1. Definitions.
a. Agreement: A SPraaS Price Proposal the
Customer accepted, as described in paragraph 3.
b. Background
Information: Information not generated in the performance of this
Agreement.
c. Common
Funds: Funds the Customer will use to pay NCIA pursuant to the Agreement
that originate from a NATO financial committee such as the Military Budget
Committee, the Civilian Budget Committee, the Investment Committee, or the
Resource Policy and Planning Board.
Customers using Common Funds are sometimes referred to as ‘Internal
Customers’.
d. Customer: The entity accepting, as
described in paragraph 3, the Price Proposal.
e. Foreground Information: Information
NCIA generates in the performance of this Agreement.
f. Information: Any information,
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,
designs, specifications, processes, techniques, inventions, drawings, technical
writings, sound recordings, pictorial representations, and other graphical
presentations, whether in computer software or any other form and whether or
not subject to copyright, patent, or other legal protection.
g. Intellectual
Property: Ownership
in Information.
h. NCIA: NATO Communications and
Information Agency.
i. Non-common
Funds: Funds that are not Common Funds.
Customers using Non-common Funds are sometimes referred to as ‘External
Customers’.
j. Parties: Both NCIA and the Customer together.
l. Party: Either NCIA or the Customer
separately.
m. Price
Proposal: Written offer from NCIA to the Customer.
n. Standard
Products as a Service (SPraaS): A delivery model whereby a product is
provided to the customer bundled with associated operational, maintenance, and
support services. SPraaS orders are
indicated on Price Proposals.
2. General
Information.
a. The terms and conditions for SPraaS
(hereinafter “SPraaS Terms”) in this document apply to, and are an integral
part of, all price proposals including SPraaS.
b. Any deviations from these SPraaS Terms will be
stated in the Agreement. Absent a
deviation stated in the Agreement, these SPraaS Terms control.
3. Acceptance.
a. Customer accepts the Price Proposal by either:
i. Signing and returning the Price Proposal as
described therein, or
ii. If a NATO body, submitting a purchase order as
described in the Price Proposal and NCIA counter-signing the purchase order.
b. Once accepted by the Customer, the Price
Proposal, including documented referenced therein, become the legal Agreement
between the Parties for the matters described in that Price Proposal.
c. The Parties may only modify an Agreement
through a jointly written and signed amendment.
4. Invoicing.
a. Invoicing. NCIA will invoice the Customer 100% of the
price upon the Customer’s acceptance of the Price Proposal.
5. Currency
and Payment.
a. Customer will pay NCIA invoices no later than
thirty (30) days following the invoice issuance date.
b. NCIA issues all Price Proposals and invoices
in Euros.
c. Customer, or another paying the Customer’s
invoice, will pay all NCIA invoices in Euros.
If any invoice is paid in currencies other than Euros, NCIA will convert
the currency into Euros pursuant to NCIA’s internal procedures and deduct first
any fees prior to crediting the invoice.
If the convert payment is insufficient to pay the invoice, NCIA shall
notify the Customer. Customer agrees to
pay the remaining amount immediately.
d. All payments to the Parties will be made to
the bank accounts indicated on the Annex with the NCIA Points of Contact,
Acceptance Form or Invoice.
6. Taxes. NCIA will endeavour to ensure that no
identifiable duties or taxes are levied for which exemption is provided under
Article IX of the Agreement on the Status of the North Atlantic Treaty
Organization, National Representatives and International Staff, signed in
Ottawa on 20th of September 1951. The Customer remains fully liable for the
payment and reimbursement to the NCIA of any duties or taxes levied with regard
to any procured products or services, should the exemption not be applied or is
denied by the taxing authority.
7. Audit. NCIA financial records are subject to audit
by the International Board of Auditors for NATO. These records will be made
available to the Customer audit institution(s), if requested and subject to
applicable approvals.
8. Access
to Premise. When necessary to
perform the Agreement, the Customer will provide NCIA with reasonable access at
reasonable times to premises used by the Customer. NCIA will endeavor to provide Customer
adequate notice of the need for access.
Customer will endeavor to facilitate NCIA’s access, including when the
Customer is tenant or otherwise not in control of the premise.
9. Security. Parties will follow the Security Within
the North Atlantic Treaty Organization (C-M(2002)0049-REV1, dated 20
November 2020, as amended and supplemented. Any additional security requirements will be
documented in the Agreement.
10. Intellectual Property. Both Parties recognize that successful
collaboration depends on full and prompt exchange of information necessary for
carrying out this Agreement.
a. Foreground
Information.
i. The
ownership of the intellectual property rights for all Foreground Information
produced by the NCIA under this Agreement is assigned to the Party that funded
the work concerned.
ii. NCIA
may further use or have used on its behalf all Foreground Information without
charge for the purpose and scope of this Agreement only.
b. Background
Information.
i. The
Parties may, upon request, disclose to each other any relevant Background
information provided:
(1) Such Background Information is necessary to the work to be carried
out under this Agreement, with the disclosing Party determining whether it is necessary
to the work to be carried out under this Agreement;
(2) Such Background Information may be made available without incurring
liability to holders of proprietary rights; and
(3) Disclosure is consistent with the disclosure policies and
regulations of the Party.
ii. The
Party receiving the other Party’s disclosed Background Information shall not
disclose, transfer, loan or provide any other type of access to Background
Information to another without the prior written consent of the disclosing.
iii. That disclosing Party may impose restrictions with respect to the
use of the said Background Information. Such
restrictions also apply to Foreground Information developed on the basis of
that Background Information, unless otherwise arranged with the disclosing
Party.
iv. In
the absence of such restrictions, Background Information disclosed by a Party
may be used without charge by or for the other Party for using the Foreground
Information, in so far as the Background Information is integral to and
necessary for the use of the Foreground Information.
v. Background
Information disclosed by the Customer may be used without charge by the NCIA
for the purpose of carrying out work under this Agreement.
vi. Before
release, all proprietary technical information subject to restrictive rights of
further disclosure and use is identified and appropriately marked.
vii. All proprietary technical information is handled as specified in
the NATO Agreement on the Communication of Technical Information for Defence
Purposes, done at Brussels on 19 October 1970, and the Implementing
Procedures for the NATO Agreement on the Communication of Technical Information
for Defence Purposes, approved by the North Atlantic Council on 1 January
1971”.
11. Nationally
Imposed Export Control or Similar Use Restrictions.
a. Certain products or services provided under
the Agreement may be subject to export control laws and regulations, or similar
restrictions imposed by one or more jurisdictions. NCIA does not control such
restrictions and may be prohibited from performing obligations under this
Agreement absent required governmental authorisations.
b. NCIA shall use reasonable endeavours to
identify applicable restrictions in the Price Proposal. However, as the scope,
specification, or intended use of the relevant products or services may not be
fully known at that stage, certain restrictions may only become identifiable,
arise, or change after execution of the Agreement. The Parties agree that
failure by NCIA to identify applicable restrictions shall not relieve either
Party of its obligation to comply with such restrictions or constitute grounds
for termination of the Agreement, withholding payment, or otherwise not perform
a responsibility under the Agreement.
c. When a product or service is subject to export
control or similar restrictions, the Parties agree to mutually cooperate in
executing their respective duties within those nationally imposed
requirements. This may involve collecting
and sharing Information, including with national authorities; executing
relevant export control documents; and, establishing compliance programs. While
responsibilities may change based on the specific nationally imposed
requirements, the Parties acknowledge that:
i. NCIA is not typically the (ultimate)
end-user of products or services and may therefore be unable to undertake
obligations imposed on an “end-user”. In such circumstances, the Customer shall
assume and fulfil all applicable end-user obligations.
ii. Where NCIA is the end-user of a restricted
product or service, the Customer shall fully cooperate with NCIA in satisfying
its obligations under applicable export control laws. Failure by the Customer
to provide such cooperation shall constitute grounds for NCIA to terminate the
Agreement and require the Customer to take such actions as NCIA deems
reasonably necessary to ensure compliance with applicable export control laws
or similar restrictions.
12. Software Licenses.
a. Unless
specifically stated in the Agreement, NCIA will not provide the Customer any
NATO software. If the Agreement includes
NCIA providing the Customer NATO software, the Customer agrees to execute a
license agreement provided by NCIA, which is separate and apart from this
Agreement.
b. If
NCIA, in performance of the agreement, delivers the Customer non-NATO software
the Customer agrees to sign any respective licensing agreements necessary for
the Customer to use that software. The
Customer may request NCIA provide copy of the respective licensing agreement,
to include before accepting the Price Proposal.
13. Warranty.
a. NCIA
provides no warranty, express or implied, including but not limited to those of
merchantability and fitness for a particular purpose, and accepts no liability
whatsoever for, or in connection with the use of products or services delivered
under the Agreement. NCIA provides all
products and services "as is". Any and all Customer use of NCIA provided
products or services is at the exclusive risk, responsibility, and liability of
the Customer.
b. While
NCIA provides no warranty, NCIA does endeavour to provide quality products and
services that meet Customer expectations as described in the Agreement. In doing so, NCIA may:
i. Utilize
warranties provided to NCIA by vendors or contractors NCIA retains to deliver
products and services. The Customer
agrees to assist NCIA in utilizing any such warranty to satisfy the Customer’s
expectations.
ii. When
possible and requested by the Customer, transfer or assign a warranty from NCIA
to the Customer. Customer agrees NCIA is
not responsible for any failure to assign such a warranty to the Customer or
any challenges the Customer may have in utilizing or enforcing that warranty.
14. In-year Service Support. Should the Agreement include in-year delivery
of service support (i.e. operations and maintenance), that support will be in
accordance with the relevant service level agreement NCIA has with the
Customer.
15. Cancellation during Subscription
Periods. If the Customer terminates
this Agreement or otherwise cancels any subscription-based services described
in the Agreement, the Customer is financially responsible for any costs NCIA
incurs as a result of the Customer’s decision.
16. Resolution of Disputes. Parties will resolve any dispute
regarding the interpretation, implementation, or application of the Agreement
through consultation. Neither Party will
refer any matter to any national tribunal, international tribunal, or other
entity. Parties will approach any
dispute as a mutual problem requiring effort from both Parties to resolve. Parties will seek to resolve disputes at the
lowest level possible, with the ultimate forum being the NCIA Agency
Supervisory Board. Once resolved, the
Parties will memorialize the resolution of the dispute in a jointly agreed to
writing.
17. Liability.
a. Parties
agree that in the event of damage, or other liabilities or losses caused by a
contractor or any other entity working under an arrangement of any kind with
the NCIA or by a wilful act or gross negligence by an NCIA staff member,
related to the Agreement, the NCIA shall arrange to have those responsible
refund any amounts due in accordance with existing laws and regulations, as
follows:
i. Regarding
NCIA contractors: NCIA will ensure contract clauses hold contractors
accountable in accordance with the law applicable for the given contract with
respect to damages and other liabilities due to fault and negligence.
ii. Regarding
NCIA’s civilian staff: NATO Civilian Personnel Regulations (NCPRs) provide the
rules and procedures in the event an NCIA’s civilian staff member causes damage
or other liabilities through wilful act or gross negligence.
iii. Regarding NCIA’s military staff: The respective national regulations
govern damage or other liabilities as a result of wilful act or gross
negligence caused by NCIA military staff.
b. If
a remedy cannot be found in this manner, the Parties will refer the matter to
the NCIA Agency Supervisor Board for resolution.
18. Force Majeure. The Parties shall not be liable for
obligations in the performance of the Agreement if the failure or delay in
performance arises out of causes beyond the control of either of the Parties.
Such causes may include, but are not restricted to, acts of God, or of the
public enemy, fires, floods, strikes, freight embargoes, epidemics, natural
disasters or other force majeure events. However, such unforeseen causes or
force majeure will not absolve a Party from its financial obligations under
this Agreement which have been incurred up to the moment such causes or event
occurred.
19. Termination.
a. The
Parties may mutually decide, in writing, to terminate this Agreement.
b. One
Party may unilaterally terminate this Agreement in writing. The terminating Party agrees to reimburse the
other Party for costs directly arising from the terminating Party’s decision to
terminate the Agreement. The Parties
will mutually cooperate to minimize those costs, with special recognition of
the financial policies governing NCIA as established by the Allies.
20. Language. The Parties agree to conduct business in the
English language.