TREATIES AND OTHER INTERNATIONAL ACTS SERIES 14-429

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SPACE COOPERATION

ExoMars Mission

Memorandum of Understanding

Between the UNITED STATES OF 

AMERICA and the EUROPEAN SPACE AGENCY

Signed at Paris and Washington

April 14 and 29, 2014
 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.”
 EUROPEAN SPACE AGENCY

 Space Cooperation: ExoMars Mission

 Memorandum of understanding signed at 

 Paris and Washington April 14 and 29, 2014;

 Entered into force April 29, 2014.
MEMORANDUM OF UNDERSTANDING

BETWEEN

THE EUROPEAN SPACE AGENCY

AND

THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

OF THE UNITED STATES OF AMERICA

CONCERNING

THE 2816 EXOMARS MISSION
PREAMBLE

The European Space Agency, an international intergovernmental organisation established by the

Convention, which was opened for signature in Paris, France, on 30 May 1975 and entered into

force on 30 October 1980 (hereinafter referred to as "ESA"),

and

The National Aeronautics and Space Administration of the United States of America (hereinafter

referred to as "NASA"),

hereinafter individually referred to as a "Party" and jointly referred_ to as the "Parties,"

RECALLING the longstanding cooperation between NASA and ESA in the conduct of space

programs;

RECALLING that the 2016 and 2018 ExoMars missions form part of ESA's Robotic

Exploration Programme — Aurora; and

CONSIDERING that cooperation on the 2016 ExoMars mission between the Parties would

enhance the value of the mission and provide mutual benefits;

HAVE AGREED as follows:

ARTICLE 1- PURPOSE AND OBJECTIVES

1.1 The purpose of this Memorandum of Understanding (hereinafter referred to as the

"MOU") is to define the terms and conditions under which the cooperation between the

Parties will be conducted within the framework of the 2016 ExoMars mission.

1.2 This MOU sets forth the managerial, technical, and operational interfaces between the

Parties that are necessary to ensure continuation 4 and compatibility between, their

respective activities; defines the roles and responsibilities of the Parties; and identifies the

other commitments of the Parties with respect to the 2016 ExoMars mission.

ARTICLE 2 - RELATED ENTITIES

2.1 For the purpose of this MOU, the term "Related Entity" means:

a. a contractor or subcontractor of a Party at any tier;

b. a grantee or any other sponsored entity, or investigator of a Party at any tier; or

c. a contractor or subcontractor of a grantee or any other sponsored entity, or

investigator of a Party at any tier.

2.2 For the purpose of Article 15 (Liability and Risk of Loss), the term "Related Entity" also

means:

a. a user or customer of a Party at any tier; or

b. a contractor or subcontractor of a user or customer of a Party at any tier.

c. It may also include another State or an agency or institution of another State, where

such State, agency, or institution is an entity described above or is otherwise

involved in the activities undertaken pursuant to this MOU.

d. The terms "contractor" and "subcontractor" include suppliers of any kind.
2.3 Without prejudice to the detailed provisions contained in this MOU, each Party will, by

contract or otherwise, extend the obligations intended for its Related Entities, as set forth

in this MOU, to the said Related Entities.

ARTICLE 3 - MISSION DESCRIPTION

3.1 The 2016 ExoMars mission is an ESA-led mission with a launch expected in January

2016 on a Proton launch vehicle provided by the Russian Federal Space Agency

(Roscosmos). It includes a Trace Gas Orbiter (TOO) and an Entry, Descent, and Landing

(EDL) Demonstrator Module (EDM). The EDM will demonstrate key EDL technologies

for hyperbolic entry, descent, and semi-soft landing, with limited surface lifetime to

ensure EDL data return and a short science mission for surface science measurements.

The key science objectives for the ExoMars TOO payload are to pursue the analysis of

atmospheric trace gases and examine water ice distribution in Martian soil. In addition,

the ExoMars TGO is expected to be able to provide data relay and EDL telemetry

services for future ESA, NASA, or other Mars missions, including but not limited to the

2016 and 2018 ESA ExoMars landed missions and NASA InSight Lander and 2020 rover

missions. The ExoMars TGO nominal science operations will be performed for one

Martian year in the final Mars orbit, with relay functions based on the design lifetime of a

six-year period starting from insertion into Mars orbit.

NASA will provide the Electra UHF proximity link transceivers and related engineering

support. ESA will conduct the operation of the spacecraft during all phases of the

mission.

3.2 ESA is also cooperating with Roscosmos on the 2018 ExoMars mission, currently

planned for launch in May 2018, also on a Proton launch vehicle. The 2018 mission

includes a Carrier Module, a Descent Module with a Surface Platform, and a Mars Rover.

ARTICLE 4 - ESA PROGRAMMATIC RESPONSIBILITIES

To implement this cooperation, ESA will use all reasonable efforts to:

4.1 design and implement the overall 2016 ExoMars mission;

4.2 define the overall technical, managerial, and interface requirements for the 2016

ExoMars mission;

4.3 build, integrate, verify, and operate the 2016 ExoMars mission;

4.4 integrate and test, with support from the Jet Propulsion Laboratory, the NASA-provided

Electra UHF proximity link transceivers on the ExoMars TOO;

4.5 define and lead end-to-end testing of the UHF radio link between Electra and the EDM

UHF transceivers, as well as the overall system end-to-end testing;

4.6 provide the ExoMars TOO for use as proximity communications and telemetry support

for NASA-landed missions, including in support of critical events such as EDL, within

the overall technical and programmatic constraints, subject to specific arrangements to be

established in due time by the Parties, through the international Mars relay coordination

working group referred to under Articles 4.7 and 5.6;

4.7 participate in the international Mars relay coordination working group with NASA and

Roscosmos (and others as may be appropriate) for coordination among all the orbiting

and landed Mars missions in 2016 and beyond;

4.8 manage the ExoMars TGO science operations and data archive; and

4.9 support interactions between European and NASA-supported co-investigators as needed.
ARTICLE 5 NASA PROGRAMMATIC RESPONSIBILITIES

To implement this cooperation, NASA will use all reasonable efforts to:

5.1 build, test, verify, and deliver a prototype model and two flight models of the Electra

UHF proximity link transceivers, one primary and one redundant, for the ExoMars TOO;

5.2 provide technical support for analytical and physical integration, system level ground

testing, in-flight commissioning, and operations support of Electra with the ExoMars

TOO;

53 provide technical support for end-to-end testing of the UHF radio link between Electra

and the EDM UHF transceivers, as well as the overall system end-to-end testing;

5.4 provide, pending a review of any required orbital resynchronization efforts, if technically

and programmatically feasible, communications support from (a) NASA Mars orbiter(s)

dating the EDL phase of the 2016 EDM;

5.5 provide proximity communications support, within overall technical and programmatic

constraints, using (a) NASA Mars orbiter(s) for the 2016 EDM surface platform during a

two-week period after landing;

5.6 participate in the international Mars relay coordination working group with ESA and

Roscosmos (and others as may be appropriate), referred to under Article 4, for

coordination between all the orbiting and landed Mars missions in 2016 and beyond;

5.7 provide support during engineering System Reviews of the 2016 EDM focused on the

EDL mission timeline as well as selected EDL system functions as requested by ESA,

while bearing in mind the provisions of Article 8 (Transfer of Goods and Technical

Data); ,

5.8 provide DSN 70 meter or equivalent tracking support for the 2016 ExoMars mission,

limited to specific critical activities (EDM release, Mars Orbit Insertion) and in case of

emergencies;

5.9 provide Navigation and Ancillary Information Facility (NAIF) Spacecraft Planet

Instrument C-matrix Events (SPICE) operational support to the ExoMars TOO science

ground segment;

5.10 provide standard remote sensing data products to support ESA analyses for EDM landing

site selectionkenification and atmospheric modeling/monitoring; and

5.11 support, as appropriate, NASA investigators on the 2016 ESA mission.

ARTICLE 6 - MANAGEMENT, DOCUMENTATION, AND REVIEWS

6.1 ESA is responsible for the overall management of the 2016 ExoMars mission. NASA is

responsible for the management and delivery of the Electra Proximity Link transceivers

to ESA.

6.2 Each Party will designate one or more representatives responsible for implementing the

activities under this MOU.

6.3 The ESA and NASA designated representatives will cooperate in the implementation of

the Parties' activities under this MOU. Each Party will manage, in accordance with its

own rules and procedures, its activities under this MOU.

6.4 Management details concerning the hardware deliveries are contained in Interface

Control Documents (ICDs) jointly established by the NASA/ESA project teams.
Management details concerning operational agreements are first called out in a service

agreement and then detailed in an 1CD. The development of service agreements and ICDs

will be subject to the provisions of this MOU. These documents may address such items

as management and procedural requirements, technical interfaces, a list of required

documentation, program implementation schedule, technical reviews, applicable

standards, verification and validation, etc.

6.5 The signature of the service agreements, as well as the ICDs, will be in accordance with

each agency's requirements and take place in a timely manner. The Parties will provide to

each other complete and timely documentation in accordance with the requirements

specified in the service agreements and ICDs.

6.6 ESA and NASA will be invited to participate in each other's reviews as appropriate.

Reviews will be conducted according to agreed-upon ESA/NASA procedures and in

compliance with the 2016 ExoMars mission schedule and as specified in the service

agreements and ICDs. Electra reviews will be conducted per NASA processes, with ESA

invited to support. Delivery reviews for Electra will be combined NASA/ESA reviews

with a jointly approved review procedure between the project offices of the Parties.

ARTICLE 7 - RIGHTS IN AND DISTRIBUTION OF DATA

The Parties shall have access to all data resulting from the mission upon their becoming

available, in accordance with the policies established by ESA in the ExoMars Science

Management Plan. European and NASA-supported investigators will have access to the

scientific data commensurate with the roles for which they were selected to participate in the

mission, as specified in the ExoMars Science Management Plan.

ARTICLE 8 - TRANSFER OF GOODS AND TECHNICAL DATA

The Parties are obligated to transfer only those goods and technical data (including software)

necessary to fulfil their respective responsibilities under this MOU, in accordance with the

following provisions, notwithstanding any other provision of this MOU:

8.1 All activities of the Parties will be carried out in accordance with applicable laws and

regulations pertaining to export control.

8.2 The transfer of goods and technical data for the purpose of discharging the Parties'

responsibilities with regard to interface, integration, and safety will normally be made

without restriction, except as provided in paragraph 1 of this Article.

8.3 All transfers of export-controlled goods and proprietary or export-controlled technical

data are subject to the following provisions.

a. In the event a Party or its Related Entity finds it necessary to transfer exportcontrolled goods or to transfer proprietary or export-controlled technical data, for

which protection is to be maintained, such goods will be specifically identified and

such technical data will be marked with a notice.

b. The identification for such goods and the marking of such technical data will indicate

that the goods and technical data will be used by the receiving Party or its Related

Entities only for the purposes of fulfilling the receiving Party's or Related Entity's

responsibilities under this MOU, and that the identified goods and marked technical

data will not be disclosed or retransferred to any other entity without the prior written

permission of the furnishing Party or its Related Entity.

c. The receiving Party and its Related Entities will abide by the terms of the notice and

protect any such identified goods and marked technical data from unauthorised use

and disclosure.
d. The Parties to this MOU will cause their Related Entities to be bound by the

provisions of this Article related to use, disclosure, and retnmsfer of identified goods

and marked technical data through contractual mechanisms or equivalent measures.

8.4 All goods and marked proprietary or export-controlled technical data exchanged in the

performance of this MOU will be used by the receiving Party or its Related Entity

exclusively for the purposes of this MOU. Upon completion of the activities under this

MOU, the receiving Party or its Related Entity will return or otherwise dispose of all

goods and marked technical data provided under this MOU, as directed by the furnishing

Party or its Related Entity.

ARTICLE 9 - INTELLECTUAL PROPERTY

9.1 Nothing in this MOU will be construed as granting, either expressly or by implication, to

the other Party any rights to, or interest in, any inventions or works of a Party or its

Related Entities made prior to the entry into force of, or outside the scope of this MOU,

including any patents (or similar forms of protection in any country) corresponding to

such inventions or any copyrights corresponding to such works.

9.2 Any rights to, or interest in, any invention or work made in the performance of this MOU

solely by one Party or any of its Related Entities, including any patents (or similar forms

of protection in any country) corresponding to such invention or any copyright

corresponding to such work, will be owned by such Party or Related Entity. Allocation of

tights to, or interest in, such invention or work between such Party and its Related

Entities will be determined by applicable laws, rules, regulations, and contractual

obligations.

9.3 It is not anticipated that there will be any joint inventions made in the performance of this

MOU. Nevertheless, in the event that an invention is jointly made by the Parties in the

performance of this MOU, the Parties will, in good faith, consult and agree within 30

calendar days as to:

a. the allocation of rights to, or interest in, such joint invention, including any patents

(or similar forms of protection in any country) corresponding to such joint invention;

b. the responsibilities, costs, and actions to be taken to establish and maintain patents

(or similar forms of protection in any country) for each such joint invention; and

c. the terms and conditions of any license or other rights to be exchanged between the

Parties or granted by one Party to the other Party.

9.4 For any work jointly authored by the Parties, should the Parties decide to register the

copyright in such work, they will, in good faith, consult and agree as to the

responsibilities, costs, and actions to be taken to register copyrights and maintain

copyright protection (in any country).

9.5 Subject to the provisions of Article 8 (Transfer of Goods and Tecimical Data) and Article

10 (Release of Results and Public Information), each Party will have an irrevocable

royalty-free right to reproduce, prepare derivative works, distribute, and present publicly,

and authorise others to do so on its behalf:, any copyrighted work resulting from activities

undertaken in the performance of this MOU for its own purposes, regardless of whether

the work was created solely by, or on behalf of, the other Party or jointly with the other

Party.

ARTICLE 10 - RELEASE OF RESULTS AND PUBLIC INFORMATION

10.1 The Parties retain the right to release public information regarding their own activities

under this MOU. The Parties will coordinate with each other in advance concerning

releasing to the public information that relates to the other Party's responsibilities or

performance under this MOU.
10.2 In all media activities, the contributions of each Party to the ExoMars 2016 mission will

be acknowledged.

10.3 The Parties will make the final results obtained from the ExoMars 2016 mission available

to the general scientific community through publication in appropriate journals or by

presentations at scientific conferences as soon as possible and in a manner consistent with

good scientific practices.

10.4 The Parties acknowledge that the following data or information does not constitute public

information and that such data or information will not be included in any publication or

presentation by a Party under this Article without the other Party's prior written

permission:

a. data furnished by the other Party in accordance with Article It (Transfer of Goods and

Technical Data) which is export-controlled or proprietary; or

b. information about an invention of the other Party before an application for a patent

(or similar form of protection in any country) corresponding to such invention has

been filed covering the same, or before a decision not to file has been made.

ARTICLE 11- FINANCIAL ARRANGEMENTS

Each Party will bear the costs of discharging its own respective responsibilities under this

MOU, including travel and subsistence of its own personnel and transportation of goods

and associated documentation, for which it is responsible.

11.2 The Parties' obligations under this MOU are subject to the availability of appropriated

funds. Should either Party encounter budgetary problems that may affect the activities to

be carried out under this MOU, the Party encountering the problems will notify and

consult with the other Party in a timely manner and will take appropriate steps to

minimise any negative impact of the budgetary problem on the cooperation.

ARTICLE 12 - CUSTOMS CLEARANCE AND MOVEMENT OF GOODS

12.1 In accordance with applicable laws and regulations, each Party will facilitate free customs

clearance and waiver of all applicable customs duties and taxes for goods necessary for

the implementation of this MOU. In the event that any customs duties or taxes of any

kind are nonetheless levied on such goods, such customs duties or taxes will be borne by

the Party related to the authority levying such customs duties or taxes.

12.2 Each Party will also facilitate the movement of goods into and out of the corresponding

territory as necessary to carry out the activities pursuant to this MOU.

ARTICLE 13 - EXCHANGE OF PERSONNEL AND ACCESS TO FACILITIES

13.1 To facilitate implementation of the activities conducted under this MOU, the Parties may

support the exchange of a limited number of personnel (including contractors and

subcontractors) from each Party, at an appropriate time and under conditions mutually

agreed between the Parties.

13.2 Access by a Party to the other Party's facilities or property, or to each other's Information

Technology (H) systems or applications, is contingent upon compliance with each

other's respective security and safety polices and guidelines including, but not limited to:

standards on access to premises, credentials, and facility and IT system

application/access.
ARTICLE 14 - OWNERSHIP OF EQUIPMENT

Unless otherwise agreed in writing, each Party will retain ownership of all equipment, including

the goods, hardware, software, and associated technical data it provides to the other Party under

the terms of this MOU, without prejudice to any individual rights of ownership of the Parties'

respective Related Entities. To the extent reasonably feasible and recognising that equipment

sent into space or integrated into the other Party's equipment cannot be returned, each Party

agrees to return the other Party's equipment in its possession at the conclusion of activities under

this MOU.

ARTICLE 15 - LIABILITY AND RISK OF LOSS

15.1 For the purposes of this article:

a. The term "damage" means:

i. bodily injury to, or other impairment of health of, or death of, any person;

ii. damage to, loss of, or loss of use of any property;

loss of revenue or profits; or

iv. other direct, indirect, or consequential damage.

b. The term "launch vehicle" means an object or any part thereof intended for launch,

launched from Earth, or returning to Earth which carries payloads or persons, or

both.

c. The term "payload" means all property to be flown or used on or in a launch vehicle.

d. The term "Protected Space Operations" means all activities pursuant to this MOU,

including launch vehicle activities and payload activities on Earth, in outer space, or

in transit between Earth and outer space. "Protected Space Operations" begin at the

entry into force of this MOU and end when all activities done in implementation of

this MOU are completed. The term includes, but is not limited to:

i. research, design, development, test, manufacture, assembly, integration,

operation, or use of launch or transfer vehicles, payloads, or instruments, as well

as related support equipment and facilities and services;

ii. all activities related to ground support, test, training, simulation, or guidance and

control equipment and related facilities or services.

e. The term "Protected Space Operations" excludes activities on Earth that are

conducted on return from space to develop further a payload's product or process for

use other than for the 2016 ExoMars mission.

15.2 The Parties agree that a comprehensive cross-waiver of liability between the Parties and

their Related Entities will further participation in space exploration, use, and investment.

The cross-waiver of liability will be broadly construed to achieve this objective. The

terms of the cross-waiver are set out below.

15.3 Cross-waiver of liability:

a. Each Party agrees to a cross-waiver of liability pursuant to which each Party waives

all claims against the other Party, the other Party's Related Entities, employees of the

other Party, or employees of the other Party's Related Entities, based on damage

arising out of Protected Space Operations. This cross-waiver will apply only if the

person, entity, or property causing the damage is involved in Protected Space

Operations and the person, entity, or property damaged is damaged by virtue of its
involvement in Protected Space Operations. The cross-waiver will apply to any

claims for damage, whatever the legal basis for such claims.

b. Each Party will extend the cross-waiver of liability to its own Related Entities by

requiring them, by contract or otherwise, to agree to waive all claims, and require

that their Related Entities waive all claims, against the other Party, the other Party's

Related Entities, and employees of the other Party or its Related Entities, based on

damage arising out of Protected Space Operations.

c. For avoidance of doubt, this cross-waiver of liability includes a cross-waiver for any

liability arising from the Convention on International Liability for Damage Caused

by Space Objects, which entered into force on 1 September 1972 (hereinafter

referred to as the "Liability Convention"), where the person, entity, or property

causing the damage is involved in Protected Space Operations and the person, entity,

or property damaged is damaged by virtue of its involvement in Protected Space

Operations.

d. Notwithstanding the other provisions of this Article, this cross-waiver of liability will

not be applicable to:

i. claims between a Party and its own Related Entity or among its own Related

Entities;

ii. claims made by a natural person,'his/her estate, survivors, or subrogees (except

when a subrogee is a Party to this MOU or is otherwise bound by the terms of

this cross-waiver) for bodily injury, other impairment of health, or death of such

natural person;

iii. claims for damage caused by willful misconduct;

iv. intellectual property claims;

v. claims for damage resulting from a failure of a Party to extend the cross-waiver

of liability to its Related Entities, pursuant to paragraph 3(b) of this Article; or

vi. Claims by a Party arising out of or relating to the other Party's failure to perform

its obligations under this MOU.

e. Nothing in this Article will be construed to create the basis for a claim or suit where

none would otherwise exist

1. In the event of third-party claims which may arise out of, inter alia, the Liability

Convention, the Parties will consult promptly on any potential liability, on any

apportionment of such liability, and on the defence of such claim.

ARTICLE 16 - REGISTRATION, JURISDICTION, AND CONTROL

ESA will register the 2016 ExoMars mission as a space object in accordance with the

Convention on the Registration of Objects Launched into Outer Space, done on 12 November

1974. ESA will retain jurisdiction and control over the space object.

ARTICLE 17 - MISHAP INVESTIGATION

In the case of a mishap or mission failure, the Parties will provide assistance to each other in the

conduct of any investigation, bearing in mind, in particular, the provisions of Article 8 (Transfer

of Goods and Technical Data). In the case of activities that might result in the death of, or serious

injury to, persons, or substantial loss of or damage to, property as a result of activities under this

MOU, the Parties will establish a process for investigating each such mishap as part of their

program/project-level implementation plans.
ARTICLE 18 AMENDMENT

This MOU may be amended by written agreement of the Parties.

ARTICLE 19 - CONSULTATION AND SETTLEMENT OF DISPUTES

The Parties will consult with each other promptly when events occur or matters arise that may

question the interpretation or implementation of the terms of this MOU. Any dispute in the

interpretation or implementation of the terms of this MOU will be referred to the ESA Director

of Science and Robotic Exploration and the NASA Associate Administrator for the Science

Mission Directorate, or their designees. Any dispute which cannot be resolved at this level will

be referred to the Director General of ESA and the Administrator of NASA, or their designees.

Failing agreement at that level, the Parties may agree to submit the dispute to an agreed-upon

form of dispute resolution.

ARTICLE 20 ENTRY INTO FORCE, DURATION, AND TERMINATION

20.1 This MOU will enter into force upon signature by both Parties. It will remain in force for

eight years after the launch of the 2016 ExoMars mission, or until 31 December 2023,

whichever is earlier, unless extended by written agreement of the Parties, or terminated in

accordance with Article 20.2 below.

20.2 Either Party may terminate this MOU at any time by giving the other Party at least 12

months written notice of its intent to terminate. In the event of termination, the Parties

will endeavour to minimise any negative impact of such termination on the other Party.

20.3 Termination or expiration of this MOU will not affect a Party's continuing obligations

under Article 7 (Rights In and Distribution of Data), Article 8 (Transfer of Goods and

Technical Data), Article 9 (Intellectual Property), Article 10 (Release of Results and

Public Information), Article 12 (Customs Clearance and Movement of Goods), Article 14

(Ownership of Equipment), Article 15 (Liability and Risk of Loss), Article 16

(Registration, Jurisdiction, and Control), Article 17 (Mishap Investigation), and Article

19 (Consultation and Settlement of Disputes), unless otherwise agreed upon by the

Parties.