Mutual Confidentiality and Non-Disclosure Agreement
Federal Aviation Administration (FAA)
Voice of Internet Protocol (VoIP) Interoperability Event
May 16th through May 25th 2011
Sheraton Hotel, Arlington, Virginia
This MUTUAL NONDISCLOSURE AGREEMENT (“Agreement”) is entered into and
effective as of the date of the last signature below (“Effective Date”), between the
Federal Aviation Administration (FAA) and (“Participating Company / Disclosing
Participant”)
The purpose of this Non-Disclosure Agreement is to ensure that information of a
commercially sensitive or proprietary nature that participants to the VoIP Interoperability
Test obtain by virtue of participation is not disclosed to, or used by, unauthorized
persons, companies or organizations and to protect the confidentiality of information
belonging to each participating company and to protect the confidentially of information
that belongs to each FAA VoIP Interoperability Event participating company from all the
other FAA VoIP Interoperability Event participating companies and Air Navigation
Service Provider (ANSP) observers at the Event.
The Federal Aviation Administration (FAA) is planning to conduct a Voice over IP
(VoIP) Interoperability Event from May 16th through May 25th 2011 in Washington, DC.
During the VoIP Interoperability Event product developers from different companies will
work together to run a series of pre-agreed interoperability test scenarios between their
product implementations in order to demonstrate that interoperability as defined by the
applicable draft standards or standards is achievable. The scope of the event is not to
measure the success rates of individual companies in performing these tests, but to work
towards the common goal of global interoperability between interfaces from all
companies attending the event.
The reference standard to be used during the FAA interoperability Plug Test Event is
ICAO 9896 edition 2 with particular reference to latest editions of the EUROCAE WG67
ED137 Part 1 (Radio specification) and Part 2 (Telephone specification). Participating
companies should develop the interfaces according to the latest editions of these
documents.
Companies operating in the Global Market that develop Voice Communication Systems,
Ground Radio equipment and Recorders will be invited to attend the FAA
interoperability Plug Test Event.
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ARTICLE 1. Identification of Confidential Information
Information will be considered to be Confidential Information under this Agreement if it
is identified as “confidential” or “proprietary” at the time of disclosure or if the
information should reasonably be considered to be confidential or proprietary due to its
nature or context of its disclosure.
ARTICLE 2. Protection of Confidential Information
Each party acknowledges that the other party claims that its Confidential Information is a
valuable and unique asset and agrees to the following:
a) As a condition of Disclosing Party furnishing the information and/or any results or
determinations resulting from the disclosed information the receiving party:
i. will not disclose the Confidential Information to any third party;
ii. will not disclose the Confidential Information to its employees unless the employees,
agents consultants or other representatives who have a need to know the
Confidential Information subject to having ensured that each of its employees,
agents, consultants or other representatives have beforehand signed a
Confidentiality Agreement with terms and conditions identical to those contained
in this Confidentiality Agreement;
iii. will use the Confidential Information only for activities directly related to the VoIP
Interoperability testing;
iv. Not to reverse engineer, disassemble or decompile any prototypes, software or other
tangible objects which embody Confidential Information;
v. Upon termination of the Event or upon the written request of the Disclosing
Participant, whichever is earlier, to promptly deliver to the Disclosing Participant
all tangible materials including, but not limited to, all records, notes, and other
written or printed materials to the Disclosing Participant including any copies
thereof or materials made there from, or at the Disclosing Participant option,
certify destruction of the same in the possession of Receiving Participant,
embodying or pertaining to the Confidential Information and
vi. The receiving party will use the same degree of care to protect the Confidential
Information from unauthorized use or disclosure as it would use to protect its own
information of a similar nature.
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ARTICLE 3. DEFINITIONS
The following definitions apply to this CONFIDENTIALITY AGREEMENT.
a) ANSP Authorized Persons: means those persons attending the FAA VoIP
Interoperability Event on behalf of an ANSP as Staff or Contractor that SHALL be
bound by the terms of this agreement and who have confirmed their agreement by
returning a signed copy to the FAA VoIP Interoperability Event organiser.
b) Company Authorized Persons: means those persons attending the FAA VoIP
Interoperability Event on behalf of a Company as Staff or Contractors that shall be
bound by the terms of this agreement and who have confirmed their agreement by
returning a signed copy to the FAA VoIP Interoperability Event organiser.
c) Confidential Information shall mean: any information such as, but not limited to
any data or information that is proprietary to the Disclosing Participant and not
generally known to the public, whether in tangible or intangible form, whenever and
however disclosed, including, but not limited to:
i) all confidential and/or proprietary information disclosed or made available
by one party to the other, including but no limited to; actual or
contemplated air carrier flight scheduling, decision making, analysis, or
business marketing plans, product designs and/or specifications,
algorithms, computer programs, mask works, inventions, unpublished
patent applications, manufacturing, or other technical or scientific know -
how, specifications, technical drawings, diagrams, schematics, technology,
processes and any other trade secrets, discoveries, ideas, concepts, know-
how, techniques, materials, formulae, compositions, information, data
results, plans, surveys and/or reports of a technical nature or concerning
research and development and/or engineering activity unless the release of
such information is authorized by the Data Communications Program
Manager or his/her written delegate, in consultation with agency counsel
and by authorized representative of the Disclosing Party, any scientific,
technical information, research, invention, design, process, procedure,
formula, improvement, technology or method, test strategies and partial or
full results achieved during the Event;
ii) any concepts, reports, data, know-how, works-in-progress, designs,
development tools, specifications, computer software, source code, object
code, flow charts, databases, inventions, information and trade secrets;
iii) any information communicated orally, visually or in any other manner
provided it is identified as confidential at the time of such disclosure;
iv) any information that is confirmed as being of a confidential nature within
thirty (30) days after the disclosure by the DISCLOSING PARTICIPANT
and communicated to the RECEIVING PARTICIPANT in written form that
summarizes the information considered confidential; and
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v) any information that could be recognized as CONFIDENTIAL
INFORMATION of the DISCLOSING PARTICIPANT.
d) Disclose: means the distribution , circulation, supply or communication of
information or Documentation either by means of verbal, electronic or hardcopy
means
e) Disclosing Participant: Company providing the information to a RECEIVING
PARTICIPANT
f) Documentation: means all media on which information or data of any description is
recorded including all paper documents and electronic communication whether in
electronic or hard copy form
g) FAA Authorized Persons: means the persons attending the FAA Interoperability
Plug Test Event on behalf of the FAA as Staff or Contractors that SHALL be bound
by the terms of this agreement and who have confirmed their agreement by returning
a signed copy to the FAA VoIP Interoperability Event organizer.
h) Intellectual Property Rights: means all registered intellectual property rights and
unregistered intellectual property rights granted by law including all patents, trade
marks, design rights, data base rights, topography rights, know-how and trade secrets
or equivalent rights or rights of action anywhere in the world.
i) Non-Confidential Information: For The Purposes Of This Confidentiality
Agreement, Non-Confidential Information means information which:
i) Was known by the receiving participant prior to receiving the confidential
information from the disclosing participant; or
ii) Becomes rightfully known to the receiving participant from a third-party
source that was not under any obligation of confidentiality to the disclosing
participant (after diligent inquiry); or
iii) Is or becomes publicly available through no fault of or failure to act by the
receiving participant in breach of this confidentiality agreement;
iv) Can be verifiably proven by the receiving participant to have been
independently developed by the receiving participant without the use of
confidential information; or
v) A receiving participant is required to disclose by law or regulation on
receiving a valid order issued by a governmental, judicial, or administrative
order, providing that the receiving participant gives the disclosing
participant prior written notice of such obligation and enters into
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reasonable cooperation with the disclosing participant’s efforts to limit or
oppose such disclosure or obtain a protective order; or
vi) Is clearly identified or specifically defined as “not confidential” at the time
of disclosure.
j) Observers: ANSPS taking part in the FAA VoIP Interoperability Event;
k) Participant: Company taking part in the FAA VoIP Interoperability Event
l) Receiving Participant: Company receiving the information from any Disclosing
Participant.
m) Acronyms:
ANSP- Air Navigation Service Providers
EUROCAE- European Organisation for Civil Aviation Equipment
FAA- Federal Aviation Administration
ICAO- International Civil Aviation Organisation
ARTICLE 4. PRE-CONDITIONS
All participants shall agree to the following pre-conditions:
a) Prior to being approved as a participating company in the FAA VoIP Interoperability
Event it is necessary that a Company or ANSP prints two original copies of this
“FAA Mutual Confidentiality and Non-Disclosure Agreement” document to be used
as originals and returns both original signed copies of this document by post to the
FAA VoIP Interoperability Event organiser at the following address.
Collecting Agent FAA Point of Contact
STG Technologies, Inc Kathy St. Hill, AJA-472
241 18th Street, Suite 405 800 Independence Ave, SW Suite 500W
Arlington, VA 22202 Washington, DC 20591
The FAA will also sign one copy and return it to the Company or ANSP.
b) By returning a signed copy of this “FAA VoIP Interoperability Event Confidentiality
Agreement”, to the FAA VoIP Interoperability Event organizer, participants and
observers shall be legally bound by the terms and conditions of this agreement.
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c) By returning a signed copy of this “FAA VoIP Interoperability Event Confidentiality
Agreement”, all Authorized persons attending the FAA VoIP Interoperability Event
on behalf of an ANSP, Company or FAA as Staff or Contractors shall be legally
bound by the terms and conditions of this agreement.
d) FAA is organizing the event and is therefore not as a participant. The FAA Is also not
considered as a disclosing participant. The FAA can however be viewed as a
receiving participant and as such they are legally bound by the terms and conditions
regarding confidential information provided to them by disclosing participants.
ARTICLE 5. UNAUTHORIZED DISCLOSURE
Without derogating from DISCLOSING PARTICIPANT’s rights under law or under this
CONFIDENTIALITY AGREEMENT, the RECEIVING PARTICIPANT promises and
agrees:
a) To immediately notify the DISCLOSING PARTICIPANT upon discovery of loss or
unauthorized disclosure or use of CONFIDENTIAL INFORMATION, or any other
breach of this Agreement by the RECEIVING PARTICIPANT.
b) To cooperate with the DISCLOSING PARTICIPANT in every reasonable way to
help the DISCLOSING PARTICIPANT regain possession of the CONFIDENTIAL
INFORMATION and prevent further unauthorized use or disclosure.
ARTICLE 6. NO RIGHT TO CONFIDENTIAL INFORMATION
a) All CONFIDENTIAL INFORMATION is and SHALL remain the DISCLOSING
PARTICIPANT’s ownership and no right or license under any trade secret or other
proprietary right, including, but not limited to, patent, utility model, trademark,
design, copyright and their applications is granted hereunder by implication or
otherwise.
b) Test results and captured files relating to the interoperability testing produced at the
EVENT between any two PARTICIPANTS taking part in any test session
programmed within the EVENT are jointly owned by both PARTICIPANTS of the
test session, except for test results and captured files which have been independently
developed by a PARTICIPANT and are relating exclusively to the performance of its
own equipment or products of a PARTICIPANT, in which case the test results and
captured files SHALL be owned by that PARTICIPANT.
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c) The FAA SHALL have access to the test results and captured files produced from all
test sessions between PARTICIPANT pairings, but SHALL use this information
during the EVENT itself to monitor progress and generate a daily summary analysis
of results etc.
d) During the EVENT PARTICIPANTS SHALL NOT have access to the test results
and captured files produced from test sessions between pairings of other
PARTICIPANTS attending the EVENT.
e) A request to access captured files relating to any particular test session by any
PARTICIPANT not involved in the test session itself SHALL only be approved by a
PARTICPANT in that test session if they agree to this themselves and they have the
prior consent of the other PARTICIPANT in the test session.
f) On EVENT completion, PARTICIPANTS SHALL only be in possession of test
results and captured files relating to each of the Test sessions they have performed
with other PARTICIPANTS at the event. PARTICIPANTS SHALL NOT be in
possession of test results and captured files relating to test sessions of other
PARTICIPANTS without the content of both PARTICIPANTS in any specific test
session.
g) On EVENT completion, the FAA SHALL use the final tests results to generate a
summary analysis of the event and produce a VoIP INTEROPERABILITY PLUG
EVENT final report. This report SHALL NOT contain test results or any result
analysis relative to the performance of the individual PARTICIPANTS. Likewise it
SHALL NOT contain CONFIDENTIAL INFORMATION it has received from any
DISCLOSING PARTICIPANT without its prior written consent.
ARTICLE 7. REMEDIES AND LIABILITY
a) The FAA SHALL NOT be liable for any breach of another PARTICIPANT’s
obligations hereunder. A PARTICIPANT agrees that FAA will not be liable for any
inadvertent disclosure of CONFIDENTIAL INFORMATION which has been brought
to the attention of the FAA provided it has fulfilled its obligations set out above in
Articles.
ARTICLE 8. TERM OF CONFIDENTALITY AGREEMENT
The obligations under this Confidentiality Agreement shall terminate only at such time as
the information no longer qualifies as confidential.
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ARTICLE 9. PUBLIC NOTICE
a) Each PARTICIPANT may issue at its own discretion, prior to or after the EVENT,
articles, advertising, press releases or other public notice such as, but not limited to
reports that summarize the overall test results of the EVENT (PUBLIC NOTICE).
b) However, a PARTICIPANT SHALL NOT issue a PUBLIC NOTICE using or
implying the name of any other natural or legal person participating at the EVENT,
without the prior written consent of this natural or legal person.
c) The PARTICIPANT is authorized to use in a PUBLIC NOTICE the name of FAA as
well as FAA’s trade mark on the FAA logo provided that PARTICIPANT uses the
trade mark in a proper manner and gives due acknowledgement concerning the
ownership of the trade mark by the FAA.
d) Under no circumstance is any RECEIVING PARTICIPANT authorized to disclose in
a PUBLIC NOTICE any CONFIDENTIAL INFORMATION disclosed to it
hereunder.
ARTICLE 10. CHANGES, MODIFICATIONS
Changes and/or modifications to this Agreement shall be in writing and signed by a FAA
Contracting Officer and the [ Representative or designee] of [ Name of non-Federal party].
The modification shall cite the subject Agreement, and shall state the exact nature of the
modification. No oral statement by any person shall be interpreted as modifying or otherwise
affecting the terms of this Agreement.
ARTICLE 11. TERMINATION
In addition to any other termination rights provided by this Agreement, either party may
terminate this Agreement at any time prior to its expiration date, with or without cause,
and without incurring any liability or obligation to the terminated party (other than
payment of amounts due and owing and performance of obligations accrued, in each case
on or prior to the termination date) by giving the other party at least thirty (30) days prior
written notice of termination. Upon receipt of a notice of termination, the receiving party
shall take immediate steps to stop the accrual of any additional obligations, which might
require payment.
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ARTICLE 12. ORDER OF PRECEDENCE
In the event of any inconsistency between the terms of the Agreement, the inconsistency
shall be resolved by giving preference in the following order:
a) The Agreements
b) The Attachments
ARTICLE 13. CONSTRUCTION OF THE AGREEMENT
Each party acknowledges that all parties hereto participated equally in the negotiation and
drafting of this Agreement and any amendments thereto, and that, accordingly, this
Agreement shall not be construed more stringently against one party than against the
other.
ARTICLE 14. WARRANTIES
The FAA makes no express or implied warranties as to any matter arising under this
Agreement, or as to the ownership, merchantability, or fitness for a particular purpose of
any property, including any equipment, device, or software that may be provided under
this Agreement.
ARTICLE 15. INSURANCE
[Name of non-Federal party] shall arrange by insurance or otherwise for the full
protection of [Name of non-Federal party] from and against all liability to third parties
arising out of, or related to, its performance of this Agreement. The FAA assumes no
liability under this Agreement for any losses arising out of any action or inaction by
[Name of non-Federal party], its employees, or contractors, or any third party acting on
its behalf. [Name of non-Federal party] agrees to hold the United States harmless against
any claim by third persons for injury, death or property damage arising out of or in
connection with its performance under this Agreement.
ARTICLE 16. LIMITATION OF LIABILITY
Claims for damages of any nature whatsoever pursued under this Agreement shall be
limited to direct damages only up to the aggregate amount of any funding obligated under
this Agreement at the time a dispute arises. If no finding is obligated under this
Agreement at the time the dispute arises, the FAA shall not be liable for any damages
whatsoever. In no event shall the FAA be liable for claims for consequential, punitive,
special and incidental damages, claims for lost profits, or other indirect damages.
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AGREED:
FAA COMPANY PARTICIPANT or ANSP
OBSERVER
Name: Name:
Authorized Authorized
Representative’s Title: Representative’s Title:
Date Date
Signature Signature
(Insert Company Name and Address)
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
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