Part A: Implementation of the project
Article1 - Definitions
1. "Decision" means Council Decision 1999/65/EC of 22 December 1998 concerning the rules for the participation of undertakings, research centres anduniversities and for the dissemination of research results for the implementation of the Fifth Framework Programme of the European Community (1998 to 2002)2.
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2. OJ L26, 1.2.1999, p.46.
2. "Regulation" means Commission Regulation (EC) No 996/99 of 11May 1999 on the implementation of Council Decision 1999/65/EC concerning the rules for the participation of undertakings, research centres and universities and for the dissemination of research results for the implementation of the Fifth Framework Programme of the European Community (1998-2002)3.
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3. OJ L122, 12.5.1999, p.9.
3. "Contracting parties" means the Community and the contractor.
4. "Contractor" means a legal entity, an international organisation, or theJoint Research Centre (JRC), which has concluded this contract with the Community.
5. "Subcontract" means an agreement to provide services, supplies or goods concluded between the contractor and one or more subcontractors for the specific needs of the project.
6. "Subcontractor" means a legal entity, an international organisation or the JRC, which has concluded a subcontract.
7. "Project" means all the work referred to in AnnexI to this contract.
8. "Project commencement date" means the date referred to in Article2(1) of this contract.
9. "Duration of the project" means the period of performance of the project as referred to in Article2(1) of this contract.
10. "Contract completion date" means the date referred to in Article2(2) subparagraph 2 of this contract.
11. "Project deliverables" means the reports and the cost statements referred to in Article4 of this contract and Article4 of this annex as well as any element designated as such in AnnexI to this contract.
12. "Associated State" means a State party to an international agreement concluded with the Community, in particular on the basis of Article170 of the Treaty establishing the European Community, under which that State makes a financial contribution to the Fifth Framework Programme.
13. "Third country" means a country other than a Member State or an Associated State.
14. "Change of control" means any change in the control exercised over a contractor, in the sense of Article 5(1) subparagraph 3 of the Regulation. Such control may result, interalia from:
- the direct or indirect holding of a majority of the share capital of the contractor or a majority of the voting rights of the latter's shareholders or associates,
or
- the direct or indirect holding, de facto or de jure, of decision-making powers within the contractor.
15. "Force majeure" means any unforeseeable and insuperable event affecting the carrying out of the project by the contractor.
16. The "interests of the Community" are to be assessed in particular with regard to: the objective of strengthening the international competitiveness of Community industry, the objective of providing appropriate incentives for maintaining and creating jobs in the Community,
the objective of promoting sustainable development and improving the quality of life in the Community,
the needs of other Community policies in support of which indirect RTDT actions are carried out,
the existence of scientific and technical cooperation agreements between the Community and third countries or international organisations.
17. "Knowledge" means the results, including information, arising from any project covered by Decision No182/1999/EC of the European Parliament and Council of22December1998 relating to the Fifth Framework Programme of the European Community for research, technological development and demonstration activities (1998 to 2002)4 as well as copyright or rights attaching to the results following applications for or the issue or registration of patents, designs and models, plant varieties, additional certificates or other similar forms of protection.
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4. OJ L26, 1.2.1999, p.1.
18. "Pre-existing know-how" means information, other than knowledge, held by the contractor prior to the conclusion of the contract or acquired in parallel with it and necessary for carrying out the project, as well as copyright or rights attaching to such information following requests for or the issue of patents, designs and models, plant varieties, additional certificates or other similar forms of protection.
19. "Complementary contract" means a contract concluded with the Community in respect of work technically related to the project, including for use purposes, and recognised as being complementary in writing by the contractor to each contract.
20. "Complementary contractor" means a legal entity or an international organisation or the JRC, which has concluded a complementary contract.
21. "Use" means the direct or indirect use of knowledge in research activities or for exploitation purposes.
22. "Exploitation" means the direct or indirect use of knowledge for creating and marketing a product or process or for creating and providing a service.
23. "Dissemination" means the divulging of knowledge by any appropriate means other than publication resulting from knowledge protection formalities, with a view to promoting scientific and technical progress.
24. "Legitimate interest" means any interest, in particular of a commercial nature, of a contractor which may be invoked where provided for in this annex provided that he demonstrates that the damage to that interest is likely, given the circumstances, to cause a specific prejudice that is disproportionate, considering the objectives of the provision in respect of which it is invoked.
25. "Eligible costs" means the costs indicated in Articles 14 and 15 of this annex, in compliance with the conditions set out in Articles 13(1) to (4) thereof.
Article 2 - Management of the project 1. The contractor: a) shall inform the Commission of the actual date of commencement of the work and shall designate one or more persons from among those referred to in Article 14(1) of this annex who shall direct his work and ensure that the tasks assigned are correctly performed, b) shall submit to the Commission:
- the cost statements provided for in Article4 of this contract and of this annex,
- the periodic, final and supplementary reports provided for in Article4 of this contract and of this annex after verifying their consistency with any corresponding cost statements,
- any other project deliverable except where Annex I to this contract provides otherwise, c) shall receive all the payments made by the Commission to the account referred to in Article3(3) subparagraph (1) of this contract,
d) shall inform the Commission of any event liable to substantially affect the project of which he is aware, including any change in a person referred to in point (a) of this paragraph, any change of control with regard to him and any circumstance affecting the conditions of participation referred to in Articles 3 to 12 of the Decision,
e) shall inform the Commission of transfers between categories in the budget set out in the table of the indicative breakdown of the estimated eligible costs, as soon as he has carried out such transfers in compliance with the conditions set out in Article13(4) of this annex,
f) shall keep duly signed original copies of subcontracts, if any have been concluded,
g) shall take part in meetings concerning the supervision, monitoring and evaluation of the project which are relevant to him,
h) shall provide all detailed information requested by the Commission for the purposes of the proper administration of this contract.
2. The Commission may be assisted by independent experts in the framework of the meetings referred to under paragraph (1)(g) of this article.
It shall take appropriate steps to ensure that such experts treat confidentially the data that are communicated to them. Prior to such meetings, it shall disclose the identity of the experts scheduled to attend. It shall take account of any objection on the part of contractor based on legitimate interests.
Article3 - The Community's financial contribution
1. The Community's financial contribution shall be paid in accordance with the following principles :
- An initial advance shall be paid to the contractor within a maximum period of 60 days running from the date of the last signature of the contracting parties.
If the project has not effectively commenced within three months of the payment of the initial advance, the Commission may :
(i) either terminate the contract pursuant to Article7(3)(a) of this annex,
(ii) or decide to add interest to the initial advance from the date of payment until the effective date of commencement of the work at the monthly rate applied by the European Central Bank for its main refinancing operations applicable on the first day of the month during which the three-month time limit has expired. Such interest shall be deducted from the subsequent payment made by the Commission.
- Periodic payments shall be made within a maximum period of 60 days from the date on which the Commission approves or is deemed, in accordance with Article 4(3) subparagraph 4 of this annex, to have approved the periodic reports and the corresponding cost statements, or other project deliverables.
The amounts of the periodic payments shall be calculated on the basis of the eligible costs approved by the Commission. When each periodic payment is made, an amount corresponding to part of the initial advance shall be retained, calculated on the basis of the relationship between the eligible costs approved by the Commission and the forecasts of expenses for the period in question.
- The final payment of the Community's financial contribution shall be made within a maximum period of 60days from the date on which the Commission approves or is deemed, in accordance with Article 4(3) subparagraph 4 of this annex, to have approved the last project deliverable.
The final payment shall correspond to the difference between the total amount of eligible costs approved by the Commission and the amount of the initial advance and the periodic payments. However, the Community's total financial contribution may not exceed the maximum amount provided for in Article3(2) of this contract.
The payments referred to at points (a) to (c) of this paragraph shall be regarded as having been effected on the date on which the Commission’s account is debited.
The Commission may suspend the period of 60days referred to under (b) and (c) of this paragraph at any time by notifying the contractor that it considers that additional checks should be carried out. The period shall continue to run once the Commission has completed the additional checks.
On expiry of the period provided for and without prejudice to subparagraph 3 of this paragraph, the contractor, may claim, within two months of receiving the late payment, interest at the rate applied by the European Central Bank for its main refinancing operations on the first day of the month during which the time limit has expired, plus one and a half percentage points. The interest shall cover the period running from the day after the time limit for payment until the date of actual payment.
2. Where the Commission suspects fraud or serious financial irregularity on the part of the contractor, it may suspend payments . The contractor shall remain bound by his contractual obligations.
3. Subject to Article17 of this annex, all payments shall be treated as advances until the last project deliverable is approved.
4. Where the total financial contribution due from the Community, taking into account any adjustments, including as a result of a financial audit as provided for in Article 17 of this annex, is less than the total amount of the payments referred to in paragraph (1) subparagraph (1) of this article, the contractor shall reimburse the difference in euro, within the time limit set by the Commission in its request sent by registered letter with acknowledgement of receipt.
In the event of non-reimbursement by the contractor within the time limit set by the Commission, the latter shall add interest to the sums due at the rate applied by the European Central Bank for its main refinancing operations on the first day of the month during which the time limit set by the Commission has expired, plus one and a half percentage points, unless interest is due pursuant to another provision of this contract. The interest shall cover the period running from the day after the expiry of the time limit until the date of receipt of the funds to be reimbursed.
Bank charges resulting from any reimbursement of sums due to the Community shall be borne exclusively by the contractor.
A recovery order regarding payments made by the Commission drawn up by the latter and transmitted to the contractor who owes an amount to be reimbursed shall be enforceable within the meaning of Article256 of the Treaty establishing the European Community.
The Commission may decide to set off sums to be reimbursed to the Community against sums of any kind due to the contractor.
5. After the contract completion date or the termination of the contract, the Commission may or shall, as appropriate, request from the contractor repayment of the entire Community contribution paid to it, where fraud or serious financial irregularities are discovered in the course of an audit. Interest at a rate 2% higher than the rate applied by the European Central Bank for its main refinancing operations on the first day of the month during which the contractor received the funds will be added to the amount to be repaid. The interest shall cover the period between the receipt of the funds and their repayment.
Article4 - Submission of project deliverables
1. Where reports are concerned:
- The following reports shall be submitted for approval by the Commission :
- periodic reports containing information about the progress of work, resources employed, departures from the work schedule, and results,
- supplementary reports containing information required by AnnexI to this contract,
- a final report covering all the work, objectives, results and conclusions, including a summary of all the latter,
- where the reports referred to in points (i) to (iii) cannot be published in full, they shall, in addition, be presented in a suitable form for publication by the contracting parties. The final report suitable for publication shall include sufficient information on new developments to enable third parties established in the MemberStates or in Associated States to be informed of opportunities to request licences in respect of knowledge.
- The layout of the reports shall conform to the rules communicated by the Commission. The reports for publication should be of a suitable quality to enable direct reproduction.
2. Where the cost statements are concerned:
- The cost statements shall be expressed in euro and in the currency used in the accounting of the contractor. The euro conversion and exchange rates for cost statements and related payments shall be the rates published by the Commission for the implementation of the budget and in force on the first working day of the month following the period covered by the cost statement concerned. No account shall be taken of exchange rate gains or losses between the time of establishment of the cost statement and the receipt of the corresponding payment.
- The contractor shall submit his cost statements to the Commission in the format specified in partE-1.
A contractor who does not benefit from a financial contribution from the Community is required to submit only a description of the efforts deployed and the resources used in order to carry out the project.
3. Each periodic report and the corresponding cost statements, as well as each supplementary report, shall be submitted to the Commission within two months of the end of the period covered by the report.
The final report(s) and the cost statements for the final period shall be submitted to the Commission within two months of the end of the duration of the project.
The other project deliverables shall be submitted by the deadlines specified in Annex I to this contract.
In the absence of observations by the Commission, the project deliverables shall be deemed to be approved within two months of their receipt.
4. The Commission reserves the right to withhold part or, exceptionally, all of the payment of the Community’s financial contribution until the period covered by the next cost statement in case of failure to submit, within the time period specified in paragraph (3) of this article or in Annex I, as relevant, a cost statement or a periodic report or other project deliverable.
The Commission may decide not to make the payment corresponding to the costs incurred during the final period in case of failure to submit, within the time period specified in paragraph (3) of this article:
- the cost statements for the final period,
- the final report(s) or other project deliverable
subject to one month's written notice of non-receipt of that document.
1. The contractor may conclude subcontracts where this proves necessary for the performance of his work.
Unless Annex I to this contract contains sufficient detailed data, the Commission's prior written approval is required:
- where the cumulative amount of the subcontracts of the contractor exceeds:
- 20% of his estimated eligible costs,
- 100000 EUR,
whichever amount is the lowest.
- where the subcontractor is established in a third country, unless the contractor is established there.
The Commission's approval shall be deemed to be granted in the absence of observations within one month of receipt of the request made by the contractor.
2. The contractor shall ensure that subcontracts include an obligation for the subcontractors:
- to submit invoices making reference to the project and giving details of the service or supply concerned,
- to submit to the audits provided for in Articles 17 and 18 of this Annex.
1. The liability of the contracting parties amongst themselves with regard to any losses, damages or injuries suffered in the context of the performance of this contract shall be governed by the law designated in its Article5(1).
2. The measures to be taken in the event of force majeure shall be agreed between the contracting parties.
The contracting parties expressly agree that any defect in respect of a product or service used in the performance of this contract and affecting such performance, including, for example, anomalies in the functioning or performance of such product or service resulting from or linked to the changeover to the year 2000, does not constitute force majeure.
3. The Community cannot be held responsible for acts or omissions of the contractor in the performance of this contract. It shall not be answerable for any defects in respect of products or services, if any, created on the basis of knowledge resulting from the project, including, for example, anomalies in the functioning or performance thereof resulting from or linked to the changeover to the year 2000.
The contractor shall fully guarantee the Community, and shall undertake to indemnify it in the event of any action, complaint or proceeding brought by a third party against it as a result of damage caused either by an act or omission of the contractor in the performance of this contract or on account of products or services, if any, created on the basis of knowledge resulting from the project, to the extent that the contractor has contributed to or is held responsible for the loss or damage concerned.
In the event of any action brought by a third party against the Community in connection with the performance of this contract, the contractor who may be answerable shall be required to assist the latter.
4. In the event of any action brought by a third party against the contractor in connection with the performance of this contract, the Commission may, without prejudice to paragraph (1) of this article, assist the latter upon written request. The costs incurred by the Commission in this connection shall be borne by the contractor.
Article 7 - Termination of the contract 1. The Commission may terminate the contract:
a) for major technical or economic reasons substantially affecting the project (including where the resumption of the performance of the contract following its suspension on account of force majeure proves impossible),
b) if the use potential of the results of the project considerably diminishes.
The Commission shall determine the notice period in a registered letter with acknowledgement of receipt, which period shall not exceed one month from the date of receipt of such letter. 2. The Commission shall not object to the termination of the contract, at the written request of the contractor on the grounds mentioned in paragraph (1) of this article. The termination of the contract shall be effective:
- on the date of the letter of acceptance by the Commission notified by registered letter with acknowledgment of receipt,
- at the latest one month following receipt of notification by the contractor in the absence of written observations by the Commission within this time limit.
3. The Commission may immediately terminate this contract from the date of receipt of the registered letter with acknowledgment of receipt
(a) where the project has not effectively commenced within three months of the payment of the initial advance and the new date proposed is deemed unacceptable by the Commission,
(b) where the contractor has not fully performed his obligations after a written request by the Commission to rectify the situation within a period not exceeding one month,
(c) where a change of control over the contractor is likely to substantially affect the project or the interests of the Community,
(d) in the event of bankruptcy, of winding up, of cessation of trading, of winding up by court order or composition, suspension of activities of the contractor or any similar proceeding provided for by national laws or regulations and leading to a similar result,
(e) in the event of a major financial irregularity. 4. The Commission shall immediately terminate this contract from the date of receipt of the registered letter with acknowledgement of receipt:
a) where the conditions for participation in the project mentioned in Articles 3 to 12 of the Decision are no longer satisfied, unless it considers that the project is essential to the implementation of the specific programme,
b) where the contractor has made false declarations for which he may be held responsible or has deliberately withheld information in order to obtain the Community's financial contribution or any other advantage provided for in the contract. 5. Any letter from the Commission to terminate the contract shall be adressed to the contractor in accordance with the procedures set out in paragraphs (1) to (4) of this article.
6. The contractor shall take appropriate action to cancel or reduce his commitments, upon receipt of the letter from the Commission notifying him of the termination of the contract or upon the dispatch of his termination request.
In the event of termination of the contract, the Community's financial contribution shall cover eligible costs relating to project deliverables approved by the Commission and also eligible costs subsequently incurred in good faith before the date mentioned in subparagraph (1) of this paragraph.
In the event of termination of the contract:
(a) pursuant to paragraph(3)(b) or (d) of this article, the Commission may require reimbursement of all or part of the Community's financial contribution, taking into account the nature and results of the work carried out and its usefulness to the Community in the context of the specific programme concerned,
(b) pursuant to paragraph (3)(c) or paragraph (4)(a) of this article, only the eligible costs relating to project deliverables approved by Commission and incurred before the event which caused the termination of the contract, and also eligible costs subsequently incurred in good faith before the date mentioned in subparagraph (1) of this paragraph, shall be reimbursable,
(c) pursuant to paragraph 3(a) or (e) or paragraph 4(b) of this article, the Commission may require reimbursement of all or part of the Community’s financial contribution. Interest at a rate of 2% above the rate applied by the European Central Bank for its main refinancing operations on the first day of the month during which the contractor received the funds will be added to the amount to be repaid. The interest shall cover the period between the receipt of the funds and their repayment. 7. Notwithstanding the termination of the contract,the following provisions shall continue to apply after that date subject to the limits specified therein, as the case may be :
- Articles 5, 6 and 8 of this contract, and
- Article 2(1) subparagraph (1) points (c), (d), (f) and (h), Article3(4) and (5), Article6, Articles 9 to 12, and Articles 16 and 17 of this annex.
The contractor shall submit the project deliverables relating to the work performed until the date of termination of the contract.
Part B: Rules relating to intellectual and industrial property, publicity and confidentiality
OPTION I: Community financing: 100% of all costs – Community ownership of knowledge |
Article8.I - Ownership of knowledge
1. Knowledge resulting from the project shall be owned by the Community. The contractor undertakes to grant such right to the Community.
2. At the request of the contractor, the Commission may authorise him to use the knowledge belonging to it that results from the project, on a royalty-free basis, for all his internal needs.
Such authorisation may be made conditional on the conclusion of a specific agreement aimed at ensuring that the information is used only for the intended purpose, and appropriate confidentiality agreements.
3. If persons employed by the contractor may claim rights to knowledge resulting from the project, the contractor shall take steps or reach appropriate agreements to ensure that these rights are exercised in a manner compatible with its obligations under this contract.
4. The contractor shall indicate to the Commission the pre-existing know-how, in particular the copyrights, relating to any document, on whatever medium, drawn up in the framework of the project.
Where the contractor may not freely dispose of such pre-existing know-how, he shall beforehand take the necessary steps to obtain the authorisation to dispose thereof in compliance with his obligations under this contract and shall confirm this to the Commission.
The contractor shall bear any reasonable cost in connection with obtaining such authorisation or for which he may be held liable.
Article9.I - Protection of knowledge
The Commission shall provide adequate and effective protection for knowledge which it owns, for an appropriate duration, in accordance with any applicable regulation or convention.
Article10.I - Dissemination of knowledge
The Commission shall ensure that knowledge which it owns and which lends itself to dissemination is disseminated.
Article11.I - Publicity and communication of data in particular for standardisation purposes
1. The Commission may publish, by any appropriate means and for as long as necessary, general data relating in particular to the objectives, the estimated total cost, the duration and the state of progress of the project, to the Community's financial contribution and to the knowledge described in the final report. The legal designation of the contractor and the names of the laboratories carrying out the work shall also be published unless they object to this in advance on the basis of essential legitimate interests.
Where the measures referred to in subparagraph (1) presuppose access by the Commission or its duly authorised representatives to the premises of the contractor, the latter may refuse such access on the basis of legitimate interests. 2. Any communication or publication, whatever the form or medium (including the Internet), concerning the state of progress with the project or concerning the knowledge:
- shall mention the relevant specific programme and the support provided by the Community,
and - shall, where it is made by the contractor, specify that the information provided is the sole responsibility of the author and does not reflect the Community’s opinion, and that the Community is not responsible for any use that might be made of data appearing in this communication or publication.
Where the utilisation of the European emblem is envisaged, it shall require prior approval by the Commission. Standards, in particular with regard to graphics, in force within the Commission must be complied with. 3. Without prejudice to the provisions regarding the protection and/or use of knowledge, and confidentiality, the contractor must inform the Commission and the standardisation bodies without delay of knowledge resulting from the project which may contribute to the preparation of European or, where appropriate, international standards, or to an industrial consensus on technical issues. To this end, he shall communicate appropriate data on such knowledge to the Commission and to the standardisation bodies during the entire duration of the contract and the two years following the contract completion date. The provisions of this contract shall be without prejudice to the rules applicable, within the standardisation bodies, to data transmitted to them.
1. Without prejudice to Articles10.I and 11.I of this annex and any other obligation contained in this contract, the contracting parties shall be required to keep confidential any data, knowledge, documents and pre-existing know-how communicated to them on a confidential basis or the disclosure of which may be prejudicial to one of them. This obligation shall no longer apply:
- where the content of such data, knowledge and documents or pre-existing know-how becomes publicly available through work or actions lawfully performed outside this contract and not based on activities under it, - where such data, knowledge and documents and pre-existing know-how have been communicated without any confidentiality restrictions or where the disclosing party subsequently waives their confidentiality.
2. Where this contract provides for the communication of any data, knowledge, pre-existing know-how or document referred to in paragraph (1) of this article, the contracting parties shall first satisfy themselves that the recipient will keep it confidential and use it only for the purpose for which it is communicated.
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