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13135 United Kingdom - Memorandum of Understanding Concerning the Cooperative Framework for Engineering and Manufacturing Development of the Joint Strike Fighter


   
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TREATIES AND OTHER INTERNATIONAL ACTS SERIES 13135

 

DEFENSE

Joint Strike Fighter Program

 

 


Memorandum of Understanding
Between the
UNITED STATES OF AMERICA
and the UNITED KINGDOM OF
GREAT BRITAIN AND
NORTHERN IRELAND


Signed at Washington January 17, 2001

 

 

 

 


 

NOTE BY THE DEPARTMENT OF STATE

Pursuant to Public Law 89—497, approved July 8, 1966
(80 Stat. 271; 1 U.S.C. 113)—

“. . .the Treaties and Other International Acts Series issued
under the authority of the Secretary of State shall be competent
evidence . . . of the treaties, international agreements other than
treaties, and proclamations by the President of such treaties and
international agreements other than treaties, as the case may be,
therein contained, in all the courts of law and equity and of maritime
jurisdiction, and in all the tribunals and public offices of the
United States, and of the several States, without any further proof
or authentication thereof.”

 

UNITED KINGDOM OF GREAT BRITAIN
AND NORTHERN IRELAND

Defense: Joint Strike Fighter Program

Memorandum of understanding signed at
Washington January 17, 2001;
Entered into force January 17, 2001.

MEMORANDUM OF UNDERSTANDING BETWEEN THE SECRETARY OF
DEFENSE ON
BEHALF OF THE
DEPARTMENT OF DEFENSE
OF THE UNITED STATES OF AMERICA
AND THE
SECRETARY OF STATE FOR DEFENCE
OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND
CONCERNING THE COOPERATIVE FRAMEWORK FOR ENGINEERING AND
MANUFACTURING DEVELOPMENT OF THE
JOINT STRIKE FIGHTER
(Short Title - JSF EMD Framework MOU)
TABLE OF CONTENTS
INTRODUCTION 3
SECTION I
DEFINITIONS 4
SECTION II
OBJECTIVES 10
SECTION III
SCOPE OF WORK 12
SECTION IV
MANAGEMENT (ORGANIZATION AND RESPONSIBILITY) 14
SECTION V
FINANCIAL PROVISIONS 18
SECTION VI
CONTRACTING PROVISIONS 21
SECTION VII
PROJECT EQUIPMENT AND JOINTLY ACQUIRED EQUIPMENT 23
SECTION VIII
DISCLOSURE AND USE OF PROJECT INFORMATION 25
SECTION IX
CONTROLLED UNCLASSIFIED INFORMATION 31
SECTION X
VISITS TO ESTABLISHMENTS 32
SECTION XI
SECURITY 33
SECTION XII
THIRD PARTY SALES AND TRANSFERS 36
SECTION XIII
LIABILITY AND CLAIMS 38
SECTION XIV
PARTICIPATION OF ADDITIONAL NATIONS 39
SECTION XV
CUSTOMS DUTIES, TAXES, AND SIMILAR CHARGES 40
SECTION XVI
SETTLEMENT OF DISPUTES 41
SECTION XVII
LANGUAGE 42
SECTION XVIII
AMENDMENT, WITHDRAWAL, TERMINATION, ENTRY INTO EFFECT, AND
DURATION 43
2
INTRODUCTION
The Secretary of Defense on behalf of the Department of Defense
of the United States of America (U.S. DoD) and the Secretary of
State for Defence of the United Kingdom of Great Britain and
Northern Ireland (U.K. MOD):
Having a common interest in defense;
Recognizing the benefits to be obtained from standardization,
rationalization, and interoperability of military equipments;
Desiring to improve their mutual conventional defense
capabilities through the application of emerging technology;
Having a mutual need for the development of the Joint Strike
Fighter to satisfy similar operational requirements; and
Recognizing the benefits of cooperation in the Joint Strike
Fighter (JSF) Program;
Have reached the following understandings:
3
SECTION I
DEFINITIONS
The Participants have jointly decided upon the following
definitions for terms used in this MOU and its Supplements:
Acquisition Program A document approved by the U.S. DoD
Baseline milestone decision authority at the
initiation of an acquisition program that
describes the important cost, schedule, and
performance parameters of the program, and
which is updated for each U.S. DoD major
milestone decision as well as for a program
restructure or a major program deviation.
Affordability
Initiatives
Air System
Air System Life
Cycle Plan
Air Vehicle
The development, assessment, demonstration
and implementation of efforts that will
potentially reduce the components of life
cycle costs in order to promote greater JSF
Program stability and long term
affordability.
The JSF Air System consists of two inter-
related elements: Air Vehicle and Autonomic
Logistics System that operate within the
context of external interfaces and
environments.
A plan developed by the JSF prime
Contractor that baselines the products of
EMD and provides a plan for processes and
procedures that will support cost-effective
Air System capability. This plan addresses,
but is not limited to, the operational Air
System description, operational employment
concepts, Air System functional
allocations, Air Vehicle features and
characteristics, Autonomic Logistics System
capability features and characteristics,
diminished manufacturing sources management
plan, software development and support
plans, and production manufacturing plans.
The Air Vehicle includes the three variants
of the aircraft and the on-board hardware
and software necessary to perform assigned
missions, autonomous operation and
communication with off-board systems.
4
Autonomic Logistics An integrated, knowledge-based system that
System encompasses JSF maintenance planning,
manpower and personnel, supply support,
support equipment, training, technical
data, computer resource support,
facilities, packaging, handling, storage
and transportation, prognostics and health
management, and design interface while
coordinating with mission planning,
engineering, safety, command and control
functions, within a respective logistics
infrastructure to support mission
execution.
Classified Official Information and material that
Information and requires protection in the interests of
Material national security and is so designated by
the application of a security
classification marking.
Contract
Contract
Specification
Contracting
Any mutually binding legal relationship
under national laws which obligates a
Contractor to furnish supplies or services,
and obligates one or more of the
Participants to pay for them.
The detailed development specification,
defined by the JSF prime Contractor, that
is necessary for the successful
development, verification, and validation
of the JSF Air System in order to satisfy
the requirements of the joint Operational
Requirements Document and the Joint Model
Specification.
The obtaining of supplies or services by
Contract from sources outside the
government organizations of the
Participants. Contracting includes
description (but not determination) of
supplies and services required,
solicitation and selection of sources,
preparation and award of Contracts, and all
phases of Contract administration.
5
Contracting Agency
Contracting Officer
Contractor
Controlled
Unclassified
Information
Designated Security
Authority (DSA)
Joint Model
Specification
The entity within the government
organization of a Participant which has
authority to enter into, administer, and/or
terminate Contracts.
A person representing a Contracting Agency
of a Participant who has the authority to
enter into, administer, and/or terminate
Contracts.
Any entity awarded a Contract by a
Participant's Contracting Agency.
Unclassified Information to which access or
distribution limitations have been applied
in accordance with applicable national laws
or regulations. Whether the Information is
provided or generated under this MOU, the
Information will be marked to identify its
"in confidence" nature. It could include
Information which has been declassified,
but remains controlled.
The security office approved by national
authorities to be responsible for the
security aspects of this MOU.
The maximum amount of Financial Costs which
will be dedicated to the Project.
Project costs met with monetary
contributions.
The estimated figure of the total financial
cost of the Project.
Any material, equipment, end item,
subsystem, component, special tooling or
test equipment that is obtained and jointly
funded by the Participants under this MOU.
The performance-based specification
developed by government personnel that
defines overall JSF Air System level
performance.
Financial Cost
Ceiling
Financial Costs
Financial Cost
Target
Jointly Acquired
Equipment
6
JSF Autonomic The plan developed by the JSF prime
Logistics Plan Contractor that summarizes the development
efforts to achieve a best value Autonomic
Logistics System which meets joint ORD
requirements.
JSF Engineering and The portion of the JSF Program that will
Manufacturing develop, test, and qualify the next-
Development Phase generation Air System that meets the
initial operating capability requirements
defined in the joint ORD.
JSF Program
JSF Purposes
Efforts to achieve a three variant family
of a next-generation Air System, consisting
of JSF concept demonstration, engineering
and manufacturing development, production,
and support efforts.
Performance of Project activities pursuant
to the JSF EMD Framework and its
Supplements; and future efforts by a
Participant (collaboratively, nationally,
or under U.S. DoD Foreign Military Sales
arrangements) for the design, development,
manufacture, operation and support of any
of the three variants of the JSF Air
System.
Non-financial Costs Project costs met with non-monetary
contributions.
Operational The document developed during the JSF
Requirements Concept Demonstration Phase that defines
Document the overall Air System level operational
requirements needed to meet the mission
objectives of each of the JSF variants.
Participant A signatory to this Memorandum of
Understanding.
Patent
Legal protection of the right to exclude
others from making, using, or selling an
invention. The term refers to any and all
Patents including, but not limited to,
patents of implementation, improvement, or
addition, petty patents, utility models,
appearance design patents, registered
designs, and inventor certificates or like
statutory protection as well as divisions,
7
reissues, continuations, renewals, and
extensions of any of these.
Project
Information
The cooperative JSF END Phase efforts of
the Participants under this MOU to achieve
the objectives in Section II (Objectives)
and accomplish the work in Section III
(Scope of Work).
Information not generated in the
performance of the Project.
Any material, equipment, end item,
subsystem, component, special tooling or
test equipment provided by one Participant
to another Participant for use in the
Project.
Information generated in the performance of
the Project.
Any Information provided to, generated in,
or used in this Project.
Knowledge that can be communicated by any
means, regardless of form or type,
including, but not limited to, that of a
scientific, technical, business, or
financial nature, and also including
photographs, reports, manuals, threat data,
experimental data, test data, computer
software, designs, specifications,
processes; techniques, inventions,
drawings, technical writings, sound
recordings, pictorial representations, and
other graphical presentations, whether in
magnetic tape, computer memory, or any
other form and whether or not subject to
copyright, Patent, or other legal
protection.
Project Background
Information
Project Equipment
Project Foreground
Information
Project Information
8
Project Invention
Then Year (TY)
Dollars
Third Party
Any invention or discovery formulated or
made (conceived or first actually reduced
to practice) in the course of work
performed under the Project. The term first
actually reduced to practice means the
first demonstration, sufficient to
establish to one skilled in the art to
which the invention pertains, of the
operability of an invention for its
intended purpose and in its intended
environment.
U.S. Dollars which reflect purchasing power
at the time expenditures are actually made.
Future costs stated in Then Year U.S.
Dollars are projected actual amounts to be
paid.
A government other than the government of a
Participant and any person or other entity
whose government is not the government of a
Participant.
9
SECTION II
OBJECTIVES
2.1. This MOU establishes a framework that will enable
Participants to cooperate effectively in the Project. Whilst the
U.S. DoD and the U.K. MOD will initially enter into this MOU,
this MOU is intended to be the vehicle for multinational JSF EMD
cooperation, and it establishes the principles common to all
Participants who enter into it. Pursuant to this MOU and subject
to its common principles, there will be established Supplements,
specific to a level of Project participation, between or among
the U.S. DoD and the other Participant or Participants at that
level. The Supplements will contain detailed provisions
concerning the responsibilities and benefits that correspond to
the relevant level of participation. In the case of a conflict
between the provisions of this MOU and a Supplement, this MOU
will govern; however, a Supplement may contain deviations from
the provisions of this MOU as are specifically authorized
elsewhere in this MOU.
2.2. The objectives of this Project are:
2.2.1. To develop an affordable Air System that meets the
operational needs of the Participants at a significantly
reduced life cycle cost.
2.2.2. To mature the Air System design to a level that
will enable transition to production and subsequent
fielding of operational squadrons.
2.2.3. To demonstrate and implement Affordability
Initiatives to support the decision for JSF production.
2.2.4. To develop and implement management and control
processes to ensure the Participants receive best value
within the Financial Cost Target.
2.2.5. To utilize Project Information acquired in the
implementation of Section III (Scope of Work) to enable
the Participants to make national decisions concerning
the acquisition of the JSF Air System for their
individual requirements, and to enable them to interface
the JSF Air System with their unique national weapons
systems, logistics support systems, equipment, or
software for national operations of the JSF Air System.
2.3. Participation under this MOU will provide the Participants
with the opportunity for future cooperation in JSF developmental
10
upgrades, production and support. Such future cooperation will be
the subject of separate written arrangements by the Participants,
or amendments to this MOU and its Supplements.
11
SECTION III
SCOPE OF WORK
3.1. The overall work to be performed under this MOU is to
conduct the Project which will lead to the production and use of
an affordable three variant family of the next generation Air
System, which consists of the following: Conventional Take-Off
and Landing (CTOL) variant; catapult-launched, arrested-landing
Carrier Variant (CV); and shipboard capable Short Take-Off and
Vertical Landing (STOVL) variant. The Project effort will be
conducted in accordance with the Contract Specification, Contract
statement of work and Integrated Master Plan and will reflect the
Air System requirements contained in the joint Operational
Requirements Document (ORD) and further detailed in the Joint
Model Specification (JMS). The Project will include the following
JSF EMD Phase efforts.
3.1.1. Conduct of design, development, integration,
verification and "systems engineering to deliver the Air
System warfighting capability required by the JMS. Such
efforts will exploit, to the maximum extent practicable,
concepts and technology maturation demonstrations and
modeling and simulation and analysis capabilities. This will
include, but not be limited to, the following salient tasks:
3.1.1.1. Design, development and integration of
hardware and software for the Air Vehicle.
3.1.1.2. Design, development and integration of the
primary and alternate propulsion systems.
3.1.1.3. Design, development and integration of a
mission planning interface capability compatible with
existing and planned systems.
3.1.1.4. Design, development and integration of weapons
to support the initial operational capability
requirements defined in the joint ORD.
3.1.1.5. Design, development and integration of an
Autonomic Logistics System which meets the joint ORD
requirements; the optimizing of sortie generation rate;
minimization of logistic requirements; and reduction of
manpower, logistics infrastructure, and operations and
support costs.
3.1.1.6. Verification and certification of production-
representative Air Systems, leading to operational test
and evaluation validation of joint ORD requirements for
each Air System variant.
12
3.1.2. Demonstration of sufficient Air System maturity to
enter low-rate and full-rate production, to include:
3.1.2.1. Construction of CTOL, CV, and STOVL ground
test articles and flight-test aircraft.
3.1.2.2. Conduct of CTOL, CV, and STOVL ground tests
and flight tests by or for the Participants.
3.1.2.3. Development of a multi-service Air System Life
Cycle Plan.
3.1.2.4. Development of a manufacturing plan for
fabrication and assembly of the EMD Air Vehicle.
Efforts are expected to include manufacturing and
production demonstrations required to achieve the
overall JSF affordability objectives and to support key
JSF Program review milestones.
3.1.3. Demonstration and implementation of Affordability
Initiatives that will support a production decision, to
include:
3.1.3.1. Application of cost-as-an-independent-
variable principles to refine the development,
production, operations and support costs.
3.1.3.2. Development of a common cost model to
generate life cycle cost estimates to validate
Affordability Initiatives.
3.1.4. Development and implementation of streamlined
management and control processes, which use integrated
product and process development, simulation-based
acquisition practices, earned value, technical performance
measures and risk management tracking systems as management
tools, to promote efficiency, effectiveness, and best value
in the conduct of the JSF EMD Phase.
3.2 The U.S. DoD will use its best efforts to review
expeditiously applications for U.S. export licenses related to
the scope of work for this Project.
3.3. If desired by the Participants, planning efforts, including
development of objectives and scope of work for the Participants'
future cooperation in JSF developmental upgrades, production and
support, and corresponding draft requests for proposals, may be
conducted.
13
SECTION IV
MANAGEMENT (ORGANIZATION AND RESPONSIBILITY)
4.1. The JSF Program will be directed by the U.S. DoD JSF Program
Director (PD) who heads the JSF Program Office (or successor in
the event of reorganization) and who is responsible for managing
the cost, schedule, performance requirements, and technical
aspects of the JSF Program in accordance with the U.S. DoD
Acquisition Program Baseline for JSF. A JSF Executive Committee
(EC) will be established, with executive-level oversight for the
Project. The JSF PD will have primary responsibility for
management of the Project, and, recognizing the international
nature of the Project, will promote international cooperation
throughout the JSF Program Office in order to meet the
requirements of this MOU and its Supplements. The JSF PD will
promptly notify the EC in case of any change to the joint ORD or
the Acquisition Program Baseline. The EC will advise the JSF PD
as to what action should be taken.
4.2. The. EC will consist of one representative appointed by each
of the Participants. The U.S. DoD EC representative will be the
JSF PD; the EC representatives for the other Participants will be
specified in the Supplements. The EC will meet semi-annually. If
desired, additional meetings may be held at the mutual consent of
all the EC representatives. The representative of the Participant
hosting the meeting will chair each meeting of the EC, unless
otherwise mutually determined by the EC. The responsibility for
hosting meetings of the EC will alternate among the Participants,
unless otherwise mutually determined by the EC.
4.3. In exercising its executive-level oversight of the Project,
the EC will perform the following functions:
4.3.1. Reviewing progress towards accomplishing Section II
(Objectives) and Section III (Scope of Work).
4.3.2. Providing financial oversight of Project efforts to
ensure compliance with the provisions of Section V
(Financial Provisions).
4.3.3. Reviewing and obtaining approval from the appropriate
Designated Security Authority of a Project Security
Instruction and a Classification Guide prior to the transfer
of Classified Information and Material or Controlled
Unclassified Information.
4.3.4. Monitoring the transfer of Project Equipment provided
by any Participant to support the execution of the Project
pursuant to Section VII (Project Equipment).
14
4.3.5. Maintaining oversight over the security aspects of
the Project to ensure compliance with Section XI (Security).
4.3.6. Monitoring Third Party sales and transfers authorized
in accordance with Section XII (Third Party Sales and
Transfers).
4.3.7. Promptly apprising and consulting on any matters that
affect the Project and resolving any issues brought forth by
the U.S. .DoD Director, JSF International Directorate
(JSF/ID).
4.3.8. Identifying and reviewing plans regarding future JSF
cooperation.
4.4. Decisions of the EC will be made unanimously with regard to
the following responsibilities:
4.4.1. Reviewing and forwarding to the Participants for
approval recommended amendments to this MOU in accordance
with Section XVIII (Amendment, Withdrawal, Termination,
Entry into Effect, and Duration).
4.4.2. Approving plans for the disposal of Jointly Acquired
Equipment in accordance with paragraph 7.7 of Section VII
(Project Equipment).
4.5. In addition to plenary sessions of the EC, the EC
representatives of the Participants of a Supplement may
separately meet to address issues arising under or specifically
related to their respective Supplement. The responsibilities of
the EC representatives of the Participants of each Supplement
will be in accordance with the provisions of this MOU and will be
further detailed in the Supplement. Decisions will be made
unanimously among or between the EC representatives of the
Participants of a Supplement with regard to the following
responsibilities:
4.5.1. Approving the Financial Management Procedures
Document (FMPD) for the Supplement required in paragraph 5.8
of Section V (Financial Provisions).
4.5.2. Approving plans to manage and control the transfer of
Project Equipment provided by the non-U.S. DoD
Participant(s) of the Supplement to support the execution of
the Project in accordance with Section VII (Project
Equipment).
4.5.3. Reviewing and forwarding to the Participants of the
Supplement for approval recommended amendments to the
15
Supplement in accordance with Section XVIII (Amendment,
Withdrawal, Termination, Entry into Effect, and Duration).
4.6. In the event that the EC is unable to reach a timely
decision on an MOU issue where unanimity is required under
paragraph 4.4, or the EC representatives of the Participants of a
Supplement are unable to reach a timely decision on a Supplement
issue where unanimity is required under paragraph 4.5, each
applicable EC representative will refer the issue to its higher
authority for resolution. In the meantime, the Project will
continue to be implemented without interruption under the
direction of the JSF PD while the issue is being referred to the
appropriate higher authorities.
4.7. The Director, JSF/ID, assisted by representatives of all of
the other Participants, will act as the focal point within the
JSF Program Office for effective implementation of this MOU and
its Supplements. The Director, JSF/ID will be responsible for:
4.7.1. Managing the day-to-day administration of this MOU
and its Supplements.
4.7.2. Preparing and submitting to the applicable EC
representatives for approval, a FMPD for each. Supplement.
4.7.3. Executing the financial aspects of this Project in
accordance with Section V (Financial Provisions) and the
FMPD for each Supplement.
4.7.4. Preparing and submitting to the EC a Project Security
Instruction and a Classification Guide.
4.7.5. Developing and recommending to the applicable EC
representatives Amendments to this MOU and any Supplements.
4.7.6. Developing and implementing plans, approved by
applicable EC representatives, to manage and control the
transfer of Project Equipment provided by a Participant in
accordance with Section VII (Project Equipment and Jointly
Acquired Equipment).
4.7.7. Developing and implementing EC-approved plans for the
disposal of Jointly Acquired Equipment in accordance with
paragraph 7.7 of Section VII (Project Equipment and Jointly
Acquired Equipment).
4.7.8. Developing and recommending plans to the EC, as
appropriate, for future cooperation in the JSF production
and support phases.
16
4.7.9. Referring MOU issues to the EC that cannot be
resolved by JSF/ID.
4.8. Each Participant, other than the U.S. DoD, will provide a
National Deputy to the JSF Program Office. The roles and
responsibilities of the National Deputy and any other
representatives provided by each Participant will be addressed in
each Supplement to this MOU.
17
SECTION V
FINANCIAL PROVISIONS
5.1. The Participants estimate that the performance of their
responsibilities under this Project will not cost more than a
Financial Cost Ceiling of $28.283 billion Then Year (TY) U.S.
dollars. The Financial Cost Ceiling may be changed only upon the
written consent of the Participants.
5.2. The Participants will use their best efforts to perform, or
have performed, the work specified in Section III (Scope of Work)
of this MOU and fulfill all their responsibilities under this
Project within a Financial Cost Target of $25.712 billion TY U.S.
dollars. If at any time the JSF PD has reason to believe that the
Financial Cost Target will be exceeded, the JSF PD will promptly
notify the EC and will formulate a new estimate of the Financial
Cost Target together with supporting documentation. The EC will
advise the JSF PD as to what action should be taken.
5.3. The U.S. dollar will be the reference currency for the
Project, and the Project fiscal year will be the U.S. fiscal year
(1 October - 30 September). Financial contributions will be made
in TY U.S. dollars in accordance with the Financial Management
Procedures Document (FMPD) for each Supplement.
5.4. Each Participant will contribute its equitable share of the
full Financial Costs and Non-financial Costs of the Project,
including overhead costs, administrative costs (including the
costs of JSF/ID staff travel in support of Project efforts that
are approved by the Director, JSF/ID), and costs of claims, and
will receive an equitable share of the results of the Project, as
specified in this MOU and its Supplements.
5.5. The maximum U.S. DoD share of the Financial Cost Target for
the Project, as identified in paragraph 5.2, will not exceed
$23.656 billion TY U.S. Dollars. The actual U.S. DoD share of
this Financial Cost Target will be affected by the Financial Cost
shares contributed by the Participants who join the MOU
subsequent to the U.S. DoD and the U.K. MOD. The Financial Cost
shares of Participants other than the U.S. DoD will be specified
in the respective Supplements to this MOU.
5.6. Participation in the Project will also include, but not be
limited to, a Non-financial Cost contribution of personnel to the
JSF Program Office and U.S. DoD field activities. The U.S. Non-
financial cost contribution includes the JSF PD and the Director,
JSF/ID. The Supplements will specify the Non-financial Cost
contributions of the Participants to that Supplement.
18
5.7. The following costs will be borne entirely by the
Participant incurring the costs or on whose behalf the costs are
incurred:
5.7.1. Costs associated with national representation at
meetings by personnel not assigned, as part of this Project,
to the JSF Program Office or U.S. DoD field activities.
5.7.2. Costs associated with any unique national
requirements identified by a Participant.
5.7.3. Any other costs not expressly stated as shared costs
or any costs that are outside the scope of this MOU.
5.8. The Director, JSF/ID will be responsible for establishing
arrangements between the Participants on the detailed financial
management procedures under which the Project will operate. These
procedures will be detailed in the FMPD for each Supplement and
must accord with the national accounting and audit requirements
of the Participants of each Supplement. Each FMPD will include an
estimated financial schedule for contributions, which will be
consistent with the funding requirements of paragraph 5.9.
5.9. The Participants recognize that in fulfilling their
Contracting responsibilities under this MOU, it may become
necessary for a Contracting Participant to incur contractual or
other obligations for the benefit of the Participants prior to
the receipt of the other Participants' funds. In the event that a
Contracting Participant incurs such obligations, the other
Participants will make such funds available in such amounts and
at such times as may be required by the Contracts or other
obligations and will pay any damages and costs that may accrue
from the performance of or cancellation of the Contracts or other
obligations in advance of the time such payments, damages, or
costs are due.
5.10. A Participant will promptly notify the other Participants
if available funds are not adequate to fulfill its
responsibilities for this Project. If a Participant notifies the
other Participants that it is terminating or reducing its funding
for this Project, all Participants will immediately consult
through the EC with a view toward continuation on a modified
basis.
5.11. Each Contracting Participant will be responsible for the
audit of the procurement activities for which it is responsible
under the Project in accordance with its national practices. Each
Contracting Participant's reports of such audits will be promptly
made available to the other Participants. The U.S. DoD will be
responsible for the internal audit regarding administration of
19
the other Participants' Project funds in accordance with U.S.
national practices. Audit reports of such funds will be promptly
made available by the U.S. DoD to the other Participants.
20
SECTION VI
CONTRACTING PROVISIONS
6.1. The U.S. DoD will be primarily responsible for Contracting
for the Project in accordance with U.S. Contracting laws,
regulations and procedures. However, the JSF PD may request that
a Participant other than the U.S. DoD issue Contracts for the
Project in accordance with that Participant's national
Contracting laws, regulations and procedures. The Contracting
Officer for each Contract is the exclusive source for providing
contractual direction and instructions to Contractors.
6.2. The JSF PD will be responsible for the coordination pt
activities relating to the Project, and will cooperate with the
Contracting Officers in the areas of Contract procedures,
Contract negotiation, evaluation of offers, and Contract award.
The JSF PD will review statements of work prior to the
development of solicitations to ensure that they are in
accordance with this MOU. In addition, Contracting Officers will
keep the JSF PD advised of all financial arrangements with the
prime Contractor.
6.3. Contracting Officers will negotiate to obtain the rights to
use and disclose Project Information required by Section VIII
(Disclosure and Use of Project Information) and by the
corresponding sections of each of the Supplements. Contracting
Officers will insert into prospective Contracts (and require its
Contractors to insert in subcontracts) suitable provisions to
satisfy the requirements of this MOU and all of the Supplements,
including Section VIII (Disclosure and Use of Project
Information), Section IX (Controlled Unclassified Information),
Section XI (Security) and Section XII (Third Party Sales and
Transfers). During the Contracting process, Contracting Officers
will advise prospective Contractors of their responsibility to
immediately notify the Contracting Agency, before Contract award,
if they are or will be subject to any license or agreement that
will restrict their freedom to disclose Information or permit its
use. Contracting Officers will also advise prospective
Contractors to employ their best efforts not to enter into any
new agreement or arrangement that will result in restrictions.
6.4. In the event a Contracting Officer is unable to secure
adequate rights to use and disclose Project Information as
required by Section VIII (Disclosure and Use of Project
Information) and by the corresponding section of the Supplements,
or is notified by Contractors or potential Contractors of any
restrictions on the disclosure and use of Information, the matter
will be referred to the EC for resolution.
21
6.5. A Participant may contract for the unique national
requirements of the other Participants which are related to the
efforts described in Section III (Scope of Work).
6.6. In order to promote achieving best value for money, the U.S.
DoD, through its contracting activities, will require Contractors
to select subcontractors (which term includes subcontractors from
all of the Participants' nations) on a competitive basis to the
maximum practical extent consistent with the objectives and
requirements of the Contracts.
22
SECTION VII
PROJECT EQUIPMENT AND JOINTLY ACQUIRED EQUIPMENT
7.1. Each Participant may provide Project Equipment identified as
being necessary for executing this MOU to another Participant.
Project Equipment will remain the property of the providing
Participant. A list of all Project Equipment provided by one
Participant to another Participant will be developed and
maintained by the JSF Program Office.
7.2. The receiving Participant will maintain any such Project
Equipment in good order, repair, and operable condition and
return the items in as good condition as received, normal wear
and tear excepted, unless the providing Participant has
authorized the Project Equipment to be expended or otherwise
consumed in connection with the Project without reimbursement to
the providing Participant. The receiving Participant will pay the
cost of damage (other than normal wear and tear) to or loss of
Project Equipment.
7.3. The providing Participant will deliver Project Equipment to
the receiving Participant at a mutually determined location.
Possession of the Project Equipment will pass from the providing
Participant to the receiving Participant at the time of receipt
of the Project Equipment. Any further transportation is the
responsibility of the receiving Participant.
7.4. All Project Equipment that is transferred will be used by
the receiving Participant only for the purposes of carrying out
this MOU unless otherwise consented to in writing by the
providing Participant. In addition, in accordance with Section
XII (Third Party Sales and Transfers), Project Equipment will not
be re-transferred to a Third Party without the prior written
consent of the providing Participant.
7.5. Project Equipment transferred to another Participant under
this MOU will be returned to the providing Participant prior to
the termination or expiration of this MOU.
7.6. Either during or upon cessation of the Project, the U.S. DoD
may, after consultation with the other Participants, dispose of
or retain any Jointly Acquired Equipment. Disposal by the U.S.
DoD may include the transfer of such equipment to another
Participant. If the U.S. DoD's disposal of any Jointly Acquired
Equipment is by sale to a Third Party in accordance with Section
XII (Third Party Sales and Transfers) of this MOU, the
Participants will share the consideration from such sale in the
same ratios as specified for their financial contributions in
this MOU and its Supplements.
23
7.7. If the U.S. DoD does not exercise its benefits under
paragraph 7.6, any Jointly Acquired Equipment under this JSF EMD
Framework MOU may be disposed of during the Project or when the
Project ceases as decided by the EC. Disposal of Jointly Acquired
Equipment may include a transfer of the interest of one
Participant in such. project equipment to another Participant, or
the sale of such equipment to a Third Party in accordance with
Section XII (Third Party Sales and Transfers) of this MOU. The
Participants will share the consideration from Jointly Acquired
Equipment transferred or sold to a Third Party in the same ratios
as specified for their financial contributions in this MOU and
its Supplements.
24
SECTION VIII
DISCLOSURE AND USE OF PROJECT INFORMATION
8.1. General
8.1.1. The Participants recognize that successful
collaboration depends on the exchange of Information
necessary for carrying out this Project. The Participants
intend to acquire and exchange sufficient Project
Information and rights to use such Information to enable the
execution of the Project and the transition to production
and support of the three variant family of the next
generation Air System. The nature and amount of Project
Information to be acquired will be consistent with the
objectives stated in Section II (Objectives) and Section III
(Scope of Work).
8.1.2. Notwithstanding any other provision in this section,
disclosure of Project Information will only be in accordance
with the Participants' respective national disclosure
policies. The Participants will use their best efforts to
maximize disclosure of Project Information under this MOU
within national disclosure policies. Specific disclosure
limitations will be described in the Supplements as
appropriate.
8.1.3. The Participants recognize that the majority of the
Project Foreground Information will be provided
electronically. The extent and manner in which such
electronically provided Information will be made available
to Participants will be described in the Supplements.
8.2. Government Project Foreground Information
8.2.1. Disclosure: All Project Foreground Information
generated by a Participant's military or civilian employees
(hereinafter referred to as "Government Project Foreground
Information") will be disclosed promptly and without charge
to the Participants.
8.2.2. Use: The Participants may use or have used all
Government Project Foreground Information without charge for
the following purposes: for each Participant other than the
U.S. DoD, the purposes specified for that Participant in its
Supplement; and for the U.S. DoD, JSF Purposes. The
Participant generating Government Project Foreground
Information will also retain its rights of use thereto. Any
sale or other transfer to a Third Party will be subject to
25
the provisions of Section XII (Third Party Sales and
Transfers) of this MOU.
8.3. Government Project Background Information
8.3.1. Disclosure: Each Participant, upon request, will
disclose promptly and without charge to the requesting
Participant any relevant Government Project Background
Information generated by its military or civilian employees,
provided that:
8.3.1.1. Such Government Project Background Information
is necessary to or useful in the Project, with the
Participant in possession of the Information
determining, after consultation with the requesting
Participant, whether it is "necessary to" or "useful
in" the Project.
8.3.1.2. Such Government .Project Background Information
may be made available without incurring liability to
holders of proprietary rights; and
8.3.1.3. Disclosure is consistent with national
disclosure policies and regulations of the furnishing
Participant.
8.3.2. Use: Government Project Background Information
furnished by one Participant to the requesting Participant
may be used without charge by or for the requesting
Participant for Project purposes; however, the furnishing
Participant will retain all its rights with respect to such
Government Project Background Information.
8.4. Contractor Project Foreground Information
8.4.1. Disclosure: Project Foreground Information generated
and delivered by Contractors (hereinafter referred to as
"Contractor Project Foreground Information"), will be
disclosed promptly and without charge to the Participants.
Project Foreground Information generated by a Contractor,
but not delivered, will be made available upon the request
of the Participants at the cost of the Information's
conversion into the prescribed form and the cost of
reproduction and delivery in accordance with the terms of
the applicable Contract.
8.4.2. Use: The Participants may use or have used without
charge all Contractor Project Foreground Information
generated and delivered by Contractors of the Participants
for the following purposes: for each Participant other than
26
the U.S. DoD, the purposes specified for that Participant in
its Supplement; and for the U.S. DoD, JSF Purposes. The
Participant whose Contractors generate and deliver
Contractor Project Foreground Information will also retain
rights of use thereto in accordance with the applicable
Contract(s). Any sale or other transfer to a Third Party of
Contractor Project Foreground Information will be subject to
the provisions of Section XII (Third Party Sales and
Transfers) of this MOU.
8.5. Contractor Project Background Information
8.5.1. Disclosure: A Contracting Participant will make
available to the other Participants promptly and without
charge all Project Background Information generated by
Contractors which is delivered under Contracts awarded in
accordance with this MOU. Any other Project Background
Information which is generated by Contractors under
Contracts awarded outside of this MOU and which is in the
possession of one Participant will be made available
promptly and without charge to another Participant upon its
request, provided that the following conditions are met:
8.5.1.1. Such Contractor Project Background Information
is necessary to or useful in the Project, with the
Participant in possession of the Information
determining, after consultation with the other
Participants, whether it is "necessary to" or "useful
in" the Project;
8.5.1.2. Such Contractor Project Background Information
may be made available without incurring liability to
holders of proprietary rights; and
8.5.1.3. Disclosure is consistent with national
disclosure policies and regulations of the furnishing
Participant.
8.5.2. Use: All Project Background Information delivered by
Contractors under Contracts awarded in accordance with this
MOU may be used by or for a receiving Participant, without
charge, for the following purposes: for each Participant
other than the U.S. DoD, the purposes specified for that
Participant in its Supplement; and for the U.S. DoD, JSF
Purposes. Any other Project Background Information furnished
by one Participant's Contractors and disclosed to another
Participant may be used without charge by or for that
Participant for Project purposes, and may be subject to
further restrictions by holders of proprietary rights. The
27
furnishing Participant will retain all its rights with
respect to Contractor Project Background Information.
8.6. Alternative Uses of Project Information
8.6.1. The prior written consent of the U.S. DoD will be
required for the use of Project Foreground Information by
the other Participants for purposes other than those
provided for in paragraphs 8.2.2 and 8.4.2 of this MOU and
the corresponding provisions of its Supplements.
8.6.2. Any Project Background Information provided by one.
Participant will be used by the other Participants only for
the purposes set forth in this MOU and its Supplements,
unless otherwise consented to in writing by the providing
Participant.
8.7. Proprietary Project Information
8.7.1. All Project Information subject to proprietary
interests will be identified and marked, and it will be
handled as Controlled Unclassified Information or as
Classified Information, depending on its security
classification.
8.7.2. For NATO member Participants, the provisions of the
NATO Agreement on the Communication of Technical Information
for Defense Purposes, done at Brussels on 19 October 1970,
and the Implementing Procedures for the NATO Agreement on
the Communication of Technical Information for Defense
Purposes, approved by the North Atlantic Council on 1
January 1971, will apply to proprietary Project Information
related to this MOU. Non-NATO member Participants will
consent in their Supplements to provisions no less stringent
than the NATO Agreement on the Communication of Technical
Information for Defense Purposes.
8.8. Patents
8.8.1. Each Participant will include in all its Contracts
for the Project a provision governing the disposition of
rights in regard to Project Inventions and Patent rights
relating thereto, which either:
8.8.1.1. Provides that the Participant will hold title
to all such Project Inventions together with the right
to make Patent applications for the same, free of
encumbrance from the Contractor concerned; or
28
8.8.1.2. Provides that the Contractor will hold title
(or may elect to retain title) for such Project
Inventions together with the right to make Patent
applications for the same, while securing for the
Participants a license for the Project Inventions, and
any Patents thereto, on terms in compliance with the
provisions of paragraph 8.8.2 below.
8.8.2. In the event that a Contractor holds title (or elects
to retain title) for any Project Invention, the Contracting
Participant will secure for the other Participants non-exclusive, irrevocable, royalty-free licenses under all
Patents secured for that invention, to practice or have
practiced the patented Project Invention for the following
purposes: for each Participant other than the U.S. DoD, the
purposes specified for that Participant in its Supplement;
and for U.S. DoD, JSF Purposes.
8.8.3. The provisions of subparagraphs 8.8.4 through 8.8.7
below will apply in regard to Patent rights for all Project
Inventions made by the Participants' military or civilian
employees, including those within Government-owned
facilities, and for all Project Inventions made by
Contractors for which the Contracting Participant holds
title or is entitled to acquire title.
8.8.4. Where a Participant has or can secure the right to
file a Patent application with regard to a Project
Invention, that Participant will consult the other
Participants regarding the filing of such Patent
application. The Participant which has or receives title to
such Project Invention will, in other countries, file, cause
to be filed, or provide the other Participants with the
opportunity to file, on behalf of the Participant holding
title, Patent applications covering that Project Invention.
If a Participant, having filed or caused to be filed a
Patent application, decides to stop prosecution of the
application or to cease maintaining the Patent granted or
issued on the application, that Participant will notify the
other Participants of that decision and permit the other
Participants to continue the prosecution, or maintain the
Patent as the case may be. However, in those cases where the
U.S. DoD decides to stop prosecution of a Patent for which
it has filed an application, or ceases to maintain a Patent
which has been granted on that application, the U.S. DoD
will first offer to the U.K. MOD the opportunity to continue
the prosecution, or maintain the Patent as the case may be.
24
8.8.5. Each Participant will be furnished with copies of the
Patent applications filed and Patents granted with regard to
Project Inventions.
8.8.6. Each Participant will grant to the other Participant
a non-exclusive, irrevocable, royalty-free license under its
Patents for Project Inventions, to practice or have
practiced the Project Invention for the following purposes:
for each Participant other than the U.S. DoD, the purposes
specified for that Participant in its Supplement; and for
U.S. DoD, JSF Purposes, unless otherwise specified in a
Supplement.
8.8.7. Patent applications to be filed under this MOU that
contain Classified Information will be protected and
safeguarded in accordance with the requirements contained in
the NATO Agreement for the Mutual Safeguarding of Secrecy of
Inventions Relating to Defence and for which Applications
for Patents have been Made, done in Paris on 21 September
1960, and its Implementing Procedures.
8.8.8. Each Participant will notify the other Participants
of any Patent infringement claims made in its territory
arising in the course of work performed under the Project.
Insofar as possible, the other Participants will provide
Information available to them that may assist in defending
the claim. Each Participant will be responsible for handling
all Patent infringement claims made in its territory, and
will consult with the other Participants during the
handling, and prior to any settlement, of such claims. The
Participants will share the costs of resolving Patent
infringement claims in the same ratios as specified for
their financial contributions in this MOU and the
Supplements. The Participants will, in accordance with their
national laws and practices, give their authorization and
consent for all use and manufacture in the course of work
performed under the Project of any invention covered by a
Patent issued by their respective countries.
30
SECTION IX
CONTROLLED UNCLASSIFIED INFORMATION
9.1. Except as otherwise provided in this MOU or authorized in
writing by the originating Participant, Controlled Unclassified
Information provided or generated pursuant to this MOU will be
controlled as follows:
9.1.1. Such Information will be used only for the purposes
authorized for use of Project Information as specified in
Section VIII (Disclosure and Use of Project Information).
9.1.2. Access to such Information will be limited to
personnel whose access is necessary for the permitted use
under subparagraph 9.1.1, and will be subject to the
provisions of Section XII (Third Party Sales and Transfers).
9.1.3. Each Participant will take all lawful steps, which
may include national classification, available to it to keep
such Information free from further disclosure (including
requests under any legislative provisions), except as
provided in subparagraph 9.1.2, unless the originating
Participant consents to such disclosure. In the event of
unauthorized disclosure, or if it becomes probable that the
Information may have to be further disclosed under any
legislative provision, immediate notification will be given
to the originating Participant.
9.2. To assist in providing the appropriate controls, the
originating Participant will ensure that Controlled Unclassified
Information is appropriately marked. The Participants will
decide, in advance and in writing, on the markings to be placed
on the Controlled Unclassified Information. The appropriate
markings will be defined in the Project Security Instruction for
this MOU.
9.3. Controlled Unclassified Information provided or generated
pursuant to this MOU will be handled in a manner that ensures
control as provided for in paragraph 9.1.
9.4. Prior to authorizing the release of Controlled Unclassified
Information to Contractors, the Participants will ensure the
Contractors are legally bound to control such Information in
accordance with the provisions of this Section.
31
SECTION X
VISITS TO ESTABLISHMENTS
10.1. Each Participant will permit visits to its government
establishments, agencies and laboratories, and Contractor
industrial facilities by employees of another Participant or by
employees of another Participant's Contractors, provided that the
visit is authorized by the Participants involved in the visit and
the employees have any necessary and appropriate security
clearances and a need-to-know.
10.2. All visiting personnel will be required to comply with
security regulations of the host Participant. Any Information
disclosed or made available to visitors will be treated as if
supplied to the Participant sponsoring the visiting personnel,
and will be subject to the provisions of this MOU.
10.3. Requests for visits by personnel of one Participant to a
facility of another Participant will be coordinated through
official channels, and will conform with the established visit
procedures of the host country. Requests for visits will bear the
name of the Project.
10.4. Lists of personnel of each Participant required to visit,
on a continuing basis, facilities of another Participant will be
submitted through official channels in accordance with Recurring
International Visit Procedures.
32
SECTION XI
SECURITY
11.1. All Classified Information and Material provided or
generated pursuant to this MOU will be stored, handled,
transmitted, and safeguarded in accordance with the Security
Agreement between the government of the United States and the
government of each Participant as specified in each Supplement to
this MOU. In addition, the following security provisions will
also apply.
11.2. Classified Information and Material will be transferred
only through official government-to-government channels or
through channels approved by the Designated Security Authorities
(DSAs) of the Participants. Such Information and material will
bear the level of classification, denote the country of origin,
the conditions of release, and the fact that the Classified
Information and Material relates to this MOU. Each Participant
will take steps to facilitate the transfer of such Classified
Information and Material in a timely manner.
11.3. Each Participant will take all lawful steps available to it
to ensure that Classified Information and Material provided or
generated pursuant to this MOU is protected from further
disclosure, except as provided by paragraph 11.8, unless the
other Participants consent to such disclosure. Accordingly, each
Participant will ensure that:
11.3.1. The recipients will not release the Classified
Information and Material to any government, national,
organization, or other entity of a Third Party except as
permitted under the procedures described in Section XII
(Third Party Sales and Transfers).
11.3.2. The recipients will not use the Classified
Information and Material for other than the purposes
provided for in this MOU.
11.3.3. The recipients will comply with any distribution and
access restrictions on Classified Information and Material
that is provided under this MOU.
11.4. The Participants will investigate all cases in which it is
known or where there are grounds for suspecting that Classified
Information and Material provided or generated pursuant to this
MOU has been lost or disclosed to unauthorized persons. Each
Participant also will promptly and fully inform the other
Participants of the details of any such occurrences, and of the
33
final results of the investigation and of the corrective action
taken to preclude recurrences.
11.5. The DSA of the country in which a classified contract is
awarded will assume responsibility for administering within its
territory security measures for the protection of the Classified
Information and Material, in accordance with its laws and
regulations. Prior to the release to a Contractor, prospective
Contractor or sub-contractors of any Classified Information and
Material received under this MOU, the DSAs will:
11.5.1. Ensure that such Contractor, prospective Contractor
or sub-contractors and their facilities have the capability
to protect the Classified Information and Material
adequately.
11.5.2. Grant a security clearance to the facilities, if
appropriate.
11.5.3. Grant a security clearance for all personnel whose
duties require access to Classified Information and
Material, if appropriate.
11.5.4. Ensure that all personnel having access to
Classified Information and Material are informed of their
responsibilities to protect the Information in accordance
with national security laws and regulations and the
provisions of this MOU.
11.5.5. Carry out periodic security inspections of cleared
facilities to ensure that the Classified Information and
Material is properly protected.
11.6. The Director, JSF/ID will prepare the Project Security
Instruction (PSI) and the Classification Guide (CG) for this MOU.
The PSI and CG will describe the methods by which Project
Information and material will be classified, marked, used,
transmitted, and safeguarded. The PSI and CG will be developed by
the Director, JSF/ID within three months after this MOU enters
into effect. They will be reviewed and forwarded to the
appropriate DSAs, and will be applicable to government and
Contractor personnel participating in the Project. The CG will be
subject to regular review and revision with the aim of
downgrading the classification whenever this is appropriate. The
PSI and CG for this MOU will be approved by the appropriate DSAs
prior to the transfer of any Classified Information and Material
or Controlled Unclassified Information to a Participant.
11.7. Contractors, prospective Contractors, or subcontractors
which are determined by DSAs to be under financial,
34
administrative, policy or management control of nationals or
entities of a Third Party, may participate in a Contract or
subcontract requiring access to Classified Information and
Material provided or generated pursuant to this MOU only when
enforceable measures are in effect to ensure that nationals or
entities of a Third Party will not have access to Classified
Information and Material. If enforceable measures are. not in
effect to preclude access by nationals or other entities of a
Third Party, the other Participants will be consulted for
approval prior to permitting such access.
11.8. For any facility wherein Classified Information and
Material is to be used, the responsible Participant or Contractor
will approve the appointment of a person or persons to exercise
effectively the responsibilities for safeguarding at such
facility the Information or material pertaining to this MOU.
These officials will be responsible for limiting access to
Classified Information and Material involved in this MOU to those
persons who have been properly approved for access and have a
need-to-know.
11.9. Each Participant will ensure that access to Classified
Information and Material is limited to those persons who possess
requisite security clearances and have a specific need for access
to the Classified Information and Material in order to
participate in the Project.
11.10. Information or material provided or generated pursuant to
this MOU may be classified as high as SECRET. The existence of
this MOU is UNCLASSIFIED and the contents are UNCLASSIFIED.
35
SECTION XII
THIRD PARTY SALES AND TRANSFERS
12.1. The U.S. DoD will not sell, transfer title to, disclose, or
transfer possession of Project Foreground Information, Jointly
Acquired Equipment or any item produced either wholly or in part
from Project Foreground Information to any Third Party without
prior consultation with the other Participants. Furthermore, the
U.S. DoD will not permit any such sale, disclosure, or transfer
by others, including the owner of the item, without prior
consultation with the other Participants. The U.S. DoD recognizes
the importance to the other Participants of U.S DoD decisions on
such potential sales, disclosures, and transfers which take into
account the views on security matters held by the other
Participants. The U.S. DoD recognizes that sales, disclosures, or
other transfers described in this paragraph will only be made if
the government of the intended recipient consents in writing that
it will:
12.1.1. Not transfer, or permit the further retransfer o
any equipment or Information provided.
12.1.2. Use, or permit the use of, the equipment or
Information provided only for the purposes for which such
equipment or Information is furnished.
12.2. The other Participants will not sell, transfer title to,
disclose, or transfer possession of Project Foreground
Information, Jointly Acquired Equipment, or any item produced
either wholly or in part from Project Foreground Information to
any Third Party without the prior written consent of the U.S.
Government. Furthermore, the other Participants will not permit
any such sales, disclosure, or transfer by others, including the
owner of the item, without the prior written consent of the U.S.
Government. The other Participants recognize that sales,
disclosures, or other transfers described in this paragraph will
not be authorized by the U.S. Government unless the government of
the intended recipient consents in writing that it will:
12.2.1. Not retransfer, or permit the further retransfer of,
any equipment or Information provided.
12.2.2. Use, or permit the use of, the equipment or
Information provided only for the purposes for which such
equipment or Information is furnished.
12.3. Each Participant will retain its right to sell, transfer
title to, disclose, or transfer possession of its Project
36
Background Information, provided it does not include any Project
Foreground Information or Project Background Information of the
other Participants.
12.4. A Participant will not sell, transfer title to, disclose or
transfer possession of Project Background Information or Project
Equipment provided by another Participant to any Third Party
without the prior written consent of the Participant which
provided such equipment or Information. The providing Participant
will be solely responsible for authorizing such transfers and, as
applicable, specifying the method and conditions for implementing
such transfers.
12.5. Consent for Third Party sales and transfers of Project
Foreground Information, Jointly Acquired Equipment, or any item
produced either wholly or in part from Project Foreground
Information will be subject to foreign policy, national security
considerations, and national laws, regulations, and policies.
The U.S. Government approval of another Participant's sale or
transfer to a Third Party takes into account its willingness to
sell or transfer such equipment or Information to the same Third
Party.
12.6. The Participants anticipate that other governments may wish
to buy equipment ultimately derived from the results of this MOU.
The Participants recognize the advantages of their respective
nations' industries working together to produce such equipment
for sale to other governments.
12.7. Sales and other transfers to Third Parties of equipment
developed under this MOU may attract a levy to be shared among
the Participants. Prior to any such sale or other transfer, the
amounts of any levy and the procedures for assessing and
distributing such levy will be mutually determined by the
Participants, consistent with the laws and regulations of each
Participant. A Participant may reduce .the assessment of its share
of the levy.
37
SECTION XIII
LIABILITY AND CLAIMS
13.1. Subject to multilateral and bilateral treaties and
agreements of the Participants concerning liability for claims,
when applicable, the following provisions will apply regarding
liability arising out of, or in connection with activities
carried out in the performance of official duty in the execution
of this MOU and Supplements:
13.1.1. With the exception of claims for loss of or damage
to Project Equipment, which is addressed in Section VII
(Project Equipment), each Participant waives all claims
against the other Participants in respect to injury to or
death of its military or civilian personnel and for damage
to or loss of its property (including jointly acquired
property), caused by such personnel (which do not include
Project Contractors) of another Participant. If, however,
such injury, death, damage, or loss results from reckless
acts or reckless omissions, willful misconduct or gross
negligence of a Participant's personnel, the costs of any
liability will be borne by that Participant alone.
13.1.2. Claims from any other persons for injury, death,
damage or loss of any kind caused by one of the
Participants' personnel will be processed by the most
appropriate Participant, as determined by the Participants.
Any costs determined to be owed the claimant will be borne
by the Participants in the same ratios as their financial
contributions to the Project. If, however, such liability
results from the reckless acts or reckless omissions,
willful misconduct or gross negligence of a Participant's
personnel, the costs of any liability will be borne by that
Participant alone.
13.2. If a person or entity, other than the Participants
(including their personnel), damages Jointly Acquired Equipment,
and the cost of making good such damage is not recoverable from
such person or entity, such cost will be borne by the
Participants in the same ratios as specified for their financial
contributions in this MOU and the Supplements.
13.3. Claims arising under any Contract awarded under this MOU
will be resolved in accordance with the provisions of the
Contract. The Participants will not indemnify Contractors against
liability claims by other persons.
38
SECTION XIV
PARTICIPATION OF ADDITIONAL NATIONS
14.1. It is anticipated that other national defense organizations
may wish to join this Project. The U.S. DoD will exchange with
each of the other Participants side letters reflecting their
mutual endorsement of a list of potential additional Participants
for this MOU.
14.2. The Participants will discuss the arrangements under which
another potential Participant might join, including the
furnishing of releasable Project Information for evaluation prior
to joining. If the disclosure of Project Information is necessary
to conduct discussions, such disclosure will be in accordance
with Section VIII (Disclosure and Use of Project Information),
Section IX (Controlled Unclassified Information) and Section XII
(Third Party Sales and Transfers).
14.3. The addition of a new Participant or Participants to this
Project will be by an amendment to this MOU. Any such amendment
will not alter the provisions of this MOU, except to make the
changes requisite for the addition of the names of the
Participant(s) to the MOU. A Participant may not withhold its
written consent to such an amendment forwarded by the U.S. DoD to
that Participant for signature, except in the case where the new
Participant or Participants to be added by the amendment are not
listed in the side letters referenced in paragraph 14.1.
14.4. Recognizing the importance of the benefits of additional
Participants to the Project and the need for timely execution of
the Project, the existing Participants will use their best
efforts to sign amendments for the addition of a new Participant
or Participants as quickly as possible. Such amendments will
enter into effect upon the earlier of the following dates: (1)
date of last signature of all the existing and new Participants;
or (2) provided that the new Participant or Participants are
listed in the side letters referenced in paragraph 14.1, the date
by which the last signature of the U.S. DoD and the new
Participant(s)has been obtained and a minimum of 30 days has
elapsed from the time of the U.S. DoD's transmittal of the
amendment to all Participants for signature.
14.5. Provisions for the addition of new Participants to a
Supplement will be addressed, as necessary, in each Supplement.
39
SECTION XV
CUSTOMS DUTIES, TAXES, AND SIMILAR CHARGES
15.1. Customs duties, import and export taxes, and similar
charges will be administered in accordance with each
Participant's respective laws and regulations. Insofar as
existing national laws and regulations permit, the Participants
will endeavor to ensure that such readily identifiable duties,
taxes and similar charges, as well as quantitative or other
restrictions on imports and exports, are not imposed in
connection with work carried out under this Project.
15.2. Each Participant will use its best efforts to ensure that
customs duties, import and export taxes, and similar charges are
administered in a manner favorable to the efficient and
economical conduct of the work. If any such duties, taxes, or
similar charges are levied, the Participant in whose country they
are levied will bear such costs.
15.3. If, in order to apply European Union (EU) regulations, it
is necessary to levy duties, then these will be met by the EU
member end recipient. To this end, parts of the components of the
equipment coming from outside the EU will proceed to their final
destination accompanied by the relevant customs document enabling
settlement, of duties to take place. The duties will be levied as
a cost over and above that Participant's shared cost of the
Project.
40
SECTION XVI
SETTLEMENT OF DISPUTES
16.1. Disputes between or among the Participants arising under or
relating to this MOU or a Supplement thereto will be resolved
only by consultation among the Participants to this MOU or the
applicable Supplements and will not be referred to an individual,
to a national court, to an international tribunal, or to any
other person or entity for settlement.
41
SECTION XVII
LANGUAGE
17.1. The working language for the Project will be the English
language.
17.2. All Project Information generated under this MOU and its
implementing Contracts and provided by one Participant to the
other Participants will be furnished in the English language.
42
SECTION XVIII
AMENDMENT, WITHDRAWAL, TERMINATION, ENTRY INTO EFFECT, AND
DURATION
18.1. All activities of the Participants under this MOU and its
Supplements will be carried out in accordance with their national
laws and the responsibilities of the Participants will be subject
to the availability of funds for such purposes.
18.2. No requirement will be imposed by any Participant for work
sharing or other industrial or commercial compensation in
connection with this MOU or its Supplements that is not in
accordance with this MOU or its Supplements.
18.3. Except as otherwise provided, this MOU may be amended by
the mutual written consent of the Participants. Except as
otherwise provided in a Supplement, a Supplement may be amended
only by the mutual written consent of the Participants who are
signatories of that Supplement.
18.4. This MOU may be terminated at any time upon the written
consent of the Participants. In the event of MOU termination, the
Participants will consult prior to the date of termination to
ensure termination on the most economical and equitable terms.
Upon MOU termination, all Supplements will also be automatically
terminated unless, prior to the termination date of this MOU, the
Participants of a Supplement mutually consent to, and execute,
the conversion by amendment of that Supplement into a stand-alone
MOU.
18.5. An individual Supplement may be terminated by the written
consent of the Participants of that Supplement upon their giving
90 days written 'notification to the other Participants of this
MOU. In the event the Participants of a Supplement consent to
terminating that Supplement, those Participants will consult
prior to the date of termination to ensure termination on the
most economical and equitable terms, and all Participants of this
MOU will consult as to the impact upon the Project.
18.6. Any Participant may withdraw from this MOU and its
Supplements upon 90 days written notification to the other
Participants. Such notice will be the subject of immediate
consultation by the EC to decide upon the appropriate course of
action. In the event of such withdrawal, the following rules
apply, except as may otherwise be specified in a Supplement for
the case in which a Participant withdraws under prescribed
43
circumstances prior to the signature of the Contract awarded to
the JSF prime Contractor:
18.6.1. The withdrawing Participant will continue
participation, financial or otherwise, up to the effective
date of withdrawal.
18.6.2. Except as to Contracts awarded on behalf of all
the Participants, each Participant will be responsible for
its own Project-related costs associated with the withdrawal
of a Participant. For Contracts awarded on behalf of all the
Participants, the withdrawing Participant will pay all
Contract modification or termination costs that would not
otherwise have been incurred but for the decision to
terminate; in no event, however, will a withdrawing
Participant's total financial contribution, including
Contract termination costs, exceed that Participant's total
Financial Cost share as established in Section V (Financial
Provisions) of this MOU (for the U.S. DoD) and in the
corresponding financial section of the withdrawing
Participant's Supplement (for the other Participants).
18.6.3. All Project Information and rights therein received
under the provisions of this MOU and its Supplements prior
to the withdrawal will be retained by the Participants,
subject to the provisions of this MOU and its Supplements.
18.7. The respective rights and responsibilities of the
Participants regarding Section VII (Project Equipment), Section
VIII (Disclosure and Use of Project Information), Section IX
(Controlled Unclassified Information), Section XI (Security),
Section XII (Third Party Sales and Transfers), and Section XIII
(Liability and Claims), as well as corresponding sections in the
Supplements, will continue notwithstanding termination of,
withdrawal from, or expiration of this MOU or any of its
Supplements.
18.8. This MOU, which consists of eighteen Sections, will enter
into effect from the date of the last signature of the
representatives of the Secretary of Defense on behalf of the
Department of Defense of the United States of America and the
Secretary of State for Defence of the United Kingdom of Great
Britain and Northern Ireland and will remain in effect for 15
years. It may be extended by written consent of the Participants.
44
The foregoing represents the understandings reached between the
Secretary of Defense of the United States of America and the
Secretary of State for Defence of the United Kingdom of Great
Britain and Northern Ireland.
Signed in duplicate, in the English language, at Washington, D.C.
on January 17, 2001, by authorized representatives.
FOR THE SECRETARY OF DEFENSE
ON BEHALF OF THE DEPARTMENT OF
DEFENSE OF THE UNITED STATES
OF AMERICA
FOR THE SECRETARY OF STATE
FOR DEFENCE OF THE UNITED
KINGDOM OF GREAT BRITAIN AND
NORTHERN IRELAND
Signature
Rudy de Leon
Name
Deputy Secretary of Defense
Title
Signature
The Right Honourable
Baroness Symons of Vernham
Dean
Name
Minister of State for
Defence Procurement
Title
45



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