirmed by registered letter to the following addresses (or to such address as a Party may designate by written notice to the other Party): |
ARIANESPACE | CUSTOMER | |||||||
Immeuble Ariane | ViaSat, Inc. | |||||||
Boulevard de lEurope | 6155 El Camino Real | |||||||
91000 EVRY | Carlsbad, CA 92009 | |||||||
FRANCE | USA | |||||||
Attention : | Alexandre Mademba-Sy | Attention : | David Abrahamian | |||||
Telephone : | [***] | Telephone : | [***] | |||||
Fax : | [***] | Fax : | [***] | |||||
With a copy to: | ||||||||
Attention : | Jared Flinn | |||||||
Telephone : | [***] | |||||||
Fax : | [***] |
For the avoidance of doubt, ordinary course communications under this Agreement may occur by electronic mail, however formal notices shall be delivered only by registered mail or facsimile as provided above. | ||
20.3 | Waiver | |
Waiver on the part of either ARIANESPACE or CUSTOMER of any term, provision, or condition of this Agreement shall only be valid if made in writing and accepted by the other Party. Said acceptance shall not obligate the Party in question to waive its rights in connection with any other previous or subsequent breaches of this Agreement. | ||
20.4 | Headings |
* | Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
The headings and sub-headings used in this Agreement are provided solely for convenience of reference, and shall not prevail over the content of the Articles of this Agreement. | ||
20.5 | Assignment | |
Neither Party shall be entitled to assign its rights and obligations under this Agreement, in whole or in part, without the prior written consent of the other Party, which shall not be unreasonably withheld. | ||
Notwithstanding the foregoing, CUSTOMER may assign or transfer, in whole and not in part, this Agreement or all its rights, duties, interests and obligations hereunder without ARIANESPACEs approval (i) to an Affiliate, provided that such Affiliate has sufficient financial resources or funding to fulfill CUSTOMERs obligations under this Agreement; (ii) to any entity which, by way of merger, consolidation, or any similar transaction involving the acquisition of substantially all the stock or the entire business assets of CUSTOMER relating to the subject matter of this Agreement succeeds to the interests of CUSTOMER; provided in each case that, prior to such assignment or transfer, the Affiliate, assignee, transferee, or successor to CUSTOMER has expressly assumed in a commercially reasonable document all the obligations of CUSTOMER and all terms and conditions applicable to CUSTOMER under this Agreement; or (iii) to any Affiliate or joint venture associate of CUSTOMER not meeting the requirements of item (i) above, provided that CUSTOMER executes the Guaranty Agreement attached hereto as Annex 5. | ||
In addition, and notwithstanding the foregoing, CUSTOMER shall have the right, without ARIANESPACEs approval, to assign or grant security interests in this Agreement as security for any bona fide financing related to the subject matter of this Agreement, provided in the case of any assignment of this Agreement to any party, other than a lender or other financing party or agent or trustee for any such lender or financing party (and other than as permitted in this Paragraph 20.5 above), ARIANESPACE consents to such assignment, which consent shall not be unreasonably delayed or withheld. | ||
Notwithstanding the CUSTOMERs right of assignment or transfer above, CUSTOMER shall not be permitted, without ARIANESPACEs prior consent, to assign its rights, title, interests or obligations under this Agreement with respect to either Optional Launch to any entity other than whom the entire Agreement is assigned or transferred. | ||
Except as provided above, any attempt to assign or transfer any rights, duties, interests and obligations hereunder without the other Partys prior consent shall be null and void. | ||
20.6 | Entire Agreement and Modifications | |
This Agreement constitutes the entire understanding between the Parties, and supersedes all prior and contemporaneous discussions between the Parties with respect to the subject matter of this Agreement. Neither Party shall be bound by the conditions, warranties, definitions, statements, or documents previous to the execution of this Agreement, unless this Agreement makes express reference thereto. Any actions subsequent to the execution of this Agreement undertaken pursuant to an agreement shall be in writing and |
signed by duly authorized representatives of each of the Parties, which agreement shall expressly state that it is an amendment to this Agreement. | ||
20.7 | Registration of CUSTOMERs Satellite CUSTOMER shall be responsible to ensure that the Satellite is properly registered by a state of registry in accordance with the Convention on Registration of Objects Launched into Outer Space of 1974 either (i) directly, if CUSTOMER is a state or the state designated by an international intergovernmental organization for the purposes of registration, or (ii) if CUSTOMER is not a state, through a state having jurisdiction and control over CUSTOMER. |
ARIANESPACE | CUSTOMER | |
Name : Jean-Yves LE GALL | Name : David Abrahamian | |
Title : Chairman & CEO | Title : Director, Space Sys. Contracts | |
Date : November 12, 2008 | Date : 12 November 2008 | |
Signature /s/ J. Y. LE GALL | Signature /s/ DAVID ABRAHAMIAN |