Herschel/Planck PLANCK PACE GSE. Draft Contract BETWEEN ALCATEL SPACE AND AIR LIQUIDE

Transcription

1 Page 1 Herschel/Planck PLANCK PACE GSE Draft Contract BETWEEN ALCATEL SPACE AND AIR LIQUIDE Draft contract V

2 Page 2 Herschel/Planck DRAFT CONTRACT Between: ALCATEL SPACE (hereinafter called " ALCATEL"), whose Registered Office is at: acting through its office at: 12, Rue de la Baume Paris 100, Boulevard du Midi B.P Cannes La Bocca Cédex FRANCE represented by: of the one part, and: AIR LIQUIDE (hereinafter called "the Contractor"), whose Registered Office is at: represented by: Mr, of the other part, the following has been agreed:

3 Page 3 LIST OF CONTENTS PREAMBLE Article 1 Article 2 Article 3 Article 4 Article 5 Article 6 Article 7 Article 8 Article 9 Article 10 Article 11 Article 12 Article 13 Article 14 Subject of the Contract Contractor's obligations Undertakings of ALCATEL Place and dates of delivery - transfer of property and risk Price type and commitment Payments General conditions Items purchased under this Contract Parts procurement Changes Change Review Board and Change Appeal Board Consequences of the approval of changes Miscellaneous Entry into Force

4 Page 4 LIST OF APPENDICES TO THE CONTRACT The list of documents hereafter shall be updated by means of Riders to the Contract as they are agreed between the parties. Appendix 1 Appendix 2 Financial - Part A - Technical and Programmatic Requirements - Part B - Statement of Work - Part C - Management Requirements Appendix 3 Appendix 4 - List of subcontractors, nature of work and values (if any) - General Clauses and Conditions for ESA Contracts

5 Page 5 PREAMBLE AND DEFINITIONS: Whereas the European Space Agency ( ESA or the Agency ) wishes to conduct the Herschel/Planck Project, a mission combining Herschel (a far infra-red and sub-millimetre observatory, previously referred to as FIRST) and Planck (a spacecraft for research into cosmic background radiation anisotropy), and has, for this purpose, selected Alcatel Space (F) as its prime Contractor and leader of the Herschel/Planck Industrial Consortium involving Alenia Spazio S.p.A (I) and EADS ASTRIUM GmbH (D); Whereas ALCATEL means the prime contractor who lead the Herschel/Planck industrial consortium; Whereas ALCATEL means the company, within the Herschel/Planck Industrial Team, which places the present contract with the selected bidder; Whereas the Herschel/Planck Team means all companies involved in the overall Herschel/Planck Project, at a higher level that the Contractor; Whereas the Contractor has been selected to perform the Planck PACE GSE (hereinafter defined as the PGSE ) ; Whereas the Contractor undertakes to conduct hereinafter defined work subject to the following;

6 Page 6 ARTICLE 1 : SUBJECT OF THE CONTRACT 1. The Contractor shall perform activities relating to the definition, detailed design, development, manufacturing, integration, verification, delivery of the activities related to the PGSE in accordance with the requirements of this Contract, and deliver the items defined in the Appendix 2 hereto. 2. The work hereunder shall be performed in accordance with the terms and conditions of this Contract, including the appendices hereto which form part of the Contract. 3. In addition to the normal contract activities, the Contractor shall provide further technical support as may be required by ALCATEL beyond that called for under this Contract on terms as may be agreed between the parties from time to time, outside of the Contract Price. 4. Terms and Conditions Order of precedence of documents In the event of any conflict arising between the various documents connected with the project, the following documents shall be referred to, the documents specified in paragraph a) prevailing over all other documents, and the documents specified in paragraph b) prevailing over all documents other than those specified in paragraph a). a) The terms and conditions of this Contract and its appendices and dependent documents. b) TBD ARTICLE 2 - CONTRACTOR S OBLIGATIONS 1. Terms and Conditions 1.1 The Contractor undertakes to execute in accordance with the requirements of this Contract all tasks necessary for the successful accomplishment of the project, except those tasks which are specifically stated by this Contract to be undertakings of ALCATEL (see Article 3). The contractual baseline is the current agreed issue and revision status of this Contract and its appendices. The issue and revision status of the contractual baseline shall be kept up to date as required. 1.2 The Contractor shall, within 48 hours of its coming to his notice, notify ALCATEL in writing of any occurrence likely to affect the satisfactory performance of the Contract and in particular of the schedule. At the same time the Contractor shall analyse the impact of any such occurrence and propose corrective action. If within a period of ten working days the Contractor has not complied with the above he shall be precluded from making any claim resulting from such occurrence. 1.3 The Contractor shall act so as to enable ALCATEL to meet its geographical distributions for Herschel/Planck. 1.4 The Contractor shall be responsible for the management of all technical interfaces with the equipment including all margins and schedule, for subsystem contractor. 1.5 The Contractor shall perform all tasks necessary to define a PGSE and associated items that meets the requirements as specified in Appendix 2. The tasks to be performed by the Contractor shall include, but not be limited to, the activities required in the Statement of Work (Appendix 2) up to successful completion 1.6 Any deviation deriving from a change in ALCATEL s requirements by written order of ALCATEL s Project Manager having, in the Contractor s opinion, an impact on the total Price shall be reported to ALCATEL

7 Page 7 immediately following identification of the deviation, presenting the technical, cost and schedule impacts of incorporating the modification. A CRB shall be held to deal with all such matters. 1.7 Engineering The Contractor shall produce a PGSE and associated items that meet all requirements as specified in Appendix 2, including all changes that might be introduced hereto; he shall ensure throughout the project full compliance of his equipment designs and their performances with those requirements. 1.8 Product assurance The Contractor shall make available all services necessary for the exercise of product assurance activities and for the establishment and support of a programme for reliability and quality assurance, in accordance with the requirements of the appendices to this Contract. 1.9 Development, Integration, Validation and Delivery The Contractor shall perform all activities for the PGSE and associated items such that all requirements as specified in Appendix 2, including all agreed changes that might be introduced thereto are met. The Contractor shall resolve and be responsible for all Planck interfaces and problems connected therewith. The Contractor shall supply support to ALCATEL as defined in the SOW as per Appendix 2 ARTICLE 3 - UNDERTAKINGS OF ALCATEL 1. General The following undertakings of ALCATEL are specified in this Contract, in order to allow the Contractor to define and limit his own undertakings and responsibilities. Within the framework of this Contract, they constitute an obligation for ALCATEL only insofar as they are necessary for the successful and timely execution of the Contractor's tasks. Failure of ALCATEL to execute its undertakings shall not relieve the Contractor from fulfilling his own obligations, unless he has taken all reasonable measures to eliminate or limit the consequences of ALCATEL omissions or delays on his own performance and he shall be entitled to such relief only insofar as he can prove that such relief is necessary in order to compensate for the unavoidable consequences of ALCATEL failure to execute its undertakings. Article shall apply hereto. Insofar as such failure to execute its undertakings is due to a failure by the Contractor or one or more of his Subcontractors to meet his or their obligations towards ALCATEL under any contract between such Contractor or Subcontractors and ALCATEL, ALCATEL shall not be responsible for the consequences to the Contractor of such failure on its part. ALCATEL shall have no responsibility whatsoever for any activity undertaken for or by a third party to which ALCATEL has not given its express approval. Approval is defined in Article 3.3 below. 2. In exercising management, ALCATEL will provide the Contractor with all necessary information concerning those elements of the project that are not the Contractor's responsibility a. Review the work of the Contractor at periods as defined in the statement of work. b. Monitor and control the work of the Contractor from technical, cost and schedule points of view.

8 Page 8 3. Approval by ALCATEL Wherever approval of ALCATEL is required by this Contract, approval shall only be deemed to have been given if it is provided by the persons listed in Article 7, Clause 5. Approval of the Contractor's documentation by ALCATEL shall constitute ALCATEL concurrence that, based on the situation prevailing on the date of approval, the Contractor has interpreted the requirements of ALCATEL satisfactorily and that the development activities can proceed. Approval of documentation shall neither constitute an incremental certification of the Contractor's design nor shall it constitute release from his responsibilities before the performance of the subject of the Contract has been shown to comply fully with the specified requirements and formal acceptance has been certified by ALCATEL. If it subsequently should appear that an approval specification does not meet ALCATEL and/or Herschel Planck Team and/or Agency requirements, the consequences of modifying such a specification shall never be invoked by the Contractor as giving rise to a Class A contract change notice. ARTICLE 4 - PLACE AND DATES OF DELIVERY - TRANSFER OF PROPERTY AND RISK The work shall commence on TBD. 1. Place and date of delivery 1.1 The Contractor shall deliver deliverable items required in accordance with Appendix 2, the incoterm is ICC (ed.2000) DDP Cannes or an another place defined by ALCATEL. 1.2 The PDR data package shall be submitted to ALCATEL, prepared in accordance with the requirements of ALCATEL contained in the Management Requirements, Appendix The PGSE shall be deemed delivered after successful completion of the PGSE Acceptance Review (AR), including closure of all action items to be completed by.., which will take place at Contractor s premises. The Contractor shall, for complying with this date deliver the listed items not later than the dates as defined in the SOW. 1.4 Delivery Review Board shall be completed by TBD days after delivery 1.5 The items specified in the Inventory Record shall be available as necessary to meet programme schedule requirements and, with the exception of those items specified in said documents as not becoming the property of the Agency shall be delivered to ALCATEL, within two months following the delivery of Herschel and Planck satellite by the Prime Contractor to the Agency. 1.6 Residual items not specified in the Inventory record and covered by Article 8, shall be delivered to ALCATEL within two months following the delivery of Herschel and Planck satellite by the Prime Contractor to the Agency or shall otherwise be disposed of in accordance with the provisions of Article 8.4 below. 1.7 For the purpose of Clause 27 to the General Clauses and Conditions, delivery, for all items (hardware, software and documentation shall be deemed effected after actual transfer to and acceptance by ALCATEL as defined in Article 7, Clause Transfer of property and risk 2.1 Property in the PGSE set shall pass to ALCATEL after successful Acceptance Review as described at 1.3 and 1.4 above.

9 Page The liability for loss of and damage to all items, including any damage whilst at test facilities, whether caused by the Contractor, Herschel Planck Team, the Agency, or a third party with the exception of willful act, shall lie with the Contractor until the delivery to ALCATEL has been occurred. In the event that ALCATEL returns any equipment Item to the Contractor, risk in such equipment/item shall revert to the Contractor at the time of its arrival at the Contractor facilities. 2.3 The risk of loss or damage to any Agency and/or Herschel Planck Team and/or ALCATEL Furnished equipment in the custody of the Contractor shall lie with the Contractor. In this context, reference is made to Article 7, Clause 10. ALCATEL shall provide prior notification of the replacement values of such items and may issue reasonable instructions for their handling, storage and maintenance. 3. Maintenance, Operations, Storage and Transport The Contractor shall be responsible for the maintenance, operations, storage and transport (including customs clearance) of all hardware, software and documentation including any Agency and/or Herschel Planck Team and/or ALCATEL furnished property covered by this Contract until physical delivery to ALCATEL, and shall provide support to ALCATEL for the above tasks until the delivery of Herschel and Planck satellite by ALCATEL to the Agency. The Contractor shall provide, on request by ALCATEL storage facilities and to maintain the items during storage as appropriate. The Contractor shall maintain and store until launch any equipment and software required for fault diagnosis and repair of items covered by this Contract. 4. Following the launch of Herschel and Planck satellite, the Contractor shall dispose of all items acquired under the Contract in accordance with Article 8 hereafter, and with ALCATEL instruction. 5. Any insurance which may be taken by the Contractor to cover his liabilities hereunder shall include a provision of non-recourse against the Agency and the Herschel Planck Team and ALCATEL or their respective agents. The Contractor shall indemnify the Agency and the Herschel Planck Team and ALCATEL or their respective agents against all consequences derived from his failure to include such a provision. 6. Availability of Spares The Contractor shall implement a system which secures the availability of the PGSE spares in order to guarantee a period for repair and verification of any equipment of less than TBD days during the Planck Satellite cryogenic test. The Contractor shall be liable for financial consequences, if the Contractor is not compliant with the obligation to implement such system. ARTICLE 5 - PRICE TYPE AND COMMITMENT 1. Price type The price type of this Contract is a firm fixed price(ffp)) as defined in Clause 2 of Annex I to the General Clauses and Conditions for ESA Contracts.

10 Page Price of the Contract The price of this Contract is expressed solely in EURO. The total price is: EURO 3. Price level and Price type All prices are Firm Fixed prices. 4. Should the Contractor fail to advise ALCATEL of deviations giving rise to financial impacts on this price as required by the Article 2, paragraph 2.1.2, any financial consequences shall be treated as a Class B Change, as defined in Article The price excludes taxes and duties in the Member States, other than the Gewerbeertragsteuer, in Germany. 6. Price Revision Adjustments N.A ARTICLE 6 - PAYMENTS The provisions of Clauses 20, 21, and 22 of the General Clauses and Conditions are implemented by the following: 1. All payments under this Contract shall be made in EURO. The liability of ALCATEL for payments hereunder shall not extend beyond the Contract price All payments shall be made directly by ALCATEL according to the provisions hereunder and the Contractor is not entitled to claim against the Herschel Planck team or the Agency for any damages and liability that Contractor may have arising out of, or related in any way to payments under this Contract. All invoices shall be sent in one original and two copies of said invoice to the following address: Each invoice shall contain the following information: Alcatel Space 100, boulevard du midi B.P Cannes La Bocca cédex FRANCE to the attention of DFG/FGA Cannes/BUOS: - ALCATEL Space French VAT registration number : FR ; - Supplier s VAT registration number : - name of the Programme ; - identification number of the Contract ; - identification of the required payment (milestone definition, number, date and amount) ; - identification of the agreed travels and subsistence expenses; - name and address of the Bank to be credited together with the relevant Bank account number ;

11 Page 11 - place of performance of invoiced work ; - place of delivery of invoiced work. And a copy of the invoice shall also be sent for information to ESA Herschel/Planck Project Control Section ESA-ESTEC/SCI-PTC at fax number : Advance and Progress Payments The Contractor may submit invoices corresponding to the milestone payment plan shown in Appendix 1 in respect of each activity after corresponding milestone has been successfully achieved. The advance payment shall not be higher than 5% of the total Contract price. 3. Final Settlements The last payments are subject to the following conditions: 3.1 The PGSE acceptance and delivery by ALCATEL and fulfillment of the obligations defined here below 3.2. The final payment shall not be lower than 10 % of the total Contract price. 3.2 The final settlement shall be made by ALCATEL for the purpose of Clause 21 of the General Conditions after the Contractor has discharged his obligations under this Contract and subject to the Contractor providing: i) a statement of the inventions made under this Contract or a statement to the effect that no inventions have been made; ii) an Inventory Record; iii) an end of project assessment report including lessons learnt. 4. Payment will be made after receipt by ALCATEL of correct invoices. Partial payments for milestones will not be made; milestones must be achieved in full to qualify for payment. All payments due to the Contractor shall be made to the following bank account: Name: Address: Account Number: 5. Payment of Change Notices Payment of agreed Class A Change Notices will be made in accordance with the payment plans agreed for each Change Notice as decided upon the Change Review board. 6. Price Variation adjustments N.A 7. Withholding/reduction of payments ALCATEL shall have the right to withhold or reduce the payments referred to here above, in the event that it is demonstrated that the required performance significantly fails to meet content or schedule requirements. ALCATEL shall have the right to withhold or reduce the payments referred to in Appendix 1 if the reports or any other documents due and/or deliverable items defined in this Contract and its applicable documents are not submitted at the agreed dates due to circumstances within the control of the Contractor.

12 Page 12 Only in such cases payment may, at the discretion of ALCATEL, be made proportionally to the achievement of the work. 8. Payment Period ALCATEL will credit the account of the Contractor shown on his invoices, on his behalf and on behalf of his subcontractors. The Contractor shall be responsible for paying his subcontractors for Herschel/Planck in a timely and proper manner in accordance with normal commercial practice and law. The Contractor shall indemnify ALCATEL against any claims arising from his subcontractors caused by his failure so to pay such subcontractors. Payment will be made to the Contractor within 30 (thirty) days from receipt by ALCATEL from the Contractor of correct invoices together with all required justificatory documentation. ALCATEL shall within 30 days from receipt of the contractor invoice notify to the contractor its disapproval of the said invoice. Payments shall be considered as effected on time if ALCATEL s order of payment reaches its bank within this period. 9. General 9.1 The Contractor is required to submit invoices in EURO for all payments due under the Contract. Invoices shall be submitted free of VAT. 9.2 The Contractor undertakes to submit complete invoices (including instructions for billing taxes and duties, where applicable), in adhering strictly to the instructions contained in the standard package. The Contractor, furthermore, undertakes to provide supporting documentation as required by the Contract. By submitting the invoices the Contractor certifies that the claim is correct and that the milestone has been achieved. The milestone achievement may be audited by ALCATEL. 9.3 Any special charges related to the execution of payments including any bank fees relating to currency exchange will be borne by the Contractor. ARTICLE 7 - GENERAL CONDITIONS The General clauses and conditions for ESA Contracts (ESA/C/290, Rev. 5), Appendix 4 herein referred to as "General Conditions" are set forth in Appendix hereto and made part hereof. They shall apply to this Contract with the following amendments, clarifications or alterations to the clauses below. The specific conditions in this Contract shall prevail over the General Conditions. In the sense of the General Clauses and Conditions Contractor and the Agency shall mean ALCATEL and or the Agency. However, in the following amendments or replacement Contractor shall mean Contractor and the Agency shall mean the Agency The specific conditions in this Contract shall prevail over the General Conditions. Clause 2 : Approval The authorised representative of ALCATEL for the purpose of approving this Contract is : TBD

13 Page 13 Clause 5 : ALCATEL 's representatives - inspections For the purpose of this Contract, ALCATEL's representatives are : a) for technical and managerial matters or other duly authorised person; b) for contractual and administrative matters or other duly authorised person; Clause 6 : Reports and meetings The Contractor shall submit the reports and documentation specified in Appendix 2, part C. Progress and other meetings shall take place as specified in the said Appendix. Clause 7 : Communications 1. All correspondence for ALCATEL shall be addressed to : a. for technical and managerial matters to : with copy to : b. for contractual and administrative matters to: with copy to : 2. All correspondence for the Contractor shall be addressed to : a. for technical and managerial matters to : b. for contractual and administrative matters to : with a copy to : Clause 9 : Publicity relating to Contracts The term "press releases or other specialised publicity documents" includes the Contractor's advertising and news bulletins, cases where the Contractor promotes or participates in exhibitions whereby he intends to use results obtained from this Contract or advertise his role in this Contract. In all cases he shall first advise the responsible Contracts Officer of ALCATEL mentioned in Clause 5.b and ALCATEL will inform him as soon as possible of its decision. Clause 11 : Compensation for damage caused to persons, goods or property 1. In Clause 11.1 add after the word "Agency's" the words "or Contractor's". 2. It is agreed that Clause 11 shall govern injuries and damages which may be inflicted on the personnel and property of each party by ALCATEL and by the Contractor during the execution of this Contract to the exclusion of the liabilities set out below. Clause 12 : Applicable law The Contract shall be governed by the law of France Clause 13 : Arbitration Clause 13 - Arbitration The arbitration proceedings shall take place in Paris (France).

14 Page 14 Clause 18 : Taxes and customs duties The Contractor shall, in order to facilitate ALCATEL's exemption from taxes and customs duties, comply with the instructions given by ALCATEL. Clause 19 : Packing and transport expenses All items to be delivered to ALCATEL shall be suitably packed to ensure their secure delivery. The Contractor shall comply with the packing, packaging and shipping instructions specified in the Contract. All packages shall be marked with the contract number and all shipping documents shall refer to this Contract (contract number and description of supply). Clauses 20, 21 and 22 : Advance, Progress Payments and Final Settlement Place and Currency of Payment The provisions concerning payments and invoices are set forth in Article 6. Clause 23 : General conditions of execution - key personnel The following shall be added to sub-clause 1 of this clause : 1. Key personnel for the purpose of this sub-clause shall be defined as personnel indicated on the Contractor's or subcontractor's organisational chart and as agreed involved in project execution down to and including one level below the Contractor's Project Manager, and one level below subcontractors Project Managers. 2. Any replacement or part-time assignment to other tasks of such key personnel requires the prior approval of the Agency's representatives mentioned in Clause 5. Appropriate request shall be accompanied by a justification for the proposed change and by a written comprehensive resume of the qualifications of successor personnel proposed. 3. ALCATEL shall have the right to require replacement of key-personnel on indication of reasons. ALCATEL will, in such case, notify the Contractor in writing and the Contractor shall propose for approval suitably qualified successor personnel within one month of receipt of ALCATEL's request. Clause 25 : Subcontracts 1. ALCATEL agrees that the Contractor places subcontracts with the firms which will be stated in Appendix The following is hereby substituted for sub-clauses 25.1 and 25.2: "The written consent of ALCATEL will be required for any contract proposed to be entered into by the Contractor with any firm(s) other than those which will be listed above for any part of the operations required for the execution of the Contract." 3. The Agency and/or the Herschel Planck Team reserve the right to receive copies of all subcontracts including appendices for information at the time of signature of the subcontract. Clause 26 : Changes and modifications to projects, engineering and specifications Clause 26 is replaced by the provisions of Article 2.1.2, 9,10 and 11above. Clause 27 : Time-limits for the provision of supplies and services The obligation to inform ALCATEL within 30 days provided for in Sub-clause 27.3 is superseded by the reporting provisions contained in the documents listed in Appendix 2.

15 Page 15 Clause 28 : Penalties for late delivery Clause 28 shall apply to this Contract. Pursuant to Clause 28, the following penalty scales will applied to the Contract: The Contractor shall pay penalty of the 0.5% (of the Contract value) to ALCATEL per each calandar day of delay w.r.t. the delivery dates set forth in the SOW, up to a maximum of the 10% of the total price of the Contract. The penalised value is 100% of the Contract value. Milestone Penalised value Date PGSE delivery 100 % Contract value As defined in the SOW Clause 29 : Acceptance and rejection Clause 29 is supplemented and amended by the following provisions: 1. Acceptance of Hardware and Software Acceptance or rejection of the items to be delivered under the Contract shall be determined on the basis of the Contractor demonstration to the satisfaction of ALCATEL that the items have been constructed in accordance with the appropriate specifications and have satisfactorily concluded testing in accordance with ALCATEL approved test plans and procedures. 2. Approval of Deliverable Documentation Deliverable documentation shall be submitted to ALCATEL for approval or review as required in Appendix 2. ALCATEL will then ascertain that the document is in conformance with the requirements of the Contract. Documentation requiring ALCATEL approval shall be deemed to have been accepted, unless comments has been notified to the Contractor or rejected in writing, within three months after the date of the receipt or such further period as may be specifically agreed. In the event that ALCATEL considers that a submitted document does not fulfil the contractual requirements, the Contractor shall, at the request of ALCATEL bring the document up to the appropriate standard and in order to comply with the requirements of the Contract at his own expenses as soon as possible but in any case no later than two weeks after being so requested. ALCATEL review, approval and acceptance of documentation to be submitted by the Contractor shall neither constitute an incremental certification of the Contractor s design nor shall it constitute release from his responsibilities before the performance of the subject of the Contract has been shown fully to comply with the specified requirement and formal acceptance has been certified by ALCATEL. Clause 30 : Guarantees Clause 30 shall apply with the following modifications and additions: The guarantee period for all items under this Contract shall run for a period of one year from Acceptance Review by ALCATEL of the Herschel/Planck System Database Mirror Site. Such a decision shall be transmitted to the Contractor by ALCATEL. The following is added to Clause 30.1.a: If the Contractor fails to initiate and follow-up necessary remedial actions promptly, as required by the circumstances, ALCATEL may, after serving due notice on the Contractor, take the necessary action in his stead and at his expense.

16 Page 16 Following notification by ALCATEL to the Contractor of any defect arising, the defective unit(s) will be held, handled and shipped at the Contractor s risk and expense. For items replaced, the guarantee period shall recommence on the date of replacement. For items repaired or modified the guarantee period shall be prolonged by a period equal to that during which they were unavailable. If the defect observed in the course of the guarantee period is found to be due to a technical or design error of a systematic nature, the Contractor shall replace or modify at his expense all identical components covered by the Contract even if these other components are functioning correctly. At ALCATEL request, the guarantee period may be extended on a yearly basis by means of rider to this Contract. PART II OF THE GENERAL CONDITIONS Part II shall apply with the following additional Clause : The Contractor shall ensure that the rights granted to the Agency and the Herschel Planck Team under Part II of the General Conditions are correctly safeguarded and preserved in his contractual arrangements with his subcontractors. ARTICLE 8 - ITEMS PURCHASED UNDER THIS CONTRACT 1. Apart from such items specifically listed in this Contract and its applicable documents as being deliverable items, the following items, purchased or fully amortised under the Contract, shall become the property of the Agency and shall be subject to inventory control. a. all hi-rel electronic parts procured for the programme and not used in the course thereof; b. all items which have a purchase price exceeding the equivalent of 10,000 EURO. 2. Such items shall become the property of the Agency at such time as they are not longer required for the performance of the Contractor's tasks. As long as they are under the Contractor's control, he shall be responsible for them in accordance with Clause 10 of the General Conditions. 3. The Contractor will maintain a permanent inventory of such items, from the time they are available to him until delivery or disposal. This inventory shall be open to inspection by ALCATEL and/or the Agency at any time, and the Contractor will mark the items in an unambiguous way as having been procured under the Contract. 4. Upon completion of the Contract, or such earlier time as specified by the Agency the Contractor shall comply with ALCATEL s instructions regarding such items, whether involving their dispatch to ALCATEL and /or the Herschel Planck Team and/or the Agency, their sale for the benefit of the Agency or their remaining with the Contractor on terms to be agreed. 5. Items purchased under the Contract and not falling under the above provisions shall not become the property of the Agency, but shall not be used or disposed of in such a way as to render them non-available for the relevant contract tasks until the Contract is complete. 6. The Contractor shall ensure that the same terms, including ALCATEL and/or the Agency's right of inspections apply to his subcontractors and suppliers.

17 Page 17 ARTICLE 9 - PARTS PROCUREMENT NOT APPLICABLE ARTICLE 10 - CHANGES 1. General ALCATEL may at any time, by a written order by ALCATEL Project Manager, make changes in the work to be performed under this Contract, such changes to be ultimately incorporated as a change or changes to the baseline contractual definition. The Contractor shall be obliged to implement any such change at the time specified by ALCATEL. ALCATEL may accept changes proposed in writing by the Contractor (Contract Change Notice- CCN- or Engineering Change proposal- ECP-). The Contractor shall not initiate the implementation of any change without ALCATEL's prior written consent. 2. Classification of changes Any changes will be classified into the following two categories: Class A Changes Class A Changes are changes which result in an impact to the Contractor from: - ALCATEL initiating a change in ALCATEL's documents of the contractual baseline as defined in Article 2.1 or in the time or place of delivery specified in the Contract. - failure by ALCATEL to execute one of its undertakings as defined in Article 3 Class B Changes Class B Changes are all other changes. 3. Consequence of changes on the Contract terms Class A Changes Class A changes, except for the cancellation of work or hardware, shall be treated as a new procurement and the terms of the Contract shall, if necessary, be adjusted to take account thereof. If any Class A change causes an increase or decrease in the cost of, or the time required for, the performance of the Contract, an appropriate adjustment shall be made in the price, or the schedule, or both. Each modification shall be costed and priced in the same detail and on the same basis as the original subject matter of the Contract (e.g. hourly rates, overheads, profit margins, price type, PSS forms, modified payment plans,etc,) unless otherwise specifically agreed. In the event of a cancellation of work or hardware, the provisions of Clauses 31, 32 and 33 of the General Conditions shall apply as appropriate. However, with respect to Clause 32.3 (a), ALCATEL shall only be liable to indemnify the Contractor against such part of any loss of profit as is attributable to the cancellation of any item and/or activity insofar as the

18 Page 18 item and/or activity cancelled is not reasonably compensated for by any new items or activities. In the event of cancellation of any work or hardware (negative Class A), the Agency reserves the right to audit the relevant costs, in accordance with Clause 10 of Annex I to the General Conditions. Class B Changes The Contractor shall be responsible for any Class B changes and their implementation shall not change the conditions of the Contract. 4. Limitation of the ALCATEL's liability for changes i) The Contractor shall reduce to the minimum any delay to the programme caused by any changes. If a delay due to a Class A change causes extra costs, ALCATEL shall pay such costs only insofar as the Contractor can prove that this change was the sole cause of the delay. ii) iii) iv) The conditions governing a change shall be those contained in the Contractor's Change Notice as approved by ALCATEL; any documentation related to a change supplied by a subcontractor shall be considered as supporting information only and shall have no contractual implication whatsoever. ALCATEL shall not bear the cost of any change deriving from any work for Herschel/Planck related activities which the Contractor and/or his subcontractors and/or affiliates or subsidiaries may be performing under a contract with a third party. The parts procurement for the project being of a co-ordinated nature, ALCATEL has no liability for any costs arising from the operation of the parts procurement other than for changes in parts deriving directly from a change of requirement introduced by ALCATEL. 5. Procedure The procedure to be followed for the introduction and acceptance of a modification is described in Appendix 2, Part C. 6. Disagreement Nothing contained in this Article or in Appendix 2 is to be construed as justifying any decision by the Contractor not to introduce or to suspend the introduction of a change approved or ordered by ALCATEL. Any disagreement regarding the influence of a change on the cost, the time schedule or any other provision of the Contract which cannot be settled during a Change Review Board shall be submitted to the Change Appeal Board foreseen in Article 11. ARTICLE 11 - CHANGE REVIEW BOARD AND CHANGE APPEAL BOARD 1. A Change Review Board (CRB) shall be set up consisting of the project managers or delegated authority and the contracts officers of ALCATEL and of the Contractor. The Agency and/or the Herschel Planck team s project manager and/or contract officer may be invited for the CRB.,. The function of the Board shall be to review and decide upon all Contract Change Notices (CCNs) submitted to it. The members of the CRB may be assisted by specialists of their own staff or the staff of their subcontractors. 2. The Contractor shall make available to the CRB all data required by ALCATEL to permit a complete evaluation of the implications of any proposed change.

19 Page When examining CCNs the CRB shall either reach agreement or draw up a statement of disagreement. If a statement of disagreement is recorded, the matter shall be laid before the Change Appeal Board (CAB) unless either party agrees in writing to accept the other's point of view. When agreement is reached, ALCATEL's and the Contractor's project managers and contracts officers shall sign the CCN. 4. The CAB shall consist of 2 high-level representatives of each party to be nominated by the Agency and the Contractor through an exchange of letters. One representative shall be from the technical side, the other from the administrative side. 5. ALCATEL or the Contractor may also submit any other dispute relating to this Contract to the CAB. 6. Within 2 months of the submission of the dispute or such longer time as the parties may agree, the CAB shall either reach agreement or establish that a disagreement continues to exist. In the latter case, either party may submit the disagreement to the arbitration procedure provided for in Clause 13 of the General Conditions. ARTICLE 12 - CONSEQUENCES OF THE APPROVAL OF CHANGES Countersignature of the CCN by ALCATEL s representatives nominated in Clauses 2 and 5 of Article 7, who are the only persons authorised to do so, shall render the change enforceable and the contract terms shall be deemed to be modified accordingly. ARTICLE 13 - MISCELLANEOUS 1. If any provision of this Contract is determined to be ineffective, invalid, or illegal, all other provisions of this Contract shall remain effective and valid, and the Parties shall negotiate in good faith such amendment(s) to this Contract as may be reasonably required to overcome such ineffective invalid or illegal provision. 2. No failure or delay by any of the Parties in exercising, power or remedy hereunder shall constitute a waiver thereof; nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or remedy.

20 Page 20 ARTICLE 14 - ENTRY INTO FORCE This Contract shall enter into force on TBD. Done and signed in two original copies, one for each party to this Contract, on behalf of ALCATEL in, on this day, on behalf of the Contractor in, on this day,

21 Page 21 HERSCHEL/PLANCK Financial Appendix Milestone Payment Plan Appendix 1 to the Contract

22 Page 22 HERSCHEL/PLANCK Appendix 2 to the Contract Statement of Work and Annexes The PGSE and all other items to be delivered to ALCATEL as specified in this Appendix shall be realised and shall perform to the requirements of the specifications listed below.

23 Page 23 HERSCHEL/PLANCK Appendix 3 to the Contract no. List of subcontractors, nature of work and values (if any)

24 Page 24 HERSCHEL/PLANCK Appendix 4 to the Contract General Clauses and Conditions for ESA Contracts