TNAG-2109-FCO40-3008-Outer-Space-Act-1986-extension-to-Hong-Kong-1990 — Page 57

11.8

11.9

finally determines that a Launch Failure did not occur, then such Reflight shall be deemed to be a Replacement Launch and the provisions of Article 12 hereof (including the provisions regarding the price of the Replacement Launch) shall apply instead of this Article 11.

(c) If the Client has requested a cash refund under

Paragraph 11.4 and the matter is submitted to arbitration under Sub-paragraph 11.7(a) above, then payment of any cash refund shall be made within thirty (30) days after a decision of the arbitration that a Launch Failure occurred.

If the Payload, after having been the subject of a Launch Failure for which a Reflight or cash refund was provided by CGWIC, is put into commercial operation for all or a portion of its capacity, then the Client shall return to CGWIC such percentage of the cash refund or pay an amount calculated as a percentage of the total value of the Reflight as if it had been a Replacement Launch as is appropriate having regard to the usable capacity of the Payload. The Client and CGWIC shall negotiate in good faith to determine the appropriate percentage.

For the purposes of this Article 11:-

"Launch Failure", subject to Paragraphs 11.10 and 11.11 below, means

(a) the destruction or loss of the Payload during the

Launch Vehicle Flight (including a destruction made pursuant to Paragraph 13.4 hereof); or

(b) the failure of the Payload Mission such that the

Payload does not achieve the desired orbit specified in Annex I hereof, provided that such failure is caused by the Launch Vehicle during the Launch Vehicle Flight; or

(c) the failure of the Payload such that the Payload's

operational capacity or nominal lifetime is degraded to less than half of its operational capacity or nominal lifetime described in Annex I hereof, provided that such failure is caused by the Launch Vehicle during the Launch Vehicle Flight.

Launch Vehicle Flight" means the period starting at Launch and ending at the last moment of physical contact between the Payload and the Launch Vehicle.

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