Artikel III

1. In execution of the mandate entrusted to the Agency under this Declaration and in compliance with the 2005 Launchers Resolution, ESA concludes arrangements with the launch service provider, succeeding to the Convention between ESA and Arianespace and its subsequent riders mentioned in the preamble while assuring continuity with the same. Such arrangements, which will include specific provisions applicable separately to each ESA developed launcher and to the Soyuz launcher operated from the CSG, will contain the commitment of the launch service provider, in consideration of the tasks entrusted to it, to:
a) carry out the activities entrusted to it in compliance with the ESA Convention, with the provisions of the Outer Space Treaty and with the applicable national laws and regulations;
b) conform to the decisions taken by the Sales Contral Committee set up under section I.10 above;
c) agree that: – its main company's purpose consists in the exploitation of the ESA developed launchers;
– the exploitation of the Soyuz launcher from the CSG is carried out by it in support of its main company's purpose;
– the exploitation of other launchers from the CSG may be carried out by it, following agreement of the ESA Council and of the French Govemment, in support of its main company's purpose;
– any other activities may be carried out by it upon consultation of the ESA Council and shall not have a negative impact on its main company's purpose;
– all the aforementioned activities shall be carried out by it in compliance with the relevant ESA Council decision(s) and, as appropriate, with the agreement(s) concluded between ESA and France;
– it shall respect the order of priority set out in section I.8 above;
– its main company's purpose consists in the exploitation of the ESA developed launchers;
– the exploitation of the Soyuz launcher from the CSG is carried out by it in support of its main company's purpose;
– the exploitation of other launchers from the CSG may be carried out by it, following agreement of the ESA Council and of the French Govemment, in support of its main company's purpose;
– any other activities may be carried out by it upon consultation of the ESA Council and shall not have a negative impact on its main company's purpose;
– all the aforementioned activities shall be carried out by it in compliance with the relevant ESA Council decision(s) and, as appropriate, with the agreement(s) concluded between ESA and France;
– it shall respect the order of priority set out in section I.8 above;
d) implement a payload allocation policy with the objective to secure, for each ESA developed launcher, the minimum launch rate contributing to maintain the European industrial capabilities necessary to secure the guarantee of access to space for Europe and taking into account the range of their respective performances;
e) establish a business plan, including a risk assessment, defined on the basis of committing objectives agreed with the Agency such as cost, reliability, launch rate capability and schedule and jointly agreed, with respect to ESA developed launchers, with the relevant launcher system prime contractors;
f) respect, for each ESA developed launcher concerned, the industrial distribution of work resulting from all the relevant launcher development programmes undertaken by the Agency in compliance with the provisions in the exploitation agreements mentioned in the preamble on the basis of the following provisions: – if the launch service provider considers that this distribution cannot be maintained because industrial proposals are unreasonable in terms of price, quality or delivery dates, it shall put the work out to competitive tender;
– before taking any such measure, the launch service provider shall notify the Party concerned and the Director General of the Agency of its intention to do so, providing reasoned grounds in support of it so that together a solution can be found within a reasonable time. The Agency shall be associated with the procedure leading to any change in the industrial distribution of work resulting from all ESA developed launcher programmes undertaken by the Agency. The procedures shall be as set out in the specific arrangements concluded between the Agency and Arianespace in accordance with the provisions of section II.3 above;
– the previous contractor may match the best financial offer and shall have priority in relation to all industrial proposals that are equivalent in terms of prices, delivery dates and quality;
– if the launch service provider considers that this distribution cannot be maintained because industrial proposals are unreasonable in terms of price, quality or delivery dates, it shall put the work out to competitive tender;
– before taking any such measure, the launch service provider shall notify the Party concerned and the Director General of the Agency of its intention to do so, providing reasoned grounds in support of it so that together a solution can be found within a reasonable time. The Agency shall be associated with the procedure leading to any change in the industrial distribution of work resulting from all ESA developed launcher programmes undertaken by the Agency. The procedures shall be as set out in the specific arrangements concluded between the Agency and Arianespace in accordance with the provisions of section II.3 above;
– the previous contractor may match the best financial offer and shall have priority in relation to all industrial proposals that are equivalent in terms of prices, delivery dates and quality;
g) use the rights and information made available to it under sections I.11 above and III.2 below only for the purposes of the execution of the exploitation of the ESA developed launchers and the Soyuz launcher operated from the CSG and not disclose such rights and information to, or authorise the use thereof by, third parties without the owner's consent; comply with the applicable national export control rules and regulations and with the Agency's procedures relevant to technology transfers outside the Member States of the Agency; reflect the above restrictions in the contracts with its customers and suppliers;
h) reimburse the French Govemment, with a ceiling of 60 M€ per launch, the amount of any damages it may be required to pay under the terms of section IV a) and c) of this Declaration, in the event of proceedings being instituted by the victims of damage caused by an Ariane launch or a Soyuz launch carried out by the launch service provider from the CSG during the exploitation phase;
i) reimburse the French Govemment and ESA, pro rata to their respective shares of liability as defined in section IV b) of this Declaration and within a ceiling of 60 M€ per launch, the amount of any damages they may be required to pay in the event of proceedings being instituted by the victirns of damage caused by a Vega launch carried out by the launch service provider from the CSG during the exploitation phase;
j) undertake care and custody of the assets and information made available to it by the Parties hereto and by the Agency and indemnify the owner(s) for any damage thereto caused by itself, its employees or persons at its service or by third parties;
k) take out the appropriate insurance cover or equivalent guarantee for the liabilities described in sections III.1 h) i) j) above and the other liabilities and risks associated with the carrying out of its activities provided for in the arrangements mentioned in this section III.1; the terms of such insurance cover or guarantee will be agreed upon with the Agency and with the French Government;
l) ensure that the activities carried out by it and by its suppliers during the exploitation phase do not put into question the qualification status of the launcher system and of the relevant production as sets and have the technical and financial responsibility for maintaining in good operational order the assets made available to it under the terms of sections I.11 above and III.2 below, in accordance with arrangements concluded with the owners. Subject to the above, the launch service provider, in agreement with the owners, may make modifications to these assets, as it deems necessary for its activities. Failing agreement, the launch service provider may carry out such modifications, guaranteeing that the assets will be restored to their initial state at the time of returning them;
m) contribute to the funding of the costs associated with the use of the CSG launch range, according to the provisions referred to the 2005 Launchers Resolution mentioned in the preamble;
n) undertake to afford the Agency' s Director General the visibility and audit rights it needs towards the launch service provider and its suppliers, and in particular on the yearly exploitation costs and revenues for each launcher and on the evolution of the business plan, in order to carry out the mandate assigned to it in this Declaration and under the ESA Convention and to provide the information and reports foreseen in section II.4 above;
o) undertake, in discharging its responsibilities for marketing the launchers, in its relations with outside parties, with its customers and with the public, to emphasise the European and multilateral character of the development and exploitation of the ESA developed launchers, by mentioning, especially on written and audio-visual materials, that the relevant development programmes have been carried out by the Agency and by drawing attention to the role played in such development by the Parties to this Declaration;
p) supply the Agency and the Parties hereto, giving them priority over third-party customers, with the launch services and slots required, under the following conditions: – the Agency and the Parties shall communicate to the launch serviceprovider their requests for services as their requirements arise, taking up cost-free options; in the event of a conflict of priorities between the Agency and a Party, the Agency shall have priority; in the event of a conflict of priorities between the Parties, those participating in the relevant launcher Agency's development programme shall have priority;
– when a third-party customer requests a fee-paying option, or wishes to place a firm order, in respect of a slot reserved cost-free by the Agency or a Party, the Agency or the Party in question may convert its cost-free option into a fee-paying option or a firm order and retain its priority;
– the arrangements between the Agency and Arianespace shall contain a model clause, which is to be included in the launch sale contracts, defining the procedure to be applied in the event of a slippage of the launch slot;
– the Agency and the Parties shall communicate to the launch serviceprovider their requests for services as their requirements arise, taking up cost-free options; in the event of a conflict of priorities between the Agency and a Party, the Agency shall have priority; in the event of a conflict of priorities between the Parties, those participating in the relevant launcher Agency's development programme shall have priority;
– when a third-party customer requests a fee-paying option, or wishes to place a firm order, in respect of a slot reserved cost-free by the Agency or a Party, the Agency or the Party in question may convert its cost-free option into a fee-paying option or a firm order and retain its priority;
– the arrangements between the Agency and Arianespace shall contain a model clause, which is to be included in the launch sale contracts, defining the procedure to be applied in the event of a slippage of the launch slot;
q) undertake such other commitments as may be necessary to implement the tasks entrusted to it. No provision of this Declaration shall be interpreted as a request to the launch service provider to pursue any activity which would result in continuous financial losses.
2. The Parties take note that ESA shall make available to the launch service provider, when required for the purpose of the launchers exploitation:
– free of charge the production master files stemming from the development programme relevant to each ESA developed launcher, as a basis for carrying out the relevant exploitation phase;
– free of charge, the facilities, equipment and tooling acquired within the framework of the development programme relevant to each ESA developed launcher and to the Soyuz launcher operated from the CSG, and of which the Agency is the owner. These assets may also, in agreement with the launch service provider, be made available to its suppliers;
– free of charge, its intellectual property rights deriving from the development programme relevant to each ESA developed launcher and from the programme relevant to the Soyuz launcher operated from the CSG; the launch service provider shall have access free of charge to the technical information in the Agency's possession, resulting from the said programmes.
3. An active dialogue shall be maintained between the launch service provider and the Agency, in order to monitor that the objectives of the launcher development programmes undertaken within the framework of the Agency take into account foreseeable trends of the launch services market.