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(U) The scope of this firm-fixed price (FFP) contract line item number (CLIN) for the acquisition and delivery of imagery and associated imagery support data under a Service Level Agreement (SLA) from the Contractor’s satellite constellation is defined in Contract Attachment 1, EnhancedView Imagery Acquisition Statement of Work. This effort is priced at the amount set forth below.

(U) The scope of this FFP CLIN for the effort to develop a secure architecture and secure operations in support of the acquisition and delivery of imagery and imagery support data is defined in Contract Attachment 1, EnhancedView Imagery Acquisition Statement of Work, and in accordance with Special Contract Requirement H.24, Exercise of Options (in the event that CLIN 0002 is established as an option), and Special Contract Requirement H.30, Special Terms and Conditions for Payment, Line Item 0002 — Payment Event and Amount. This effort is priced at the amount set forth below.

Total CLIN 0002 FFP		[**Redacted**]

(U) Funds are not presently available for the full amount of CLIN 0002. The Government intends to incrementally fund CLIN 0002. The Government’s and the Contractor’s continuing obligations under this Contract are contingent upon the availability of appropriated funds from which payment for contract purposes can be made. No legal liability on the part of the Government for any payment or on the part of the Contractor for any performance under any order placed under this Contract may arise until funds are made available to the Contracting Officer for such orders and until the Contractor receives notice of such availability in writing from the Contracting Officer and the Contracting Officer modifies the contract to expressly obligate the additional funds.

(U) The scope of effort for this CLIN is defined in Contract Attachment 1, EnhancedView Imagery Acquisition Statement of Work. This effort is estimated at the amount set forth below. This CLIN has a ceiling value of [**Redacted**] . The sum of all items ordered herein and invoiced for shall not exceed [**Redacted**] .

(U) Minimum Amount:		$0.00
(U) Maximum Amount:		[**Redacted**]

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(U) CLIN 0004 is an indefinite-quantity ordering CLIN for the supplies or services and prices as specified in the Statement of Work or in separately issued contractual documents and is effective for the entire period of performance or as otherwise specified. Ordering will be accomplished in accordance with Special Contract Requirement H.7, Ordering Procedures. Delivery or performance shall be made only as authorized by orders issued in accordance with the Statement of Work. The Contractor shall furnish to the Government, when and if ordered, the supplies or services specified herein up to and including the amount designated as the “maximum.” The Government has no minimum order obligations. Except for the limitations in the value specified as the maximum amount, there is no limit on the number of orders that may be issued. The Government may issue orders requiring delivery to multiple destinations or performance at multiple locations. (Funding obligations for this CLIN may occur via Standard Form 30s, Department of Defense (DD) Form 1155s, or other forms as determined at the time of award of the specific value-added requirement.)

B.5

(U) CLIN 0005: COMMERCIAL SATELLITE IMAGERY — PHYSICAL MEDIA DELIVERY

(U) The scope of effort for this CLIN is defined in Contract Attachment 1, EnhancedView Imagery Acquisition Statement of Work. This CLIN has a ceiling value of [**Redacted**] . The sum of all items provided herein and invoiced for shall not exceed [**Redacted**] .

(U) Minimum Amount:		$0.00
(U) Maximum Amount:		[**Redacted**]

(U) CLIN 0005 is an indefinite-quantity ordering CLIN for the supplies or services and prices specified in the Statement of Work to support the storage and dissemination of imagery and image products on media, and is effective for the entire period of performance. Delivery or performance shall be made only as authorized by the Contracting Officer, the Contracting Officer’s Representative, or other government official as designated by the Contracting Officer. The Contractor shall furnish to the Government, when and if ordered, the supplies specified in CLIN 0005 up to and including the amount designated as the “maximum.” The Government has no minimum order obligations.

B.6

(U) CLIN 0006: COMMERCIAL SATELLITE IMAGERY — SYSTEM ENGINEERING SERVICES SUPPORT

(U) The scope of effort for this CLIN is defined in Contract Attachment 1, EnhancedView Imagery Acquisition Statement of Work. This CLIN has a ceiling value of [**Redacted**] . The sum of all effort provided herein and invoiced for shall not exceed [**Redacted**] . CLIN 0006 is a time and material (T&M) CLIN for System Engineering Services. T&M support shall be provided as directed by the Contracting Officer.

(U) CLIN 0006 will be incrementally funded in accordance with NGA budget and policy provisions. The Government’s and the Contractor’s continuing obligations under this CLIN is contingent upon the availability of appropriated funds from which payment for contract purposes can be made. No legal liability on the part of the Government for any payment or on the part of the Contractor for any performance under any task placed under this CLIN may arise until funds are made available to the Contracting Officer for such tasks and until the Contractor receives notice of such availability in writing by the Contracting Officer and the Contracting Officer modifies the contract to expressly obligate the additional funds.

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B.8

(U) CLIN DESCRIPTION

(U) In accordance with this contract, the Contractor shall furnish all materials, labor, equipment and facilities, except as specified herein to be furnished by the Government, and shall do all that which is necessary or incidental to the satisfactory and timely performance of CLINs 0001 through 0006 (and Option CLINs if exercised) as stated above.

(U) The scope of this FFP CLIN for the acquisition and delivery of imagery and associated imagery support data under a SLA from the Contractor’s satellite constellation is defined in Contract Attachment 1, EnhancedView Imagery Acquisition Statement of Work, and in accordance with Special Contract Requirement H.24, Exercise of Options. This effort is priced at the amounts set forth below.

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(U) Funds are not presently available for the full amount of Option CLINs 0101, 0201, 0301, 0401, 0501, 0601, 0701, 0801, and 0901 (if exercised). The Government intends to incrementally fund these Option CLINs. The Government’s and the Contractor’s continuing obligations under this Contract are contingent upon the availability of appropriated funds from which payment for contract purposes can be made. No legal liability on the part of the Government for any payment or on the part of the Contractor for any performance under any order placed under this Contract may arise until funds are made available to the Contracting Officer for such orders and until the Contractor receives notice of such availability in writing from the Contracting Officer and the Contracting Officer modifies the contract to expressly obligate the additional funds.

B.11

(U) OPTION [**Redacted**]

(U) The scope of effort for this CLIN Series is defined in Contract Attachment 1, EnhancedView Imagery Acquisition Statement of Work, and in accordance with Special Contract Requirement H.24, Exercise of Options. This effort is estimated at the amount set forth below. These Option CLINs have a ceiling value of [**Redacted**] per contract year. The sum of all items ordered herein and invoiced for shall not exceed [**Redacted**] per Option CLIN.

(U) Minimum Amount:		$0.00 per Option CLIN
(U) Maximum Amount:		[**Redacted**]

(U) Option CLIN 0104, 0204, 0304, 0404, 0504, 0604, 0704, 0804, and 0904 are indefinite-quantity ordering CLINs for the supplies or services and prices as specified in the Statement of Work or in separately issued contractual documents and are effective for the entire period of performance or as otherwise specified. Ordering will be accomplished in accordance with Special Contract Requirement H.7, Ordering Procedures. Delivery or performance shall be made only as authorized by orders issued in accordance with the Statement of Work, Section C. The Contractor shall furnish to the Government, when and if ordered, the supplies or services specified herein up to and including the amount designated as the “maximum.” The Government has no minimum order obligations. Except for the limitations in the value specified as the maximum amount, there is no limit on the number of orders that may be issued. The Government may issue orders requiring delivery to multiple destinations or performance at multiple locations. (Funding obligations for this CLIN may occur via Standard Form 30s, DD Form 1155s, or other forms as determined at the time of award of the specific value-added requirement.)

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B.15

(U) OPTION CLINs 0105, 0205, 0305, 0405, 0505, 0605, 0705, 0805, AND 0905: COMMERCIAL SATELLITE IMAGERY — PHYSICAL MEDIA DELIVERY

(U) The scope of effort for this CLIN Series is defined in Contract Attachment 1, EnhancedView Imagery Acquisition Statement of Work, and in accordance with Special Contract Requirement H.24, Exercise of Options. These Option CLINs have a ceiling value of [**Redacted**] per contract year. The sum of all items provided herein and invoiced for shall not exceed [**Redacted**] per Option CLIN.

(U) Minimum Amount:		$0.00 per Option CLIN
(U) Maximum Amount:		[**Redacted**]

(U) Option CLINs 0105, 0205, 0305, 0405, 0505, 0605, 0705, 0805, and 0905 are indefinite-quantity ordering CLINs for the supplies or services and prices specified herein to support the storage and dissemination of imagery, and image products on media, and are effective for the entire period of performance. Delivery or performance shall be made only as authorized by the Contracting Officer, the Contracting Officer’s Representative, or other government official as designated by the Contracting Officer. The Contractor shall furnish to the Government, when and if ordered, the supplies or services specified in Option CLINs 0105, 0205, 0305, 0405, 0505, 0605, 0705, 0805, and 0905 up to and including the amount designated as the “maximum.”. The Government has no minimum order obligations.

B.16

(U) OPTION CLINs 0106, 0206, 0306, 0406, 0506, 0606, 0706, 0806, AND 0906: COMMERCIAL SATELLITE IMAGERY — SYSTEM ENGINEERING SERVICES SUPPORT

(U) The scope of effort for this CLIN Series is defined in Contract Attachment 1, EnhancedView Imagery Acquisition Statement of Work, and in accordance with Special Contract Requirement H.24, Exercise of Options. These Option CLINs have a ceiling value of [**Redacted**] each. The sum of all effort provided herein and invoiced for shall not exceed [**Redacted**] per Option CLIN. Option CLINs 0106, 0206, 0306, 0406, 0506, 0606, 0706, 0806, and 0906 are T&M CLINs for System Engineering Services Support. T&M support shall be provided as directed by the Contracting Officer.

(U) These Option CLINs will be incrementally funded in accordance with NGA budget and policy provisions. The Government’s and the Contractor’s continuing obligations under these CLINs are contingent upon the availability of appropriated funds from which payment for contract purposes can be made. No legal liability on the part of the Government for any payment or on the part of the Contractor for any performance under any task placed under these Option CLINs may arise until funds are made available to the Contracting Officer for such tasks and until the Contractor receives notice of such availability in writing by the Contracting Officer and the Contracting Officer modifies the contract to expressly obligate the additional funds.

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(U) SECTION C — Description/Specifications

C.1

(U) STATEMENT OF WORK

(U) The Contractor shall provide all personnel, materials, and facilities to furnish the items specified in Section B of this contract in accordance with Contract Attachment 1, EnhancedView Imagery Acquisition Statement of Work, and Contract Attachment 2, DD Form 254, Contract Security Classification Specification.

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(U) Packing, packaging, and marking shall be in accordance with standard commercial practices to assure arrival at destination in serviceable condition.

D.2

(U) PROHIBITED PACKING MATERIALS

(U) The use of asbestos, excelsior, newspaper or shredded paper (all types including waxed paper, computer paper and similar hygroscopic or non-neutral material) is prohibited.

D.3

(U) MARKINGS OF WARRANTED ITEMS

(U) Each item covered by a warranty shall be stamped or marked as such. Where this is impracticable, written notice shall be attached to or furnished with the warranted item. Markings will state (i) substance of warranty, (ii) duration, and (iii) name of activity to be notified of defects. Electronic deliveries shall contain files describing the warranty.

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(U) The inspection or acceptance of work, accomplished and/or items produced or deliverable under this Contract shall be performed in accordance with the procedures and prerequisites as defined in FAR 52.212-4(a).

E.3

(U) ACCEPTANCE

(U) Acceptance of items produced under this Contract occurs upon delivery as defined in Contract Attachment 1, EnhancedView Imagery Acquisition Statement of Work, and in accordance with the procedures and prerequisites as defined in FAR 52.212-4(a).

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(U) The principal place of performance under this Contract shall be the Contractor’s facility located at:

1601 Dry Creek Drive, Suite 260
Longmont, Colorado 80503

F.3

(U) CONSIGNEE AND ADDRESS

[**Redacted**]

F.4

(U) PERSONAL DELIVERY

(U) In the event any item under this Contract is personally delivered to the Contracting Officer’s Representative or the Contracting Officer, the Contractor shall obtain a signed receipt in duplicate from the Contracting Officer’s Representative or Contracting Officer. One copy of the receipt shall be attached to the Contractor’s invoice submitted for payment for such item(s). Failure to do so may result in delayed payment.

F.5

(U) PERIOD OF PERFORMANCE

a. (U) This Contract commences upon execution. Specific CLIN periods of performance are as follows:

(U) The period of performance of CLIN 0001 is from 01 September 2010 through 12 Months . If and to the extent that any CLIN under Option CLIN Series 0x01 is exercised, the period of performance for each individual CLIN is through 12 Months After Previous Contract Period Ends (MAPCPE).

[**Redacted**]

[**Redacted**]

(U) The ordering period for CLINs 0004, 0005 and 0006 is from contract award through 12 Months. If and to the extent that any CLIN under Option CLIN Series 0x04, 0x05 and 0x06 is exercised, the ordering period of performance for each individual CLIN is through 12 MAPCPE.

(U) The table below graphically illustrates the base and option periods for all CLINs.

[**Redacted**]

b. (U) Provisions of this Contract, which, by their express terms or by necessary implication, apply for periods of time other than specified herein, shall be given effect, notwithstanding this clause. In the event requirements exceed the minimum contract amount requirements, the Government reserves the right to compete the additional requirements.

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F.6

(U) PLACE OF DELIVERY

a. (U) Primary Delivery: Origin . The articles to be furnished hereunder shall be delivered upon placement into the NGA Product Archive located at the Contractor’s site or as designated by the Contracting Officer at the time of tasking in accordance with Attachment 1, EnhancedView Imagery Acquisition Statement of Work.

b. (U) Secondary Delivery: Destination . Finished products shall be transmitted electronically (in accordance with Attachment 1, EnhancedView Imagery Acquisition Statement of Work) upon NGA request after placement into the NGA Product Archive located at the Contractor’s site at no additional charge. If requested, NGA may designate another media type for delivery at additional expense.

F.7

(U) DATA DELIVERABLE

(U) The contractor shall provide data deliverables and reports in accordance with Contract Attachment 1, EnhancedView Imagery Acquisition Statement of Work.

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(U) SECTION G — Contract Administration Data

G.1

(U) AUTHORITY AND DESIGNATION OF A CONTRACTING OFFICER’S REPRESENTATIVE (COR)

(U) Designation of a COR will be accomplished by issuance of a letter signed by the Contracting Officer. Two copies of the letter, with reference to this clause, will be provided to the Contractor. The Contractor will acknowledge both the receipt of the designation and its understanding of the limited authority specified herein, by signing and returning a copy of the letter to the address indicated. Designation and acknowledgement may be accomplished via electronic communications.

(U) The COR(s) has a written designation memorandum on file with the procurement office. This memorandum, as directed by DFARS 252.201-7000(b), specifies the extent of the COR’s authority to act on behalf of the contracting officer. This authority cannot be re-delegated to any other person. The alternate COR acts in behalf of the primary COR in absence of the primary COR and is appointed through a separate memorandum.

(U) The primary responsibilities of CORs are:

1) (U) Technical Liaison. Oversees the contractor’s technical effort to ensure that performance is in strict accordance with the terms and conditions of the contract. Is the primary interface between the contractor and the contracting officer on matters pertaining to the contractor’s technical performance. Answers technical questions, furnishes technical instruction and guidance to the contractor relating to contract specifications, and any other instructions of a technical nature necessary to perform the work as specified in the contract. CORs are not to tell the Contractor how to perform, but only what is required of a technical nature. If doubt exists as to whether information to be furnished falls within the scope of the contract, the COR is to coordinate action with the contracting officer prior to transmitting the information to the Contractor. Promptly responds to contracting officer queries for technical information and directs the contractor to submit requests for change, deviation or waiver in writing to the contracting officer. Keeps the contracting officer informed regarding communications with the contractor in order to prevent possible misunderstandings or situations that could affect contract terms and conditions and become the basis for future claims against the Government.

2) (U) Monitoring contractor performance. Ensures delivery schedules are adhered to and provides quality assurance. Provides status to the contracting officer and other program personnel to ensure compliance with the technical requirements of the contract. If performance is not proceeding satisfactorily, or if problems are anticipated, promptly notifies the contracting officer and may provide a recommended technical course of correction action. Reviews and approves progress reports, technical reports, financial/management reports and other items requiring approval. Notifies the contracting officer if such reports or items should be rejected, stating the basis for rejection.

3) (U) Technical Evaluation of Contractor Proposal. Evaluates contractor proposals for modifications and provides a written technical evaluation, to include price or cost elements, to the contracting officer.

4) (U) Reviewing and Approving Payments and Acceptance. Reviews invoices and progress payments for accuracy and appropriateness and reports any discrepancies and provides concurrence (or non-concurrence) to the Contracting Officer. Approves payments and accepts work on the appropriate forms for services performed or supplies delivered.

5) (U) Administration of Government Property. Submits to the contracting officer and property specialist a written evaluation of the disposition of any material/property furnished by the Government that is accountable to the contract.

6) (U) Security. Coordinates all security requirements of the contract with the contractor and the agency security office, to include DD Form 254s and contractor access to NGA networks. Ensures AIS accounts of departing NGA contractor on-site personnel are cancelled expeditiously. Keeps track of any classified documents or data provided and ensures return or destruction upon completion of the contract.

7) (U) Maintenance of Files. Keeps a file of all records related to the contract to include, but not limited to, the contract, e-mail correspondence, formal written correspondence, reports, receiving and acceptance reports/forms, technical evaluations, trip reports, meeting notes, status reports, past performance reports, government property reports and closeout records.

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8) (U) Administration of On-Site contractor personnel information. Maintains information on contractors, prime and subs, performing on-site at NGA facilities. Coordinates with the contractors and the Human Resource Office (HR) all contractor data changes, to include arrival and departure, names, physical location(s), NGA organization code of office responsible for contractor-occupied-space, and employer name, address and phone. Approves badging of contractors upon contractor completion and submittal of Contractor Data Input Record Form to HR and a standardized NGA non-disclosure statement.

(U) CORs shall not direct the contractor in any manner that would be of the type of supervision or control that converts an individual who is an independent Contractor (such as a contractor employee) into a Government employee.

(U) Notwithstanding the delegated duties listed herein, the COR does not possess the authority of a contracting officer and, therefore, shall not alter the terms and conditions of the contract in any way, to include any commitments or changes that will affect cost, price, quality, quantity, delivery, or any other term or condition of the contract. The contracting officer is the only official with the authority to enter into or modify contractual agreements or commitments. Unauthorized acts could result in personal liability.

(U) The duties and responsibilities set forth herein are not intended to be all-inclusive. The contracting officer may delegate additional functions as deemed necessary.

G.2

(U) NGA: SUBMISSION OF INVOICES (MAY 2008)

a. (U) The contractor shall prepare each invoice in accordance with the Prompt Payment Act. Fax one copy to DFAS Indianapolis at 1-866-894-8007. DFAS Indianapolis prefers a faxed copy but will accept hard copy that is mailed to their office listed on the face of the contract/order.

b. (U) At the same time of submission to the payments office, the contractor will fax one copy to the Contracting Officer (email in lieu of fax is allowed), and one copy to the Contracting Officer’s Representative (email in lieu of fax is allowed)

c. The NGA receiver of the service or item will complete the receiving report and fax one copy to DFAS Indianapolis at 1-866-894-8007, and one copy to the contracting officer shown on the face page of this contract/order.

d. (U) Contractors wishing to check the status of their vouchers should do so by using “myInvoice” at www.dfas.mil; click on the MyInvoice icon. Questions regarding vouchers or payments may also be directed to DFAS by calling 1-888-332-7366; select Option 2, then Option 2. When unable to obtain information on status of vouchers and payments via “myInvoice” and DFAS, questions may be directed to the contracting officer administering the contract. In the absence of an administrative contracting officer, contact the NGA procurement contracting officer, whose name and contact information appear on the face page of this contract/order.

G.3

(U) NGA: GOVERNMENT REPRESENTATIVE (SEP 2003)

(a) (U) The Government may, upon contract award or thereafter, name representatives with titles such as Project Officer, Contracting Officer’s Representative, and so on. Such individuals will be named in writing by the Contracting Officer, with individual responsibilities set forth at that time.

(b) (U) In any event, no such named individual has the authority to issue any direction under this contract either technical or otherwise, which constitutes a change to the terms, conditions, price or delivery schedule of the contract. Only the Contracting Officer is authorized to alter the contract in any manner.

G.4

(U) NGA: CONTRACT ADMINISTRATION (SEP 2003)

(U) The component listed in Block 16 of Standard Form 1449 of this contract will be the Contract Administration Office in performance of certain assigned contract administration functions of the Contracting Office in accordance with FAR 42.201. The Contract Administration Office (CAO) assigned responsibility for this contract will advise the contractor of any necessary instructions and procedures to be followed in dealing with any applicable Government offices.

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G.5

(U) NGA: PAYMENT INSTRUCTIONS FOR MULTIPLE ACCOUNTING CLASSIFICATION CITATIONS (SEP 2003)

(U) In accordance with DFARS 204.7107, the following instructions are provided for payment of CLINs with multiple lines of accounting: FROM THE OLDEST LINES OF ACCOUNTING FIRST.

G.6

(U) ACCOUNTING AND APPROPRIATION DATA

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(a) (U) Definitions. As used in this clause only:

(1) Protected Information and Computer Software means, unless specifically excluded by paragraph (2) below, all information and computer software, in any form or media, that in the course of performing work under this contract are disclosed to the Contractor, its subcontractors, or their employees, or to which those persons otherwise are given access to, by (i) NGA, (ii) other government agencies, (iii) foreign governments or (iv) other contractors while directly supporting NGA, which is accompanied by written legends identifying use or disclosure restrictions or disclosed under circumstances that the Contractor knows are subject to use or disclosure restrictions established in writing by the Government.

(2) (U) Protected Information and Computer Software does not include information that:

(i) (U) Has been released to the general public through no action of the undersigned in breach of this agreement or through no action of any other party in breach of any other obligation of confidentiality owing to the Government or the owner of the protected information or computer software;

(ii) (U) Has been lawfully obtained by the recipient outside the course of the performance of this contract;

(iii) (U) Has been properly licensed or provided directly by the owner (or other authorized source) of the information or computer software to the recipient to the extent so licensed or provided;

(iv) (U) Is owned by the recipient or was developed independently of the disclosure hereunder; or

(v) (U) Has been disclosed to the recipient by the Government with explicit authorization to use or disclose the information for another purpose, to the extent so authorized.

(b) (U) Use and disclosure restrictions. The Contractor shall use and disclose Protected Information and Computer Software only as necessary for the performance of the requirements of this contract. Protected Information and Computer Software may not be used or disclosed for any other purpose, including bid or proposal preparation or business marketing, without the written approval of the Contracting Officer. Furthermore, unless otherwise directed by the Contracting Officer, the Contractor shall comply with all restrictions set forth in any legends, licenses or instructions provided to the Contractor or accompanying Protected Information and Computer Software or other written directives of the Government known to the Contractor. The use and disclosure obligations imposed by this paragraph shall expire as follows:

(1) (U) There shall be no expiration date for the following Protected Information and Computer Software:

(i) (U) Technical data or computer software containing Limited Rights, Restricted Rights, Government Purpose Rights, Special License Rights, or Unlimited Rights legends;

(ii) (U) information or software marked Limited Distribution (LIMDIS);

(iii) (U) information or software marked Source Selection Information;

(iv) (U) contract proposal information marked pursuant to FAR 52.215-1(e) limiting its use for proposal evaluation purposes only;

(v) (U) information and computer software marked Contractor Proprietary or a similar legend;

(vi) (U) data known by the Contractor to be protected by the Privacy Act; and

(vii) (U) information and software marked Controlled Unclassified Information (CUI) or For Official Use Only (FOUO).

(2) (U) For other information or software accompanied at time of disclosure by a written legend identifying use or disclosure restriction time periods, the expiration date shall be as stated in or derived from the legend.

(3) (U) For all other Protected Information and Computer Software, the expiration date shall be 3 years from the date the information or software is first disclosed to the Contractor.

Notwithstanding the above obligations, the Contractor is not in breach of this agreement if the Contractor uses or discloses Protected Information and Computer Software in response to an order of a court or administrative body of competent jurisdiction, but only to the extent permitted by that authority and only if the Contractor gives the Contracting Officer, to the extent practical, notice of the tribunal’s order before the use or disclosure is made that allows NGA a reasonable time to object to the order.

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(c) (U) Unauthorized Use or Disclosure. The Contractor shall immediately notify the Contracting Officer of any unauthorized use or disclosure known by the Contractor of Protected Information and Computer Software in violation of the obligations contained in this clause.

(d) (U) Disposition. At the conclusion of performance of work under this contract, the Contractor shall immediately return to the Government all Protected Information and Computer Software in its possession. Furthermore, if an employee of the Contractor who has had access to Protected Information and Computer Software is terminated or reassigned and thus is no longer performing work under this contract, the Contractor shall immediately return all Protected Information and Computer Software in the employee’s possession. Moreover, if a Contractor’s employee is dedicated to support a specific NGA Office or Directorate or NGA program under this contract, but is subsequently reassigned to support another NGA Office or Directorate or NGA program under this contract, the Contractor shall immediately return all Protected Information or Computer Software in the employee’s possession previously furnished by the prior NGA Office or Directorate or NGA program. In lieu of returning Protected Information and Computer Software, the Contracting Officer or Contracting Officer’s representative may authorize the destruction of the information or the transfer of the information to another employee of the Contractor working under the contract. Finally, this clause shall not be interpreted as preventing the Contractor from retaining records required by statutes or other clauses of this contract, such as FAR 52.215-2 Audit and Records—Negotiations.

(e) (U) Third party beneficiaries. This clause is executed for the benefit of the Government and the owners of Protected Information and Computer Software. The Government and the owners of Protected Information and Computer Software (and their delegatees, successors and assignees) are third party beneficiaries of the obligations contained in this clause who, in addition to any other legal rights they may have, are intended to have the rights of direct action against the Contractor or any person to whom the Contractor has disclosed or released Protected Information and Computer Software, to seek damages from any breach of this clause, or to otherwise enforce this clause.

(f) (U) Duration. The above obligations imposed by this clause shall survive the termination or completion of this contract.

(g) (U) Classified Information. This clause is in addition to and in no manner abrogates requirements, obligations or remedies regarding the protection of classified information and does not supersede the requirements of any laws, regulations, other directives or nondisclosure agreements regarding classified information.

(h) (U) Other Restrictions. This agreement does not abrogate any other obligations currently placed upon the Contractor or which may be imposed upon the Contractor in the future by the Government or other persons; or remedies afforded those persons regarding those obligations.

(i) (U) Nondisclosure agreements. The Contractor shall require and ensure that each of its employees who may receive or be given access to Protected Information and Computer Software signs the nondisclosure agreement provided by attachment to this contract (Attachment 7) prior to the employee performing work under this contract covered by the nondisclosure agreement. The Contractor shall maintain copies of signed nondisclosure agreements for a period of at least three years after final payment under this contract. At the direction of the Contracting Officer, the Contractor shall make those agreements available for inspection by the Contracting Officer and will furnish the Contracting Officer copies of those agreements at no additional cost to the Government if requested by the Contracting Officer.

(j) (U) The Contractor shall include the substance of this clause in all subcontracts under this contract in which subcontractors may be disclosed or granted access to Protected Information and Computer Software.

H.2

(U) NGA: 5X52.37-9000 CONTRACTOR EMPLOYEE DATA FOR ACCESS TO NGA FACILITIES OR SENSITIVE SYSTEMS (OCT 2005)

1. (U) This clause defines the contractor’s responsibilities for providing accurate contractor data, and providing updates to that data, for NGA’s Human Capital Management System (HCMS). NGA requires that all contractors provide initial and timely updates to HCMS data for all personnel performing under this contract who have access to NGA facilities or sensitive systems, as determined by the contracting officer.

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2. (U) The Contractor shall:

a. (U) Provide the Contracting Officers Representative (COR) a Point of Contact (POC) for providing and maintaining contractor personnel data for the HCMS database. The POC shall be provided to the COR, in writing, within 10 days of contract award (or modification inserting this clause). For contracts with an on-site Project Lead or Program Manager, this person shall serve as the POC.

b. (U) Provide the COR initial HCMS data for their personnel within 10 days of contract award or modification. The information that is to be provided for HCMS shall include: person’s full legal name, social security number, citizenship status, NGA contract number, prime contractor name, NGA location and organization where the person will be working, and a 24/7 emergency contact point for the contractor.

c. (U) Notify the COR of all contractor data changes within 10 days of the change. Changes include new or departing contractor personnel and any change to information provided in paragraph b above. If the contract number under which a contractor or its personnel work changes, the POC for the contract receiving the personnel shall notify the COR within 10 days of the change.

d. (U) Provide response to all inquiries made by NGA as to the validity and completeness of contractor data records in the HCMS database within two weeks of date of request.

e. (U) Ensure all employees attend in-processing and out-processing briefings.

H.3

(U) NGA: 5X45.592-9000 GOVERNMENT-FURNISHED LIMITED DISTRIBUTION MATERIALS (JUNE 2004)

(a) (U) Definition — LIMITED DISTRIBUTION (LIMDIS) materials mean any unclassified geospatial information and data or imagery distributed by or created by the National Geospatial-Intelligence Agency, as well as materials derived from National Geospatial-Intelligence Agency information and data that is marked or labeled as “LIMITED DISTRIBUTION” or “LIMDIS”.

(b) (U) Geospatial information and data or imagery identified as being “LIMITED DISTRIBUTION” are protected from public disclosure pursuant to Title 10, United States Code, Section 455. The Government may provide LIMITED DISTRIBUTION materials to the Contractor (or Subcontractor) for use in the performance of this contract.

(c) (U) In addition to the restrictions and obligations contained in the clause at DFARS 252.245-7000, “Government-Furnished Mapping, Charting, and Geodesy Property (December 1991),” the Contractor (or Subcontractor) shall:

(1) (U) Grant access to LIMDIS materials to only those individuals having a need for access in the performance of this contract. In furtherance of this requirement, the contractor shall:

a. (U) Prohibit storage of LIMDIS materials on systems accessible by other individuals who do not require such access.

b. (U) Ensure that LIMDIS materials are not used to either demonstrate products or capabilities outside the scope of the contract or as a marketing tool.

c. (U) Ensure that LIMDIS materials are not used to create other products or derivative products.

d. (U) Prohibit the processing or transmission of LIMDIS materials on unencrypted or unsecured systems accessible by the public such as the World Wide Web.

e. (U) Ensure that LIMDIS materials are not displayed or made otherwise accessible to the public.

f. (U) Ensure that LIMDIS materials are not released, accessed by, or sold to foreign governments or international organizations.

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g. (U) Take whatever additional measures are necessary to prevent unauthorized access to LIMDIS materials.

h. (U) Employ storage and inventory controls adequate to ensure that LIMDIS materials are protected from loss or unauthorized use or access.

(2) (U) Ensure each reproduction of LIMDIS materials includes the following LIMDIS caveat:

LIMITED DISTRIBUTION

Distribution authorized to DoD, IAW 10 U.S.C. § 130 & § 455. Release authorized to U.S. DoD contractors IAW 48 CFR § 252.245-7000. Refer other requests to Headquarters, NGA, ATTN: Release Officer, Mail Stop D-136. Destroy as “FOR OFFICIAL USE ONLY.” Removal of this caveat is prohibited.

(3) (U) Ensure LIMDIS materials that are no longer required for contract performance and chosen for destruction are destroyed by a method that prevents reconstruction of the materials to their original condition. Paper products should be destroyed by a method such as pulping, burning, or cross-cut shredding. Electronic media should be returned to the Contracting Officer or destroyed locally in a manner that prevents reconstruction of the media and abides by any environmental regulations.

(4) (U) Immediately submit a report to the Contracting Officer upon discovery that LIMDIS material has been lost, stolen, or disclosed to unauthorized persons. Follow-up reports containing additional facts will be provided immediately when those facts become known. The Contractor (and/or Subcontractor) shall provide an assessment of the extent to which LIMDIS material has been compromised and shall propose corrective action to limit the extent of compromise and to prevent a reoccurrence.

(d) (U) The Contractor shall include the terms and conditions of subparagraphs (a) through (c) of this provision in every subcontract.

H.4

(U) NGA: KEY PERSONNEL (SEP 2003) (MODIFIED)

(a) (U) The contractor shall assign to perform this contract those persons who are identified below or in the contractor’s proposal as key personnel. No substitutions of these key personnel shall be made except in accordance with this clause.

(b) (U) The contractor agrees that during the first 180 days of contract performance, no personnel substitutions will be made unless necessitated by an individual’s sudden illness, death, or termination of employment. In any of these events, the contractor shall promptly notify the Contracting Officer and provide the information required by paragraph (d) below.

(c) (U) After the initial 180 day period, the Contractor must provide notification of the substitution prior to removing the approved key personnel from performance. All proposed substitutions/additions must be submitted, in writing, to the Contracting Officer at least 14 days (60 days if security clearances are involved) in advance of the proposed substitution and provide the information required by paragraph (d) below.

(d) (U) All notifications regarding substitutions/additions must include a detailed explanation of the circumstances necessitating the proposed substitution or addition. All proposed substitutes/additions must have the required security clearances prior to taking the position and qualifications that meet or exceed the qualifications of the person to be replaced.

(e) (U) The personnel set forth below as proposed by the contractor, or identified in the contractor’s proposal as key personnel, comprise the list of key personnel required to perform under this contract. The list may be modified in accordance with the above, to substitute or add personnel:

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H.5

(U) NGA: DISCLAIMER STATEMENT (SEP 2003)

(U) The technical report(s) prepared by the Contractor pursuant to this contract must include the following disclaimer. “The views, opinions, and findings contained in this report are those of the author(s) and should not be construed as an official Department of Defense position, policy, or decision, unless so designated by other official documentation.”

H.6

(U) NGA: 5X52.227-9000 UNAUTHORIZED USE OF NGA NAME, SEAL, AND INITIALS (JUNE 2006)

(a) (U) As provided in 10 U.S.C. Section 425, no person may, except with the written permission of the both the Secretary of Defense and the Director of Central Intelligence, knowingly use the words “National Geospatial-Intelligence Agency”, “National Imagery and Mapping Agency” or “Defense Mapping Agency”, the initials “NGA”, “NIMA” or “DMA”, the seal of the National Geospatial-Intelligence Agency, National Imagery and Mapping Agency, or the Defense Mapping Agency, or any colorable imitation of such words, initials, or seal in connection with any merchandise, retail product, impersonation, solicitation, or commercial activity in a manner reasonably calculated to convey the impression that such use is approved, endorsed, or authorized by both the Secretary of Defense and the Director of Central Intelligence.

(b) (U) Whenever it appears to the U. S. Attorney General that any person is engaged or about to engage in an act or practice which constitutes or will constitute conduct prohibited by paragraph (a), the Attorney General may initiate a civil proceeding in a district court of the United States to enjoin such act or practice. Such court shall proceed as soon as practicable to hearing and determination of such action and may, at any time before final determination, enter restraining orders or prohibitions, or take such other action as is warranted, to prevent injury to the United States, or to any person or class of persons for whose protection the action is brought.

H.7

(U) ORDERING PROCEDURES (CLIN Series 0x04)

(a) (U) Any supplies and services to be furnished under CLIN Series 0x04 this contract shall be ordered by issuance of orders by the individuals designated below. All orders are subject to the terms and conditions of this contract. In the event of conflict between the order and this contract, the contract shall control. The following individuals are designated as authorized ordering officers under this contract: All NGA Contracting Officers within the ACR Division.

(b) (U) General . Orders for supplies or services specified in CLIN Series 0x04 may be issued at any time during the effective period of this contract. The Contractor agrees to accept and perform orders issued by the Contracting Officer within the scope of this contract. It is understood and agreed that the Government has no obligation under the terms of this contract to issue any orders. Except as otherwise provided in any order, the Contractor shall furnish all materials and services necessary to accomplish the work specified in each order issued hereunder; provided, however, that this contract shall not be used for the furnishing of supplies or services which are covered by any “guaranty” or “warranty” clause(s) of the contract(s) under which the supplies were manufactured. All requirements of this contract shall be applicable to all orders issued hereunder. Each order shall be considered a separate binding contract as of its effective date. The Contractor shall segregate the costs incurred in the performance of any order issued hereunder from the costs of all other orders issued under this contract.

(c) (U) Ordering . Orders and revisions thereto shall be made in writing and be signed by any authorized Contracting Officer. Each order will:

(1) (U) Set forth detailed specifications or requirements for the supplies or services being ordered;

(2) (U) Set forth quantities being ordered (if applicable);

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(3) (U) Set forth preservation, packaging and packing instructions, if any;

(4) (U) Set forth delivery or performance dates;

(5) (U) Designate the place(s) where or how inspection and acceptance will be made by the Government;

(6) (U) Set forth the firm price or price ceiling;

(7) (U) Set forth appropriation and accounting data for the work being ordered;

(8) (U) Be dated;

(9) (U) Set forth the property, if any, to be furnished by the Government and the date(s) such property is to be delivered to the Contractor;

(10) (U) Set forth the disbursing office where payment is to be made and other applicable contract administration data;

(11) (U) Be issued on a Standard Form (SF) 30, SF 26 or a DD Form 1155; and

(12) (U) Set forth any other pertinent information.

(d) (U) The Contracting Officer will consider the factors listed below in determining the placement of requirements. The importance of the factors will vary depending on the nature of the task to be performed. Factors for consideration may include the following: ability to meet schedule; collection/delivery timeframes; delivery methods; imagery formats; performance under previous requirements; price/cost issues; and subcontracting plans. The Contracting Officer may utilize a contractor’s product and price schedule as well as product literature to determine whether an individual order is competed or awarded sole source. All competed orders will be awarded on a best-value to the government basis.

(e) (U) The Contracting Officer may request written or oral proposals, presentations or pricing information on a given task from each EnhancedView contract holder prior to issuance of an order. The Contracting Officer is not bound to either request such information, or notify contract holders of a requirement for services if, in the Contracting Officers opinion, a decision to award can be made without such notification.

(f) (U) Identification of the above factors does not preclude the Contracting Officer from awarding a requirement in accordance with Federal Acquisition Regulation 16.505(b)(2).

H.8

(U) NGA: 5X252.204-7000-90 PUBLIC RELEASE OF INFORMATION (APR 2004)

(U) Information pertaining to this contract shall not be released to the public except as authorized by the Contracting Officer in accordance with DFARS 252.204-7000, Disclosure of Information. Requests for approval to release information pertaining to this contract shall be submitted to the Contracting Officer by means of NGA Form 5230-1, National Geospatial-Intelligence Agency Request for Clearance for Public Release.

H.9

(U) NON-PUBLICITY

(U) The Contractor shall not use or allow to be used any aspect of this solicitation and/or contract for publicity, advertisement purposes, or as a reference for new business. It is further understood that this obligation shall not expire upon completion or termination of this contract, but will continue indefinitely. The Contractor may request a waiver or release from the foregoing, but shall not deviate there from unless authorized to do so in writing by the Contracting Officer. Contractors are not required to obtain waivers when informing offices within this Agency of contracts it has performed or is in the process of performing provided there are no security restrictions. Contractors may include the requirement for security clearances up to the TS/SCI level in public employment advertisements.

(U) Past Performance Information — Referencing Agency Contracts. This Contract may be listed as a reference for past performance purposes in offers submitted to agencies and organizations within the Intelligence Community. The Contractor shall obtain Contracting Officer Approval prior to releasing any information about this Contract outside the Intelligence Community.

(U) Foreign Affiliates. U.S. Government collection requirements and tasking may be released to the Contractor’s foreign regional affiliates or partners for effecting collection only, unless expressly restricted in writing by NGA. If a term in the Contractor’s National Oceanic and Atmospheric Administration operating license conflicts with the terms and conditions of this contract, the terms and conditions of this NGA contract may be renegotiated.

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H.10

(U) NGA: INSURANCE (SEP 2003)

(U) Pursuant to FAR 52.228-5, Insurance — Work on a Government Installation, the contractor shall acquire and maintain during the entire performance period of this contract, insurance of at least the following kinds and minimum amounts as set forth below:

(a) (U) Workman’s Compensation and Employer’s Liability Insurance: In accordance with amounts specified by the laws of the state in which the work is to be performed under this contract. In the absence of such state laws, an amount of $100,000 shall be required and maintained.

(b) (U) General Liability Insurance: Bodily injury liability in the minimum amount of $500,000 per occurrence.

(c) (U) Automobile Liability Insurance: In the amounts of at least $200,000 per person and $500,000 per occurrence for bodily injury and $20,000 per occurrence for property damage.

(d) (U) Aircraft public and passenger liability when aircraft are used in connection with performing the contract: $200,000 per person and $500,000 per occurrence for bodily injury other than passenger liability, and $200,000 per occurrence for property damage. Coverage for passenger liability and bodily injury shall be $200,000 multiplied by the number of seats or passengers, whichever is greater.

(U) Execution of this proposal/contract shall constitute certification that the contractor is in compliance with all contractual requirements and any applicable State or Federal laws with respect to insurance requirements.

H.11

(U) NGA: PERFORMANCE OF WORK ON GOVERNMENT PREMISES (SEP 2003)

(U) The rules and regulations, whether in effect now or to go into effect in the future, at the premises where services are to be performed shall apply to the Contractor and its employees while working on the premises. These regulations include, but are not limited to: presenting valid identification for entrance, smoking restrictions, obtaining and using vehicle passes for all contractor-owned and/or privately owned vehicles, obeying posted directives, strict adherence to security and/or police directives, and safety procedures and directives.

H.12

(U) NGA: INTENTION TO USE CONSULTANTS (SEP 2003)

(a) (U) The government intends to use the consultant contractor(s) listed below for technical and review services during the term of this contract. Although the contractor(s) shall not have the right to provide technical direction, they may attend technical reviews, participate in technical interchange meetings, witness production, and provide test and inspection support, and other related services such as cost-risk-schedule trade-off analysis. The contractor(s) will require access to program-related facilities and documentation including administrative or business information such as cost information.

(b) (U) Contractor business or proprietary data shall not be made available to the consultant contractor(s) until a protective agreement(s) are executed between the consultant and the prime contractor and any necessary sub-contractors, and evidence of such agreement(s) is made available to the Government.

(c) (U) It is expressly understood that the operation of this clause will not be the basis for an equitable adjustment.

(d) (U) Contractors providing consulting services are:

[**Redacted**]		[**Redacted**]		[**Redacted**]

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H.13

(U) NGA: 5X45.102-9000 GOVERNMENT FURNISHED ACCOUNTABLE PROPERTY (MAY 2003)

(U) Government Furnished Accountable Property (Contract Attachment 3, Government Furnished Property List)

1. (U) Definitions

a. (U) Accountable Government Furnished Property. Accountable Government furnished property includes end items identified as NGA’s that are provided to a third party. This does not include components of end items, consumable items, or information furnished to a contractor. Reference DoDI 5000.64, paragraph 5.3.1 Aug 02.

b. (U) Government Furnished Property Record (GFPR). A list that specifies Government accountable property furnished to the contractor under a specific contract per FAR 45.5. The following information elements are included on the GFPR, as applicable:

(1) (U) Contract number

(2) (U) Manufacturer’s name

(3) (U) Serial number

(4) (U) Model number

(5) (U) Nomenclature

(6) (U) Specific location of accountable property

(7) (U) Acquisition cost/Unit Price

(8) (U) Date received/Posting Date/Reference of Transaction

(9) (U) Quantity Received, Issued and on-hand

(10) (U) Barcode Label Numbers (as provided by NGA)

(11) (U) Disposition

2. (U) Contractor Responsibilities.

a. (U) Prime Contractors and subcontractors shall physically inventory all NGA Government furnished property in its possession, on an annual basis. Personnel who perform the physical inventory shall not be the same individuals who maintain the property records or have custody of the property unless the contractor’s operation is too small to do otherwise.

b. (U) The prime contractor shall provide NGA with a GFPR of all Government Furnished Accountable property for each contract and subcontract that involves Government Furnished Accountable Property.

c. (U) The contractor shall include on the GFPR the applicable identifying elements as indicated in paragraph 1.b.

d. (U) All NGA supplied accountable property must be identified with a NGA identification barcode label. If an item received was not previously barcoded by NGA, the contractor shall request barcode labels within 60 days of receipt of the item. Requests shall include all identifying elements defined in paragraph l.b and be addressed to:

(1) (U) Original request: NGA; Attn: SIOM Mail Stop P-121; 12310 Sunrise Valley Drive, Reston, VA 20191

(2) (U) Copy of request: NGA Contracting Officer (or Administrative Contracting Officer if property accountability has been so delegated) in accordance with the address provided in the applicable contract.

e. (U) GFPRs shall be updated as required and submitted annually, from contract award, to the following addressees:

(1) (U) NGA SIOMP (same address as above), and

(2) (U) NGA Contracting Officer (or Administrative Contracting Officer if property accountability has been so delegated? in accordance with the address provided in the applicable contract.

3. (U) Government Responsibilities. After receipt of a proper request for barcode labels:

a. (U) NGA SIOMP will provide the contractor the barcode labels to be affixed to each item of accountable property, and

b. (U) The NGA Contracting Officer (or Administrative Contracting officer) will update the contract accordingly.

4. (U) Contractor acquired property is government property not government furnished property, see definitions at FAR 45.101(a). Contractor acquired property shall be controlled and reported in accordance with FAR 45.5 and any additional FAR/DFARS property clause requirements.

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5. (U) Property disposition shall be accomplished per FAR 46.6, any applicable FAR/DFARS clause, or contracting officer instructions.

6. (U) A written contract modification is required to increase or decrease government furnished property on a contract. Distribution of the basic contract and modification(s) is mandatory and shall to be made to the SIOMP.

H.14

(U) NGA: 5X52.227-9001 ACTIVITIES THAT AFFECT U.S. PERSONS (DEC 2004)

(U) This contract is sponsored by the National Geospatial-Intelligence Agency. All work and services to be performed hereunder shall be in strict compliance with procedures set forth in DoDI 5240.1-R.

H.15

(U) NGA: 5X52.207-9000 DOD BASE REALIGNMENT AND CLOSURE (APR 2008)

(U) While NGA continues to transform its processes and systems for the geospatial intelligence (GEOINT) mission, the Agency will soon begin an even more visible change: consolidating its Eastern facilities. In accordance with the Department of Defense Base Realignment and Closure (BRAC) actions that became law in November 2005, NGA will consolidate Eastern operations in the Springfield, Virginia area on Fort Belvoir North Area by September 15, 2011. As NGA moves to this New Campus East, it will close its primary sites in Bethesda, Reston, and the Washington Navy Yard, in addition to relocating smaller NGA functions.

(U) Any other day designated by Federal law, Executive Order, or Presidential Proclamation.

(b) (U) When any such day falls on a Saturday or Sunday, the following Monday is observed. Observance of such days by Government personnel shall not be cause for additional period of performance or entitlement to compensation except as set forth in the contract. If the contractor’s personnel work on a holiday, no form of holiday or other premium compensation will be reimbursed either as a direct or indirect cost, unless authorized pursuant to an overtime clause elsewhere in the contract.

(c) (U) NGA may close a facility for all or a portion of a business day as a result of

1) (U) Granting administrative leave to non-essential NGA personnel (e.g., unanticipated holiday);

2) (U) Inclement weather;

3) (U) Failure of Congress to appropriate operation funds;

4) (U) Continuity of Operations (COOP) training exercises;

5) (U) Or any other reason deemed appropriate by the D/NGA.

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(d) (U) In such cases, contractor personnel not classified as essential under the contract (i.e., not performing critical round-the-clock services/tasks or who are not already on duty at the facility), shall not report to the facility. Contractor personnel already present shall be requested to leave the facility.

(e) (U) Performance of round-the-clock operations: At the direction of the Contracting Officer; the contractor agrees to continue to provide sufficient personnel to meet requirements of critical tasks already in operation, or scheduled for performance during the period in which NGA employees are dismissed or the facility has been closed prior to the commencement of normal operations. Contractor personnel should contact their respective home offices to determine their company’s respective policies on charging contracts during unscheduled closures.

H.17

(U) SECURITY REQUIREMENTS — CONTRACT CLASSIFICATION

(U//FOUO) The association of the Government with the Contractor is unclassified in accordance with Contract Attachment 2, DD Form 254. The maximum work to be performed is classified [**Redacted**] . The maximum classification of reports is classified [**Redacted**] . The maximum classification of hardware is classified [**Redacted**] . This classified information shall be divulged only on a need to know basis, and then only to those who have been authorized in writing by the Contracting Officer. Correspondence originated by the Contractor and/or data to be submitted, the contents of which contain classified information shall be stamped by you with the appropriate classification in accordance with Contract Attachment 2, DD Form 254.

H.18

(U) ORGANIZATIONAL CONFLICT OF INTEREST

(a) (U) The term “organizational conflict of interest” means that because of other activities or relationships with other persons, a person is unable to or potentially unable to render impartial assistance or advice to the Government, or the person’s objectivity in performing the contract work is or might be otherwise impaired, or a person has an unfair competitive advantage. The term “person” includes a business organization.

(b) (U) If the Contractor is aware of any information bearing on any existing or potential organizational conflict of interest, it shall provide a disclosure statement which describes all relevant information concerning any past, present, or planned interests bearing on whether it (including its chief executives and directors, or any proposed consultant or subcontractor) may have an existing or potential organizational conflict of interest.

(c) (U) Contractors should refer to FAR Subpart 9.5 for policies and procedures for avoiding, neutralizing, or mitigating organizational conflicts of interest.

(d) (U) If the Contracting Officer determines that a conflict exists or may occur, he shall advise the Contractor and take appropriate steps to avoid or otherwise resolve the conflict through the inclusion of a special agreement clause or other appropriate means. The terms of any special clause are subject to negotiation.

H.19

(U) SENSITIVE REQUIREMENTS AND PRODUCT HANDLING

[**Redacted**]

H.20

(U) WARRANTY

(U) The Contractor provides a limited warranty for 30 days that the Products delivered will be of the area of interest ordered and the media used to carry the Products will be free from physical or material defects. The Contractor’s sole liability shall be to replace the media if the media (not the software or data encoded thereon) is defective and NGA returns such to the Contractor within 30 days of delivery. WITH THE EXCEPTION OF THE PROCEEDING WARRANTY, AND IRRESPECTIVE OF ANY OTHER TERM IN THIS CONTRACT TO THE CONTRACT, THE PRODUCTS ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, AND ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. THE CONTRACTOR DOES NOT WARRANT THAT THE PRODUCTS WILL MEET NGA’S NEEDS OR EXPECTATIONS, OR THAT OPERATIONS OF THE PRODUCTS WILL BE ERROR FREE OR UNINTERRUPTED. NO INFORMATION PROVIDED BY THE CONTRACTOR OR ITS AGENTS, EMPLOYEES, OR ITS RESELLERS OR DISTRIBUTORS SHALL CREATE A WARRANTY, OR IN ANY WAY INCREASE THE SCOPE OF THIS LIMITED WARRANTY, AND NGA IS NOT ENTITLED TO RELY ON ANY SUCH INFORMATION. Nothing in this clause impacts the Government’s rights under the inspection and acceptance clauses of this contract.

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H.21

(U) EXPORT CONTROL AND ASSIGNMENT OF PERSONNEL

(U) The Contractor shall comply with the restrictions required by Executive Order 12470, the Arms Export Control Act (Title 22, USC)(Sec 275), the International Traffic in Arms Regulation (ITAR), or DoD directive 5230.25, Withholding of Unclassified Technical Data from Public Disclosure.

(U) The Contractor shall provide the Contracting Officer the identity of foreign nationals (other than those lawfully admitted into the U.S. for permanent residence) whom the Contractor intends to use in support of this contract for Government review no less than 30 calendar days prior to their proposed start. If the contractor determines an applicable ITAR exemption requires action by the Government, including but not limited to 22 CFR 125.4(b)(1), the exemption request shall be provided with submittal of the name. Only foreign nationals approved in writing by the Contracting Officer shall be permitted to work on this contract.

H.22

(U) EMERGENCIES, DISASTERS, AND HUMANITARIAN EFFORTS

(a) (U) In support of emergencies, disasters, and humanitarian efforts, the NGA may disseminate and/or post on open web sites imagery licensed under this contract regardless of whether the recipients are within the NextView license user groups. The imagery will contain the copyright notice and the NextView license notice. After 30 days, the imagery will be handled in accordance with the NextView license.

(b) (U) The contractor will be given notice within 24 hours after the start of the dissemination/posting of imagery under the authority of this clause.

(c) (U) If the contractor does not believe the situation constitutes an emergency, disaster, or humanitarian effort, the contractor has 24 hours after receiving notice to object to the dissemination/posting of the imagery under the authority of this clause. If the parties cannot reach agreement, the matter will be resolved in accordance with the Disputes Clause and the other terms and conditions of this contract.

H.23

(U) NextView IMAGERY END USER LICENSE AGREEMENT

a. (U) General Terms

1. (U) This clause applies to all unprocessed sensor data and requirements-compliant processed imagery, imagery services, imagery-derived products and imagery support data licensed under this Contract. No other clauses related to intellectual property or data rights of any sort shall have any effect related to the unprocessed sensor data and requirements-compliant processed imagery, imagery services, imagery-derived products and imagery support data delivered under this Contract.

2. (U) All license rights for use of the unprocessed sensor data and requirements-compliant processed imagery, imagery services, imagery-derived products and imagery support data provided to the U.S. Government purchased under this NGA contract are in perpetuity.

3. (U) Licensed users may generate an unlimited number of hardcopies and softcopies of the unprocessed sensor data and requirements-compliant processed imagery, imagery services, imagery-derived products and imagery support data for their use.

4. (i) (U) Licensed users may generate any derived product from the licensed unprocessed sensor data; and requirements-compliant processed imagery, imagery services, imagery-derived products and imagery support data.

(ii) (U) Unprocessed sensor data and requirements-compliant processed imagery, imagery services, imagery-derived products and imagery support data licensed under this NGA contract have no restrictions on use and distribution, but shall contain the copyright markings.

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b. (U) Licensed Users

1. (U) The imagery may be used by the U.S. Government (including, all branches, departments, agencies, and offices).

2. (U) The U.S. Government may provide the imagery to the following organizations:

State Governments

Local Governments

Foreign Governments and inter-governmental organizations

Non-Governmental Organization’s (NGO) and other non-profit organizations

3. (U) In consideration for the flexibility afforded to the U.S. Government by allowing unprocessed sensor data and requirements-compliant processed imagery, imagery services, imagery-derived products and imagery support data to be shared, the United States Government shall use its reasonable best efforts to minimize the effects on commercial sales. Acquisition and dissemination of imagery and imagery products collected within the United States shall be restricted in accordance with law and regulation.

H.24

(U) EXERCISE OF OPTIONS

a. (U) The Government has the unilateral right to exercise any option under this contract by a contract modification signed by the Contracting Officer. The Government may exercise from time to time, either in whole or in part, some or all the option CLINs. An option will be exercised by issuance of a modification prior to the end of the current contract period. [**Redacted**]

b. (U) If exercised, Option CLINs 0101, 0201, 0301, 0401, 0501, 0601, 0701, 0801, and 0901, SLA for Pixel & Imagery Acquisition/Operations (Baseline Collection Capacity) will be exercised not later than the last day of the base period or not later than the last day of the subsequent option period, as appropriate. The Government may exercise the Options under these CLINs only if the preceding Option CLIN was exercised. The Option level exercised by the Government will dictate the capacity of the DigitalGlobe constellation.

c.  [**Redacted**]

d.  [**Redacted**]

e. (U) If exercised, Option CLINs 0104, 0204, 0304, 0404, 0504, 0604, 0704, 0804, and 0904 Value-Added Products and Services will be exercised not later than the last day of the base period or not later than the last day of the subsequent option period, as appropriate. The Government may exercise the Options under these CLINs only if the preceding Option CLIN was exercised.

f. (U) If exercised, Option CLINs 0105, 0205, 0305, 0405, 0505, 0605, 0705, 0805, and 0905 Physical Media Delivery will be exercised not later than the last day of the base period or not later than the last day of the subsequent option period, as appropriate. The Government may exercise the Options under these CLINs only if the preceding Option CLIN was exercised.

g. (U) If exercised, Option CLINs 0106, 0206, 0306, 0406, 0506, 0606, 0706, 0806, and 0906 System Engineering Services Support will be exercised not later than the last day of the base period or not later than the last day of the subsequent option period, as appropriate. The Government may exercise the Options under these CLINs only if the preceding Option CLIN was exercised.

H.25

[**Redacted**]

Fill-in for paragraph (a)(4): [Portion of labor rate attributable to profit: As negotiated for individual tasks.]

I.6

(U) FAR 52.212-5 CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR EXECUTIVE ORDERS—COMMERCIAL ITEMS. (APR 2010)

(a) (U) The Contractor shall comply with the following Federal Acquisition Regulation (FAR) clauses, which are incorporated in this contract by reference, to implement provisions of law or Executive orders applicable to acquisitions of commercial items:

(1) 52.222-50, Combating Trafficking in Persons (FEB 2009) (22 U.S.C. 7104(g)).

Alternate I (Aug 2007) of 52.222-50 (22 U.S.C. 7104(g)).

(2) 52.233-3, Protest After Award (AUG 1996) (31 U.S.C. 3553).

(3) 52.233-4, Applicable Law for Breach of Contract Claim (OCT 2004) (Pub. L. 108-77, 108-78).

(b) (U) The Contractor shall comply with the FAR clauses in this paragraph (b) that the Contracting Officer has indicated as being incorporated in this contract by reference to implement provisions of law or Executive orders applicable to acquisitions of commercial items: Contracting Officer check “ þ ” as appropriate.

þ (1) 52.203-6, Restrictions on Subcontractor Sales to the Government (SEP 2006), with Alternate I (OCT 1995) (41 U.S.C. 253g and 10 U.S.C. 2402).

þ (2) 52.203-13, Contractor Code of Business Ethics and Conduct (APR 2010)(Pub. L. 110-252, Title VI, Chapter 1 (41 U.S.C. 251 note)).

o (3) 52.203-15, Whistleblower Protections under the American Recovery and Reinvestment Act of 2009 (MAR 2009) (Section 1553 of Pub. L. 111-5). (Applies to contracts funded by the American Recovery and Reinvestment Act of 2009.)

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o (4) 52.204-11, American Recovery and Reinvestment Act—Reporting Requirements (MAR 2009) (Pub. L. 111-5).

o (5) 52.219-3, Notice of Total HUBZone Set-Aside (JAN 1999) (15 U.S.C. 657a).

þ (6) 52.219-4, Notice of Price Evaluation Preference for HUBZone Small Business Concerns (JUL 2005) (if the offeror elects to waive the preference, it shall so indicate in its offer) (15 U.S.C. 657a).

o (7) Reserved.

o (8)(i) 52.219-6, Notice of Total Small Business Set-Aside (JUN 2003) (15 U.S.C. 644).

o (ii) Alternate I (OCT 1995) of 52.219-6.

o (iii) Alternate II (MAR 2004) of 52.219-6.

o (9)(i) 52.219-7, Notice of Partial Small Business Set-Aside (JUN 2003) (15 U.S.C. 644).

o (ii) Alternate I (OCT 1995) of 52.219-7.

o (iii) Alternate II (MAR 2004) of 52.219-7.

þ (10) 52.219-8, Utilization of Small Business Concerns (MAY 2004) (15 U.S.C. 637 (d)(2) and (3)).

[*] (11)(i) 52.219-9, Small Business Subcontracting Plan (APR 2008) (15 U.S.C. 637(d)(4).

* See Clause I.34 for DoD Deviation to this Clause.

o (ii) Alternate I (OCT 2001) of 52.219-9.

o (iii) Alternate II (OCT 2001) of 52.219-9.

o (12) 52.219-14, Limitations on Subcontracting (DEC 1996) (15 U.S.C. 637(a)(14)).

þ (13) 52.219-16, Liquidated Damages—Subcontracting Plan (JAN 1999) (15 U.S.C. 637(d)(4)(F)(i)).

o (14)(i) 52.219-23, Notice of Price Evaluation Adjustment for Small Disadvantaged Business Concerns (OCT 2008) (10 U.S.C. 2323)(if the offeror elects to waive the adjustment, it shall so indicate in its offer.)

o (ii) Alternate I (JUN 2003) of 52.219-23.

o (15) 52.219-25, Small Disadvantaged Business Participation Program—Disadvantaged Status and Reporting (APR 2008) (Pub. L. 103-355, section 7102, and 10 U.S.C. 2323).

o (16) 52.219-26, Small Disadvantaged Business Participation Program—Incentive Subcontracting (OCT 2000) (Pub. L. 103-355, section 7102, and 10 U.S.C. 2323).

o (17) 52.219-27, Notice of Total Service-Disabled Veteran-Owned Small Business Set-Aside (May 2004)(15 U.S.C. 657 f).

þ (18) 52.219-28, Post Award Small Business Program Rerepresentation (APR 2009) (15 U.S.C. 632(a)(2)).

þ (19) 52.222-3, Convict Labor (JUN 2003) (E.O. 11755).

þ (20) 52.222-19, Child Labor—Cooperation with Authorities and Remedies (AUG 2009) (E.O. 13126).

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þ (21) 52.222-21, Prohibition of Segregated Facilities (FEB 1999).

þ (22) 52.222-26, Equal Opportunity (MAR 2007) (E.O. 11246).

þ (23) 52.222-35, Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans (SEP 2006) (38 U.S.C. 4212).

þ (24) 52.222-36, Affirmative Action for Workers with Disabilities (JUN 1998) (29 U.S.C. 793).

þ (25) 52.222-37, Employment Reports on Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans (SEP 2006) (38 U.S.C. 4212).

þ (26) 52.222-54, Employment Eligibility Verification (Jan 2009). (Executive Order 12989). (Not applicable to the acquisition of commercially available off-the-shelf items or certain other types of commercial items as prescribed in 22.1803.)

o (27)(i) 52.223-9, Estimate of Percentage of Recovered Material Content for EPA-Designated Items (May 2008) (42 U.S.C. 6962(c)(3)(A)(ii)). (Not applicable to the acquisition of commercially available off-the-shelf items.)

o (ii) Alternate I (May 2008) of 52.223-9 (42 U.S.C. 6962(i)(2)(C)). (Not applicable to the acquisition of commercially available off-the-shelf items.)

o (28) 52.223-15, Energy Efficiency in Energy-Consuming Products (DEC 2007) (42 U.S.C. 8259b).

o (29)(i) 52.223-16, IEEE 1680 Standard for the Environmental Assessment of Personal Computer Products (DEC 2007) (E.O. 13423).

o (ii) Alternate I (DEC 2007) of 52.223-16.

o (30) 52.225-1, Buy American Act — Supplies (FEB 2009) (41 U.S.C. 10a-10d).

o (31)(i) 52.225-3, Buy American Act—Free Trade Agreements—Israeli Trade Act (JUN 2009) (41 U.S.C. 10a-10d, 19 U.S.C. 3301 note, 19 U.S.C. 2112 note, 19 U.S.C. 3805 note, Pub. L. 108-77, 108-78, 108-286, 108-302, 109-53, 109-169, 109-283, and 110-138).

o (ii) Alternate I (JAN 2004) of 52.225-3.

o (iii) Alternate II (JAN 2004) of 52.225-3.

o (32) 52.225-5, Trade Agreements (AUG 2009) (19 U.S.C. 2501, et seq., 19 U.S.C. 3301 note).

þ (33) 52.225-13, Restrictions on Certain Foreign Purchases (JUN 2008) (E.O.’s, proclamations, and statutes administered by the Office of Foreign Assets Control of the Department of the Treasury).

o (34) 52.226-4, Notice of Disaster or Emergency Area Set-Aside (Nov 2007) (42 U.S.C. 5150).

o (35) 52.226-5, Restrictions on Subcontracting Outside Disaster or Emergency Area (Nov 2007) (42 U.S.C. 5150).

o (36) 52.232-29, Terms for Financing of Purchases of Commercial Items (FEB 2002) (41 U.S.C. 255(f), 10 U.S.C. 2307(f)).

o (37) 52.232-30, Installment Payments for Commercial Items (OCT 1995) (41 U.S.C. 255(f), 10 U.S.C. 2307(f)).

þ (38) 52.232-33, Payment by Electronic Funds Transfer — Central Contractor Registration (OCT 2003) (31 U.S.C. 3332).

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o (39) 52.232-34, Payment by Electronic Funds Transfer — Other than Central Contractor Registration (MAY 1999) (31 U.S.C. 3332).

o (40) 52.232-36, Payment by Third Party (FEB 2010) (31 U.S.C. 3332).

þ (41) 52.239-1, Privacy or Security Safeguards (AUG 1996) (5 U.S.C. 552a).

o (42)(i) 52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels (FEB 2006) (46 U.S.C. Appx 1241(b) and 10 U.S.C. 2631).

o (ii) Alternate I (APR 2003) of 52.247-64

(c) (U) The Contractor shall comply with the FAR clauses in this paragraph (c), applicable to commercial services, that the Contracting Officer has indicated as being incorporated in this contract by reference to implement provisions of law or Executive orders applicable to acquisitions of commercial items: (Contracting Officer check “ þ ” as appropriate.)

o (1) 52.222-41, Service Contract Act of 1965 (NOV 2007) (41 U.S.C. 351, et seq.).

o (2) 52.222-42, Statement of Equivalent Rates for Federal Hires (MAY 1989) (29 U.S.C. 206 and 41 U.S.C. 351, et seq.).

o (3) 52.222-43, Fair Labor Standards Act and Service Contract Act—Price Adjustment (Multiple Year and Option Contracts) (SEP 2009) (29 U.S.C. 206 and 41 U.S.C. 351, et seq.).

o (4) 52.222-44, Fair Labor Standards Act and Service Contract Act—Price Adjustment (SEP 2009) (29 U.S.C. 206 and 41 U.S.C. 351, et seq.).

o (5) 52.222-51, Exemption from Application of the Service Contract Act to Contracts for Maintenance, Calibration, or Repair of Certain Equipment—Requirements (NOV 2007) (41 U.S.C. 351, et seq.).

o (6) 52.222-53, Exemption from Application of the Service Contract Act to Contracts for Certain Services—Requirements (FEB 2009) (41 U.S.C. 351, et seq.).

o (7) 52.226-6, Promoting Excess Food Donation to Nonprofit Organizations. (MAR 2009) (Pub. L. 110-247).

o (8) 52.237-11, Accepting and Dispensing of $1 Coin (SEP 2008) (31 U.S.C. 5112(p)(1)).

(d) (U) Comptroller General Examination of Record . The Contractor shall comply with the provisions of this paragraph (d) if this contract was awarded using other than sealed bid, is in excess of the simplified acquisition threshold, and does not contain the clause at 52.215-2, Audit and Records - Negotiation.

(1) The Comptroller General of the United States, or an authorized representative of the Comptroller General, shall have access to and right to examine any of the Contractor’s directly pertinent records involving transactions related to this contract.

(2) The Contractor shall make available at its offices at all reasonable times the records, materials, and other evidence for examination, audit, or reproduction, until 3 years after final payment under this contract or for any shorter period specified in FAR Subpart 4.7, Contractor Records Retention, of the other clauses of this contract. If this contract is completely or partially terminated, the records relating to the work terminated shall be made available for 3 years after any resulting final termination settlement. Records relating to appeals under the disputes clause or to litigation or the settlement of claims arising under or relating to this contract shall be made available until such appeals, litigation, or claims are finally resolved.

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(3) As used in this clause, records include books, documents, accounting procedures and practices, and other data, regardless of type and regardless of form. This does not require the Contractor to create or maintain any record that the Contractor does not maintain in the ordinary course of business or pursuant to a provision of law.

(e)(1) (U) Notwithstanding the requirements of the clauses in paragraphs (a), (b), (c), and (d) of this clause, the Contractor is not required to flow down any FAR clause, other than those in this paragraph (e)(1) in a subcontract for commercial items. Unless otherwise indicated below, the extent of the flow down shall be as required by the clause—

(i) 52.203-13, Contractor Code of Business Ethics and Conduct (APR 2010) (Pub. L. 110-252, Title VI, Chapter 1 (41 U.S.C. 251 note)).

(ii) 52.219-8, Utilization of Small Business Concerns (MAY 2004) (15 U.S.C. 637(d)(2) and (3)), in all subcontracts that offer further subcontracting opportunities. If the subcontract (except subcontracts to small business concerns) exceeds $550,000 ($1,000,000 for construction of any public facility), the subcontractor must include 52.219-8 in lower tier subcontracts that offer subcontracting opportunities.

(iii) Reserved.

(iv) 52.222-26, Equal Opportunity (MAR 2007) (E.O. 11246).

(v) 52.222-35, Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans (SEP 2006) (38 U.S.C. 4212).

(vi) 52.222-36, Affirmative Action for Workers with Disabilities (JUN 1998) (29 U.S.C. 793).

(vii) Reserved.

(viii) 52.222-41, Service Contract Act of 1965 (NOV 2007) (41 U.S.C. 351, et seq.).

(ix) 52.222-50, Combating Trafficking in Persons (FEB 2009) (22 U.S.C. 7104(g)).

Alternate I (Aug 2007) of 52.222-50 (22 U.S.C. 7104(g)).

(x) 52.222-51, Exemption from Application of the Service Contract Act to Contracts for Maintenance, Calibration, or Repair of Certain Equipment—Requirements (NOV 2007) (41 U.S.C. 351, et seq.).

(xi) 52.222-53, Exemption from Application of the Service Contract Act to Contracts for Certain Services-Requirements (FEB 2009)(41 U.S.C. 351, et seq.).

(xii) 52.222-54, Employment Eligibility Verification (Jan 2009).

(xiii) 52.226-6, Promoting Excess Food Donation to Nonprofit Organizations. (MAR 2009) (Pub. L. 110-247). Flow down required in accordance with paragraph (e) of FAR clause 52.226-6.

(xiv) 52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels (FEB 2006) (46 U.S.C. Appx 1241(b) and 10 U.S.C. 2631). Flow down required in accordance with paragraph (d) of FAR clause 52.247-64.

(2) While not required, the contractor may include in its subcontracts for commercial items a minimal number of additional clauses necessary to satisfy its contractual obligations.

I.7

(U) FAR 52.215-21 REQUIREMENTS FOR COST OR PRICING DATA OR INFORMATION OTHER THAN COST OR PRICING DATA — MODIFICATIONS. (OCT 1997)

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I.8

(U) FAR 52.216-22 INDEFINITE QUANTITY. (OCT 1995) ( Applicable to CLIN Series 0x04 and 0x05 )

(a) (U) This is an indefinite-quantity contract for the supplies or services specified, and effective for the period stated, in the Schedule. The quantities of supplies and services specified in the Schedule are estimates only and are not purchased by this contract.

(b) (U) Delivery or performance shall be made only as authorized by orders issued in accordance with the Ordering clause. The Contractor shall furnish to the Government, when and if ordered, the supplies or services specified in the Schedule up to and including the quantity designated in the Schedule as the “maximum.” The Government shall order at least the quantity of supplies or services designated in the Schedule as the “minimum.”

(c) (U) Except for any limitations on quantities in the Order Limitations clause or in the Schedule, there is no limit on the number of orders that may be issued. The Government may issue orders requiring delivery to multiple destinations or performance at multiple locations.

(d) (U) Any order issued during the effective period of this contract and not completed within that period shall be completed by the Contractor within the time specified in the order. The contract shall govern the Contractor’s and Government’s rights and obligations with respect to that order to the same extent as if the order were completed during the contract’s effective period; provided , that the Contractor shall not be required to make any deliveries under this contract after April 30, 2022.

I.9

(U) FAR 52.217-9 OPTION TO EXTEND THE TERM OF THE CONTRACT. (MAR 2000)

(a) The Government may extend the term of this contract by written notice to the Contractor within 90 days; provided that the Government gives the Contractor a preliminary written notice of its intent to extend at least [ ]days ( 60 days unless a different number of days is inserted) before the contract expires. The preliminary notice does not commit the Government to an extension.

(b) If the Government exercises this option, the extended contract shall be considered to include this option clause.

(c) The total duration of this contract, including the exercise of any options under this clause, shall not exceed 10 years.

(a) (U) Definitions. “Contracting Officer,” as used in this clause, does not include any representative of the Contracting Officer.

(U) “Specifically Authorized Representative (SAR),” as used in this clause, means any person the Contracting Officer has so designated by written notice (a copy of which shall be provided to the Contractor) which shall refer to this paragraph and shall be issued to the designated representative before the SAR exercises such authority.

(b) (U) Notice. The primary purpose of this clause is to obtain prompt reporting of Government conduct that the Contractor considers to constitute a change to this contract. Except for changes identified as such in writing and signed by the Contracting Officer, the Contractor shall notify the Administrative Contracting Officer in writing promptly, within 7 calendar days (with a copy to the COR) (to be negotiated) calendar days from the date that the Contractor identifies any Government conduct (including actions, inactions, and written or oral communications) that the Contractor regards as a change to the contract terms and conditions. On the basis of the most accurate information available to the Contractor, the notice shall state

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(1) (U) The date, nature, and circumstances of the conduct regarded as a change;

(2) (U) The name, function, and activity of each Government individual and Contractor official or employee involved in or knowledgeable about such conduct;

(3) (U) The identification of any documents and the substance of any oral communication involved in such conduct;

(4) (U) In the instance of alleged acceleration of scheduled performance or delivery, the basis upon which it arose;

(5) (U) The particular elements of contract performance for which the Contractor may seek an equitable adjustment under this clause, including -

(i) (U) What contract line items have been or may be affected by the alleged change;

(ii) (U) What labor or materials or both have been or may be added, deleted, or wasted by the alleged change;

(iii) (U) To the extent practicable, what delay and disruption in the manner and sequence of performance and effect on continued performance have been or may be caused by the alleged change;

(iv) (U) What adjustments to contract price, delivery schedule, and other provisions affected by the alleged change are estimated; and

(6) (U) The Contractor’s estimate of the time by which the Government must respond to the Contractor’s notice to minimize cost, delay or disruption of performance.

(c) (U) Continued performance. Following submission of the notice required by paragraph (b) of this clause, the Contractor shall diligently continue performance of this contract to the maximum extent possible in accordance with its terms and conditions as construed by the Contractor, unless the notice reports a direction of the Contracting Officer or a communication from a SAR of the Contracting Officer, in either of which events the Contractor shall continue performance; provided, however, that if the Contractor regards the direction or communication as a change as described in paragraph (b) of this clause, notice shall be given in the manner provided. All directions, communications, interpretations, orders and similar actions of the SAR shall be reduced to writing promptly and copies furnished to the Contractor and to the Contracting Officer. The Contracting Officer shall promptly countermand any action which exceeds the authority of the SAR.

(d) (U) Government response. The Contracting Officer shall promptly, within [ ] (to be negotiated) calendar days after receipt of notice, respond to the notice in writing. In responding, the Contracting Officer shall either -

(1) (U) Confirm that the conduct of which the Contractor gave notice constitutes a change and when necessary direct the mode of further performance;

(2) (U) Countermand any communication regarded as a change;

(3) (U) Deny that the conduct of which the Contractor gave notice constitutes a change and when necessary direct the mode of further performance; or

(4) (U) In the event the Contractor’s notice information is inadequate to make a decision under paragraphs (d)(1), (2), or (3) of this clause, advise the Contractor what additional information is required, and establish the date by which it should be furnished and the date thereafter by which the Government will respond.

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(e) (U) Equitable adjustments . (1) If the Contracting Officer confirms that Government conduct effected a change as alleged by the Contractor, and the conduct causes an increase or decrease in the Contractor’s cost of, or the time required for, performance of any part of the work under this contract, whether changed or not changed by such conduct, an equitable adjustment shall be made -

(i) (U) In the contract price or delivery schedule or both; and

(ii) (U) In such other provisions of the contract as may be affected.

(2) (U) The contract shall be modified in writing accordingly. In the case of drawings, designs or specifications which are defective and for which the Government is responsible, the equitable adjustment shall include the cost and time extension for delay reasonably incurred by the Contractor in attempting to comply with the defective drawings, designs or specifications before the Contractor identified, or reasonably should have identified, such defect. When the cost of property made obsolete or excess as a result of a change confirmed by the Contracting Officer under this clause is included in the equitable adjustment, the Contracting Officer shall have the right to prescribe the manner of disposition of the property. The equitable adjustment shall not include increased costs or time extensions for delay resulting from the Contractor’s failure to provide notice or to continue performance as provided, respectively, in paragraphs (b) and (c) of this clause.

(U) Note: The phrases “contract price” and “cost” wherever they appear in the clause, may be appropriately modified to apply to cost-reimbursement or incentive contracts, or to combinations thereof.

I.15

(U) FAR 52.244-6 SUBCONTRACTS FOR COMMERCIAL ITEMS. (APR 2010)

(a) (U) Definitions. As used in this clause—

“Commercial item” has the meaning contained in Federal Acquisition Regulation 2.101, Definitions.

“Subcontract” includes a transfer of commercial items between divisions, subsidiaries, or affiliates of the Contractor or subcontractor at any tier.

(b) (U) To the maximum extent practicable, the Contractor shall incorporate, and require its subcontractors at all tiers to incorporate, commercial items or nondevelopmental items as components of items to be supplied under this contract.

(c)(1) (U) The Contractor shall insert the following clauses in subcontracts for commercial items:

(i) 52.203-13, Contractor Code of Business Ethics and Conduct (Apr 2010) (Pub. L. 110-252, Title VI, Chapter 1 (41 U.S.C. 251 note)), if the subcontract exceeds $5,000,000 and has a performance period of more than 120 days. In altering this clause to identify the appropriate parties, all disclosures of violation of the civil False Claims Act or of Federal criminal law shall be directed to the agency Office of the Inspector General, with a copy to the Contracting Officer.

(ii) 52.203-15, Whistleblower Protections Under the American Recovery and Reinvestment Act of 2009 (Section 1553 of Pub. L. 111-5), if the subcontract is funded under the Recovery Act.

(iii) 52.219-8, Utilization of Small Business Concerns (MAY 2004) (15 U.S.C. 637(d)(2) and (3)), in all subcontracts that offer further subcontracting opportunities. If the subcontract (except subcontracts to small business concerns) exceeds $550,000 ($1,000,000 for construction of any public facility), the subcontractor must include 52.219-8 in lower tier subcontracts that offer subcontracting opportunities.

(iv) 52.222-26, Equal Opportunity (MAR 2007) (E.O. 11246).

(v) 52.222-35, Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans (SEP 2006) (38 U.S.C. 4212(a)).

(vi) 52.222-36, Affirmative Action for Workers with Disabilities (JUN 1998) (29 U.S.C. 793).

(vii) Reserved.

(viii) 52.222-50, Combating Trafficking in Persons (FEB 2009) (22 U.S.C. 7104(g)).

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(ix) 52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels (Feb 2006) (46 U.S.C. App. 1241 and 10 U.S.C. 2631), if flow down is required in accordance with paragraph (d) of FAR clause 52.247-64.

(2) (U) While not required, the Contractor may flow down to subcontracts for commercial items a minimal number of additional clauses necessary to satisfy its contractual obligations.

(d) (U) The Contractor shall include the terms of this clause, including this paragraph (d), in subcontracts awarded under this contract.

(a) (U) The Contractor shall not release to anyone outside the Contractor’s organization any unclassified information, regardless of medium (e.g., film, tape, document), pertaining to any part of this contract or any program related to this contract, unless —

(1) (U) The Contracting Officer has given prior written approval; or

(2) (U) The information is otherwise in the public domain before the date of release.

(b) (U) Requests for approval shall identify the specific information to be released, the medium to be used, and the purpose for the release. The Contractor shall submit its request to the Contracting Officer at least 45 days before the proposed date for release.

(c) (U) The Contractor agrees to include a similar requirement in each subcontract under this contract. Subcontractors shall submit requests for authorization to release through the prime contractor to the Contracting Officer.

(a) (U) Definitions. As used in this clause—

(U) “Central Contractor Registration (CCR) database” means the primary Government repository for contractor information required for the conduct of business with the Government.

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(U) “Commercial and Government Entity (CAGE) code” means—

(1) (U) A code assigned by the Defense Logistics Information Service (DLIS) to identify a commercial or Government entity; or

(2) (U) A code assigned by a member of the North Atlantic Treaty Organization that DLIS records and maintains in the CAGE master file. This type of code is known as an “NCAGE code.”

(U) “Data Universal Numbering System (DUNS) number” means the 9-digit number assigned by Dun and Bradstreet, Inc. (D&B) to identify unique business entities.

(U) Data Universal Numbering System +4 (DUNS+4) number” means the DUNS number assigned by D&B plus a 4-character suffix that may be assigned by a business concern. (D&B has no affiliation with this 4-character suffix.) This 4-character suffix may be assigned at the discretion of the business concern to establish additional CCR records for identifying alternative Electronic Funds Transfer (EFT) accounts (see Subpart 32.11 of the Federal Acquisition Regulation) for the same parent concern.

(U) “Registered in the CCR database” means that—

(1) (U) The Contractor has entered all mandatory information, including the DUNS number or the DUNS+4 number, into the CCR database;

(2) (U) The Contractor’s CAGE code is in the CCR database; and

(3) (U) The Government has validated all mandatory data fields, to include validation of the Taxpayer Identification Number (TIN) with the Internal Revenue Service, and has marked the records “Active.” The Contractor will be required to provide consent for TIN validation to the Government as part of the CCR registration process.

(a) (U) The Contractor agrees to comply with the following Federal Acquisition Regulation (FAR) clause which, if checked, is included in this contract by reference to implement a provision of law applicable to acquisitions of commercial items or components.

þ 52.203-3, Gratuities (APR 1984) (10 U.S.C. 2207).

(b) (U) The Contractor agrees to comply with any clause that is checked on the following list of Defense FAR Supplement clauses which, if checked, is included in this contract by reference to implement provisions of law or Executive orders applicable to acquisitions of commercial items or components.

(1)  þ 252.203-7000, Requirements Relating to Compensation of Former DoD Officials (JAN 2009) (Section 847 of Pub. L. 110-181).

(2)  o 252.205-7000, Provision of Information to Cooperative Agreement Holders (DEC 1991) (10 U.S.C. 2416).

(3)  þ * 252.219-7003, Small Business Subcontracting Plan (DoD Contracts) (APR 2007) (15 U.S.C. 637).

* See Clause I.34 for DoD Deviation to this Clause.

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(4)  þ * 252.219-7004, Small Business Subcontracting Plan (Test Program) (AUG 2008) (15 U.S.C. 637 note).

* See Clause I.34 for DoD Deviation to this Clause.

(5)  o 252.225-7001, Buy American Act and Balance of Payments Program (JAN 2009) (41 U.S.C. 10a-10d, E.O. 10582).

(6)  o 252.225-7008, Restriction on Acquisition of Specialty Metals (JUL 2009) (10 U.S.C. 2533b).

(7)  o 252.225-7009, Restriction on Acquisition of Certain Articles Containing Specialty Metals (JUL 2009) (10 U.S.C. 2533b).

(8)  þ 252.225-7012, Preference for Certain Domestic Commodities (DEC 2008) (10 U.S.C. 2533a).

(9)  o 252.225-7015, Restriction on Acquisition of Hand or Measuring Tools (JUN 2005) (10 U.S.C. 2533a).

(10)  o 252.225-7016, Restriction on Acquisition of Ball and Roller Bearings (MAR 2006) (Section 8065 of Public Law 107-117 and the same restriction in subsequent DoD appropriations acts).

(11)(i) þ 252.225-7021, Trade Agreements (NOV 2009) (19 U.S.C. 2501-2518 and 19 U.S.C. 3301 note).

(ii) o Alternate I (SEP 2008).

(12)  o 252.225-7027, Restriction on Contingent Fees for Foreign Military Sales (APR 2003) (22 U.S.C. 2779).

(13)  o 252.225-7028, Exclusionary Policies and Practices of Foreign Governments (APR 2003) (22 U.S.C. 2755).

(14)(i) o 252.225-7036, Buy American Act—Free Trade Agreements—Balance of Payments Program (JUL 2009) (41 U.S.C. 10a-10d and 19 U.S.C. 3301 note).

(ii) o Alternate I (JUL 2009) of 252.225-7036.

(15)  o 252.225-7038, Restriction on Acquisition of Air Circuit Breakers (JUN 2005) (10 U.S.C. 2534(a)(3)).

(16)  þ 252.226-7001, Utilization of Indian Organizations, Indian-Owned Economic Enterprises, and Native Hawaiian Small Business Concerns (SEP 2004) (Section 8021 of Pub. L. 107-248 and similar sections in subsequent DoD appropriations acts).

(17)  þ 252.227-7015, Technical Data—Commercial Items (NOV 1995) (10 U.S.C. 2320).

(18)  þ 252.227-7037, Validation of Restrictive Markings on Technical Data (SEP 1999) (10 U.S.C. 2321).

(19)  þ 252.232-7003, Electronic Submission of Payment Requests and Receiving Reports (MAR 2008) (10 U.S.C. 2227).

(20)  þ 252.237-7019, Training for Contractor Personnel Interacting with Detainees (SEP 2006) (Section 1092 of Public Law 108-375).

(21)  þ 252.243-7002, Requests for Equitable Adjustment (MAR 1998) (10 U.S.C. 2410).

(22)  o 252.247-7003, Pass-Through of Motor Carrier Fuel Surcharge Adjustment to the Cost Bearer (JUL 2009) (Section 884 of Public Law 110-417).

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(23)(i) þ 252.247-7023, Transportation of Supplies by Sea (MAY 2002) (10 U.S.C. 2631).

(ii) o Alternate I (MAR 2000) of 252.247-7023.

(iii) o Alternate II (MAR 2000) of 252.247-7023.

(iv) o Alternate III (MAY 2002) of 252.247-7023.

(24)  o 252.247-7024, Notification of Transportation of Supplies by Sea (MAR 2000) (10 U.S.C. 2631).

(c) (U) In addition to the clauses listed in paragraph (e) of the Contract Terms and Conditions Required to Implement Statutes or Executive Orders—Commercial Items clause of this contract (FAR 52.212-5), the Contractor shall include the terms of the following clauses, if applicable, in subcontracts for commercial items or commercial components, awarded at any tier under this contract:

(1) 252.237-7019, Training for Contractor Personnel Interacting with Detainees (SEP 2006) (Section 1092 of Public Law 108-375).

(2) 252.247-7003, Pass-Through of Motor Carrier Fuel Surcharge Adjustment to the Cost Bearer (JUL 2009) (Section 884 of Public Law 110-417).

(3) 252.247-7023, Transportation of Supplies by Sea (MAY 2002) (10 U.S.C. 2631).

(4) 252.247-7024, Notification of Transportation of Supplies by Sea (MAR 2000) (10 U.S.C. 2631).

I.29

(U) DFARS 252.227-7013 RIGHTS IN TECHNICAL DATA—NONCOMMERCIAL ITEMS. (NOV 1995) [**Redacted**]

* (U) See Contract Attachment 5, List of Data Delivered with Government Purpose Rights, and Contract Attachment 6, List of Data with Limited Rights.

I.30

(U) DFARS 252.227-7014 RIGHTS IN NONCOMMERCIAL COMPUTER SOFTWARE AND NONCOMMERCIAL COMPUTER SOFTWARE DOCUMENTATION. (JUN 1995) [**Redacted**]

* (U) See Contract Attachment 5, List of Data Delivered with Government Purpose Rights, and Contract Attachment 6, List of Data with Limited Rights.

I.31

(U) DFARS 252.232-7007 LIMITATION OF GOVERNMENT’S OBLIGATION. (MAY 2006)

(a) (U) Contract line item(s) ( See Section B, Total Contract Price/Total Contract Funding ) through ( See Section B, Total Contract Price/Total Contract Funding ) are incrementally funded. For these item(s), the sum of $( See Section B, Total Contract Price/Total Contract Funding ) of the total price is presently available for payment and allotted to this contract. An allotment schedule is set forth in paragraph (j) of this clause.

(b) (U) For item(s) identified in paragraph (a) of this clause, the Contractor agrees to perform up to the point at which the total amount payable by the Government, including reimbursement in the event of termination of those item(s) for the Government’s convenience, approximates the total amount currently allotted to the contract. The Contractor is not authorized to continue work on those item(s) beyond that point. The Government will not be obligated in any event to reimburse the Contractor in excess of the amount allotted to the contract for those item(s) regardless of anything to the contrary in the clause entitled “Termination for Convenience of the Government.” As used in this clause, the total amount payable by the Government in the event of termination of applicable contract line item(s) for convenience includes cost, profit, and estimated termination settlement costs for those items(s).

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(c) (U) Notwithstanding the dates specified in the allotment schedule in paragraph (j) of this clause, the Contractor will notify the Contracting Officer in writing at least ninety days prior to the date when, in the Contractor’s best judgment, the work will reach the point at which the total amount payable by the Government, including any cost for termination for convenience, will approximate 85 percent of the total amount then allotted to the contract for performance of the applicable item(s). The notification will state (1) the estimated date when that point will be reached and (2) an estimate of additional funding, if any, needed to continue performance of applicable line items up to the next scheduled date for allotment of funds identified in paragraph (j) of this clause, or to a mutually agreed upon substitute date. The notification will also advise the Contracting Officer of the estimated amount of additional funds that will be required for the timely performance of the item(s) funded pursuant to this clause, for subsequent period as may be specified in the allotment schedule in paragraph (j) of this clause, or otherwise agreed to by the parties. If after such notification additional funds are not allotted by the date identified in the Contractor’s notification, or by an agreed substitute date, the Contracting Officer will terminate any item(s) for which additional funds have not be allotted, pursuant to the clause of this contract entitled “Termination for Convenience of the Government.”

(d) (U) When additional funds are allotted for continued performance of the contract line item(s) identified in paragraph (a) of this clause the parties will agree as to the period of contract performance which will be covered by the funds. The provisions of paragraph (b) through (d) of this clause will apply in like manner to the additional allotted funds and agreed substitute date, and the contract will be modified accordingly.

(e) (U) If, solely by reason of failure of the Government to allot additional funds, by the dates indicated below, in amounts sufficient for timely performance of the contract line item(s) identified in paragraph (a) of this clause, the Contractor incurs additional costs or is delayed in the performance of the work under this contract and if additional funds are allotted, an equitable adjustment will be made in the price or prices (including appropriate target, billing, and ceiling prices where applicable) of the item(s), or in the time of delivery, or both. Failure to agree to any such equitable adjustment hereunder will be a dispute concerning a question of fact within the meaning of the clause entitled “Disputes.”

(f) (U) The Government may at any time prior to termination allot additional funds for the performance of the contract line item(s) identified in paragraph (a) of this clause.

(g) (U) The termination provisions of this clause do not limit the rights of the Government under the clause entitled “Default.” The provisions of this clause are limited to the work and allotment of funds for the contract line item(s) set forth in paragraph (a) of this clause. This clause no longer applies once the contract is fully funded except with regard to the rights or obligations of the parties concerning equitable adjustments negotiated under paragraphs (d) or (e) of this clause.

(h) (U) Nothing in this clause affects the right of the Government to terminate this contract pursuant to the clause of this contract entitled “Termination for Convenience of the Government.”

(i) (U) Nothing in this clause shall be construed as authorization of voluntary services whose acceptance is otherwise prohibited under 31 U.S.C. 1342.

(j) (U) The parties contemplate that the Government will allot funds to this contract in accordance with the following schedule: Quarterly by Government Fiscal Year .

(U) In accordance with DoD Class Deviation 2008-O0008 dated 12 Feb 2009, as stated in DFARS 219.708(b)(1)(B), the following clauses are authorized for use in lieu of the FAR and DFARS clauses. The full text of all the below Deviation Clauses may be obtained using the link to the Class Deviation provided at DFARS 219.708(b)(1)(B).

a. (U) In reference to FAR Clause provided at I.6, FAR 52.212-5(b)(11); 52.219-9, Small Business Subcontracting Plan (DEVIATION) applies in lieu of FAR Clause 52.219-9, Small Business Subcontracting Plan (APR 2008).

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b. (U) In reference to DFARS Clause provided at I.27, 252.212-7001(c)(3); 252.219-7003, Small Business Subcontracting Plan (DoD Contracts)(DEVIATION) applies in lieu of 252.219-7003, Small Business Subcontracting Plan (DoD Contracts).

c. (U) In reference to DFARS Clause provided at I.27, 252.212-7001(c)(4); use 252.219-7004, Small Business Subcontracting Plan (Test Program) applies in lieu of 252.219-7004, Small Business Subcontracting Plan (Test Program) (AUG 2008).

d. (U) All the above clauses that apply are incorporated by reference.

U) SECTION J — List of Documents Exhibits and Other Attachments

J.1

(U) LIST OF DOCUMENTS, EXHIBITS, AND OTHER ATTACHMENTS

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Exhibit 10.2

FOIA CONFIDENTIAL TREATMENT REQUESTED

PORTIONS OF THIS EXHIBIT MARKED BY [**Redacted**] HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION

WV3 Satellite Purchase Agreement 60150

Document No. 10329664

WorldView 3 Satellite Purchase Agreement #
60150
By and Between
DigitalGlobe, Inc.
and
Ball Aerospace & Technologies Corp.

RESTRICTION ON USE, PUBLICATION, OR DISCLOSURE OF PROPRIETARY INFORMATION

THIS AGREEMENT AND THE INFORMATION CONTAINED THEREIN ARE CONFIDENTIAL AND PROPRIETARY TO DIGITALGLOBE AND BALL AEROSPACE & TECHNOLOGIES CORP (BATC) AND SHALL NOT BE PUBLISHED OR DISCLOSED TO ANY THIRD PARTY WITHOUT THE EXPRESS WRITTEN CONSENT OF A DULY AUTHORIZED REPRESENTATIVE OF DIGITALGLOBE AND BATC.

WV3 Satellite Purchase Agreement 60150

Document No. 10329664

WV3 Satellite Purchase Agreement 60150

Document No. 10329664

WORLDVIEW 3 SATELLITE PURCHASE AGREEMENT

THIS SATELLITE PURCHASE AGREEMENT, including the Exhibits referenced in Article 2.1 and incorporated herein, (collectively the “Agreement”) is made and entered into as of September 1, 2010) (the “Effective Date”), by and between DIGITALGLOBE, INC., a Delaware corporation with its principal offices located at 1601 Dry Creek Drive, Suite 260, Longmont, Colorado 80503 (“Customer”), and BALL AEROSPACE & TECHNOLOGIES CORP., a Delaware corporation with its principal offices located at 1600 Commerce Street, Boulder, Colorado 80301 (“Contractor”). As used in this Agreement, “Party” means either Customer or Contractor, as appropriate, and “Parties” means Customer and Contractor.

RECITALS

WHEREAS, Customer desires to procure one (1) remote sensing Satellite and related data and documentation and services as more specifically set forth in Exhibits A and B hereto;

WHEREAS , Contractor is in the business of providing satellites and related data and documentation and services on a commercial basis;

WHEREAS , Customer is willing to purchase the Satellite and other Work (as such terms are defined in Section 1) per the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and intending to be legally bound hereby, the Parties agree as follows:

WV3 Satellite Purchase Agreement 60150

Document No. 10329664

1. DEFINITIONS AND CONSTRUCTION

1.1. CERTAIN DEFINITIONS.

In this Agreement, the following terms shall have the meaning stated hereunder:

(a) Reserved “

(b) “AFFILIATE” means, with respect to an entity, any other entity controlling or controlled by or under common control with such entity.

(c) “AVAILABLE FOR SHIPMENT” means that a Satellite has successfully passed all in-plant acceptance tests, has successfully undergone a Pre-Ship Review and has been declared, by both Customer and Contractor, to be ready to be shipped to the designated launch site.

(d) “BUSINESS DAY” means any day other than the following: a Saturday, Sunday, and any other day on which national banks are authorized to be closed in Colorado. Unless specified in this Agreement as a “Business Day”, all references to “day” or “days” shall mean calendar days.

(e) “CONTRACT DELIVERABLE(S)” has the meaning set forth in Section 3 of Exhibit 1.

(f) “CONTRACT PRICE” means the firm fixed price set forth in Article 3.1.

(g) “CORRECTION PLAN” means a plan submitted by Contractor that details the means by which Contractor shall correct a failure to make adequate progress toward completion of any Work under this Agreement in accordance with Article 24.

(h) “CRITICAL DESIGN REVIEW” has the meaning set forth in Exhibit 1.

(i) “CFE” means Customer Furnished Equipment and is comprised of the items detailed in Section 10 of Exhibit 1.

(j) “CUSTOMER PERSONNEL” means Customer employees, consultants or representatives, or Customer’s consultants’ employees.

(k) “DATA AND DOCUMENTATION” means that data and documentation to be supplied by Contractor pursuant to the requirements of Exhibit 1.

(l) “DEFECT” means; i) with respect to Deliverable Items, any nonconformance in materials, workmanship, or a failure to perform in accordance with the specifications and the interface control documents (ICD’s) set forth in the Agreement or applicable exhibits. (ii) with respect to Deliverable Services, a failure to meet any material requirement set forth in this Agreement or to conform to a standard consistent with good industrial practice, or (iii) any material error, omission, or inconsistency in Data and Documentation, including engineering reports, test plans, test reports, specifications and drawings, set forth in or required by the Agreement.

(m) “DELIVERABLE ITEM(S)” means any and all of items listed in Section 3.1 of Exhibit 1.

WV3 Satellite Purchase Agreement 60150

Document No. 10329664

(n) “DELIVERABLE SERVICE(S)” means the services set forth in Section 3.3 of Exhibit 1.

(o) “DELIVERY DATE(S)” means, with respect to any Deliverable Item, the delivery dates set forth in Exhibit 1.

(p) “DELIVERY SCHEDULE” means the schedule for Delivery of the Work as set forth in this Agreement and Exhibit 1.

(q) “DEMAND” means, in the context of Article 24, a demand made by Customer to Contractor for Contractor to provide a Correction Plan in the event Contractor is failing to make adequate progress in the performance of this Agreement.

(r) “EXCUSABLE DELAY” has the meaning set forth in Article 9.

(s) “EXHIBITS” means any and all exhibits, and any appendices thereto, to this Agreement, which are attached hereto and incorporated herein.

(t) “FINAL ACCEPTANCE” of a Contract Deliverable has the meaning set forth in Exhibit 1.

(u) “FIRST MILESTONE PAYMENT” means the first Milestone Payment identified in Exhibit 3.

(v) “INTELLECTUAL PROPERTY” means all algorithms, inventions, drawings technical data, works of authorship, mask works, technical information, computer software designs, methods, concepts, layouts, software, software codes, (in any form including source code and executable or object code), inventions (whether or not patented or patentable), network configurations and architectures, specifications, techniques, processes, data bases and data collections, protocols, technical data and documentation, and similar matter in which an Intellectual Property Right may subsist, which shall include, but not be limited to, technical analyses and reports, test plans, all interfaces between units, test reports, parts lists, anomaly reports and resolution, as built lists, and other program documentation, to review the design, satisfy requests from the U.S. Government for information, prepare operational documentation, to operate the Satellite following Launch, and to make repairs or modifications as necessary.

(w) “INTELLECTUAL PROPERTY RIGHTS” means all common law and statutory proprietary rights, including patent, patent application, patent registration, copyright, trademark, service mark, trade secret, mask work rights, moral rights, data rights and similar rights existing from time to time under the intellectual property Laws of the United States, any state or foreign jurisdiction or international treaty regime related to Intellectual Property.

(x) “LAUNCH” means, with respect to the Satellite, the intentional ignition of any of the motors on the launch vehicle.

(y) “LAUNCH READINESS REVIEW” shall have the meaning ascribed to it in Exhibit 1.

(z) “LAUNCH SERVICES” means the Launch and related services provided by a launch provider to be selected by Customer, including furnishing the launch vehicle, launch support, and equipment and facilities, for the purpose of launching the Satellite into orbit.

WV3 Satellite Purchase Agreement 60150

Document No. 10329664

(aa) “LAUNCH SUPPORT SERVICES” has the meaning set forth in Exhibit 1.

(bb) “LAW” OR “LAWS” means any laws, including rules, regulations, codes, injunctions, judgments, orders, ordinances, decrees, rulings, and charges thereunder, of any federal, state, local or municipal government of any country (and all agencies thereof) having jurisdiction over any portion of the Work.

(cc) “LOSSES” means all losses, liabilities, damages, royalty payments and claims, and all related costs and expenses (including reasonable legal fees and disbursements and costs of investigation, expert fees, litigation, settlement, judgment, interest, and penalties).

(dd) “MATERIAL ADVERSE EFFECT” means any material adverse change in (i) the legality, validity, or enforceability of this Agreement or (ii) the ability of Customer or Contractor to perform this Agreement.

(ee) “MILESTONE” means a portion of the definitive, measurable Work upon completion of which a payment is to be made in accordance with Exhibit 3

(ff) “MILESTONE CERTIFICATE” has the meaning set forth in Article 4.

(gg) “MILESTONE PAYMENT” means any of those payments listed as specific Milestone Payments in Exhibit 3.

(hh) “PRELIMINARY DESIGN REVIEW” has the meaning assigned in Exhibit 1.

(ii) “PRE-SHIP REVIEW” shall have the meaning ascribed to it in Exhibit 1.

(jj) Reserved

(kk) “SATELLITE” means the satellite remote sensing system to be designed, developed and constructed by Contractor and delivered to Customer as specifically set forth in Exhibit 1.

(ll) “SATELLITE DELIVERY” means Initial Acceptance as defined in Exhibit 1.

(mm) “SATELLITE FLIGHT SOFTWARE” means the software to be delivered to, and installed by Contractor in the flight computer(s) on-board the Satellite to perform the spacecraft house-keeping functions, operate the instrument and communicate with the ground as more specifically set forth in Exhibit 1.

(nn) “SATELLITE PERFORMANCE SPECIFICATIONS” means the technical specifications set forth in Exhibit 2.

(oo) “SATELLITE SIMULATOR” has the meaning set forth in Exhibit 1.

(pp) “SOFTWARE LICENSE” means the software license as documented in Exhibit 4.

(qq) “TERMINATION LIABILITY AMOUNTS” means the amounts listed as Termination Liability Amounts in Exhibit 3.

(rr) Reserved

(ss) “WORK” means all design, development, construction, manufacturing, labor, services, and acts by Contractor and its subcontractors, including, tests to be performed, and any and all Contract Deliverables, including the Satellites, Satellite Flight Software, Data and Documentation, training, and equipment, materials, articles, matters, services, and things to be furnished and rights to be transferred under this Agreement, or any subcontract entered into by Contractor, all as further described in Exhibit 1.

WV3 Satellite Purchase Agreement 60150

Document No. 10329664

(tt) “WV3 INSTRUMENT” has the meaning set forth in Exhibits 1 and 2.

1.2. OTHER TERMS.

Other terms in this Agreement are defined in the context in which they are used and shall have the meanings there indicated.

1.3. INTEGRATION AND CONSTRUCTION.

The documents listed below in this Article 1.3, including any Attachments, Schedules, and Annexes referenced therein constitute this Agreement and shall be deemed to constitute one fully integrated agreement between the Parties. In the event of any conflict or inconsistency among the provisions of the various documents of this Agreement, such conflict or inconsistency shall be resolved by giving a descending level of precedence to the documents in the order set forth below:

(a) Terms and Conditions of this Agreement

(b) Exhibit 1 — WorldView 3 Satellite Statement of Work

(c) Exhibit 2 — WorldView 3 Satellite Specification

(d) Exhibit 3 — WorldView 3 Milestone Payment and Termination Liability Schedule

(e) Exhibit 4 — WorldView 3 Software License Agreement

(f) Exhibit 5 — WorldView 3 Bi-lateral Non-Disclosure Agreement

1.4. HEADINGS.

The Article headings are for convenience of reference only and shall not be considered in interpreting the text of this Agreement.

2. SCOPE OF WORK

2.1. GENERAL.

(a) In accordance with the requirements of this Agreement, Contractor shall provide and Customer shall purchase the Work.

(b) Contractor shall furnish and perform the Work in accordance with the provisions of this Agreement and in the manner specified in the following documents:

(1) Exhibit 1 — WorldView 3 Satellite Statement of Work

(2) Exhibit 2- WorldView 3 Satellite Specification

(3) Exhibit 3 — WorldView 3 Milestone Payment and Termination Liability Schedule

(4) Exhibit 4 — WorldView 3 Software License Agreement

(5) Exhibit 5 — WorldView 3 Bi-lateral Non-Disclosure Agreement

(c) Contract Line Items. The contract line items under the contract shall be:

(1) CLIN 1: Satellite and related services and data.

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2.2. CONTRACTOR WORK COMMITMENT.

Contractor shall commence the Work in compliance with the requirements of this Agreement and will use commercially reasonable efforts to perform sufficient Work to maintain the Delivery Dates for all deliverables per Exhibit 1.

3. CONTRACT PRICE

3.1. CONTRACT PRICE.

The total Contract Price for all Work required to be provided by Contractor under this Agreement is the Firm-Fixed-Price (“FFP”) amount set forth in Exhibit 3.

3.2. CHANGES IN CONTRACT PRICE.

This is a FFP Agreement. Except as otherwise expressly provided in this Agreement, the Contract Price is not subject to any escalation or to any adjustment or revision.

3.3. TAXES AND DUTIES.

(a) Taxes: All taxes and similar assessments, levies, and government-imposed obligations arising with respect to any Contract Deliverables and/or support services (except for Contractor’s income or franchise taxes) shall be the obligation of and be paid by Customer whether such taxes become due upon any payments under the Agreement or upon a future tax assessment as a result of an audit, or other event or notification by the relevant tax authority. For this purpose and unless otherwise indicated below, taxes shall mean and include any and all taxes imposed by the U.S. and its states and localities, sales and use, value added (including reverse charge value added tax), turnover, import duty, import VAT, property, excise, privilege or other fees, duties or taxes assessed by the sale, ownership, or use of the Contract Deliverable(s), support services, and any goods provided under this Agreement.

(b) Sales and Use Taxes: All applicable payments for sales and use taxes shall be collected from Customer by Contractor and remitted to the appropriate taxing authority in the legally defined time frame determined by said taxing authority. To the extent that Customer determines that it is exempt from any sales and use tax(es), Customer shall provide the Contractor with the applicable and executed exemption certificate.

(c) Non-Recurring Engineering Services: The Parties have initially determined that the non-recurring engineering services contemplated under this Agreement will be exempt from sales and use tax. Accordingly, Contractor will include these services as a separate line item(s) on its invoices. Billing will occur with the Milestone Payments up the value of the non-recurring engineering charges which will be exempt from sales and use tax, with subsequent Milestone Payments reflecting the final Contract Deliverable(s) which will be taxed unless a Resale Certificate is obtained.

(d) Sales Tax Exemption: Certain Contract Deliverables are tangible personal property and may be subject to Sales and Use Tax unless a properly completed Resale or Sales Tax Exemption Certificate is provided by Customer to Contractor. Customer agrees to reimburse Contractor for tax, interest, and any penalty assessed by any taxing authority where the claim for exemption is denied or where the non-recurring engineering services are taxable as sales.

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(e) Licenses, Gross Receipts, Business and Occupation Taxes: Each Party will be responsible for its own licenses, gross receipts (with the exception of any sales taxes referred to as gross receipts), and business and occupation taxes.

(f) Property Taxes: Each Party will be responsible for property taxes due on property owned by the respective Party with the exception of any assessed property that constitutes a Contract Deliverable. Customer will be responsible for any property taxes on Contract Deliverables.

(g) Other Taxes: Each Party will be responsible for its own corporate income or franchise taxes based upon income and/or net worth.

4. PAYMENT

4.1. REQUESTS FOR PAYMENT AND INVOICES.

(a) Customer shall make Milestone Payments, and any other required payments under this Agreement to Contractor in accordance with this Article 4.1 and Exhibit 3 as applicable.

(b) The Parties have agreed upon a payment and termination liability schedule set forth in Exhibit 3. Customer shall pay Contractor upon successful completion of each Milestone and submission of a corresponding invoice as described herein. Contractor shall prepare and deliver to Customer with each invoice a Request For Payment, accompanied by a certificate in the form of Annex I to Exhibit 3 hereto (the “Milestone Certificate”) and such supporting data as Customer reasonably deems necessary or appropriate. Subject to the foregoing, Customer shall sign each Milestone Certificate to signify Customer’s agreement that the applicable Milestone has been completed. A Milestone shall not be regarded as completed, and no payment shall be made, until all the Work required under the particular Milestone has been completed and documented in accordance with applicable specifications and procedures and all the relevant documentation and training required under this Agreement for such Milestone has been provided to Customer’s reasonable satisfaction. In the event that Customer does not agree that a Milestone has been completed, Customer shall notify Contractor in writing within ten (10) Business Days of receipt of the Milestone Certificate. If it is determined by Customer that Contractor has not completed the Milestone as specified in Exhibit 3, Customer may withhold the payment in full. Said withholding of payment, to the extent it is disputed by Contractor, shall be subject to the disputes process identified in Article 4.3 (Disputed Amounts).

(c) Contractor shall telefax, mail (overnight or return receipt requested) or hand-deliver signed copies of each Request For Payment, invoice and accompanying certificate and any supporting data to:

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4.2. PAYMENT.

(a) Subject to the provisions of Article 4.1, Customer shall make in full each Milestone Payment within [**Redacted**] (unless otherwise specified in Exhibit 3) after receipt of invoice. Said Milestone Payment(s) shall be made via wire transfer or Electronic Funds Transfer to the following bank account as applicable:

[**Redacted**]

Regular Mail

[**Redacted**]

(b) In the event of anticipated early completion by Contractor of a Milestone in advance of such Milestone completion date as set forth in Exhibit 3, Contractor may invoice for Milestone(s) completed in advance of the Milestone completion date so long as it provides Customer with no less than thirty (30) days prior notice of the anticipated completion date to allow Customer time to arrange for payment of the applicable Milestone.

(c) Upon early completion of Satellite Delivery, Customer shall pay Contractor an early completion payment of [**Redacted**] per day up to an aggregate amount of [**Redacted**] (e.g. up to a total of [**Redacted**] prior to the date of the Delivery Date) upon receipt of invoice. Said payment is due and payable within [**Redacted**] of Customer’s receipt of invoice.

4.3. DISPUTED AMOUNTS.

(a) If Customer does not agree that the Milestone associated with a Request For Payment has been satisfactorily completed, Customer shall give written notice to Contractor within ten (10) Business Days after receipt by Customer of a Request For Payment. Upon receipt of such notice, and to the extent that Contractor disputes said notice, the Parties’ respective Program Managers shall meet and use good faith efforts to resolve such disagreement.

(b) If the Parties’ Program Managers fail to resolve such disagreement within thirty (30) days after receipt by Customer of the Request For Payment, each Party will designate a member of their respective executive teams to meet to resolve the dispute within fifteen (15) days after the aforementioned thirty (30) days. In the event the designees cannot resolve such disagreement, the Chief Executive Officers of the Parties shall meet to resolve the dispute.

(c) In the event the Chief Executive Officers cannot resolve such dispute within fifteen (15) days of the aforementioned fifteen (15) days (within 60 days of receipt of the Milestone Certificate, then either Party may seek resolution of such dispute pursuant to Article 22.2. In any event, such unresolved dispute shall be referred to arbitration pursuant to Article 22.2.

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4.4. SET OFF.

In the event one Party has not paid the second Party any amount that is due and payable to the second Party under this Agreement, such second Party shall have the right to set off such amount against payments due under this Agreement to the first Party.

4.5. LATE PAYMENT.

For any undisputed payment under this Agreement that is overdue, the Party entitled to such payment shall also be entitled to [**Redacted**] . This remedy [**Redacted**] . Late payment charges will be billed on a separate invoice.

5. ACCESS TO WORK

5.1. FACILITIES.

(a) Contractor shall provide Customer Personnel and/or duly authorized government representatives or consultants reasonable access to all Work (including work-in-progress, documentation, and testing) at the facilities of Contractor and, its Subcontractors (as set forth in paragraph 7.7.2 of Exhibit 1), during regular business hours, or such other times as Work is being performed under this Agreement. Said access shall be subject to the Contractor’s or Subcontractor’s procedures and requirements and shall not unreasonably interfere with such Work. Customer’s access to Work shall be coordinated through the Contractor’s program office.

(b) Any personnel visiting any facility of Contractor or a subcontractor (i) will abide by Contractor’s security regulations and/or those of its subcontractors and any and all applicable Laws of the jurisdiction in which a Contractor or subcontractor facility is located; (ii) will abide by all applicable Laws and Articles under this Agreement regarding its use any information, including any confidential/proprietary information, received in connection with the access provided hereunder only in the performance of this Agreement; and (iii) will not remove any data, documents, materials, or other items from any facility of the Contractor or its subcontractors (other than Data and Documentation and other documents delivered to Customer Personnel for Customer’s use and with no requirement to return to Contractor) without the express written consent of Contractor’s Program Manager. The Customer and, if appropriate, authorized government representatives or consultants, shall execute any standard non-disclosure agreement that is necessary for access to a subcontractor’s facility.

5.2. NO RELIEF

The inspection, examination, observation, agreement to or approval, waiver or deviation by either Party with respect to any design, drawing, specification, or other documentation produced under this Agreement shall not relieve the other Party from fulfilling its contractual obligations. Nor will the above actions result in any liability being imposed on the other Party, unless and to the extent such waiver, deviation, agreement, or approval specifically provides in writing for such relief to either Party or such imposition of liability on either Party.

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5.3. WORKERS COMPENSATION AND EMPLOYER’S LIABILITY

Contractor and Customer shall maintain worker’s compensation and employer’s liability insurance covering all employees of Contractor and Customer engaged in the performance of this Agreement for claims arising under any applicable Worker’s Compensation and Occupational Disease Acts. Contractor and Customer shall maintain certificates evidencing such insurance available for review upon request.

6. DELIVERY

Contract Deliverables listed in Exhibit 1 shall be delivered by Contractor to the destinations specified in Exhibit 1 on or before the dates (“Delivery Dates”) specified in said Exhibit. Delivery Dates may be adjusted in accordance with this Agreement.

7. RESERVED

8. TITLE AND RISK OF LOSS

Transfer of title to and risk of loss for each of the Deliverable Items listed in Section 3.1 of Exhibit 1 (excluding the Satellite) shall pass to Customer at functional and performance signoff as indicated in Exhibit 1, Section 3.1. Transfer of title to and risk of loss for the Satellite shall pass to the Customer at the time of Launch. Contractor shall retain title to the WV3 Flight Software Test Bench (“FSTB”) and Deliverable Data listed in Section 3 of Exhibit 1 both prior to and after delivery. Any title transferred under this Agreement shall be free and clear of all liens and encumbrances of any kind.

9. EXCUSABLE DELAY

9.1. EXCUSABLE DELAY DEFINED.

(a) With respect to Contractor’s performance of its obligations under this Agreement, an “Excusable Delay” shall be any delay in the performance of the Work due to: war, outbreak of national hostilities, invasion or sabotage, Government sovereign acts; fire, earthquake, flood, epidemic, explosion, or quarantine restriction; strike or work slow down not reasonably within Contractor’s control; freight embargoes; acts of God; any subcontractor delay due to any of the foregoing events; provided written notice is given to Customer, in writing, within ten (10) Business Days after Contractor shall have first learned of the occurrence of such an event. Notwithstanding the foregoing, failure by Contractor to provide such notice shall not prevent such an event from qualifying as an Excusable Delay provided Customer’s Program Manager has actual notice of such event by means of publicly and commonly available sources (i.e. national or global coverage of major natural disaster) prior to Customer suffering any prejudice from Contractor’s failure to provide such notice. Such notice to be provided by Contractor, as required by the preceding provisions, shall include a detailed description of the portion of the Work known to be affected by such delay. In all cases, Contractor shall use reasonable efforts to avoid or minimize and/or work around such delay through the implementation of any work-around plans, alternate sources, or other means Contractor may utilize or expect to utilize to minimize a delay in performance of the Work. Contractor shall also provide Customer prompt written notice when the event constituting an Excusable Delay appears to have ended. This Article 9, including reliance on Excusable Delay, is only applicable to Contractor. Delays applicable to Customer are set forth in Article 11.5.

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(b) In the event Customer disputes the Excusable Delay, Customer shall inform Contractor in writing within ten (10) Business Days from the date of receipt of written notice of the event constituting an Excusable Delay and, if the Parties have not resolved the dispute within ten (10) Business Days of Contractor’s receipt of written notice from Customer, the dispute shall be resolved pursuant to Article 21.

9.2. EQUITABLE ADJUSTMENTS.

(a) In the event of an Excusable Delay under Article 9.1, there shall be an equitable adjustment made to the Delivery Schedule and Delivery Dates as set forth in Exhibit 1, as well as any interim schedule events set forth in Exhibit 1; provided, however, Contractor acknowledges and agrees that the occurrence of an Excusable Delay shall not entitle Contractor to an increase in the Contract Price.

(b) In the event of an adjustment in the Delivery Date of the Satellite due to an Excusable Delay, there shall be an adjustment in the Delivery Date of the Satellite as well as interim schedule events only to the extent such Delivery Date or schedule is impacted by the Excusable Delay.

(c) Customer may terminate this Agreement pursuant to Article 25.3 when it becomes known that the aggregate of Contractor’s Excusable Delays will exceed [**Redacted**] . Any dispute between the Parties as to the aggregate of Excusable Delay shall be subject to procedures set forth in Article 21.

9.3. MAXIMUM EXCUSABLE DELAY.

The maximum total amount of Excusable Delay shall be [**Redacted**] .

10. CORRECTIVE MEASURES IN SATELLITE AND OTHER CONTRACT DELIVERABLES

10.1. NOTICE OF DEFECTS.

(a) Customer shall notify Contractor within [**Redacted**] Business Days in writing when Customer becomes aware of a Defect existing in any Contract Deliverable or component part thereof. Said Defect shall be capable of being demonstrated to Contractor. In the event Contractor disagrees with Customer as to the existence or nature of a Defect, Contractor shall so advise Customer in writing. In such event, the Parties shall negotiate in good faith to determine what Defect, if any, exists and any action required to remedy such Defect. Except to the extent written waivers are made, Customer’s failure to notify Contractor of any Defect shall not constitute a waiver of any rights of Customer or obligations of Contractor under this Agreement with respect to any such Defects.

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(b) Contractor shall advise Customer as soon as practicable by telephone or e-mail and confirm in writing any event, circumstance, or development that materially threatens the quality of any Contract Deliverables or component parts thereof, including any Satellite, or threatens the Delivery Dates established therefore.

(c) Without limiting the generality of the foregoing, if the data available from the Satellite shows that the Satellite contains a Defect, Contractor shall promptly inform Customer of such Defect.

10.2. DUTY TO CORRECT.

(a) Without limiting the obligations of Contractor or the rights of Customer under this Agreement, prior to Launch of the Satellite, Contractor shall, at its expense, promptly correct any Defect related to any Contract Deliverable or component thereof that Contractor or Customer discovers during the course of the Work. The duty to correct is not waived regardless of prior payments, reviews, inspections, approvals, or acceptances (with the exception of waivers and deviations previously agreed-upon). This provision is subject to the right of Contractor to have any items containing a Defect returned at Contractor’s expense to Contractor’s facility for Contractor to verify and correct the Defect.

(b) Following Launch of the Satellite, the Contractor’s duty to correct any Defect in the Contract Deliverables or components thereof [**Redacted**] in order to mitigate or eliminate the operational effects of the Defect. Contractor shall coordinate and consult with Customer concerning said resolution of Defects in the Satellite.

(c) Contractor shall fulfill the foregoing obligations at its own cost and expense, including all costs arising from charges for packaging, shipping, insurance, taxes, and other matters associated with the corrective measures, unless it is reasonably determined after investigation that Customer directly caused the Defect in question, in which case Customer shall pay all such costs.

(d) If Contractor fails to correct any material Defect with respect to any Contract Deliverable per Article 10.2(a) or 10.2(b), as applicable, within a reasonable time after notification from Customer and after the Parties have followed the provisions of Article 10.1 above, then, with the prior written consent of Contractor (said consent not to be unreasonably withheld), Customer may, by separate contract or otherwise, correct or replace such items or services and Contractor shall pay to Customer the reasonable cost of such correction or replacement., In the event of any dispute regarding the above, Article 21.2 shall apply. The amount payable by Contractor shall be verified at Contractor’s request by an internationally recognized firm of accountants appointed by Contractor.

(e) Contractor may at its option, either correct the Defect or seek a waiver. In the event the Defect is waived, Contractor shall, at the Customer’s request, promptly provide a written price reduction proposal for such change.

(f) Notwithstanding anything herein to the contrary, in the event there is a total loss of the Satellite prior to launch such that the Delivery of the Satellite would be delayed by more than [**Redacted**] , then the Customer shall have the option of either requiring that Contractor replace the Work up to the point of loss at Contractor’s sole expense or return to Customer all payments made by Customer as of the date of the loss.

(g) This duty to correct does not apply to CFE.

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11. CHANGES IN SCOPE OF WORK

11.1. CHANGES DIRECTED BY CUSTOMER.

(a) Subject to paragraphs (b), (c) and (d) below, Customer shall be entitled to direct changes to the Satellite during the performance of this Agreement when any such changes are necessary for the Satellite [**Redacted**] . Any [**Redacted**] requiring a change to the Satellite between or among these items must be demonstrated to be of such magnitude that a failure to proceed with the change could be reasonably expected have a material effect on the performance of the Satellite. The Parties will agree upon the scope, implementation and technical direction of any change prior to proceeding with said change.

(b) Any change directed by Customer as described in paragraph (a) above shall be submitted in writing to Contractor. Contractor shall respond to such directed change in writing to Customer within [**Redacted**] after such directed change and shall include in such response the details of the impact of such change on the Contract Price, Delivery Schedule, Satellite Performance Specifications, or other terms of this Agreement.

(c) Customer shall notify Contractor in writing, within [**Redacted**] after receipt of Contractor’s response, whether or not Customer agrees with and accepts Contractor’s response. If Customer agrees with and accepts Contractor’s response, Contractor shall proceed with the performance of this Agreement as changed immediately upon the execution by both Parties of an Amendment reflecting such changes.

(d) If the Parties cannot agree on a reasonable price or revised Delivery Schedule, Satellite Performance Specifications, or other item, as occasioned by Customer’s directed change, and Customer still desires the directed change, Customer shall direct Contractor to proceed with the change and Customer shall pay Contractor’s proposed price and accept the revised Delivery Schedule or Satellite Performance Specifications or other item pending any decision to the contrary under Article 21. Contractor shall proceed with the Work as changed and Customer may dispute the reasonableness of the proposed price, revised Delivery Schedule, performance specification or under Article 21. In the event it is determined pursuant to such dispute resolution or by the Parties’ mutual written agreement that Customer is entitled to a full or partial refund of amounts paid under this paragraph (d), Customer shall be entitled to interest on such refunded amounts, such interest running from the date of payment by Customer to the date of refund at the [**Redacted**] .

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11.2. CHANGES REQUESTED BY CUSTOMER.

In the event Customer desires to change the scope of work, the Delivery Schedules, or any other term of this Agreement, Customer shall submit a detailed description of the requested change to Contractor. Contractor shall respond within [**Redacted**] Business Days, with its proposal for adjustments to the consideration, Delivery Schedule and any other term of this Agreement. Subject to mutual agreement, the consideration, Delivery Schedule and/or any other affected term of this Agreement shall be modified to incorporate the mutually agreed upon change. If the Parties establish and agree that an advance target price is sufficient to initiate Work in the Customer requested change, the Contractor shall proceed with the Work as modified. In such circumstances, the final determination of the price, schedule and any other affected term will be agreed upon on/before [**Redacted**] days after any decision to proceed. Contractor may implement any change requested by Customer prior to the completion of the change negotiation. This decision shall not constitute Contractor’s acceptance of any change as requested nor shall it impair Contractor’s rights to additional consideration, schedule adjustment or modification of any other Agreement term.

11.3. CHANGES REQUESTED BY CONTRACTOR.

(a) Subject to paragraphs (b) and (c) below, Contractor may request, during the performance of this Agreement, any change within the general scope of this Agreement, including any change that will add or delete Work, affect the design of the Satellites, change the method of shipping or packing, or the place or time of Delivery, or will affect any other requirement of this Agreement.

(b) Any changes as described in paragraph (a) above requested by Contractor shall be submitted in writing to Customer at [**Redacted**] prior to the proposed date of the change. If such Contractor requested change causes an increase or decrease or other impact in the Contract Price, Delivery Schedule, Satellite Performance Specifications, or other terms of this Agreement, Contractor shall submit, with such request, a written proposal identifying such change and the impact thereof on the Contract Price, Delivery Schedule, Satellite Performance Specifications, or other terms of this Agreement.

(c) Customer shall notify Contractor in writing, within [**Redacted**] after receipt of the requested change proposal, whether or not Customer agrees with and accepts such change and the price/schedule/performance or other impact thereof. If Customer agrees with and accepts Contractor’s requested change and such impact thereof, Contractor shall proceed with the performance of this Agreement as changed.

11.4. PRICING OF CHANGES.

When calculating the change in the Contract Price caused by changes in the Work pursuant to this Article 11, such calculation shall be consistent with [**Redacted**] .

11.5. DELAYS CAUSED BY CUSTOMER

(a) In the event Customer creates a delay by failure to act in a timely manner, or by an action that in some way prevents or impedes Contractor from making progress, including, but not limited to Customer’s failure to provide CFE and/or services in accordance with this Agreement’s requirements, the Parties shall agree upon an equitable adjustment in the affected terms (including price) of this Agreement under this clause to the extent of the schedule delay that Customer is specifically responsible for causing.

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(b) In the event Customer reasonably withholds acceptance and/or approvals, a delay shall not be deemed to have been caused by Customer. In the event such withholding of acceptance and/or approvals is unreasonable, a delay shall be deemed to have been caused by Customer to the extent, but only to such extent, that such an act has caused the delay to the project schedule, this Article 11.5 is the only remedy for of Contractor for Customer-caused delays.

12. PERMITS AND LICENSES; COMPLIANCE WITH LAWS

12.1. UNITED STATES PERMITS, LICENSES, AND LAWS.

(a) Contractor shall, at its own expense, obtain all United States Government approvals, permits, and licenses, including any required for export from or import into the United States, as may be required for its performance of the Work.

(b) Contractor shall, at its expense, perform the Work in accordance with all applicable Laws of the United States and the conditions of all applicable United States Government approvals, permits, or licenses.

12.2. REVIEW OF APPLICATIONS.

(a) Contractor shall review with Customer any application relating to import or export that Contractor makes to any government department, agency, or entity for any approval, permit, license, or agreement, as may be required for performance of the Work, prior to submission of such application. Contractor shall provide Customer a minimum of [**Redacted**] to review such application prior to submission to such governmental entity, and Contractor shall in good faith consider and accommodate any comments and proposed revisions made by Customer for incorporation into such application.

(b) Customer shall reasonably cooperate with Contractor in Contractor’s efforts to procure all such approvals, permits, licenses, and agreements.

12.3. VIOLATIONS OF LAW.

Customer shall not be responsible in any way for the consequences, direct or indirect, of any violation by Contractor, its subcontractors, or their respective Affiliates or associates of any Law or of any country whatsoever. Contractor shall not be responsible in any way for the consequences, direct or indirect, of any violation by Customer, its subcontractors, or their respective Affiliates or associates of any Law or of any country whatsoever.

13. SUBCONTRACTS

13.1. SUBCONTRACTS.

To the extent permitted under the relevant subcontract and subject to the subcontractor’s written approval and Customer’s execution of any subcontractor-required non-disclosure agreement, Contractor will provide, upon Customer’s reasonable request, copies of the technical content of the subcontract and/or a copy of the full text of any major subcontract (excluding price and payment schedule).

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13.2. NO PRIVITY OF CONTRACT.

Nothing in this Agreement shall be construed as creating any contractual relationship between Customer and any of Contractor’s subcontractors. Contractor is fully responsible to Customer for the acts or omissions of its subcontractors and all persons used by Contractor or any of its subcontractors in connection with performance of the Work. Except as provided for in Article 9, any failure by any of Contractor’s subcontractors to meet their obligations to Contractor shall not constitute a basis for Excusable Delay and shall not relieve Contractor from meeting any of its obligations under this Agreement. Customer’s acknowledgment of any vendor under subcontract or subcontractor shall not relieve Contractor from any obligations or responsibilities under this Agreement.

Nothing in this Agreement shall be construed as creating any contractual relationship between Contractor and any of Customer’s subcontractors. Customer is fully responsible to Contractor for the acts or omissions of its subcontractors and all persons used by Customer or any of its subcontractors in connection with delivery of the WV3 Instrument. Contractor’s acknowledgment of any vendor under subcontract or subcontractor shall not relieve Customer from any obligations or responsibilities under this Agreement.

13.3. ASSIGNMENT OF SUBCONTRACTS.

In accordance with Exhibit 1, Contractor shall make commercially reasonable efforts in negotiating its subcontracts to include an assignment clause that would enable the assignment of Contractor’s subcontract(s) in the event of a properly executed termination under this Agreement. Upon said termination of this Agreement and to the extent that Contractor has the legal and contractual right under the subcontract to do so, upon Customer’s written request, Contractor shall promptly assign said subcontract.

13.4. CONTRACTOR’S DUTIES WITH RESPECT TO SUBCONTRACTORS.

The Contractor’s duties and obligations under this Agreement shall include the obligations of its subcontractors.

14. PERSONNEL AND KEY PERSONNEL

14.1. PERSONNEL QUALIFICATIONS.

Contractor shall assign properly qualified and experienced personnel to the program contemplated under this Agreement, and Contractor shall use reasonable efforts to retain such personnel on Customer’s program for the duration of such program.

14.2. KEY PERSONNEL POSITIONS.

Contractor key personnel (“Key Personnel”) shall be the personnel set forth in Exhibit 1.

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14.3. ASSIGNMENT OF KEY PERSONNEL.

(a) Contractor will assign individuals from within Contractor’s organization to the Key Personnel positions as defined in Exhibit 1.

(b) Key Personnel will be familiar with programs similar to Customer’s program.

Before assigning an individual to any Key Personnel positions, whether as an initial assignment or a subsequent assignment, Contractor shall notify Customer of the proposed assignment, shall introduce the individual to appropriate Customer representatives and shall provide Customer with the individual’s resume (only in the event any such individual is not known to the Customer). If Customer in good faith objects to the qualifications of the proposed individual after being notified thereof, then Contractor agrees to discuss such objections with Customer and resolve such concerns on a mutually agreeable basis, including selecting alternative personnel. Customer may object to any Key Personnel during the course of the program, or in the event any individual filling a Key Personnel position leave such position for whatever reason, Contractor shall follow the procedures set forth in this Article 14.3 to select replacement personnel.

15. CONTRACTOR’S REPRESENTATIONS, COVENANTS, AND WARRANTIES

15.1. ORGANIZATION; GOOD STANDING AND QUALIFICATION.

Contractor represents that:

(a) it is a corporation duly organized, validly existing and in good standing under the Laws of Delaware;

(b) it has all requisite power and authority to own and operate its material properties and assets and to carry on its respective business as now conducted in all material respects; and

(c) it is duly qualified to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a Material Adverse Effect.

15.2. AUTHORIZATION.

Contractor represents that:

(a) it has all requisite corporate power and authority to enter into this Agreement and to carry out the transactions contemplated by this Agreement;

(b) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by the requisite corporate action of Contractor and do not conflict with any other agreement or obligation to which it is a party or which binds its assets; and

(c) this Agreement is a valid and binding obligation of Contractor, enforceable in accordance with its terms, except Contractor makes no representation or warranty as to the enforceability of remedies due to applicable bankruptcy, insolvency, moratorium, reorganization, or similar laws relating to or affecting the enforcement of creditor’s rights or by reason of general principles of equity.

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15.3. CONTRACTOR WARRANTIES FOR CONTRACT DELIVERABLES.

(a) Satellite (Pre-Launch): [**Redacted**] , Contractor warrants that the Satellite (excluding CFE) furnished under this Agreement shall comply with the requirements of Exhibit 1 and be free from Defects (other than Defects waived in writing by the Customer). If the Customer becomes aware of a Defect, Customer shall notify Contractor within [**Redacted**] Business Days after discovery by Customer of the Defect. Except for Contractor’s obligations set forth in paragraph (b) immediately below, the warranty herein shall immediately expire upon Launch of the Satellite.

(b) Satellite (Post-Launch): Immediately upon Launch, Contractor’s obligation to correct any Defect in the Satellite or components thereof (excluding CFE) is defined by paragraph 10.2 (b) of this Agreement for a period of [**Redacted**] .

(c) Other Contract Deliverables: With respect to all remaining Deliverable Items listed in Section 3.1 of Exhibit 1, excluding those items specified in Sections 3.1(f) and (g) of Exhibit 1, Contractor warrants that said Deliverable Items shall be free from Defects (other than those Defects waived by Customer) for a period of [**Redacted**] following delivery.

(d) Services: Contractor warrants that it will perform all services related to the Work in accordance with [**Redacted**] for work similar in type, scope and complexity of the Work.

(e) Data and Documentation: With respect to Data and Documentation, Contractor warrants that said Data and Documentation shall be free from material errors or omissions related to the operation of the Customer’s satellite for a period of [**Redacted**] following Launch.

(f) Contractor’s obligations under this warranty are, at the Contactor’s sole discretion, limited to inspection of the Contract Deliverable and repair or replacement of the Contract Deliverable. It is understood that such a warranty repair does not renew the warranty term for the Contract Deliverable. Notwithstanding the foregoing: (a) the warranty term for the Contract Deliverable (or portion thereof) being repaired or replaced shall be tolled during the period of such repair; and (b) where a warranty repair involves a portion of the Contract Deliverable, and the remaining portion of the Contract Deliverable can not be effectively tested and or utilized during the period of repair, then the warranty term for the remaining portion of the Contract Deliverable shall be tolled during such period of repair. Contractor’s obligations hereunder are expressly conditioned upon the following terms:

(1) In the event that the Contract Deliverable does not contain a Defect, Customer shall reimburse Contractor for all reasonable expenses incurred during the warranty determination.

(2) This warranty does not apply to any portion of CFE or to any Contract Deliverable or portion thereof that in any way has been repaired, altered, or otherwise affected in any manner by any act of Customer or its subcontractor(s) so as to affect the condition or performance of the Contract Deliverable or any Contract Deliverable or portion of the Contract Deliverable that shall have been subject to misuse, abuse, alteration, improper handling, improper testing or installation by Customer or its subcontractors, whether by accident or other cause.

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(3) Before any Contract Deliverable is returned to the Contractor, Customer shall obtain written authorization from the Contractor. Customer assumes the responsibility for any/all unauthorized shipments. In the event that Contractor repairs or replaces any part under this warranty, the cost of shipping the part will be borne by the Customer.

(g) This warranty as set forth in this Article 15.3, does not extend to any customers or clients of Customer.

15.4. REMEDIES.

(a) Notwithstanding anything to the contrary herein, Customer shall have the right at any time during the period of the warranties set forth in this Article 15.4 to require that any Work not conforming in all material respects to this Agreement be promptly corrected or replaced at Contractor’s expense with conforming Work.

(b) Contractor shall correct errors, including modifying code and making operational modifications, in accordance with Article 10.2. Either Party shall in a timely manner provide the other Party with access to engineering, software and operations support personnel, including and/or involving such other Party’s subcontractors and vendors, where feasible, for the purpose of resolving errors, problems, or issues relating to any Contract Deliverable to be delivered pursuant to this Agreement. After lapse of the warranty period specified in Article 15.3 for the duration of the operational life of the Satellite, the parties agree to enter into a time and materials agreement for such services as the parties may agree upon after the date hereof.

(c) In the event Contractor, for whatever reason, fails to perform its obligations under paragraph (b) above, with respect to any flight or ground software to be delivered under this Agreement, Contractor agrees in accordance with the terms of the Software License to allow Customer to use the source code and related documentation for such software so as to enable Customer to perform tasks contemplated by paragraph (2) above. Contractor shall ensure that all of Contractor’s source code for the flight firmware and software and ground software is appropriately maintained, stored, catalogued, and archived as necessary to maintain such source code to object code integrity.

(d) Under no circumstances, shall Contractor’s total liability under this warranty exceed the price actually paid by Customer under this Agreement. CONTRACTOR’S WARRANTIES UNDER THIS AGREEMENT ARE SOLELY LIMITED TO WARRANTIES IDENTIFIED ABOVE. CONTRACTOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER EXPRESS OR IMPLIED WARRANTIES.

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16. CUSTOMER’S REPRESENTATIONS, WARRANTIES AND COVENANTS

16.1. ORGANIZATION; GOOD STANDING AND QUALIFICATION.

Customer represents that:

(a) it is duly organized, validly existing and in good standing under the Laws of the State of Delaware;

(b) it has all requisite power and authority to own and operate its material properties and assets and to carry on its respective business as now conducted in all material respects; and

(c) it is duly qualified to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a Material Adverse Effect.

16.2. AUTHORIZATION.

Customer represents that:

(a) it has all requisite corporate power and authority to enter into this Agreement and to carry out the transactions contemplated by this Agreement;

(b) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by the requisite corporate action of Customer and do not conflict with any other agreement or obligation to which it is a party or which binds its assets; and

(c) this Agreement is a valid and binding obligation of Customer, enforceable in accordance with its terms, except Customer makes no representation or warranty as to the enforceability of remedies due to applicable bankruptcy, insolvency, moratorium, reorganization, or similar laws relating to or affecting the enforcement of creditor’s rights or by reason of general principles of equity. Notwithstanding the foregoing, in the event of Customer’s bankruptcy, insolvency, moratorium, reorganization, or equity proceeding, Customer shall use its best efforts to have this Agreement confirmed according to its terms.

16.3. THIRD PARTY INTELLECTUAL PROPERTY.

Customer represents and warrants that (i) it is either the owner of, or authorized to use and incorporate, any Intellectual Property provided by Customer (or others on behalf of Customer); (ii) Customer shall not require Contractor to pay any license fees or royalties for the use of any Intellectual Property of Customer for the purposes of fulfilling Contractors obligations under this Agreement; and (iii) Customer’s Intellectual Property and/or any modifications of Contractor’s Intellectual Property by Customer (or any other entity, other than Contractor or its subcontractors, acting on behalf of Customer) shall not infringe any Intellectual Property Right of any third party.

Customer is not aware of any claim to the contrary by any third party. This warranty shall begin on the [**Redacted**] . In the event of a claim under this clause, Customer shall use reasonable best efforts to secure an alternative source for the Intellectual Property or to obtain a license from the party claiming infringement.

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17. INTELLECTUAL PROPERTY RIGHTS

17.1. CONTRACTOR FURNISHED/DEVELOPED TECHNOLOGY AND DATA.

(a) Intellectual Property developed and/or furnished by Contractor and provided to Customer pursuant to this Agreement shall be and remain the property of Contractor, or as applicable, its subcontractor. Contractor hereby grants to the extent legally permitted to do so, and as specified in the WV3 Software License Agreement attached as Exhibit 4, a [**Redacted**] license without the [**Redacted**] all of the Intellectual Property provided/developed by Contractor pursuant to this Agreement for the purpose of developing, integrating, testing, launching, operating, maintaining and repairing the Satellite and related ground command and control, and image ordering, processing, and dissemination functions, designing “work-arounds” for minor performance discrepancies, and designing, manufacturing, operating and maintaining ground stations, including any third party direct access facilities, that communicate with the Satellite related to the WV3 program operations.

(b) [**Redacted**] .

17.2. CUSTOMER DEVELOPED TECHNOLOGY AND DATA.

Technology and data developed by Customer and provided to Contractor pursuant to this Agreement shall be and remain the property of Customer. Contractor is granted [**Redacted**] license to [**Redacted**] , for the purposes for which [**Redacted**] under this Agreement. Such technology and data shall be marked with an appropriate legend which indicates that it is licensed to Contractor for Contractor’s use so long as such use is associated with this Agreement. The integration, modification etc. of Customer Intellectual Property shall in no way diminish any of Customer’s rights thereto. The Specifications (Exhibit 2) and the Statement of Work (Exhibit 1) shall be the Intellectual Property of Customer.

17.3. FUTURE LICENSES.

Should Contractor or Customer desire to use, for future applications outside the scope of this Agreement, the technology and data which have been licensed hereunder, the Parties shall endeavor to negotiate license agreements as appropriate for such future applications.

17.4. CONTRACTOR INTELLECTUAL PROPERTY INDEMNITY.

(a) Contractor will defend at its expense any legal proceedings brought against Customer and/or its officers, directors or employees, to the extent that it is based on a claim that the design or use of any Contract Deliverable is a direct infringement of a [**Redacted**] copyright, [**Redacted**] patent, or other Intellectual Property of a third party protected under [**Redacted**] law, and will pay all damages and costs awarded by a court of final appeal attributable to such a claim, provided that Customer (i) provides notice of a the claim promptly to Contractor, (ii) gives sole control of the defense and settlement of same; (iii) provides to Contractor all available information, assistance and authority to defend; (iv) has not settled such proceedings without Contractor’s prior written consent. Should any Contract Deliverable or portion thereof become, or in Contractor’s opinion be likely to become the subject of a claim of infringement, Contractor shall, at its own expense and as Customer’s sole exclusive remedy, elect to (i) obtain for Customer the right to use the Contract Deliverable as contemplated herein, (ii) replace or modify the Contract Deliverable so that it becomes non-infringing and still satisfies all other requirements.

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(b) Contractor shall have no liability for any infringement or claim which results from (i) use of the Contract Deliverables in combination with any non-Contractor-provided equipment, software or data, if such infringement would have been avoided by use of the Contract Deliverables without such equipment, software, of data; (ii) Contractor’s compliance with designs or hardware provided solely by Customer that when implemented results in such infringement.

17.5. CUSTOMER INTELLECTUAL PROPERTY INDEMNITY.

(a) Customer will defend at its expense any legal proceedings brought against Contractor and/or its officers, directors or employees, to the extent that it is based on a claim that the design or use of any data, components, software and Intellectual Property furnished by Customer to Contractor hereunder is a direct infringement of a [**Redacted**] copyright, [**Redacted**] patent, or other Intellectual Property of a third party protected under [**Redacted**] law, and will pay all damages and costs awarded by a court of final appeal attributable to such a claim, provided that Contractor (i) provides notice of the claim promptly to Customer, (ii) gives sole control of the defense and settlement of same; (iii) provides to Customer all available information, assistance and authority to defend; (iv) has not settled such proceedings without Customer’s prior written consent. Should any data, component, software or Intellectual Property furnished by Customer to Contractor hereunder, or any portion thereof, become, or in Customer’s opinion be likely to become the subject of a claim of infringement, Customer shall, at its own expense and as Contractor’s sole exclusive remedy, elect to (i) obtain for Contractor the right to use the data, components software or Intellectual Property furnished by Customer to Contractor hereunder as contemplated herein, (ii) replace or modify the data, components, software or Intellectual Property furnished by Customer to Contractor hereunder so that it becomes non-infringing and still satisfies all other requirements.

(b) Customer shall have no liability for any infringement or claim which results from (i) use of the CFE in combination with any non-Customer-provided equipment, software or data, if such infringement would have been avoided by use of the CFE without such equipment, software, of data; (ii) Customer’s compliance with designs or hardware provided solely by Contractor that when implemented results in such infringement.

(c) THE ENTIRE LIABILITY OF EITHER PARTY WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY IS SET FORTH IN THE PRECEDING PROVISIONS OF THIS SECTION 18, AND NEITHER PARTY SHALL HAVE ANY ADDITIONAL LIABILITY WITH RESPECT TO ANY ALLEGED OR PROVEN INFRINGEMENT.

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17.6. SOURCE CODE ESCROW.

(a) At the Customer’s written request, Contractor agrees to place, or arrange to have placed in a escrow software account the source code identified in Section 5.3.16 of Exhibit 1. The software escrow account will be established with a mutually agreed upon institution naming Customer as beneficiary at Customer’s expense and under terms that are mutually agreeable to both Parties. Access to this source code escrow account will be limited to Customer Personnel in the event of Contractor’s or the owning party’s cessation to do business for any reason or upon Contractor or the owning party’s inability or refusal to provide, in a timely manner, support or enhancements for the Contract Deliverables delivered under this Agreement. Customer Personnel, and consultants and subcontractors who have executed an appropriate non-disclosure agreement, shall only use such source code in support of the Contract Deliverables under this Agreement and such use shall be strictly in accordance with the terms and conditions of the licenses granted in this Agreement. The source code shall be placed into the escrow account within twenty (20) Business Days after the shipment of a Contract Deliverable and will remain in the Escrow Account for the operational life of the Satellite.

17.7. RESERVED.

17.8. INTELLECTUAL PROPERTY REPRESENTATION.

(a) Contractor represents and warrants that (i) it is either the owner of, or authorized to use and incorporate, any Intellectual Property utilized or incorporated in any Contract Deliverable or the manufacture of any Contract Deliverable or otherwise utilized in the performance of the Work; (ii) Customer shall not be required to pay any license fees or royalties apart from those included in the Contract Price for use of any Intellectual Property utilized or incorporated in any Contract Deliverable or the manufacture of any Contract Deliverable or otherwise utilized in the performance of the Work; and (iii) neither the Work nor any Intellectual Property utilized or incorporated in any Contract Deliverable or the manufacture of any Contract Deliverable shall infringe any Intellectual Property Right of any third party.

(b) Customer represents and warrants that (i) it is either the owner of, or authorized to use and incorporate, any Intellectual Property to be furnished as CFE; (ii) Contractor shall not be required to pay any license fees or royalties for use of any Intellectual Property utilized or incorporated in any CFE; and (iii) no Intellectual Property utilized or incorporated in any CFE shall infringe any Intellectual Property Right of any third party.

18. INDEMNIFICATION

18.1. CONTRACTOR’S INDEMNIFICATION.

(a) Subject to the indemnification procedures set forth in Article 18.3, Contractor shall indemnify, defend, and hold harmless Customer and its Affiliates and their respective associates from any and all Losses arising from, in connection with, or based on any claims made by third parties (including Consultants and agents of Customer, Contractor, or any Subcontractor but not any employee, officer, or director of Customer) regarding any of the following:

(1)

injury to persons (including sickness or death) or damage to real or tangible personal property, resulting from any act or omission, negligent or otherwise, of Contractor or its Subcontractors in the performance of the Work;

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(2)

any claims arising out of or related to occurrences Contractor is required to insure against pursuant to Article 20, to the extent of the amount of the insurance required under such Article; or

18.2. CUSTOMER’S INDEMNIFICATION.

(a) Subject to the indemnification procedures set forth in Article 18.3, Customer shall indemnify, defend, and hold harmless Contractor and its Affiliates and their respective associates from any and all Losses arising from, in connection with, or based on any allegations made by third parties (including Consultants and agents of Contractor, any Subcontractor, or Customer but not any employee, officer, or director of Contractor) regarding any of the following:

(1)

injury to persons (including sickness or death) or damage to real or tangible personal property, resulting from any act or omission, negligent or otherwise, of Customer and its Consultants;

(2)

any claims arising out of or related to occurrences Customer is required to insure against pursuant to Article 20, to the extent of the amount of the insurance required under such Article; or

(3)

any claims arising from Customer’s operation of the Satellites except where such Losses results from Contractor’s (i) willful misconduct or gross negligence, or (ii) acts(s) or omissions(s) that are the basis of a denial or exclusion of coverage under the Customer’s launch and in-orbit insurance policy.

18.3. INDEMNIFICATION PROCEDURES.

(a) Promptly after receipt by any entity entitled to indemnification under this Article 18 of notice of the commencement or threatened commencement of any civil, criminal, administrative, or investigative reaction or proceeding involving a claim in respect of which the indemnified Party will seek indemnification pursuant to this Article 18, the indemnified party shall notify the indemnifying Party of such claim in writing. Failure to so notify the indemnifying Party shall not relieve the indemnifying Party of its obligations under this Agreement except to the extent it can demonstrate that it was prejudiced by such failure. Within 15 days following receipt of written notice from the indemnified Party relating to any claim, but no later than 10 days before the date on which any response to a complaint or summons is due, the indemnifying Party shall notify the indemnified Party in writing if the indemnifying Party elects to assume control of the defense or settlement of that claim (a “Notice of Election”).

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(b) If the indemnifying Party delivers a Notice of Election relating to any claim within the required notice period, so long as it is actively defending such claim, the indemnifying Party shall be entitled to have sole control over the defense and settlement of such claim; provided that (i) the indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; (ii) where the indemnified Party is so represented, the indemnifying Party shall keep the indemnified Party ‘s counsel informed of each step in the handling of any such claim; (iii) the indemnified Party shall provide, at the indemnifying Party ‘s request and expense, such assistance and information as is available to the indemnified Party for the defense and settlement of such claim; and (iv) the indemnifying Party shall obtain the prior written approval of the indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim. After the indemnifying Party has delivered a Notice of Election relating to any claim in accordance with the preceding paragraph, the indemnifying Party shall not be liable to the indemnified Party for any legal expenses incurred by the indemnified Party in connection with the defense of that claim. In addition, the indemnifying Party shall not be required to indemnify the indemnified Party for any amount paid or payable by the indemnified Party in the settlement of any claim for which the indemnifying Party has delivered a timely Notice of Election if such amount was agreed to without the prior written consent of the indemnifying Party.

(c) If the indemnifying Party does not deliver a Notice of Election relating to any claim within the required notice period or fails to actively defend such claim, the indemnified Party shall have the right to defend and/or settle the claim in such manner as it may deem appropriate, at the cost and expense of the indemnifying Party. Provided that the indemnified Party acts in good faith, it may settle such claim on any terms it considers appropriate under the circumstances without in any way affecting its right to be indemnified hereunder. The indemnifying Party shall promptly reimburse the indemnified Party for all such costs and expenses.

18.4. WAIVER OF SUBROGATION.

If a Party insures against any loss or damage it may suffer in respect of which it is required to indemnify the other Party, its Affiliates and their respective associates pursuant to this Article 18, it shall be a condition that the insuring Party arrange for the insurer to waive its right of subrogation against such other Party and such other Party’s Affiliates and their respective associates. Each Party shall be entitled to require proof from time to time that the other Party has complied with its obligations under this Article 18.4. In the event a Party does not comply with such obligations, the indemnities referred to in Articles 18.1, 18.2, and 18.3, as applicable, shall extend to any claim that may be made by an insurer pursuant to an alleged right of subrogation.

19. LIQUIDATED DAMAGES FOR LATE DELIVERY

(a) The Parties acknowledge and agree that failure to meet the Delivery Dates will cause substantial financial loss or damage to be sustained by the other Party. The Parties further acknowledge and agree that the following liquidated damages are believed to represent a genuine estimate of the loss that would be suffered by Customer by reason of any such delay (which losses would be difficult or impossible to calculate with certainty), and are neither intended as a penalty nor operate as a penalty.

(b) In the event Contractor fails to Deliver the Satellite within [**Redacted**] of the scheduled Delivery Date, or such other date as may be mutually agreed to in writing by Contractor and Customer, Contractor agrees to pay Customer as liquidated damages and not as a penalty, the sum of [**Redacted**] per [**Redacted**] for the period beginning on the [**Redacted**] of the delay or the first [**Redacted**] following any agreed to extension, if applicable. Damages shall be paid until the earlier of; completion of Satellite Delivery or for a maximum of [**Redacted**] (the “Liquidated Damages Period”). The total amount of Liquidated Damages under this Section (b) for failure to meet the Delivery Date for the Satellite shall not exceed [**Redacted**] .

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(c) Notwithstanding anything else in this Agreement to the contrary, in the event and only to the extent that the failure to meet the Delivery Date is caused primarily (i) by Customer’s failure to provide Launch Services as scheduled, (ii) by the failure of Customer to deliver the WV3 Instrument for integration with the bus, or (iii) the failure by Customer to deliver any other CFE as scheduled (the “Customer Delay”) and the bus is ready for Instrument integration as defined by Exhibit 1, then Contractor will not be subject to Liquidated Damages for failure to meet the Delivery Date for such period of Customer Delay.

(d) In the event of a Customer Delay, or such other date as may be mutually agreed to in writing by Contractor and Customer, and the Work to be delivered by Contractor hereunder is [**Redacted**] , Customer agrees to pay Contractor as liquidated damages and not as a penalty, the sum of [**Redacted**] per [**Redacted**] for the period beginning on the [**Redacted**] of the delay or the first day following any agreed to extension, if applicable. Damages shall be paid until the earlier of completion of Satellite Delivery or a maximum of [**Redacted**] . The total amount of liquidated damages under this Section (d) for failure to meet the Delivery Date for the Satellite shall not exceed [**Redacted**] . Any Delivery Dates and affected interim Milestone schedules shall be adjusted to account for such Customer Delay. It being understood that any Customer Delay shall be cumulative and any individual Customer Delay shall count against the [**Redacted**] .

(e) In the event and only to the extent that each Party is delayed at the same time, neither Party shall be subject to Liquidated Damages for the period of the mutual delay.

20. INSURANCE

20.1. GENERAL OBLIGATIONS.

(a) Contractor represents that it has procured and will maintain insurance (“Ground Insurance”) against all risks and loss or damage to the Satellite (except the WV3 Instrument), and to any and all components purchased for and intended to be integrated into the Satellite (except the WV3 Instrument), in an amount not less than the greater of; (i) the replacement value of, or (ii) the amounts paid by Customer with respect to, the Satellite and components. Contractor shall also maintain public liability insurance, insurance of employees, and comprehensive automobile insurance, all in amounts adequate for its potential liabilities under this Agreement. For the Satellite, such insurance shall cover the period beginning at the effective date of this Agreement up to the moment of Launch. In addition, Contractor shall require each of its subcontractors to provide and maintain insurance in amounts for their respective potential liabilities. In addition, Contractor represents that it has procured and will maintain at all times, from the effective date of this Agreement through Launch, Ground Insurance for all other Work.

(b) In the event of a loss under any of such policies, Customer shall be entitled to select (i) to instruct Contractor to replace the Satellite, or (ii) payment of the proceeds under such policies in an amount of the greater of (i) the replacement value of, or (ii) the amounts paid by Customer with respect to, the Satellite and components

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(c) Contractor shall provide a certificate of insurance certified by Contractor’s insurance broker, evidencing such insurance coverage to Customer at Customer’s request.

(d) Contractor shall require its insurers to waive all rights of subrogation against Customer. Customer shall be named as an additional insured under Contractor’s third-party liability coverage, and as a loss payee as Customer’s interests may appear with respect to property insurance.

20.2. LAUNCH AND IN-ORBIT INSURANCE.

(a) Customer shall be responsible for procuring launch insurance for the Satellite. Customer shall require its Insurers to waive all rights of subrogation against Contractor. Contractor shall, at the written request of Customer, provide Customer with reasonable assistance (such as providing required technical information) in Customer’s efforts to procure launch insurance, and support at Customer’s meetings with insurers, if necessary.

21. DISPUTE RESOLUTION

Any dispute, claim, or controversy (“Dispute”) between the Parties arising out of or relating to this Agreement, including but not limited to any Dispute with respect to the interpretation, performance, termination, or breach of this Agreement or any provision thereof shall be resolved as provided in this Article 21. However, disputes as to payments pursuant to Article 4.3 shall be resolved in accordance with Articles 4.3 and 4.4.

21.1. INFORMAL DISPUTE RESOLUTION.

Subject to the provisions of 21.2, prior to or concurrent with the initiation of formal dispute resolution procedures, the Parties shall first attempt to resolve their Dispute informally, in a timely and cost-effective manner, as follows:

(a) If, during the course of the Work, a Party believes it has a Dispute with the other Party, the disputing Party shall give written notice thereof, which notice will describe the Dispute and may recommend corrective action to be taken by the other Party. The Contractor Program Manager shall promptly consult with the Customer Program Manager in an effort to reach an agreement to resolve the Dispute.

(b) In the event agreement cannot be reached within 10 days of receipt of written notice, either Party may request the Dispute be escalated, and the respective positions of the Parties shall be forwarded to an executive level higher than that under paragraph (a) above for resolution of the Dispute.

(c) In the event agreement cannot be reached under paragraphs (a) or (b) above within a total of 20 days after receipt of the written notice described in paragraph (a) above, either Party may request the Dispute be escalated, and the respective positions of the Parties shall be forwarded to the Chief Executive Officer (CEO) of each Party, and such executives shall meet during such time to resolve the Dispute.

(d) In the event agreement cannot be reached under paragraphs (a), (b) or (c) above within a total of 30 days after receipt of the written notice described in paragraph (a) above, either Party may proceed with arbitration in accordance with 21.2.

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21.2. ARBITRATION.

(a) Any dispute or disagreement arising between the Parties in connection with the interpretation of any Article or provision of this Agreement, or the compliance or non-compliance therewith, or the validity or enforceability thereof, or any other dispute related to this Agreement which is not settled to the mutual satisfaction of the Parties within thirty (30) days (or such longer period as may be mutually agreed upon) from the date that either Party informs the other, in writing, that such dispute or disagreement exists, shall be settled by arbitration in accordance with the Rules of the American Arbitration Association, in effect on the date that such notice is given. Arbitration shall be held in Denver, Colorado, U.S.A.

(b) The Party demanding arbitration of a controversy shall, in writing, specify the matter to be submitted to arbitration and, simultaneously, choose and nominate a competent individual to act as an arbitrator. Thereupon, within fifteen (15) days after receipt of such written notice, the other Party shall, in writing, choose and nominate a second competent arbitrator. The two arbitrators so chosen shall promptly select a third arbitrator, giving written notice to both Parties of their choice and fixing a time and place at which both Parties may appear and be heard with respect to the controversy at hand. In the event the two arbitrators fail to agree upon a third arbitrator within a period of seven (7) days, or if, for any other reason, there is a lapse in the naming of an arbitrator or arbitrators, or in the filling of a vacancy, or in the event of failure or refusal of any arbitrator(s) to attend to or fulfill his or their duties, then upon application by either Party to the controversy, an arbitrator or arbitrators shall be named by the American Arbitration Association. The arbitration award made shall be final and binding upon the Parties and judgment may be entered thereon, upon the application of either Party to any court having jurisdiction. In no event may the arbitrators award any special, incidental, indirect, consequential or punitive damages, including loss of profits or revenues, or prejudgment interest.

(c) Each Party shall bear the cost of preparing and presenting its case. The cost of arbitration, including the fees and expenses of the third arbitrator, will be shared equally by the Parties unless the award otherwise provides.

22. LAUNCH SUPPORT AND LAUNCH

Contractor shall provide the Launch Support Services set forth in Exhibit 1. Customer shall procure the Launch Services for the Launch.

23. CUSTOMER’S RESPONSIBILITIES

(a) In addition to Customer’s responsibilities identified in this Agreement, Customer shall also discharge those responsibilities, at no cost to Contractor or to Subcontractors, as set forth in Exhibit 1 and below.

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(b) Customer will provide access to Contractor and its Affiliates and subcontractors at Customer’s Mission Control Center (MCC), on a timely basis, as necessary to permit Contractor to perform its obligations with respect to such MCC and related services.

(c) In addition to, and without limiting the generality of, the foregoing, Customer will be responsible for obtaining launch and in-orbit insurance prior to Launch. Customer shall provide Contractor a certificate of such insurance coverage at Contractor’s request.

(d) Customer shall provide written notification to Contractor as early as practicable as to the identity and nationality of its employees and Consultant(s) for whom access to Contractor’s and Subcontractors’ facilities are required, and subsequent changes thereto, if any. It is recognized that certain United States Government approvals may be required before such employees and Consultant(s) have access to Work pursuant to the provisions of Article 5.

(e) Customer is responsible for obtaining the frequency spectrum allocations and other approvals and licenses to operate its WV3 Satellite program.

(f) Customer is responsible for Delivery of the WV3 Instrument as well as interface support with the Instrument supplier defined in Exhibit 1.

24. FAILURE TO MAKE ADEQUATE PROGRESS

If, at any time prior to Delivery of a Contract Deliverable (but not thereafter), Contractor has failed to make adequate progress toward the completion of such Contract Deliverable, including where such failure is due to the Contract Deliverable or any component thereof being damaged or destroyed where such damage or destruction does not constitute an Excusable Delay, such that Contractor, due to causes related to such Contract Deliverable, will not be able to Deliver the Contract Deliverable by the applicable Delivery Date (as such date may have been modified in accordance with this Agreement) for such Contract Deliverable, then Customer shall be entitled to deliver to Contractor a Demand for correction of the failure to make adequate progress. Such Demand shall state the details of the failure. Within [**Redacted**] after receipt of the Demand, or such longer time as the Parties may agree, Contractor shall submit to Customer a Correction Plan (in the level of detail feasible within that timeframe) for achieving Delivery not later than the [**Redacted**] following the originally scheduled Delivery Date. If such Correction Plan does not reasonably correct or offset the effect of the failure so as to demonstrate that Delivery of the Contract Deliverable affected thereby can be achieved within [**Redacted**] after the originally scheduled Delivery Date, Customer may reject the Correction Plan, and Contractor shall revise the Correction Plan so as to demonstrate that Delivery for the Contract Deliverable affected thereby can be achieved within [**Redacted**] after the originally scheduled Delivery Date.

25. TERMINATION

25.1. TERMINATION FOR CUSTOMER’S CONVENIENCE.

(a) Customer may, upon written notice to Contractor, terminate the Work in accordance with the terms set forth below, and Contractor shall immediately cease Work in the manner and to the extent specified below.

WV3 Satellite Purchase Agreement 60150

Document No. 10329664

(b) In the event of termination under this Article 25.1 provided the termination is not due to Contractor’s default under Article 25.2, Contractor shall be entitled to payment of an amount equal to the lesser of (i) [**Redacted**] of the total amount of such [**Redacted**] ; and (ii) the Termination Liability Amount specified in Exhibit 3. In either case (i) or (ii) above, the Customer shall pay the above amount less the sum of all amounts previously received by Contractor in cash under this Agreement. In no event shall the amounts payable pursuant to this Article 25 exceed the Contract Price.

(c) In the event of termination under this Article, the Customer shall be entitled to take delivery of all [**Redacted**] per Exhibit 1, in their [**Redacted**] . Delivery of these items will be [**Redacted**] at the time of termination.” Customer and Contractor agree to negotiate reasonable storage and delivery methods, costs, and terms.

(d) If in Contractor’s judgment it is feasible for the Contractor to use any items of terminated Work, it shall submit to Customer an offer to acquire such items. If such offer is accepted, Contractor’s termination invoice shall be credited with the agreed acquisition price.

25.2. TERMINATION FOR CONTRACTOR’S DEFAULT

(a) Customer may terminate this Agreement upon service of written notice of default to Contractor at any time after the occurrence of any of the following:

(1)

Subject to any schedule adjustments pursuant to Article 9, Contractor fails to meet any of the program Milestone events set forth in Exhibit 3 causing a delay that could reasonably be expected to delay the Delivery Date of the Satellite taking into consideration the grace period set forth in clause (2) below.

(2)

The Satellite has not been delivered within [**Redacted**] of the scheduled Delivery Date as set forth in Exhibit 1 and as may be extended in accordance with this Agreement. This [**Redacted**] period is comprised of the [**Redacted**] grace period, the [**Redacted**] liquidated damages period, and a second [**Redacted**] grace period.

(3)

Contractor commences a voluntary proceeding concerning itself under any applicable bankruptcy, insolvency, reorganization, adjustment of debt, relief of debtors, or similar law (“Insolvency Law”); or any involuntary proceeding commences against Contractor under an Insolvency Law and the petition has not been dismissed within [**Redacted**] after commencement of the proceeding; or a receiver or custodian is appointed for or takes charge of all or a substantial portion of the property of Contractor and such custodian or receiver has not been dismissed or discharged within [**Redacted**] ; or Contractor has taken action toward the winding-up, dissolution, or liquidation of Contractor or its business; or Contractor has been adjudicated insolvent or bankrupt or an order for relief or any other order approving a case or proceeding under any Insolvency Law has been entered; or Contractor has made a general assignment for the benefit of creditors or becomes unable to pay its debts generally as they become due. Should Contractor become a debtor in any bankruptcy proceeding, Contractor shall move to assume or reject this Agreement within [**Redacted**] after the entry of any order for relief; or

WV3 Satellite Purchase Agreement 60150

Document No. 10329664

(4)

Contractor has purported to assign or transfer this Agreement in violation of the provisions of Article 26.1 and Contractor fails to cure such unauthorized purported assignment or transfer within thirty (30) days after receiving written notice from Customer of the unauthorized purported assignment or transfer.

(b) In the event Customer terminates this Agreement pursuant to paragraph (a), Contractor shall be entitled to payment of an amount equal to the lesser of (i) the actual costs incurred (subject to audit by Customer) or (ii) the Termination Liability Amount specified in Exhibit 3 minus [**Redacted**] , less the sum of all amounts already received by Contractor in cash or cash equivalent under this Agreement.

(c) If, after termination of this Agreement under the provisions of paragraph (a), it is determined by arbitration, pursuant to Article 21, or admitted in writing by Customer, that Contractor was not in default under the provisions of paragraph (a), or that any delay giving rise to the default was excusable under the provisions of Article 9, such termination shall be considered a Termination for Convenience by Customer and the provisions of Article 25.1 shall apply.

25.3. TERMINATION FOR EXCUSABLE DELAY.

(a) Customer may, upon written notice to Contractor, immediately terminate this Agreement, if and when it becomes reasonably certain that the aggregate of Excusable Delays will [**Redacted**] .

(b) In the event of termination under this Article 25.3, Contractor shall be entitled to the lesser of (i) the actual costs incurred plus a profit equal [**Redacted**] or (ii) the Termination Liability Amount specified in Exhibit 3; in either case less the sum of all amounts received by Contractor in cash or cash equivalent under this Agreement.

(c) In the event of termination under this Article, the Customer shall be entitled to take delivery of all deliverable items per Exhibit 1, in their current condition of development /assembly. Delivery of these items will be subject to the payment of all amounts due and payable at the time of termination.” Customer and Contractor agree to negotiate reasonable storage and delivery methods, costs, and terms.

(d) In the event it is determined by arbitration pursuant to Article 21 or by written agreement of the Parties that Customer wrongfully terminated this Agreement under this Article 25.3, such termination shall be considered a Termination for Convenience by Customer and the provisions of Article 25.1 shall apply.

25.4. TERMINATION RIGHT EXPIRATION.

Customer’s right to terminate this Agreement pursuant to Articles 25.1 through 25.3 shall expire upon Launch.

WV3 Satellite Purchase Agreement 60150

Document No. 10329664

25.5. TERMINATION FOR CUSTOMER’S DEFAULT.

(a) Contractor may stop Work or terminate this Agreement in whole or in part upon service of written notice of default to Customer at any time after the occurrence of any of the following:

(1)

Customer fails to make any undisputed milestone or other payment when due (including any grace periods) and fails to cure such breach within [**Redacted**] following receipt of notice from Contractor, or

(2)

Customer commences a voluntary proceeding concerning itself under any applicable bankruptcy, insolvency, reorganization, adjustment of debt, relief of debtors or similar law (“Insolvency Law”); or any involuntary proceeding commences against Customer under an Insolvency Law and the petition has not been dismissed within [**Redacted**] after commencement of the proceeding; or a receiver or custodian is appointed for or takes charge of all or a substantial portion of the property of Customer and such custodian or receiver has not been dismissed or discharged within [**Redacted**] ; or Customer has taken action toward the winding-up, dissolution, or liquidation of Customer or its business; or Customer has been adjudicated insolvent or bankrupt or an order for relief or any other order approving a case or proceeding under any Insolvency Law has been entered; or Customer has made a general assignment for the benefit of creditors or becomes unable to pay its debts generally as they become due. Should Customer become a debtor in any bankruptcy proceeding, Customer shall move to assume or reject this Agreement within [**Redacted**] after the entry of any order for relief; or

(3)

Customer has purported to assign or transfer this Agreement in violation of the provisions of Article 26.1 and Customer fails to cure such unauthorized assignment or transfer within [**Redacted**] after receiving written notice from Contractor of such unauthorized purported assignment or transfer by Customer.

(b) Except as specified in this Agreement, Contractor shall not have the right to terminate or suspend this Agreement.

25.6. CONSEQUENCE OF TERMINATION; INVOICE; AUDIT.

(a) Upon receipt of a notice of termination, as provided in this Article 25, Contractor shall take the following actions:

(1)

stop Work under this Agreement on the date and to the extent specified in the notice of termination, except those services that are specifically intended to be provided in connection with a termination of this Agreement;

(2)

withhold delivery of any of the items to be supplied hereunder until Contractor has received full payment under this Article 25;

(3)

place no further orders or subcontracts for materials, services, or facilities to the extent they relate to the performance of the Work terminated;

WV3 Satellite Purchase Agreement 60150

Document No. 10329664

(4)

terminate orders and subcontracts to the extent they relate to the performance of the Work terminated;

(5)

settle all outstanding liabilities and all claims arising out of such termination of orders and subcontracts for materials, services, or facilities; and

(6)

take such action as may be reasonably necessary, or as Customer may direct, for the protection and preservation of the property related to this Agreement that is in the possession of Contractor or any subcontractor and in which Customer has or may acquire an interest.

(b) Upon termination of this Agreement in accordance with this Article 25, with regard to any amounts payable by Customer to Contractor hereunder, Contractor shall submit an invoice to Customer within [**Redacted**] after the termination date, and the invoice shall specify the amount due pursuant to this Article 25. By written notice no later than [**Redacted**] after receipt of Contractor’s invoice pursuant to this Article 25, Customer may dispute the amount specified in said invoice. In the event Customer does not so notify Contractor that it disputes the amount in Contractor’s invoice within [**Redacted**] after receipt thereof, Customer shall be deemed to have accepted such invoice.

(c) Contractor shall be entitled to payment by Customer of undisputed amounts in such invoice within [**Redacted**] after Customer’s receipt of the invoice, and with respect to disputed interest amounts, [**Redacted**] after the resolution of such dispute. Payment of such amount by any Financing Entity on behalf of Customer shall relieve Customer from its obligation to make such payment. In the event Customer terminates this Agreement as provided in this Article 25, Contractor, if requested in writing by Customer, shall assign to Customer or its designee, such Subcontracts as requested by Customer, to the extent permitted by such Subcontracts.

(d) Upon completion of all payments in accordance with this Article 25, Customer may require Contractor to transfer to Customer in the manner and to the extent directed by Customer, title to and possession of any items (of which title would have passed) and assign licenses and subcontracts (to the extent they would have been assigned per the Agreement) comprising all or any part of the Work terminated (including all Work-in-progress, parts and materials, and all inventories and associated warranties), and Contractor shall, upon direction of Customer, protect and preserve property at Customer’s expense in the possession of Contractor or its Subcontractors in which Customer has an interest and shall facilitate access to and possession by Customer of items comprising all or part of the Work terminated. Alternatively, Customer may request Contractor to make a reasonable, good faith effort to sell such items and to remit any sales proceeds to Customer less a deduction for costs of disposition reasonably incurred by Contractor for such efforts. To the extent Contractor’s compliance with this paragraph (g) requires governmental approvals and Contractor cannot, with the exercise of commercially reasonable efforts, procure such approvals, Contractor shall be excused from performing its obligations under this paragraph (d).

(e) Payment of the amount payable by Customer to Contractor pursuant to paragraph (d) above shall constitute a total discharge of Customer’s liabilities to Contractor for termination pursuant to this Article 25.1.

WV3 Satellite Purchase Agreement 60150

Document No. 10329664

(f) The amounts payable by Contractor under paragraph (b) above shall be verified at Contractor’s request and expense by an internationally recognized firm of accountants appointed by Contractor for that purpose subject to approval of Customer.

25.7. SECURITY INTERESTS.

In the event Contractor becomes insolvent or bankrupt and is unable to provide adequate assurance of performance acceptable to Customer, Customer shall have the right to take possession of the Deliverables and/or the components thereof, and shall have a perfected security interest to the extent of payments by Customer to Contractor. [**Redacted**]

26. GENERAL

26.1. ASSIGNMENT.

(a) This Agreement can be collaterally assigned, pledged or encumbered to any financial institution for making loans or otherwise extending credit to either Party. Neither Party may assign any rights or obligations hereunder without the prior express written consent of the other, except: (i) to a third party pursuant to a merger, sale of stock or all or substantially all assets, (ii) to a subsidiary, or other corporate reorganization in which all or substantially all of the assets associated with this Agreement is transferred, or (iii) the involuntary transfer as a result of this Agreement being taken by a financial institution following the default and declaration of default by the financial institution of material obligations under the financing or refinancing arrangement of the Party. Any purported assignment, transfer or subcontract shall be void and ineffective without such written consent; such permission will not be unreasonably withheld. Subject to the above restrictions on assignment, this Agreement shall inure to the benefit of and bind the successors and assigns of the Parties.

(b) Customer shall not, without the prior written approval of Contractor, assign, mortgage, charge, or encumber this Agreement or any part thereof, or merge with or into or sell all or substantially all its assets to any other entity (except to its parent company or a wholly-owned direct or indirect subsidiary company of Customer, or any person or entity acquiring all or substantially all the assets of Customer (through merger, stock or asset acquisition, recapitalization, or reorganization) where such merger, acquisition, recapitalization, or reorganization adversely affects Contractor’s rights under this Agreement); provided, however, Contractor shall provide its approval, if in Contractor’s reasonable judgment, Contractor’s rights under this Agreement are not and would not be adversely affected thereby.

(c) The assigning Party shall reimburse the other Party for all reasonable expenses incurred by the other Party (and invoiced in reasonable detail) in obtaining advice from its external financial and legal advisors relating to the assigning Party’s proposed assignment or transfer.

(d) This Agreement shall be binding on the Parties and their successors and permitted assigns. Assignment of this Agreement shall not relieve the assigning Party of any of its obligations nor confer upon the assigning Party any rights except as provided in this Agreement.

WV3 Satellite Purchase Agreement 60150

Document No. 10329664

26.2. ENTIRE AGREEMENT.

This Agreement, including the Exhibits attached hereto, constitutes the entire understanding and agreement between the Parties regarding the Work and all obligations set forth herein and supersedes all prior and contemporaneous communications, negotiations, and other agreements either written or oral unless expressly incorporated by reference into this Agreement.

26.3. AMENDMENTS/MODIFICATIONS.

This Agreement, including any and all of its Schedules, Attachments, Annexes, Exhibits and Appendices thereto, may not be amended, modified, supplemented, or otherwise altered except by a written instrument of subsequent date signed by an officer of Contractor, or another person designated in writing by any such officer to sign such an instrument and a senior vice president of Customer, or another person designated in writing by any such Customer senior vice president to sign such an instrument.

26.4. SEVERABILITY.

In the event any one or more of the provisions of this Agreement shall for any reason be held to be invalid or unenforceable, the remaining provisions of this Agreement shall be unimpaired and the invalid or unenforceable provision shall be replaced by a mutually acceptable provision, which, being valid and enforceable, comes closest to the intention of the Parties with respect to the overall Agreement and the invalid or unenforceable provision.

26.5. APPLICABLE LAW.

Except as provided in Article 22, this Agreement and performance under it shall be governed by, construed, and enforced in accordance with the laws of the State of Colorado, without regard to conflict of laws or provisions thereof.

26.6. NOTICES.

(a) All notices, requests, demands, and determinations under this Agreement, including any required under Article 26.1 (Assignment), (other than routine operational communications), shall be in writing and shall be deemed duly given (i) when delivered by hand, (ii) two (2) Business Days after being given to an express courier with a reliable system for tracking delivery, or (iii) when sent by facsimile (confirmed by the specific individual to whom the facsimile is transmitted) with a copy sent by another means specified in this Article 26.6, and addressed as follows:

(b) A Party may from time to time change its address or designee for notification purposes by giving the other Party prior written notice of the new address or designee and the date upon which it will be effective.

26.7. RELATIONSHIP OF THE PARTIES.

Both Parties are independent contractors under this Agreement. Nothing contained in this Agreement is intended nor is to be construed so as to constitute Contractor and Customer as partners, agents or joint ventures with respect to this Agreement. Neither Party shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party.

26.8. SURVIVAL.

The following Articles, and the provisions contained therein, shall be deemed to survive the termination (for any reason) or expiration of this Agreement, and, accordingly, such Articles shall remain applicable and enforceable in accordance with their terms:

(a) Article 1 (Definitions and Construction);

(b) Article 8 (Title and Risk of Loss);

(c) Article 9 (Excusable Delay);

(d) Article 16.3 (Contractor’s Warranties for Contract Deliverables);

(e) Article 17 (Intellectual Property Rights);

(f) Article 18 (Indemnification);

(g) Article 19 (Liquidated Damages for Late Delivery);

(h) Article 21 (Dispute Resolution);

(i) Article 25 (Termination);

(j) Article 26.5 (Applicable Law);

(k) Article 26.13 (Limitation of Liability).

WV3 Satellite Purchase Agreement 60150

Document No. 10329664

26.9. NO THIRD-PARTY BENEFICIARIES.

This Agreement is entered into solely between, and may be enforced only by, Customer and Contractor and their permitted assigns. This Agreement shall not create any rights in third parties, including suppliers and customers of either Party or create any obligations of a Party to any such third parties.

26.10. CONSENTS AND APPROVALS.

Except where expressly provided as being in the sole discretion of a Party, where agreement, approval, acceptance, consent, or similar action by either Party is required under this Agreement, such action shall not be unreasonably delayed or withheld. An approval or consent given by a Party under this Agreement shall not relieve the other Party from responsibility for complying with the requirements of this Agreement, nor shall it be construed as a waiver of any rights under this Agreement, except as and to the extent otherwise expressly provided in such approval or consent.