Artikel 1
For purposes of this Agreement the following definitions shall apply:
BWBV0006073
20 artikelen
Verdrag tussen de regering van het Koninkrijk der Nederlanden en de regering van de Verenigde Staten van Amerika inzake wetenschappelijke en technologische samenwerking betreffende nationale en civiele veiligheid
Artikel 2
The Agreement shall establish a framework to develop and facilitate bilateral Cooperative Activity in the field of science and technology that contributes to innovation of and to the homeland/civil security capabilities of both Parties in:
a) cyber security;
b) chemical biological and nuclear/radiological security;
c) explosives;
d) innovative transportation screening technology;
e) objective ranking and similarity judgement for the protection of critical infrastructure;
f) crisis response, consequence management, and mitigation for high-consequence events; and
g) other terrorism- and homeland security-related activities determined by the Parties.
This will also contribute to the development of educational opportunities and scientific and technological capabilities of both Parties in these areas.
Particular attention is given to the development of solutions to increase people’s security without limiting their freedom and/or any of their other fundamental rights.
a) cyber security;
b) chemical biological and nuclear/radiological security;
c) explosives;
d) innovative transportation screening technology;
e) objective ranking and similarity judgement for the protection of critical infrastructure;
f) crisis response, consequence management, and mitigation for high-consequence events; and
g) other terrorism- and homeland security-related activities determined by the Parties.
This will also contribute to the development of educational opportunities and scientific and technological capabilities of both Parties in these areas.
Particular attention is given to the development of solutions to increase people’s security without limiting their freedom and/or any of their other fundamental rights.
Artikel 3
1. The Parties shall seek to achieve the objectives set out in Article 2 (Objective) by means which may include, but are not limited to:
a) facilitating an exchange of technologies, personnel, and information, both public and controlled;
b) promoting coordinated and joint research and development Projects;
c) collaborating to develop technologies and prototype systems that assist in countering present and anticipated terrorist actions in their respective territories, and other homeland/civil threats such as natural disasters and major accidents;
d) promoting the integration of homeland/civil security technologies of each Party to save development costs;
e) conducting evaluation and testing of prototype homeland/civil security technologies;
f) developing an approach to identify common priorities and capability gaps, including areas of research for Cooperative Activity;
g) promoting measures of effectiveness by development of appropriate standards and test protocols and methodologies;
h) promoting the involvement of relevant public and private sector organizations involved in research and development;
i) facilitating opportunities to engage in Cooperative Activity, with shared responsibilities and contributions, which are commensurate with the Parties’ or the Participants’ respective resources;
j) facilitating visits of researchers and experts in order to exchange information and Equipment and Material;
k) facilitating exchange of information and Equipment and Material, related to Cooperative Activity, consistent with applicable laws, regulations, policies, and directives; and/or
l) utilizing and applying Project Foreground Information derived from Cooperative Activity to benefit both Parties and the Participants. The right to ownership and exploitation of Project Foreground Information are to be governed by the Articles of this Agreement and established in the Technology Management Plan of the applicable Project Arrangement, taking into account, among other things, the Parties’ or Participants’ respective contributions to the Project.
2. The Parties may select or facilitate whatever available mechanisms are appropriate to accomplish the Cooperative Activities. Such mechanisms include but are not limited to grants, Project Arrangements, or other Contracts with public or private entities such as governmental organizations of the federal, state or local level, businesses (including small businesses and socially and economically disadvantaged small businesses), government-funded research and development centers and organizations, and universities.
3. Nothing in paragraph 1 or 2 of this Article shall preclude the Parties from facilitating other forms of Cooperative Activity or means of achieving the objectives of such Cooperative Activity that they may agree upon, nor shall Cooperative Activity pursuant to this Agreement be interpreted in such a manner as to interfere with any other arrangements between the relevant actors of the Parties.
a) facilitating an exchange of technologies, personnel, and information, both public and controlled;
b) promoting coordinated and joint research and development Projects;
c) collaborating to develop technologies and prototype systems that assist in countering present and anticipated terrorist actions in their respective territories, and other homeland/civil threats such as natural disasters and major accidents;
d) promoting the integration of homeland/civil security technologies of each Party to save development costs;
e) conducting evaluation and testing of prototype homeland/civil security technologies;
f) developing an approach to identify common priorities and capability gaps, including areas of research for Cooperative Activity;
g) promoting measures of effectiveness by development of appropriate standards and test protocols and methodologies;
h) promoting the involvement of relevant public and private sector organizations involved in research and development;
i) facilitating opportunities to engage in Cooperative Activity, with shared responsibilities and contributions, which are commensurate with the Parties’ or the Participants’ respective resources;
j) facilitating visits of researchers and experts in order to exchange information and Equipment and Material;
k) facilitating exchange of information and Equipment and Material, related to Cooperative Activity, consistent with applicable laws, regulations, policies, and directives; and/or
l) utilizing and applying Project Foreground Information derived from Cooperative Activity to benefit both Parties and the Participants. The right to ownership and exploitation of Project Foreground Information are to be governed by the Articles of this Agreement and established in the Technology Management Plan of the applicable Project Arrangement, taking into account, among other things, the Parties’ or Participants’ respective contributions to the Project.
2. The Parties may select or facilitate whatever available mechanisms are appropriate to accomplish the Cooperative Activities. Such mechanisms include but are not limited to grants, Project Arrangements, or other Contracts with public or private entities such as governmental organizations of the federal, state or local level, businesses (including small businesses and socially and economically disadvantaged small businesses), government-funded research and development centers and organizations, and universities.
3. Nothing in paragraph 1 or 2 of this Article shall preclude the Parties from facilitating other forms of Cooperative Activity or means of achieving the objectives of such Cooperative Activity that they may agree upon, nor shall Cooperative Activity pursuant to this Agreement be interpreted in such a manner as to interfere with any other arrangements between the relevant actors of the Parties.
Artikel 4
1. The Under Secretary of Science and Technology of the United States Department of Homeland Security is the primary official within the Government of the United States of America with responsibility for executive oversight of Cooperative Activity, as defined in this Agreement, within the United States and is hereby designated as the “U.S. Executive Agent” responsible for the administration of this Agreement. The duties of the U.S. Executive Agent may be delegated to other officials within the Department of Homeland Security.
2. The Minister of Security & Justice of the Netherlands is the primary official within the Netherlands with responsibility for executive oversight of Cooperative Activity within the Netherlands and is hereby designated as the “Netherlands Executive Agent” responsible for the administration of this Agreement. The duties of the Netherlands Executive Agent may be delegated to other officials of the Ministry of Security & Justice.
3. Where, because of changes in the administrative arrangements for either Party, responsibility for the oversight of this Agreement is no longer held by those currently designated as “U.S. Executive Agent” or “Netherlands Executive Agent”, the relevant Party shall provide the other Party in writing with the details of its new Executive Agent without requiring amendment to this Agreement.
2. The Minister of Security & Justice of the Netherlands is the primary official within the Netherlands with responsibility for executive oversight of Cooperative Activity within the Netherlands and is hereby designated as the “Netherlands Executive Agent” responsible for the administration of this Agreement. The duties of the Netherlands Executive Agent may be delegated to other officials of the Ministry of Security & Justice.
3. Where, because of changes in the administrative arrangements for either Party, responsibility for the oversight of this Agreement is no longer held by those currently designated as “U.S. Executive Agent” or “Netherlands Executive Agent”, the relevant Party shall provide the other Party in writing with the details of its new Executive Agent without requiring amendment to this Agreement.
Artikel 5
1. The Executive Agents shall appoint an Agreement Manager who shall coordinate the day-to-day management of this Agreement and its Cooperative Activity. In addition, the Agreement Managers shall:
a) promote Cooperative Activity under this Agreement;
b) exercise oversight for activities carried out under this Agreement;
c) serving as a repository for any and all documentation which is generated pursuant to this Agreement including Project Arrangements and any annexes thereto;
d) monitor the overall use and effectiveness of this Agreement;
e) coordinate amendments to this Agreement to the Parties;
f) assist in resolving issues arising under this Agreement;
g) authorize involvement by Participants in Cooperative Activity pursuant to this Agreement;
h) maintain the applicable security laws and regulations and the agreed upon guidelines, including but not limited to procedures related to exchange, storage, and transmission of Classified Information and Controlled Unclassified Information, and equivalent security markings to be applied to exchanged information in accordance with Article 11.
2. The Agreement Managers shall review the overall implementation of the Agreement at such time as they consider appropriate.
a) promote Cooperative Activity under this Agreement;
b) exercise oversight for activities carried out under this Agreement;
c) serving as a repository for any and all documentation which is generated pursuant to this Agreement including Project Arrangements and any annexes thereto;
d) monitor the overall use and effectiveness of this Agreement;
e) coordinate amendments to this Agreement to the Parties;
f) assist in resolving issues arising under this Agreement;
g) authorize involvement by Participants in Cooperative Activity pursuant to this Agreement;
h) maintain the applicable security laws and regulations and the agreed upon guidelines, including but not limited to procedures related to exchange, storage, and transmission of Classified Information and Controlled Unclassified Information, and equivalent security markings to be applied to exchanged information in accordance with Article 11.
2. The Agreement Managers shall review the overall implementation of the Agreement at such time as they consider appropriate.
Artikel 6
1. Prior to undertaking a Project or other Cooperative Activity of comparable importance under this Agreement, the Parties shall mutually decide in writing upon the nature, scope, and duration of the Cooperative Activity.
2. Cooperative Activities under this Agreement may include those described in Annex II to this Agreement.
3. The Parties shall ensure that Projects and other Cooperative Activities of comparable importance are supported by Contracts where necessary or appropriate.
2. Cooperative Activities under this Agreement may include those described in Annex II to this Agreement.
3. The Parties shall ensure that Projects and other Cooperative Activities of comparable importance are supported by Contracts where necessary or appropriate.
Artikel 7
1. Cooperative Activity under this Agreement shall normally be implemented in the form of Projects to be conducted pursuant to Project Arrangements as concluded by the Parties and their Participants, where appropriate, at the commencement of each Project.
2. Project Arrangements shall ordinarily contain the following terms and conditions for each Project:
a) its objective;
b) its scope;
c) its duration;
d) deliverables or anticipated outcomes;
e) the manner in which it will be funded;
f) specific details of any transfer of Equipment and Material and the identity of personnel and/or organizations, if any, to be committed to the Project;
g) description of Project Background Information to be used in the Project, including Business Confidential Information;
h) whether the use of Classified Information or Controlled Unclassified Information will be required, and the procedures for handling such materials;
i) any safety measures to be followed, including, where appropriate, specific procedures for dealing with hazardous or dangerous material;
j) any specific provisions for terminating Participant involvement;
k) the dispute resolution process;
l) any applicable cost sharing provisions;
m) any applicable cost ceiling;
n) currency variation terms;
o) any necessary technical annexes;
p) a Technology Management Plan;
q) provisions addressing the national law which shall apply to Contracts made in relation to the Project Arrangement; and
r) any other consistent terms and conditions necessary to ensure the required development of the Project.
3. The terms and conditions of this Agreement shall be incorporated in the Project Arrangements. In the case of any inconsistency, the terms and conditions of this Agreement shall prevail.
2. Project Arrangements shall ordinarily contain the following terms and conditions for each Project:
a) its objective;
b) its scope;
c) its duration;
d) deliverables or anticipated outcomes;
e) the manner in which it will be funded;
f) specific details of any transfer of Equipment and Material and the identity of personnel and/or organizations, if any, to be committed to the Project;
g) description of Project Background Information to be used in the Project, including Business Confidential Information;
h) whether the use of Classified Information or Controlled Unclassified Information will be required, and the procedures for handling such materials;
i) any safety measures to be followed, including, where appropriate, specific procedures for dealing with hazardous or dangerous material;
j) any specific provisions for terminating Participant involvement;
k) the dispute resolution process;
l) any applicable cost sharing provisions;
m) any applicable cost ceiling;
n) currency variation terms;
o) any necessary technical annexes;
p) a Technology Management Plan;
q) provisions addressing the national law which shall apply to Contracts made in relation to the Project Arrangement; and
r) any other consistent terms and conditions necessary to ensure the required development of the Project.
3. The terms and conditions of this Agreement shall be incorporated in the Project Arrangements. In the case of any inconsistency, the terms and conditions of this Agreement shall prevail.
Artikel 8
1. Subject to the provisions of this Article, a Party normally involves Participants to carry out Cooperative Activity.
2. The involvement of any Participant in the implementation of any Project or other Cooperative Activity of comparable importance shall require the prior review and written approval of both Parties.
3. Before involving a Participant in a Project, a Party must enter into a legal relationship, which includes a Non-Disclosure Agreement, with that Participant unless an equivalent legal obligation already exists.
4. The Party involving a Participant shall ensure that this Participant agrees to report to that Party’s Agreement Manager.
5. The Parties’ Agreement Managers shall jointly determine the frequency and scope of the reporting requirement referred to in paragraph 4 of this Article.
6. In the event that a question arises with respect to a Participant and/or its activities under this Agreement, the Agreement Managers shall consult to consider the Participant’s role in Cooperative Activity. If either Party objects to a Participant’s continued participation and requests its termination, the Party that involved that Participant shall give the request due consideration, including as to the consequences of terminating the Participant’s participation.
7. Nothing in this Agreement or any Project Arrangement precludes a Party who has involved a Participant from suspending that Participant’s activities or replacing the Participant in one or more Projects.
2. The involvement of any Participant in the implementation of any Project or other Cooperative Activity of comparable importance shall require the prior review and written approval of both Parties.
3. Before involving a Participant in a Project, a Party must enter into a legal relationship, which includes a Non-Disclosure Agreement, with that Participant unless an equivalent legal obligation already exists.
4. The Party involving a Participant shall ensure that this Participant agrees to report to that Party’s Agreement Manager.
5. The Parties’ Agreement Managers shall jointly determine the frequency and scope of the reporting requirement referred to in paragraph 4 of this Article.
6. In the event that a question arises with respect to a Participant and/or its activities under this Agreement, the Agreement Managers shall consult to consider the Participant’s role in Cooperative Activity. If either Party objects to a Participant’s continued participation and requests its termination, the Party that involved that Participant shall give the request due consideration, including as to the consequences of terminating the Participant’s participation.
7. Nothing in this Agreement or any Project Arrangement precludes a Party who has involved a Participant from suspending that Participant’s activities or replacing the Participant in one or more Projects.
Artikel 9
1. Project Arrangements will be supported by Contracts where necessary or appropriate. The Contracts may be formed between the Parties and their Participants, or the Contracts may be formed amongst the Participants, where appropriate.
2. Contracts made pursuant to Project Arrangements shall include terms and conditions equivalent to the provisions of this Agreement, the relevant Project Arrangements, and their associated Technology Management Plans in order to facilitate the use and disclosure of Project Foreground Information as specified in Article 12 and to obtain the rights contained in Article 13 unless the other Party agrees in writing that they are unnecessary in a particular case. Each Party shall insert into its Contracts, and require its contractors and subcontractors to insert in subcontracts, suitable provisions to satisfy the requirements of Articles 10 (Finance),11 (Information Security), 12 (Intellectual Property Management and Use of Information), 13 (Publication of Research Results), 16 (Third Party Sales and Transfers), and Annex I.
2. Contracts made pursuant to Project Arrangements shall include terms and conditions equivalent to the provisions of this Agreement, the relevant Project Arrangements, and their associated Technology Management Plans in order to facilitate the use and disclosure of Project Foreground Information as specified in Article 12 and to obtain the rights contained in Article 13 unless the other Party agrees in writing that they are unnecessary in a particular case. Each Party shall insert into its Contracts, and require its contractors and subcontractors to insert in subcontracts, suitable provisions to satisfy the requirements of Articles 10 (Finance),11 (Information Security), 12 (Intellectual Property Management and Use of Information), 13 (Publication of Research Results), 16 (Third Party Sales and Transfers), and Annex I.
Artikel 10
1. Subject to the availability of funds and to the provisions of this Article, each Party shall bear its own costs of discharging its responsibilities under this Agreement and for associated Projects.
2. Except as provided in paragraph 1 of this Article, this Agreement creates no standing financial commitments.
3. The Parties or, where appropriate, the Participants, may agree to share costs for Cooperative Activity. Detailed descriptions of the financial provisions for Cooperative Activity, including the total cost of the activity and each Party’s or Participant’s cost share, shall be agreed in accordance with paragraph 4 of this Article.
4. The Project Arrangement shall specify in advance the equitable share of the total costs, including, where appropriate, overhead costs and administrative costs, a cost ceiling, and the apportionment of potential liability to be borne by each Party or Participant in the Project. In determining the equitable share of total costs, the Parties or Participants may take into account:
a) funds provided for work under this Agreement (“financial contributions”);
b) material, personnel, use of Equipment and Material and facilities provided for the performance of work under this Agreement (“non-financial contributions”) to directly support Project efforts. Prior work can constitute a non-financial contribution; and
c) the ownership of Project Background Information utilized in the Project.
5. The following costs shall be borne entirely by the Party or Participant incurring the costs and are not included in the cost target, cost ceiling, or overall costs:
a) costs associated with any unique national requirements and/or
b) any costs not expressly stated as shared costs or any costs that are outside the scope of this Agreement.
6. A Party or Participant shall promptly notify the other Party or Participant if available funds are not adequate to undertake activities arising as a result of this Agreement. If a Party or Participant notifies the other that it is terminating or reducing its funding for a Project, both Parties or the Participants shall immediately consult with a view toward continuation on a changed or reduced basis. If the discussion that leads to a decision that is not acceptable to both Parties or the Participants, the respective rights and responsibilities of the Parties and Participants under Articles 11 (Information Security), 12 (Intellectual Property Management and Use of Information), 13 (Publication of Research Results), 16 (Third Party Sales and Transfers), and Annex I shall continue notwithstanding the termination or expiration of the Project.
7. Each Party shall be responsible for any audit of its activities in support of Cooperative Activity, including the activities of any of its Participants. Each Party’s audits shall be in accordance with its own national practices. Where funds are transferred from one Party to the other Party, the receiving Party shall be responsible for the internal audit regarding administration of the sending Party’s funds in accordance with national practices. Audit reports of such funds shall be promptly made available by the receiving Party to the other.
2. Except as provided in paragraph 1 of this Article, this Agreement creates no standing financial commitments.
3. The Parties or, where appropriate, the Participants, may agree to share costs for Cooperative Activity. Detailed descriptions of the financial provisions for Cooperative Activity, including the total cost of the activity and each Party’s or Participant’s cost share, shall be agreed in accordance with paragraph 4 of this Article.
4. The Project Arrangement shall specify in advance the equitable share of the total costs, including, where appropriate, overhead costs and administrative costs, a cost ceiling, and the apportionment of potential liability to be borne by each Party or Participant in the Project. In determining the equitable share of total costs, the Parties or Participants may take into account:
a) funds provided for work under this Agreement (“financial contributions”);
b) material, personnel, use of Equipment and Material and facilities provided for the performance of work under this Agreement (“non-financial contributions”) to directly support Project efforts. Prior work can constitute a non-financial contribution; and
c) the ownership of Project Background Information utilized in the Project.
5. The following costs shall be borne entirely by the Party or Participant incurring the costs and are not included in the cost target, cost ceiling, or overall costs:
a) costs associated with any unique national requirements and/or
b) any costs not expressly stated as shared costs or any costs that are outside the scope of this Agreement.
6. A Party or Participant shall promptly notify the other Party or Participant if available funds are not adequate to undertake activities arising as a result of this Agreement. If a Party or Participant notifies the other that it is terminating or reducing its funding for a Project, both Parties or the Participants shall immediately consult with a view toward continuation on a changed or reduced basis. If the discussion that leads to a decision that is not acceptable to both Parties or the Participants, the respective rights and responsibilities of the Parties and Participants under Articles 11 (Information Security), 12 (Intellectual Property Management and Use of Information), 13 (Publication of Research Results), 16 (Third Party Sales and Transfers), and Annex I shall continue notwithstanding the termination or expiration of the Project.
7. Each Party shall be responsible for any audit of its activities in support of Cooperative Activity, including the activities of any of its Participants. Each Party’s audits shall be in accordance with its own national practices. Where funds are transferred from one Party to the other Party, the receiving Party shall be responsible for the internal audit regarding administration of the sending Party’s funds in accordance with national practices. Audit reports of such funds shall be promptly made available by the receiving Party to the other.
Artikel 11
1. All exchanges of information and Equipment and Material, including Classified Information or Controlled Unclassified Information, between the Parties and between Parties and Participants, shall be carried out in accordance with the applicable laws and regulations of the Parties, including those relating to the unauthorized transfer or re-transfer of such information and Equipment and Material. All Classified Information and Controlled Unclassified Information provided or generated pursuant to this Agreement and any of its Project Arrangements shall be stored, handled, transmitted, and safeguarded in accordance with this Agreement.
The transfer of technical data for the purpose of discharging the Parties’ obligations with regard to interface, integration, and safety shall normally be made without restriction, except as required by national laws and regulations relating to export control or the control of classified data. If design, manufacturing, and processing data, and associated software, which is business confidential but not export controlled, is necessary for interface, integration, or safety purposes, the transfer shall be made and the data and associated software shall be appropriately marked.
All information, Equipment and Material subject to export controls shall not be transferred pursuant to this Agreement unless such transfers are compliant with the originating Party’s export control laws, regulations, and policies.
2. Classified Information:
a) All Classified Information provided or generated pursuant to this Agreement and any of its Project Arrangements shall be stored, handled, transmitted, and safeguarded in accordance with applicable laws, regulations and appropriate agreements between the Parties. The Parties shall agree on any implementing security arrangements that are deemed necessary for handling. Prior to the sharing of Classified Information, the providing Party will ensure that the information is properly marked and the receiving Party is aware of the pending transfer.
b) The Parties shall each appoint a Designated Security Authority to establish implementing security arrangements and procedures consistent with this Agreement.
c) Each Party shall ensure that access to Classified Information is limited to those persons who possess requisite security clearances and have a specific Need-to-Know in order to participate in Cooperative Activity established pursuant to this Agreement.
d) Each Party shall ensure that it incorporates the provisions of this Article into Project Arrangements. In addition, if either Party deems it necessary, Project Arrangements shall include: (i) detailed provisions dealing with the prevention of unauthorized transfer or re-transfer of information and Equipment and Material; and/or
(ii) detailed distribution and access restrictions on information and Equipment and Material.
(i) detailed provisions dealing with the prevention of unauthorized transfer or re-transfer of information and Equipment and Material; and/or
(ii) detailed distribution and access restrictions on information and Equipment and Material.
e) Each Party shall take all steps subject to applicable laws and regulations to ensure that Classified Information provided or generated pursuant to this Agreement is protected from further disclosure, unless the other Party consents to such disclosure.
f) Classified Information shall be transferred only through official government-to-government channels or through channels approved by both Parties. Such Classified Information shall be given the equivalent level of classification in the country of receipt as it was given in the country of origin and shall be marked with a legend containing the country of origin, the conditions of release, and the fact that the information relates to this Agreement.
g) The Parties shall investigate all cases in which it is known or where there are reasonable grounds for suspecting that Classified Information provided or generated pursuant to this Agreement has been lost or disclosed to unauthorized persons. Each Party shall promptly and fully inform the other of the details of any such occurrences, and of the final results of the investigation and of the corrective action taken to preclude recurrences.
h) Unless both Parties agree in writing that it is unnecessary in a particular case, Contractors, prospective Contractors, subcontractors, or private sector Participants that are determined by either Party to be under financial, administrative, policy or management control of nationals or entities of any country which is not a Party to this Agreement may only participate in a Contract or subcontract requiring access to Classified Information that has been classified on grounds of national security if enforceable measures are in effect to ensure that the nationals or entities of that country do not have access to such Classified Information.
i) Information or Equipment and material provided or generated pursuant to this Agreement may not be classified any higher than TOP SECRET.
3. Controlled Unclassified Information: The nature and amount of the Controlled Unclassified Information to be acquired and disseminated pursuant to this Agreement shall be consistent with the objectives of this Agreement and the following guidelines and procedures:
a) Controlled Unclassified Information shall be used by the Receiving Party only for the purposes directly related to Cooperative Activity conducted pursuant to this Agreement;
b) access to Controlled Unclassified Information shall be limited to those personnel of the Receiving Party whose access is necessary for the permitted use under this Agreement;
c) all steps subject to applicable laws and regulations shall be taken to keep Controlled Unclassified Information free from unauthorized disclosure;
d) Controlled Unclassified Information provided under this Agreement is to be marked by the Party providing it with a legend containing the country of origin, the conditions of release, the fact that it relates to this Agreement and a statement to the effect that access to the information is controlled;
e) Controlled Unclassified Information provided or generated pursuant to this Agreement shall be stored, handled, and transmitted in a manner that ensures proper control. Prior to authorizing the release of Controlled Unclassified Information to any Participant, the authorizing Party shall ensure the Participant is legally required to control such information in accordance with the provisions of this Article;
f) Controlled Unclassified Information will not be used in any legal, judicial or administrative proceeding or process, or for any other process, that can result in public disclosure, nor will such information be provided to foreign governments or international organizations.
4. Business Confidential Information:
a) Each Party shall safeguard and protect identified Business Confidential Information that is furnished or is created pursuant to this Agreement in accordance with Annex I to this Agreement. The receiving Party shall maintain security over such items, and they shall not be retransferred without the authority of the government that provided such items.
b) The Parties shall ensure that any Participants are legally required to control and safeguard Business Confidential Information in accordance with this Agreement.
5. Privacy: Personal data will only be exchanged if the Parties decide to do so in support of a Project Arrangement pursuant to this Agreement.
The transfer of technical data for the purpose of discharging the Parties’ obligations with regard to interface, integration, and safety shall normally be made without restriction, except as required by national laws and regulations relating to export control or the control of classified data. If design, manufacturing, and processing data, and associated software, which is business confidential but not export controlled, is necessary for interface, integration, or safety purposes, the transfer shall be made and the data and associated software shall be appropriately marked.
All information, Equipment and Material subject to export controls shall not be transferred pursuant to this Agreement unless such transfers are compliant with the originating Party’s export control laws, regulations, and policies.
2. Classified Information:
a) All Classified Information provided or generated pursuant to this Agreement and any of its Project Arrangements shall be stored, handled, transmitted, and safeguarded in accordance with applicable laws, regulations and appropriate agreements between the Parties. The Parties shall agree on any implementing security arrangements that are deemed necessary for handling. Prior to the sharing of Classified Information, the providing Party will ensure that the information is properly marked and the receiving Party is aware of the pending transfer.
b) The Parties shall each appoint a Designated Security Authority to establish implementing security arrangements and procedures consistent with this Agreement.
c) Each Party shall ensure that access to Classified Information is limited to those persons who possess requisite security clearances and have a specific Need-to-Know in order to participate in Cooperative Activity established pursuant to this Agreement.
d) Each Party shall ensure that it incorporates the provisions of this Article into Project Arrangements. In addition, if either Party deems it necessary, Project Arrangements shall include: (i) detailed provisions dealing with the prevention of unauthorized transfer or re-transfer of information and Equipment and Material; and/or
(ii) detailed distribution and access restrictions on information and Equipment and Material.
(i) detailed provisions dealing with the prevention of unauthorized transfer or re-transfer of information and Equipment and Material; and/or
(ii) detailed distribution and access restrictions on information and Equipment and Material.
e) Each Party shall take all steps subject to applicable laws and regulations to ensure that Classified Information provided or generated pursuant to this Agreement is protected from further disclosure, unless the other Party consents to such disclosure.
f) Classified Information shall be transferred only through official government-to-government channels or through channels approved by both Parties. Such Classified Information shall be given the equivalent level of classification in the country of receipt as it was given in the country of origin and shall be marked with a legend containing the country of origin, the conditions of release, and the fact that the information relates to this Agreement.
g) The Parties shall investigate all cases in which it is known or where there are reasonable grounds for suspecting that Classified Information provided or generated pursuant to this Agreement has been lost or disclosed to unauthorized persons. Each Party shall promptly and fully inform the other of the details of any such occurrences, and of the final results of the investigation and of the corrective action taken to preclude recurrences.
h) Unless both Parties agree in writing that it is unnecessary in a particular case, Contractors, prospective Contractors, subcontractors, or private sector Participants that are determined by either Party to be under financial, administrative, policy or management control of nationals or entities of any country which is not a Party to this Agreement may only participate in a Contract or subcontract requiring access to Classified Information that has been classified on grounds of national security if enforceable measures are in effect to ensure that the nationals or entities of that country do not have access to such Classified Information.
i) Information or Equipment and material provided or generated pursuant to this Agreement may not be classified any higher than TOP SECRET.
3. Controlled Unclassified Information: The nature and amount of the Controlled Unclassified Information to be acquired and disseminated pursuant to this Agreement shall be consistent with the objectives of this Agreement and the following guidelines and procedures:
a) Controlled Unclassified Information shall be used by the Receiving Party only for the purposes directly related to Cooperative Activity conducted pursuant to this Agreement;
b) access to Controlled Unclassified Information shall be limited to those personnel of the Receiving Party whose access is necessary for the permitted use under this Agreement;
c) all steps subject to applicable laws and regulations shall be taken to keep Controlled Unclassified Information free from unauthorized disclosure;
d) Controlled Unclassified Information provided under this Agreement is to be marked by the Party providing it with a legend containing the country of origin, the conditions of release, the fact that it relates to this Agreement and a statement to the effect that access to the information is controlled;
e) Controlled Unclassified Information provided or generated pursuant to this Agreement shall be stored, handled, and transmitted in a manner that ensures proper control. Prior to authorizing the release of Controlled Unclassified Information to any Participant, the authorizing Party shall ensure the Participant is legally required to control such information in accordance with the provisions of this Article;
f) Controlled Unclassified Information will not be used in any legal, judicial or administrative proceeding or process, or for any other process, that can result in public disclosure, nor will such information be provided to foreign governments or international organizations.
4. Business Confidential Information:
a) Each Party shall safeguard and protect identified Business Confidential Information that is furnished or is created pursuant to this Agreement in accordance with Annex I to this Agreement. The receiving Party shall maintain security over such items, and they shall not be retransferred without the authority of the government that provided such items.
b) The Parties shall ensure that any Participants are legally required to control and safeguard Business Confidential Information in accordance with this Agreement.
5. Privacy: Personal data will only be exchanged if the Parties decide to do so in support of a Project Arrangement pursuant to this Agreement.
Artikel 12
1. General: Both Parties recognize that successful collaboration depends on full and prompt exchange of information necessary for carrying out Projects. The nature and amount of Project Background Information to be acquired and disclosed shall be consistent with this Agreement and the terms of the Technology Management Plans contained in the individual Project Arrangements, whereby the Parties intend to make available sufficient Project Background Information and/or rights to use such information to enable the development of technologies, prototype equipment, and other activities included in a Project.
2. Exploitation: Issues related to the management of Project Background Information and Project Foreground Information, including the allocation of any benefits (including royalties) derived from the creation and exploitation of Intellectual Property in Project Foreground Information in respect to Projects under this Agreement shall be governed by the Articles of this Agreement, including the provisions of Annex I, and any Technology Management Plans (TMP) associated with a Project.
3. Project Background Information furnished by the Parties:
a) Disclosure: Unless provided otherwise, each Party shall disclose to the other Party Project Background Information in its possession or control related to each Project, provided that: (i) the Project Background Information is necessary to or useful in the implementation of a proposed or existing Project established pursuant to this Agreement. The Party in possession or control of the information shall determine whether it is “necessary to“ or “useful in“ establishing new Projects or implementing existing ones;
(ii) the Project Background Information shall be made available without affecting the rights of holders of Intellectual Property or Business Confidential Information; and
(iii) disclosure is consistent with national disclosure policies, laws, and regulations applicable to the furnishing Party.
(i) the Project Background Information is necessary to or useful in the implementation of a proposed or existing Project established pursuant to this Agreement. The Party in possession or control of the information shall determine whether it is “necessary to“ or “useful in“ establishing new Projects or implementing existing ones;
(ii) the Project Background Information shall be made available without affecting the rights of holders of Intellectual Property or Business Confidential Information; and
(iii) disclosure is consistent with national disclosure policies, laws, and regulations applicable to the furnishing Party.
b) Use: Unless provided otherwise, Project Background Information furnished by the Parties disclosed by one Party to the other may be used without charge by the other Party for Project purposes only; and the furnishing Party shall retain all its rights with respect to such Project Background Information. Where the use of Project Background Information furnished by the Parties is necessary to enable the use of Project Foreground Information, such Project Background Information furnished by the Parties may be used by the receiving Party for homeland/civil security purposes, upon written agreement of the Parties and in accordance with applicable laws.
4. Participant-Furnished Project Background Information:
a) Disclosure: Unless provided otherwise, Project Background Information furnished by a Participant involved by one Party shall be made available to the other Party and/or Participant provided the following conditions are met: (i) the Project Background Information is necessary to or useful to the Project. The Party and/or Participant in possession or having control of the information shall determine whether it is “necessary to” or “useful in” a Project;
(ii) the Project Background Information can be made available without affecting the rights of holders of Business Confidential Information or Intellectual Property; and
(iii) disclosure is consistent with national disclosure policies, laws, and regulations applicable to the furnishing Participant.
(i) the Project Background Information is necessary to or useful to the Project. The Party and/or Participant in possession or having control of the information shall determine whether it is “necessary to” or “useful in” a Project;
(ii) the Project Background Information can be made available without affecting the rights of holders of Business Confidential Information or Intellectual Property; and
(iii) disclosure is consistent with national disclosure policies, laws, and regulations applicable to the furnishing Participant.
b) Use: Project Background Information furnished by Participants may be subject to restrictions by holders of Intellectual Property. In the event that it is not subject to restrictions preventing its use, it may only be used for Project purposes. If a Party wants to use Participant-Furnished Project Background Information for purposes other than Project purposes, (which other purposes shall include, without limitation, sales and licenses to Third Parties), then the requesting Party and/or Participant must obtain any required permissions from the owner or owners of the rights to that information.
5. Project Foreground Information:
Project Foreground Information may be protected and commercialized where appropriate, in which case benefits derived from the utilization and application of such information shall be distributed as determined in the Technology Management Plan of the applicable Project Arrangement taking into account the relative contributions of the Parties and/or Participants to the Project, the cost of commercialization, and the degree of commitment of the Parties and/or Participants to obtaining legal protection of Intellectual Property.
Wherever appropriate, the Parties will negotiate with the Participants to obtain rights to use and disclose Project Foreground Information.
Each of the Parties and/or Participants may own its Intellectual Property in Project Foreground Information in its own jurisdiction and in the jurisdiction of the other Party and/or Participant and may derive benefits from its exploitation and commercialization in those jurisdictions, with a mechanism for their establishment in the Technology Management Plan of the applicable Project Arrangement.
2. Exploitation: Issues related to the management of Project Background Information and Project Foreground Information, including the allocation of any benefits (including royalties) derived from the creation and exploitation of Intellectual Property in Project Foreground Information in respect to Projects under this Agreement shall be governed by the Articles of this Agreement, including the provisions of Annex I, and any Technology Management Plans (TMP) associated with a Project.
3. Project Background Information furnished by the Parties:
a) Disclosure: Unless provided otherwise, each Party shall disclose to the other Party Project Background Information in its possession or control related to each Project, provided that: (i) the Project Background Information is necessary to or useful in the implementation of a proposed or existing Project established pursuant to this Agreement. The Party in possession or control of the information shall determine whether it is “necessary to“ or “useful in“ establishing new Projects or implementing existing ones;
(ii) the Project Background Information shall be made available without affecting the rights of holders of Intellectual Property or Business Confidential Information; and
(iii) disclosure is consistent with national disclosure policies, laws, and regulations applicable to the furnishing Party.
(i) the Project Background Information is necessary to or useful in the implementation of a proposed or existing Project established pursuant to this Agreement. The Party in possession or control of the information shall determine whether it is “necessary to“ or “useful in“ establishing new Projects or implementing existing ones;
(ii) the Project Background Information shall be made available without affecting the rights of holders of Intellectual Property or Business Confidential Information; and
(iii) disclosure is consistent with national disclosure policies, laws, and regulations applicable to the furnishing Party.
b) Use: Unless provided otherwise, Project Background Information furnished by the Parties disclosed by one Party to the other may be used without charge by the other Party for Project purposes only; and the furnishing Party shall retain all its rights with respect to such Project Background Information. Where the use of Project Background Information furnished by the Parties is necessary to enable the use of Project Foreground Information, such Project Background Information furnished by the Parties may be used by the receiving Party for homeland/civil security purposes, upon written agreement of the Parties and in accordance with applicable laws.
4. Participant-Furnished Project Background Information:
a) Disclosure: Unless provided otherwise, Project Background Information furnished by a Participant involved by one Party shall be made available to the other Party and/or Participant provided the following conditions are met: (i) the Project Background Information is necessary to or useful to the Project. The Party and/or Participant in possession or having control of the information shall determine whether it is “necessary to” or “useful in” a Project;
(ii) the Project Background Information can be made available without affecting the rights of holders of Business Confidential Information or Intellectual Property; and
(iii) disclosure is consistent with national disclosure policies, laws, and regulations applicable to the furnishing Participant.
(i) the Project Background Information is necessary to or useful to the Project. The Party and/or Participant in possession or having control of the information shall determine whether it is “necessary to” or “useful in” a Project;
(ii) the Project Background Information can be made available without affecting the rights of holders of Business Confidential Information or Intellectual Property; and
(iii) disclosure is consistent with national disclosure policies, laws, and regulations applicable to the furnishing Participant.
b) Use: Project Background Information furnished by Participants may be subject to restrictions by holders of Intellectual Property. In the event that it is not subject to restrictions preventing its use, it may only be used for Project purposes. If a Party wants to use Participant-Furnished Project Background Information for purposes other than Project purposes, (which other purposes shall include, without limitation, sales and licenses to Third Parties), then the requesting Party and/or Participant must obtain any required permissions from the owner or owners of the rights to that information.
5. Project Foreground Information:
Project Foreground Information may be protected and commercialized where appropriate, in which case benefits derived from the utilization and application of such information shall be distributed as determined in the Technology Management Plan of the applicable Project Arrangement taking into account the relative contributions of the Parties and/or Participants to the Project, the cost of commercialization, and the degree of commitment of the Parties and/or Participants to obtaining legal protection of Intellectual Property.
Wherever appropriate, the Parties will negotiate with the Participants to obtain rights to use and disclose Project Foreground Information.
Each of the Parties and/or Participants may own its Intellectual Property in Project Foreground Information in its own jurisdiction and in the jurisdiction of the other Party and/or Participant and may derive benefits from its exploitation and commercialization in those jurisdictions, with a mechanism for their establishment in the Technology Management Plan of the applicable Project Arrangement.
Artikel 13
1. The Parties agree that the provisions of paragraph A of Section III of Annex I to this Agreement shall apply to the publication of any research results created under this Agreement. Publication and information sharing shall be in accordance with the Parties’ applicable laws and regulations including export controls.
2. Publication Review: The Parties agree that publication of the results may be one of the goals of this Agreement to stimulate further research in the public or private sector. In order to protect the rights of the Parties, including to avoid prejudice to the holders of Intellectual Property and Business Confidential Information, each Party shall transmit to the other for its review any material containing such results and intended for publication, or other disclosure, at least sixty (60) working days before such material is submitted to any editor, publisher, referee or meeting organizer, or is otherwise disclosed. In the absence of an objection by the other Party within that sixty-day period the publication or other disclosure may proceed. If either Party raises an objection to the public release of publications arising from this Agreement, public release will not occur unless and until there is agreement between the Parties as to the conditions for public release. It is the responsibility of each Party to coordinate with its Participants to determine whether all potential Intellectual Property or Business Confidential Information interests have been properly considered.
3. Affiliation: The involvement and/or financial support of the Parties for Cooperative Activity shall not be used in any public statement of a promotional nature or used for commercial purposes without the express written permission of both Parties. Such permission shall not be unreasonably withheld.
4. Publicity and Acknowledgements: All publications relating to the results of the Projects established pursuant to this Agreement shall include, as applicable, a notice indicating that the underlying Project received financial support from the Government of the United States of America and/or the Kingdom of the Netherlands. Two copies of such publications shall be sent to the Agreement Managers by the individual or entity that authored the publications.
2. Publication Review: The Parties agree that publication of the results may be one of the goals of this Agreement to stimulate further research in the public or private sector. In order to protect the rights of the Parties, including to avoid prejudice to the holders of Intellectual Property and Business Confidential Information, each Party shall transmit to the other for its review any material containing such results and intended for publication, or other disclosure, at least sixty (60) working days before such material is submitted to any editor, publisher, referee or meeting organizer, or is otherwise disclosed. In the absence of an objection by the other Party within that sixty-day period the publication or other disclosure may proceed. If either Party raises an objection to the public release of publications arising from this Agreement, public release will not occur unless and until there is agreement between the Parties as to the conditions for public release. It is the responsibility of each Party to coordinate with its Participants to determine whether all potential Intellectual Property or Business Confidential Information interests have been properly considered.
3. Affiliation: The involvement and/or financial support of the Parties for Cooperative Activity shall not be used in any public statement of a promotional nature or used for commercial purposes without the express written permission of both Parties. Such permission shall not be unreasonably withheld.
4. Publicity and Acknowledgements: All publications relating to the results of the Projects established pursuant to this Agreement shall include, as applicable, a notice indicating that the underlying Project received financial support from the Government of the United States of America and/or the Kingdom of the Netherlands. Two copies of such publications shall be sent to the Agreement Managers by the individual or entity that authored the publications.
Artikel 14
1. With respect to Cooperative Activity under this Agreement, each Party, in accordance with its applicable laws and regulations including export control laws, and as appropriate, shall facilitate:
a) efficient entry into and exit from its territory of appropriate Equipment and Material, to especially include instrumentation, test equipment and Project Background and Foreground Information;
b) efficient entry into and exit from its territory, and domestic travel and work of, persons participating on behalf of the Parties or Participants in the implementation of this Agreement;
c) efficient access, as appropriate, to relevant geographical areas, information, Equipment and Material and institutions, for persons participating on behalf of the Parties, or Participants, in the implementation of this Agreement; and
d) mutual logistic support.
2. Insofar as applicable laws and regulations permit, each Party shall use their best efforts to ensure that directly applicable duties, taxes, and similar charges, as well as quantitative or other restrictions on imports and exports, are not imposed in connection with Projects carried out under this Agreement.
a) efficient entry into and exit from its territory of appropriate Equipment and Material, to especially include instrumentation, test equipment and Project Background and Foreground Information;
b) efficient entry into and exit from its territory, and domestic travel and work of, persons participating on behalf of the Parties or Participants in the implementation of this Agreement;
c) efficient access, as appropriate, to relevant geographical areas, information, Equipment and Material and institutions, for persons participating on behalf of the Parties, or Participants, in the implementation of this Agreement; and
d) mutual logistic support.
2. Insofar as applicable laws and regulations permit, each Party shall use their best efforts to ensure that directly applicable duties, taxes, and similar charges, as well as quantitative or other restrictions on imports and exports, are not imposed in connection with Projects carried out under this Agreement.
Artikel 15
1. The Parties and Participants shall establish and implement policies and practices to ensure and provide for the safety of their employees, the public, and the environment during the conduct of Projects, subject to applicable laws and regulations. If any Cooperative Activity involves the use of dangerous or hazardous materials, the Parties and Participants shall establish and implement an appropriate safety plan.
2. Without prejudice to any existing arrangements under the Parties’ applicable laws, the Parties and Participants shall take appropriate steps to protect the welfare of any persons participating or involved in Projects. Such steps may include the provision of medical treatment and, where appropriate, financial relief.
2. Without prejudice to any existing arrangements under the Parties’ applicable laws, the Parties and Participants shall take appropriate steps to protect the welfare of any persons participating or involved in Projects. Such steps may include the provision of medical treatment and, where appropriate, financial relief.
Artikel 16
Neither Party shall:
a) sell, transfer title to, disclose, or transfer possession of Project Foreground Information, or equipment incorporating Project Foreground Information, to a Third Party without the prior written consent of the other Party; or
b) permit any such sale, disclosure, or transfer by others, including by the owner of the item, without the prior written consent of the other Party. Such sales and transfers shall be consistent with Article 12.
a) sell, transfer title to, disclose, or transfer possession of Project Foreground Information, or equipment incorporating Project Foreground Information, to a Third Party without the prior written consent of the other Party; or
b) permit any such sale, disclosure, or transfer by others, including by the owner of the item, without the prior written consent of the other Party. Such sales and transfers shall be consistent with Article 12.
Artikel 17
1. Except for disputes concerning Intellectual Property and those procedures set forth in Article 13 (Publication of Research Results), all questions or disputes between the Parties that cannot be resolved by the Agreement Managers arising under or relating to this Agreement shall be submitted to the Executive Agents. Such questions and disputes shall be resolved only by consultation between the Parties.
2. Disputes between the Parties concerning Intellectual Property shall be resolved as provided for in paragraph D of Section II of Annex I.
2. Disputes between the Parties concerning Intellectual Property shall be resolved as provided for in paragraph D of Section II of Annex I.
Artikel 18
Annex I and Annex II, which regulate respectively the Intellectual Property Rights as referred in Article 12 and the Cooperative Activities as referred in Article 6 of this Agreement, form an integral part of this Agreement and, unless expressly stated otherwise, a reference to this Agreement includes a reference to the Annexes.
Artikel 19
1. This Agreement and its Annexes may be amended in writing by mutual consent of the Parties.
2. Any amendments to the Agreement shall enter into force in accordance with the procedure laid down in paragraph 1 of Article 20.
3. Any amendments to the Annexes shall enter into force on a date to be determined by the Parties.
2. Any amendments to the Agreement shall enter into force in accordance with the procedure laid down in paragraph 1 of Article 20.
3. Any amendments to the Annexes shall enter into force on a date to be determined by the Parties.
Artikel 20
1. This Agreement shall enter into force on the first day of the second month after the date on which the Kingdom of the Netherlands notifies the Government of the United States of America that the applicable constitutional requirements have been fulfilled.
2. Pending such entry into force, the terms of this Agreement shall be applied provisionally upon signature by both Parties.
3. As far as the Kingdom of the Netherlands is concerned this Agreement shall apply to the European part of the Netherlands.
4. This Agreement shall remain in force until terminated in writing by either Party, with such termination taking effect six months from the date of written notice of termination. This Agreement may also be terminated at any time by the mutual written agreement of the Parties.
5. Unless otherwise agreed, termination of this Agreement shall not affect the validity or duration of any Cooperative Activity not fully completed at the time of termination.
6. The respective rights and responsibilities of the Parties and Participants under Articles 11 (Information Security), 12 (Intellectual Property Management and Use of Information), 13 (Publication of Research Results), 16 (Third Party Sales and Transfers), and Annex I shall continue notwithstanding the termination of this Agreement. In particular, all Classified Information exchanged or generated under this Agreement shall continue to be protected in the event of the termination of the Agreement.
2. Pending such entry into force, the terms of this Agreement shall be applied provisionally upon signature by both Parties.
3. As far as the Kingdom of the Netherlands is concerned this Agreement shall apply to the European part of the Netherlands.
4. This Agreement shall remain in force until terminated in writing by either Party, with such termination taking effect six months from the date of written notice of termination. This Agreement may also be terminated at any time by the mutual written agreement of the Parties.
5. Unless otherwise agreed, termination of this Agreement shall not affect the validity or duration of any Cooperative Activity not fully completed at the time of termination.
6. The respective rights and responsibilities of the Parties and Participants under Articles 11 (Information Security), 12 (Intellectual Property Management and Use of Information), 13 (Publication of Research Results), 16 (Third Party Sales and Transfers), and Annex I shall continue notwithstanding the termination of this Agreement. In particular, all Classified Information exchanged or generated under this Agreement shall continue to be protected in the event of the termination of the Agreement.