Agreement for Cooperation

between the European Atomic Energy Community and the Cabinet of Ministers of Ukraine in the field of controlled nuclear fusion

the EUROPEAN ATOMIC ENERGY COMMUNITY,

hereinafter referred to as "the Community",

of the one part, and

the CABINET OF MINISTERS OF UKRAINE,

of the other part,

both also generally referred to hereinafter as the "Party" or "Parties", as appropriate,

MINDFUL that the Agreement on Partnership and Cooperation signed on 14 June 1994 by the European Union and Ukraine establishes that the Parties shall cooperate in the nuclear sector, inter alia, through the implementation of an agreement on thermonuclear fusion;

DESIRING to facilitate the achievement of fusion energy as a potentially environmentally acceptable, economically competitive, and virtually limitless source of energy;

NOTING that the Community Fusion programme is a broad-based comprehensive programme based on the toroidal magnetic confinement;

NOTING that the Fusion researches of Ukraine are based on the specifics strengths of fusion science and technology in Ukraine;

RECOGNISING the mutual benefits to be obtained by establishing closer links between the Parties' scientific communities working in the field of controlled nuclear fusion;

DETERMINED to strengthen the cooperation between the Parties in the field of controlled nuclear fusion through regular consultations,

HAVE AGREED AS FOLLOWS:

Article 1

Cooperation under this Agreement shall be for peaceful purposes only and shall be conducted on the basis of mutual benefit. The objective of this Agreement is to maintain and intensify cooperation between the Parties in the areas covered by their respective fusion programmes in order to develop the scientific understanding and technological capability underlying a fusion power system.

Article 2

Cooperation under this Agreement may be undertaken in the following areas:

(a) experimental and theoretical studies of plasma confinement, transport, heating and current drive (including the development of related RF systems) and diagnostics, in toroidal magnetic devices;

(b) studies in plasma theory, in particular on the physics of fast ions and alpha particles in toroidal magnetic devices, and studies of turbulent plasmas and of non-linear plasma-wave interactions;

(c) fusion technology;

(d) applied plasma physics;

(e) policy concerning programme and plans.

Other areas of cooperation may be added in accordance with procedures in force on each side.

Article 3

The cooperation shall be implemented in particular through:

- exchange of technical information by means of reports, visits, seminars, technical meetings, etc.,

- exchange of personnel between laboratories and/or bodies involved on both sides, including for training purposes,

- exchange of samples, materials, instruments and apparatus for experimental purposes,

- balanced participation in joint studies and activities.

Article 4

1. Within the framework of this Agreement, implementing arrangements on specific cooperative actions shall be concluded between:

the Community or any organisation associated with it within the framework of the Community Fusion Programme or the Joint European Torus (JET) Joint Undertaking, designated by the Community for this purpose,

and the Government of Ukraine or any other institution designated by the Government of Ukraine for this purpose.

2. Specific terms and conditions necessary to implement activities listed in Article 3 shall be specified in the implementing arrangements and shall contain:

(a) specific details, procedures and financing provisions for individual cooperative activities;

(b) assignment of the responsibility for the operational management of the concerned activity to a single organisation or natural person;

(c) detailed provisions on dissemination of information and treatment of intellectual property.

3. Each Party shall endeavour to coordinate its activities under this Agreement as appropriate, with other international activities related to research and development in the field of controlled nuclear fusion in which the other Party is a participant, in order to minimise duplication of effort.

Article 5

1. The Parties shall establish a Coordinating Committee to coordinate and to supervise the implementation of this Agreement. Each of the Parties shall appoint an equal number of members to the Coordinating Committee and nominate one of its appointed members as its Head of Delegation. The Coordinating Committee shall meet each year, alternately in the European Community and in Ukraine or at any other agreed time and place. The Head of Delegation of the receiving Party shall chair the meeting.

2. The functions of the Coordinating Committee shall include:

(a) assessing the state of cooperation under this Agreement;

(b) determining the specific tasks to be undertaken in the areas referred to in Article 2, without prejudice to the taking of autonomous decisions by the Parties on their respective programmes.

3. All decisions of the Coordinating Committee shall be by unanimity and shall be binding to the Parties. For making such decisions, each Party shall have one vote to be cast by its Head of Delegation.

4. For periods between meetings of the Coordinating Committee, each Party shall nominate an Executive Secretary to act on its behalf in all matters concerning cooperation under this Agreement. The Executive Secretaries shall be responsible for day-to-day management of such cooperation.

Article 6

All costs resulting from the cooperation shall be borne by the Party that incurs them, unless otherwise specifically agreed in writing by the implementing agencies.

Article 7

The utilisation and diffusion of information and intellectual property rights including industrial property rights, patents and copyrights connected with the cooperation activities under this Agreement shall be in accordance with the Annexes which form an integral part of this Agreement.

Article 8

Nothing in this Agreement shall be construed to prejudice existing or future arrangements for cooperation between the Parties.

Article 9

1. Performance of the Parties under this Agreement shall be subject to the availability of appropriated funds.

2. Cooperation under this Agreement shall be in accordance with the laws and regulations in force as well with the international agreements entered into by the Parties.

3. Each Party shall use its best endeavours, within the framework of the laws and regulations applicable, to facilitate the accomplishment of formalities involved in the movement of persons, the transfer of materials and equipment and the transfer of currency required to conduct the cooperation.

Article 10

The Parties shall endeavour to settle all questions connected with this Agreement through consultations between themselves.

Article 11

1. This Agreement shall enter into force on the date on which the Parties exchange diplomatic notes informing each other that their respective internal procedures necessary for its entry into force have been completed and shall remain in force for an initial period of 10 year(1).

2. Thereafter, this Agreement shall be automatically renewed for five-year periods, unless either Party, by written notice, requests its termination or renegotiation not later than six months prior to the expiry date.

3. This Agreement may be terminated at any time by either Party upon six month's written notice.

4. Termination of this Agreement shall not affect rights and obligations under Article 7.

Article 12

1. This Agreement may be amended by mutual written agreement of the Parties, in accordance with their respective laws and regulations. Amendments shall form an integral part of this Agreement.

2. In the event of amendment, termination or renegotiation, this Agreement shall remain in force in its previous form with respect to cooperation activities effectively entered into prior to the entry into force of the amendment or prior to the request for termination or renegotiation until the end of such activities and relative implementing arrangements but not more than for one calendar year after the expiry of this Agreement in its previous form.

Article 13

This Agreement shall apply, in so far as the Community is concerned, to the territories in which the Treaty establishing the European Atomic Energy Community applies and to the territories of the countries participating in the Community fusion programme as fully associated third States.

Done at Kiev on 23 July 1999 in duplicate in the Danish, Dutch, English, Finnish, French, German, Greek, Italian, Portuguese, Spanish, Swedish and Ukrainian languages, each text being equally authentic.

Por la Comunidad Europea de la Energía Atómica/På Det Europæiske Atomenergifællesskabs vegne/Für die Europäische Atomgemeinschaft/Για την Ευρωπαϊκή Κοινότητα Ατομικής Ενέργειας/For the European Atomic Energy Community/Pour la Communauté européenne de l'énergie atomique/Per la Comunità europea dell'energia atomica/Voor de Europese Gemeenschap voor Atoomenergie/Pela Comunidade Europeia da Energia Atómica/Euroopan atomienergiayhteisön puolesta/På Europeiska atomenergigemenskapens vägnar/

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Por el Consejo de Ministros de Ucrania/På vegne af Ukraines ministerkabinet/Für das Ministerkabinett der Ukraine/Για το Υπουργικό Συμβούλιο της Ουκρανίας/For the Cabinet of Ministers of Ukraine/Pour le Cabinet des ministres de l'Ukraine/Per il Consiglio dei ministri dell'Ucraina/Voor de Ministerraad van Oekraïne/Pelo Gabinete de Ministros da Ucrânia/Ukrainan hallituksen puolesta/På Ukrainas regerings vägnar/

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(1) This Agreement shall come into force on 13 November 2002.

ANNEX I

GUIDING PRINCIPLES ON THE ALLOCATION OF INTELLECTUAL PROPERTY RIGHTS(1) RESULTING FROM JOINT RESEARCH UNDER THE AGREEMENT FOR COOPERATION BETWEEN THE EUROPEAN ATOMIC ENERGY COMMUNITY AND THE CABINET OF MINISTERS OF UKRAINE IN THE FIELD OF CONTROLLED NUCLEAR FUSION

I. OWNERSHIP, ALLOCATION AND EXERCISE OF RIGHTS

1. All research carried out pursuant to this Agreement shall be "joint research". The participants shall jointly develop joint technology management plans (TMPs)(2) in respect of the ownership and use, including publication, of information and Intellectual Property (IP) to be created in the course of joint research. Those plans shall be approved by the responsible funding agency or department of the Party involved in financing the research, before the conclusion of the specific research and development cooperation contracts to which they are attached. The TMPs shall be developed taking into account the aims of the joint research, the relative contributions of the participants, the advantages and disadvantages of licensing by territory or for fields of use, requirements imposed by laws applicable and other factors deemed appropriate by the participants. The rights and obligations concerning the research generated by visiting researchers in respect of IP shall also be addressed in the joint technology management plans.

2. Information or IP created in the course of joint research and not addressed in the TMP plan shall be allocated, with the approval of the Parties, according to the principles set out in the technology management plan. In case of disagreement, such information or IP shall be owned jointly by all the participants involved in the joint research from which the information or IP results. Each participant to whom this provision applies shall have the right to use such information or IP for his own commercial exploitation with no geographical limitation.

3. Each Party shall ensure that the other Party and its participants have the rights to IP allocated to them in accordance with these principles.

4. While maintaining the conditions of competition in areas affected by this Agreement each Party shall endeavour to ensure that rights acquired pursuant to this Agreement are exercised in such a way as to encourage in particular:

(i) the dissemination and use of information created, disclosed, or otherwise made available, under the Agreement;

(ii) the adoption and implementation of international standards.

II. COPYRIGHT WORKS

Copyright belonging to the Parties or to their participants shall be accorded treatment consistent with the Bern Convention (1971 Paris Act).

III. SCIENTIFIC LITERARY WORKS

Without prejudice to Section IV, unless otherwise agreed in the TMP, publication of results of research shall be made jointly by the Parties or participants to that joint research. Subject to the foregoing general rule, the following procedures shall apply:

1. In the case of publication by a Party or public bodies of that Party of scientific and technical journals, articles, reports, books, including video and software, arising from joint research pursuant to this Agreement, the other Party shall be entitled to a worldwide, non-exclusive, irrevocable, royalty-free licence to translate, reproduce, adapt, transmit and publicly distribute such works.

2. The Parties shall ensure that literary works of a scientific character arising from joint research pursuant to this Agreement and published by independent publishers shall be disseminated as widely as possible.

3. All copies of a copyright work to be publicly distributed and prepared under these provisions shall indicate the names of the author(s) of the work unless an author or authors expressly declines or decline to be named. They shall also bear a clearly visible acknowledgement of the cooperative support of the Parties.

IV. UNDISCLOSED INFORMATION

A. Documentary undisclosed information

1. Each Party or its participants, as appropriate, shall identify at the earliest possible moment and preferably in the TMP the information that it wishes to remain undisclosed in relation to this Agreement, taking account, inter alia, of the following criteria:

- secrecy of the information in the sense that the information is not, as a body or in the precise configuration or assembly of its components, generally known among or readily accessible by lawful means to experts in the field;

- the actual or potential commercial value of the information by virtue of its secrecy;

- previous protection of the information in the sense that it has been subject to steps that were reasonable under the circumstances by the person lawfully in control, to maintain its secrecy.

The Parties and the participants may in certain cases agree that, unless otherwise indicated, parts or all of the information provided, exchanged or created in the course of joint research pursuant to the Agreement may not be disclosed.

2. Each Party shall ensure that undisclosed information under this Agreement and its ensuing privileged nature is readily recognisable as such by the other Party, for example by means of an appropriate marking or restrictive legend. This also applies to any reproduction of the said information, in whole or in part.

A Party receiving undisclosed information pursuant to the Agreement shall respect the privileged nature thereof. These limitations shall automatically terminate when this information is disclosed by the owner without restriction to experts in the field.

3. Undisclosed information communicated under this Agreement may be disseminated by the receiving Party to persons within or employed by the receiving Party, and other concerned departments or agencies in the receiving Party authorised for the specific purposes of the joint research under way, provided that any undisclosed information so disseminated shall be pursuant to an agreement of confidentiality and shall be readily recognisable as such, as set out above.

4. With the prior written consent of the Party providing undisclosed information under this Agreement, the receiving Party may disseminate such undisclosed information more idly than otherwise permitted in paragraph 3 above. The Parties shall cooperate in developing procedures for requesting and obtaining prior written consent for such wider dissemination, and each Party will grant such approval to the extent permitted by its domestic policies, regulations and laws.

B. Non-documentary undisclosed information

Non-documentary undisclosed or other confidential or privileged information provided in seminars and other meetings arranged under this Agreement, or information arising from the attachment of staff, use of facilities, or joint projects, shall be treated by the Parties or their participants according to the principle specified for documentary information in the Agreement, provided, however, that the recipient of such undisclosed or other confidential or privileged information has been made aware of the confidential character of the information communicated at the time such communication is made.

C. Control

Each Party shall ensure that undisclosed information received by it under this Agreement shall be controlled as provided therein. If one of the Parties becomes aware that it will be, or may reasonably be expected to become, unable to meet the non-dissemination provisions of paragraphs A and B above, it shall immediately inform the other Party. The Parties shall thereafter consult to define an appropriate course of action.

(1) Definitions of the concepts referred to in these guiding principles are set out in Annex II.

(2) The indicative features of such TMPs are set out in Annex III.

ANNEX II

DEFINITIONS

1. INTELLECTUAL PROPERTY: shall have the meaning found in Article 2 of the Convention establishing the World Intellectual Property Organisation, done at Stockholm on 14 July 1967.

2. PARTICIPANT: any natural or legal person, including the Parties themselves, participating in a project under this Agreement.

3. JOINT RESEARCH: research implemented and/or funded by the joint contributions of the Parties and with collaboration from participants of both Parties, where appropriate.

4. INFORMATION: scientific or technical data, results or methods of research and development stemming from the JOINT RESEARCH and any other information deemed necessary by the Parties and/or participants engaged in the JOINT RESEARCH to be provided or exchanged under this Agreement or research pursuant thereto.

ANNEX III

INDICATIVE FEATURES OF A TECHNOLOGY MANAGEMENT PLAN (TMP)

The TMP is a specific to be concluded between the participants, about the implementation of joint research and the respective rights and obligations of the participants. With respect to IPR, the TMP will normally address, inter alia: ownership, protection, user rights for R& D purposes, exploitation and dissemination, including arrangements for joint publication, the rights and obligations of visiting researchers and dispute settlement procedures. The TMP may also address foreground and background information, licensing and deliverables.