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Memorandum of Understanding between the Ministry of Defence of the Republic of Estonia, the Ministry of Defence of the Republic of Latvia, the Ministry of National Defence of the Republic of Lithuania and the Federal Ministry of Defence of the Federal Republic of Germany concerning the Hand-over and System Implementation of the Baltic Command and Control Information System (BALTCCIS) The Ministry of Defence of the Republic of Estonia, the Ministry of Defence of the Republic of Latvia, the Ministry of National Defence of the Republic of Lithuania, and the Federal Ministry of Defence of the Federal Republic of Germany, hereinafter referred to as "Participants" - taking note of the Memorandum of Understanding between the Ministry of Defence of the Republic of Estonia and the Federal Ministry of Defence of the Federal Republic of Germany concerning the Development and Implementation of the BALTIC Command and Control Information System (BALTCCIS), dated 12 April 2002, taking note of the Memorandum of Understanding between the Ministry of Defence of the Republic of Latvia and the Federal Ministry of Defence of the Federal Republic of Germany concerning the Development and Implementation of the BALTIC Command and Control Information System (BALTCCIS), dated 10 June 2002, taking note of the Memorandum of Understanding between the Ministry of National Defence of the Republic of Lithuania and the Federal Ministry of Defence of the Federal Republic of Germany concerning the Development and Implementation of the BALTIC Command and Control Information System (BALTCCIS), dated 16 May 2002, taking into account the Agreement between the States parties to the North Atlantic Treaty regarding the status of their forces, done in London on 19 June 1951 (NATO SOFA), have reached the following understanding: Section 1 - Definitions For the purposes of this Memorandum of Understanding (MoU) the following definitions will apply: a) Providing Participant - the Federal Ministry of Defence of the Federal Republic of Germany. b) Receiving Participants - the Ministry of Defence of the Republic of Estonia, the Ministry of Defence of the Republic of Latvia and the Ministry of National Defence of the Republic of Lithuania. c) BALTCCIS Hand-over - the official hand-over of the BALTCCIS (server structure, software and relevant documentation) from the Providing Participant to the Receiving Participants. d) BALTCCIS software - the software suite, which consists of - "COTS software" - software products, acquired for the use in BALTCCIS framework. - "Proprietary software" - software developed at GAFCCIS Programming centre, Birkenfeld, Germany according to the respective project plan version. - "Core software" - parts of the proprietary software as specified in Appendix 2 to Annex B. e) GAFCCIS - the Command and Control Information System of the German Air Force. f) Operational use - the use of the BALTCCIS for operational purpose on the basis of actual data of the Receiving Participants. g) Software maintenance - all measures intended to correct functional or technical malfunctions of the proprietary software. h) Software change assistance - all measures based on consultation and know-how transfer to assist the Receiving Participants in their needs to change/extend the delivered proprietary software version. i) Software configuration control - all measures to ensure a controlled status of a proprietary software version (as a common baseline) which guarantee the faultless operation of that version. j) Final system acceptance test (FAT) - agreed test series in the Receiving Participants facilities prior to BALTCCIS hand-over carried out under the conditions as specified in Annex D. k) Online consultation service - Assistance from the GAFCCIS Programming Centre, Birkenfeld via phone contact and electronic mail. l) Critical Design Review (CDR) - Final review of the software status prior to finishing a software version release. Section 2 - Purpose The purpose of this MoU is to provide terms and conditions under which the Providing Participant will hand-over BALTCCIS to the Receiving Participants and provide further support in the area of software maintenance and configuration control. Section 3 - Interim Software Configuration Management The present management organisation consisting of the BALTCCIS Steering Group and Project Management Group will cease to exist with the BALTCCIS hand-over. To facilitate maintenance and configuration control of the BALTCCIS software, the seamless changeover of these functions has to take place. For this reason during the period between the BALTCCIS hand-over and the end of 2006 the Interim BALTCCIS Configuration Control Board will act on the terms laid down in Annex E. Section 4 - Security (1) The protection of classified information provided by the Participants will be regulated by the respective bilateral or/and multilateral agreements concerning mutual protection of classified information. (2) In the event of termination of this MoU or withdrawal by any Participant, all classified information exchanged or generated under this MoU, shall continue to be handled according to the specific national legislation and respective bilateral or/and multilateral agreements. Section 5 - BALTCCIS Hand-over (1) After the FAT the Providing Participant will transfer operations authority of the BALTCCIS to the Receiving Participants. Conditions including the regulations concerning copyrights, license conditions and future enhancements are covered by Annex B. (2) Transfer of ownership of the provided hardware will be done at the latest by the end of 2006 and will be subject to a separate arrangement between the Participants. The ownership of the equipment, as set out in detail in Annex B, will be transferred free of charge. At the time of the transfer of ownership the equipment will have the state as is. This does not constitute any right of the Receiving Participants to request maintenance from or execute warranty rights against the Providing Participant. Section 6 - Responsibilities of the Providing Participant (1) With BALTCCIS hand-over the involvement of the Providing Participant in the development and implementation of the BALTCCIS will end. (2) The follow-on assistance of the Providing Participant covers software maintenance and change assistance free of charge until the end of 2006. Software configuration control for the common baseline of the BALTCCIS software will be covered by the Providing Participant until the end of 2007 free of charge. During this period the integration of changes produced by any of the Receiving Participants and the release of the updated software version will be done by the GAFCCIS Programming Centre. (3) The Providing Participant ensures free of charge online consultation service to the Receiving Participants for three years after BALTCCIS hand-over, covering assistance in the field of software maintenance and configuration control for the common baseline. Section 7 - Responsibilities of the Receiving Participants (1) Prior to the BALTCCIS hand-over the Receiving Participants will define the common point of contact for the software configuration control for the time period after the end of 2006. (2) Requests to the Providing Participant concerning software configuration control during 2007 will be coordinated between Receiving Participants. (3) Any changes/enhancements to the proprietary software of the common baseline produced after the system hand-over by the Receiving Participants or on their behalf by a contractor will also be delivered to GAFCCIS Programming Centre free of charge for change recording until the end of 2009. (4) The Receiving Participants will handle all BALTCCIS proprietary software related information being property of the Providing Participant in accordance with the detailed provisions as set out in Annex C. (5) Activities, which can be requested by the Receiving Participants under Section 6 (2) will be included in the applicable bilateral annual cooperation programmes until the end of 2006. Any activities on the same matter beyond this date will have to be agreed with the Providing Participant separately. Section 8 - Financial Provisions Any activity of the Providing Participant until the end of 2006 related to BALTCCIS and initiated by one or all of the Receiving Participants not covered by the respective bilateral annual programs will be paid for by the respective Receiving Participant. Section 9 - National Law and International Obligations This MoU is not intended to supersede national or international laws and regulations by which the Participants are bound. In case of contradiction the other Participants have to be informed immediately, national and international law will prevail. Section 10 - Settlements of Disputes Any dispute concerning the interpretation or application of this MoU will be resolved by consultation between the Participants based on mutual consent without recourse to any third party or tribunal. Section 11 - Entry into Effect, Amendments, Termination and Withdrawal (1) This MoU will become effective upon the date of the last signature and will remain valid until the end of 2009. (2) This MoU may be amended, extended or supplemented at any time by mutual consent. Amendments, extensions and supplements will be done in writing. (3) This MoU may be terminated at any time by mutual consent of the Participants. (4) Each Participant may withdraw from this MoU at any time, provided that written notice has been given to the other Participants 3 months in advance. (5) In case of withdrawal the costs involved are to be negotiated immediately after notification of withdrawal. The reimbursement of intended loss and the coverage of agreed costs will be the responsibility of the withdrawing Participant. (6) In case of termination or withdrawal the provisions set out in Annex C remain valid until the respective information is released by the Providing Participant. Done in 4 originals in the English language. Tallinn, 2006 For the Ministry of Defence of the Republic of Estonia, ___________________________________ Riga, 2006 For the Ministry of Defence of the Republic of Latvia, ___________________________________ Vilnius, 2006 For the Ministry of National Defence of the Republic of Lithuania ___________________________________ Bonn, 2006 For the Federal Ministry of Defence of the Federal Republic of Germany
Annex A LIST OF DOCUMENTS AND AGREEMENTS
Annex B CONDITIONS OF THE BALTCCIS HAND-OVER (1) The Providing Participant will provide the hardware for the national and central servers and a complete set of server-based software, necessary for the system operation and management. The system provided for operational use is built with the functionality laid down in the valid version of the project plan and the respective CDR. The Providing Participant will provide free of charge a complete set of documentation (in English language) and a copy of the actual source code of the proprietary software in electronic form. (2) The software suite consists of the necessary licenses for the implemented COTS software products on the provided servers, as well as for the proprietary software developed and provided by the GAFCCIS Programming Centre free of charge. Arising follow-on costs for the COTS products (e.g. for company software support) will have to be covered by the respective Receiving Participants. The license for the proprietary software is valid for unlimited use within the Security Services /Defence organisations of the Receiving Participants. Any provision of this software to a third party outside the Security/Defence organisations of the Receiving Participants is not covered by this license and needs prior written approval by the Providing Participant. (3) The copyright of the BALTCCIS proprietary software developed by the GAFCCIS Programming Centre will be handled in accordance with the EC Directive 91/250/EEC. (4) In cases of outsourcing by one Participant where it will not be possible to enter development without providing the source code of the valid proprietary software-version to civilian contractors, the other Participants will have to be informed. The provisions of the Non-Disclosure Procedures laid down in Annex C will apply. (5) All changes and enhancements (including source code) to the provided BALTCCIS proprietary software (as detailed in Appendix 2 of this Annex) produced by the Receiving Participants in common, by a single Receiving Participant or by a contractor on their behalf have to be delivered to the GAFCCIS Programming Centre free of charge for change recording until the end of 2009. The use of those changes by the Providing Participant is allowed without any charges and restrictions. (6) Extension to the BALTCCIS software by Receiving Participants without any effect to the proprietary software is allowed without any restrictions.
Annex B Appendix 1 DETAILS OF THE TRANSFERRED EQUIPMENT
Annex B Appendix 2 DETAILS OF TRANSFERRED SOFTWARE AND DOCUMENTATION I. Software
* Excluding Client Licenses (Clients with MS Operating System require no separate License) ** Those parts of the software containing proprietary source code produced by the GAFCCIS ProgCtr
* Excluding Client Licenses (Clients with MS Operating System require no separate License)
* Excluding Client Licenses (Clients with MS Operating System require no separate License)
* Excluding Client Licenses (Clients with MS Operating System require no separate License) II. Documentation The following documentation will be distributed to all Receiving participants in electronic form according to the released software version as part of the software DVD. Listed documentation files: Abbreviation Index. doc Implementation CSF.doc Implementation C2F & User Handbook.doc Interface Specification.doc Software Architecture.doc System Architecture.doc Technical Requirements.doc User Requirements.doc It is amended by the standard company documentation concerning the Hardware and the delivered COTS products which is part of the hardware package ANNEX C NON-DISCLOSURE PROCEDURES The Receiving Participants will handle all BALTCCIS proprietary software related information being property of the Providing Participant and protected by copyright and property rights in accordance with the following provisions: (1) Information that is to be kept in a confidential relationship and treated as Proprietary Information will be disclosed in a tangible form and will be conspicuously marked as being "Proprietary" (2) Proprietary Information if first disclosed in a non-written or other non-tangible form will be identified by the Providing Participant at the time of disclosure as being disclosed in confidence and will be reduced to tangible form and marked in accordance with the following provisions, and such tangible form will be delivered to the Receiving Participant within twenty (20) working days after the date of first disclosure. During the above stated 20-day period such Proprietary Information will be protected in accordance with the provisions of this Annex. (3) Proprietary Information that is disclosed pursuant to this Annex will not be used other than for the purposes submitted, or disclosed to any third party unless authorized in writing by the Providing Participant. (4) No Receiving Participant will be liable for the inadvertent or accidental disclosure of proprietary information if such disclosure occurs despite the exercise of the same degree of care as such Participant normally takes to preserve its own data or information of similar sensitivity, if such protective efforts satisfied the above reasonable care standard. (5) If the Receiving Participant makes any copies, extracts, summaries or digests of the proprietary information (including computer entries), the Receiving Participant will ensure that appropriate legends are affixed thereto. Copies made by a reproduction service contractor for the exclusive use of a Receiving Participant is permitted provided the service contractor has executed a nondisclosure agreement which is sufficient to protect the proprietary information required under the provisions of this Annex. (6) It is acknowledged by the Participants that when any portion of such proprietary information falls within any of the following provisions, such portion of such proprietary information is released from the protection provided under the provisions of this Annex: a) Information which is or becomes part of the public domain without breach of the provisions of this Annex; b) Information which is subsequently received from a third party who has not obtained or disclosed it in violation of any rights of the Providing Participant; c) Information which is already known to a Receiving Participant, which is substantiated by reasonable evidence; d) Information which is publicly disclosed with the prior written approval of the Providing Participant; e) Information which has been independently developed by an employee of the Receiving Participant who has not had access to the disclosed information and independent development is substantiated by reasonable evidence; f) Information not identified as proprietary; g) Information which has been disclosed in a non-written or non-permanent form and has not been identified as proprietary at the time of disclosure and/or has not been reduced to written form and communicated as proprietary in accordance with the provisions of this Annex; or h) Three (3) years after the date such information is furnished hereunder. (7) No license, right, title or interest in or to any patent, trademark, mask work, copyright, service mark, or any other intellectual property rights, is granted or implied by disclosure of or access to such proprietary information disclosed hereunder. Each Participant warrants that it has the lawful, unqualified right to transfer, use or otherwise disclose the information transmitted hereunder. No other warranties, express or implied at law or in equity, are intended or deemed to arise by virtue of entering into the provisions of this Annex or performing hereunder. (8) In the event of breach of the provisions of this Annex, the failure of a Participant to enforce any right under this Annex will not be deemed a waiver of any right hereunder. The invalidity in whole or in part of any condition of the provisions of this Annex will not affect the validity of any other condition hereof. (9) At all times all Participants will remain independent entities with each responsible for its own employees and representatives. The provisions of this Annex are not intended to be, nor will they be construed as a joint venture, partnership or other formal business organization, and no Participant will have the right or obligation to share any of the profits, or bear any losses, risks or liabilities of the other Participants by virtue of the provisions of this Annex. No Participant is authorized to act for or on behalf of another Participant, nor to bind or otherwise commit the other Participants to any contract or other matter.
ANNEX D CONDITIONS OF FINAL ACCEPTANCE TEST In the spirit of the cooperation project a combined technical and operational "Final Acceptance Test (FAT)"is conducted in the BALTCCIS, installed at the facilities of Receiving Participants to verify a correct technical performance and the operational usability for the purpose defined in the 3 bilateral MoUs. (I) Conducting the FAT The FAT consists of two parts: (1) Technical test: a) The purpose of the technical test is to validate the correct operation of the proprietary software developed by the GAFCCIS ProgCtr Birkenfeld. b) The test procedures and schedule are agreed between Participants before the FAT. c) The test is accomplished by Providing Participants test teams in facilities of the Receiving Participants. The Receiving Participants assign qualified personnel for test monitoring. d) Occurring software errors are noted and categorised into 5 classes:
e) Noted errors are subject of the error correction process starting after the complete analysis of the FAT. (2) Operational Scenario Play: a) The purpose of operational scenario play is to evaluate and demonstrate the operational usability of BALTCCIS. b) The operational scenario is produced by the Receiving Participants in common understanding. It is conducted by representatives of the Receiving Participants. The test teams of the Providing Participant will assist the users of the Receiving Participants by providing technical advise on the use of BALTCCIS functionality. c) The operational scenario play is co-ordinated by a multinational team located at the facilities of one of the Receiving Participants. d) Comments/complaints of the users of the Receiving Participants are noted and classified in two categories:
(II) Assessment of FAT a) Based on the technical test results and follow-on analysis of noted errors by the GAFCCIS Programming Centre, the Providing Participant will file the respective FAT result and distribute the necessary Certificates to the Receiving Participants. b) The result of the FAT is driven only by the errors noted during the technical test. Operational comments/complaints will not lead to a failure of the FAT. c) Criteria for the grading of the overall FAT result are as follows:
(III) Follow-on actions a) The results of "FAT passed" and "FAT passed with discrepancies" will lead if necessary to an error correction and internal technical testing process by the Providing Participant. After completion, the corrected proprietary software version will be distributed to the Receiving Participants at latest by end of 2006. b) The result "FAT failed" lead to an error correction, internal technical testing and release of a corrected proprietary software version by the Providing Participant at latest by the end of 2006. The Participants unanimously decide whether an additional FAT is necessary prior to the release of the respective software package.
Annex E TERMS OF REFERENCE of the INTERIM BALTCCIS CONFIGURATION CONTROL BOARD (BALTCCIS CCB) (1) Mission The BALTCCIS CCB is established as an interim quadrinational body to coordinate BALTCCIS software maintenance, change and configuration control issues between Participants. It shall be responsible for the detailed decisions towards the software maintenance and the configuration control of the BALTCCIS proprietary software. (2) Composition The BALTCCIS CCB consists of the point of contact of each of the Receiving Participants and the Chairman appointed by the Providing Participant acting as members of the BALTCCIS CCB. Each member may invite up to two national consultants if it is necessary in order to accomplish BALTCCIS CCB tasks. (3) The Chairman The Chairman is responsible for the co-ordination of overall BALTCCIS CCB activities. He is the focal point between Providing Participant and the Receiving Participants. (4) Decision process The decisions in the BALTCCIS CCB will be taken by the consensus between all its members. BALTCCIS CCB decisions shall not cover issues of national legislation, major financial responsibilities or national security of the Participants. In case the national POC or chairman will inform the interim BALTCCIS CCB, that an issue is touching this regime, the interim BALTCCIS CCB will forward it to the appropriate decision level. (5) Meetings The interim BALTCCIS CCB will meet as necessary to carry out its mission. The hosting of meetings will normally rotate between the Receiving Participants. The participation of delegation of the Providing Participant will be covered (excluding travel expenses) by the respective Receiving Participant. BALTCCIS CCB meetings will be accordingly included into annual cooperation programmes. |
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