Guiding Principles for Technical Provisions

							MODEL CONSORTIUM AGREEMENTRELATED FOR RESEARCH FOR SMES DRAFT MARCH 2008

DISCLAIMER
This model Consortium Agreement is provided as draft without assuming any warranty or responsibility. The use of the text in total or in part takes place on the users own risk and does not release users from legal examination to cover their interests and protect their rights.

This model CA is based on the new scheme of research for the benefit of SMEs foreseen in the FP7 rules of participation and Annexe 3 « Research for the SMEs » of the EC GA. Main principles and advantages of this new scenario are described in the table below: RTD Performer Intellectual property - Ownership of the results - Possibility to use the results in other fields - Management, Protection and defence of intellectual property rights SME - Exclusive licence in its field - Obligation to use the results - Benefit from the RTD performer expertise on its technology (future improvements) - Don’t care about IPR management

More than 100% funded: Payment - 85% of its price : (75% +10% subject to the grant of an exclusive licence to the SME) - 15% Success fees: when SME use the results within the time of the grant Agreement (usually 3 years) - Royalties related to SME turn over

- R&D paid 100% by EC - Increase of turn over due to a better and more suitable innovation

This draft has been discussed by people from ANRT, CEA, CDTI, DLR, TNO

[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD]
MODEL CONSORTIUM AGREEMENTRELATED FOR RESEARCH FOR SMES .......................................................................... 1 DRAFT MARCH 2008 .......................................................................................................................................................................... 1 LEGAL TEXT........................................................................................................................................................................................ 3 CONSORTIUM AGREEMENT ............................................................................................................................................................. 3 Section 1: Definitions ......................................................................................................................................................................... 4 1.1 Definitions ...................................................................................................................................................................................... 4 1.2 Additional Definitions ................................................................................................................................................................... 4 Section 2: Purpose.............................................................................................................................................................................. 5 Section 3: Entry into force, duration and termination .................................................................................................................... 5 3.1 Entry into force.............................................................................................................................................................................. 5 3.2 Duration and termination ............................................................................................................................................................. 6 3.3 Survival of rights and obligations ............................................................................................................................................... 6 Section 4 : Responsibilities of Parties.............................................................................................................................................. 6 4.1 General principles......................................................................................................................................................................... 6 4.2 Termination of the participation of a Party in the Project ........................................................................................................ 7 4.3 Involvement of third parties ........................................................................................................................................................ 7 Section 5 : Liability towards each other ........................................................................................................................................... 7 5.1 General Principle........................................................................................................................................................................... 7 5.2 Limitations of contractual liability............................................................................................................................................... 7 5.3 No warranties ................................................................................................................................................................................ 7 5.4 Damage caused to third parties .................................................................................................................................................. 8 5.5 Force Majeure ................................................................................................................................................................................ 8 Section 6 : Governance structure ..................................................................................................................................................... 8 6.1 General structure .......................................................................................................................................................................... 8 6.2 Members ........................................................................................................................................................................................ 9 6.3 Operational procedure for the Steering Committee ................................................................................................................. 9 Section 7: Financial provisions ....................................................................................................................................................... 14 7.1 General Principles....................................................................................................................................................................... 14 7.2 Budgeting .................................................................................................................................................................................... 15 7.3 Payments ..................................................................................................................................................................................... 15 Section 8 Intellectual Property rights ............................................................................................................................................ 17 8. Foreground .................................................................................................................................................................................... 18 8.1 Ownership of foreground........................................................................................................................................................... 18 8.2 Transfer of Foreground .............................................................................................................................................................. 19 8.3 Limited Exclusive licence with the right to sublicence .......................................................................................................... 19 8.4 Dissemination.............................................................................................................................................................................. 20 Section 9: Access Rights ................................................................................................................................................................. 21 9.1 Background covered .................................................................................................................................................................. 21 9.2 General Principles....................................................................................................................................................................... 21 9.3 Access Rights for implementation ........................................................................................................................................... 24 9.4 Access Rights for Use ................................................................................................................................................................ 24 9.5 Access Rights for Affiliated Entities ......................................................................................................................................... 25 9.6 Additional Access Rights........................................................................................................................................................... 26 9.7 Access Rights for Parties entering or leaving the Consortium............................................................................................. 26 9.8 Specific Provisions for Access Rights to Software ................................................................................................................ 27 Section 10: Non-disclosure of information .................................................................................................................................... 27 Section 11: Miscellaneous ............................................................................................................................................................... 28 Section 12: Signatures ..................................................................................................................................................................... 30

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[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD]

LEGAL TEXT CONSORTIUM AGREEMENT THIS CONSORTIUM AGREEMENT is based upon REGULATION (EC) No 1906/2006 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 18 December 2006 laying down the rules for the participation of undertakings, research centres and universities in actions under the Seventh Framework Programme and for the dissemination of research results (2007-2013) hereinafter referred to as Rules for Participation, the EC Grant Agreement, adopted on 10 April 2007 hereinafter referred to as the Grant Agreement, Annex II adopted on 10 April 2007 hereinafter referred to as Annex II and Annex III “Specific provisions related to “research for the SMEs” hereinafter referred to as Annex III of the Grant Agreement and is made on [YYYY-MM-DD], hereinafter referred to as “Effective Date” BETWEEN: [OFFICIAL NAME OF THE COORDINATOR AS IDENTIFIED IN THE GRANT AGREEMENT], the Coordinator For the SME’s part COMPANY A Address Represented by Mr hereinafter referred to as " COMPANY A", COMPANY B Address Represented by Mr Hereinafter referred to as "COMPANY B". COMPANY C Address Represented by Mr Hereinafter referred to as "COMPANY C". Hereinafter collectively referred to as “SME Partners” For the RTD Performers part RTD Performer A Address Represented by Mr. Hereinafter referred to as " RTD Performer A ", RTD Performer B Address Represented by Mr. Hereinafter referred to as " RTD Performer B", Hereinafter collectively referred to as “RTD Performers” In the presence of the following Enabling Partners Enabling Partner A Address Represented by Mr. March 2008 – DRAFT Model CA related to Research for SMEs (New scenario)

ELUCIDATION

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[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD] Hereinafter referred to as " Enabling Partner A ", Enabling PartnerB Address Represented by Mr. Hereinafter referred to as " Enabling Partner A ", [Insert identification of other Parties …] Hereinafter SME partners and RTD performers are, jointly or individually, referred to as ”Parties” or ”Party” relating to the Project entitled [NAME OF PROJECT] in short [Insert: acronym] hereinafter referred to as “Project” WHEREAS: The Parties, having considerable experience in the field concerned, have submitted a Proposal for the Project to the European Commission as part of the Seventh Framework Programme of the European Community for Research, Technological Development and Demonstration Activities. The Parties wish to specify or supplement binding commitments among themselves in addition to the provisions of the Grant Agreement. NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS: Section 1: Definitions 1.1 Definitions Words beginning with a capital letter shall have the meaning defined either herein or in the Rules for Participation or in the Grant Agreement including its Annexes without the need to replicate said terms herein. 1.2 Additional Definitions “Commercialisation report”: The Commercialisation report means the implementation report on the license agreement stating - what have been delivered: agreed trainings, technical assistance, additional documents linked to the results provided by the RTD performer; - and how all other activities linked with the license have been implemented by the SME, such as industrialisation and commercialisation activities, as foreseen in the Transaction. “Consortium Plan” Consortium Plan means the description of the work and the related agreed Consortium Budget and its payment schedule, as updated and approved by the General Steering Committee, the initial version of which is included as Attachment X to this Agreement. The Consortium Plan includes the Consortium Budget March 2008 – DRAFT Model CA related to Research for SMEs (New scenario)

3 main documents coexist: -Annex 1 of the EC-GA, -Transaction -Consortium Plan (including the Consortium Budget and its payment schedule). 4 / 30

[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD] “Consortium Budget” Consortium Budget means the allocation of all the resources in cash or in kind for the activities as defined in Annex I of the Grant Agreement and the Transaction. Consortium Budget includes a payment schedule and is part of the Consortium Plan. “Defaulting Party” Defaulting Party means a Party which the General Assembly has identified to be in breach of this Consortium Agreement and/or the Grant Agreement as specified in Article 4.2 of this Consortium Agreement. "Effective Date" Effective Date means either the date of signature of the Consortium Agreement by all the Parties or the Start Date of the Grant Agreement whichever is the earlier “Needed” Needed means for the implementation of the Project: Access Rights are Needed if, without the grant of such Access Rights, carrying out the tasks assigned to the recipient Party would be impossible, significantly delayed, or require significant additional financial or human resources. Needed means for use of own Foreground: Access Rights are Needed if, without the grant of such Access Rights, the Use of own Foreground would be technically or legally impossible. “Transaction” The Transaction reflects the agreement reached within the Consortium on the business relations between SMEs and RTD performers, among SMEs and among RTD Performers. The Transaction is drawing up rights and obligations between Beneficiaries related to intellectual property rights (in particular ownership of Foreground, needed access rights for use the Foreground, exclusive licence, protection of the Foreground and business plan including payment of royalties). The Transaction is part of the Grant Agreement (section 2 of Annex 1) and the Consortium Agreement. The Transaction prevails on any provisions under part C of Annex II (IPR, Use and Dissemination). Section 2: Purpose The purpose of this Consortium Agreement is to specify with respect to the Project the relationship among the Parties, in particular concerning the organisation of the work between the Parties, the management of the Project and the rights and obligations of the Parties concerning inter alia liability, Access Rights and dispute resolution. Section 3: Entry into force, duration and termination

3.1 Entry into force This Consortium Agreement shall have effect from the Effective Date A new Party enters the Consortium upon signature of the accession document [Attachment X] by the new Party and the Coordinator. Such accession shall March 2008 – DRAFT Model CA related to Research for SMEs (New scenario) 5 / 30

[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD] have effect from the date identified in the Accession document.

3.2 Duration and termination This Consortium Agreement shall continue in full force and effect until complete fulfilment of all obligations undertaken by the Parties under the Grant Agreement and under this Consortium Agreement including the Transaction. However, this Consortium Agreement may be terminated in accordance with the terms of this Consortium Agreement (including the Transaction) and Annex II of the Grant Agreement (Article II.37. and II.38.).

3.3 Survival of rights and obligations The provisions relating to Access Rights, Confidentiality, Liability, Applicable law and Settlement of disputes shall survive the expiration or termination of this Consortium Agreement as agreed in respective articles. Termination shall not affect any rights or obligations of a Party leaving the Consortium incurred prior to the date of termination, unless otherwise agreed between the General Steering Committee and the leaving Party. This includes the obligation to provide all input, deliverables and documents for the period of its participation.

Section 4 : Responsibilities of Parties

4.1 General principles Each Party undertakes to take part in the efficient implementation of the Project, and to cooperate, perform and fulfil, promptly and on time, all of its obligations under the Grant Agreement and this Consortium Agreement (including the Transaction) as may be reasonably required from it and in a manner of good faith as prescribed by Belgian law. Each Party undertakes to notify promptly, in accordance with the governance structure of the Project, any significant information, fact, problem or delay likely to affect the Project. Each Party shall promptly provide all information reasonably required by a Steering Committee or by the Coordinator to carry out its tasks as foreseen in Article 6.4. Each Party shall take reasonable measures to ensure the accuracy of any information or materials it supplies to the other Parties.

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[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD]

4.2 Termination of the participation of a Party in the Project In the event the relevant Steering Committee identifies a breach by a Party of its obligations under this Consortium Agreement or the Grant Agreement, the Coordinator will give written notice to such Party requiring that such breach be remedied within thirty (30) calendar days. If such breach is not remedied within that period or is not capable of remedy, the General Steering Committee may decide to declare the Party to be a Defaulting Party and to decide on the consequences thereof which may include termination of its participation. The Parties agree that if a Party wishes to terminate its participation in the Project, it will be considered as a request for termination as provided for in article II.36.6 of the Grant Agreement and the provisions of this Consortium Agreement regarding such termination shall apply.

4.3 Involvement of third parties A Party that enters into a subcontract or otherwise involves third parties in the Project remains solely responsible for carrying out its relevant part of the Project and for such third party’s compliance with the provisions of this Consortium Agreement and of the Grant Agreement. It has to ensure that the involvement of third parties does not affect the rights and obligations of the other Parties in this Consortium Agreement.

Section 5 : Liability towards each other

5.1 General Principle Each Party undertakes to perform its work at its own risk and under its sole liability and shall support all consequences in compliance with the provisions hereunder. 5.2 Limitations of contractual liability No Party shall be responsible to any other Party for any indirect or consequential loss or similar damage such as, but not limited to, loss of profit, loss of revenue or loss of contracts, provided such damage was not caused by a wilful act.. A Party’s aggregate liability towards the other Parties collectively shall be limited to [Insert: once or twice] the Party’s share of the total costs of the Project as identified in Annex I of the EC-GA provided such damage was not caused by a wilful act [or gross negligence]. 5.3 No warranties In respect of any information or materials supplied by one Party to another under the Project, no warranty or representation of any kind is made, given or implied as to the sufficiency or fitness for purpose nor as to the absence of any March 2008 – DRAFT Model CA related to Research for SMEs (New scenario)

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[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD] infringement of any proprietary rights of third parties. The recipient Party shall in all cases be entirely and solely liable for the use to which it puts such information and materials. Nevertheless, each Party undertakes not to knowingly use any proprietary rights of a third party for which such Party has not acquired the corresponding right of use and/or to grant licenses.

5.4 Damage caused to third parties Each Party shall be solely liable for any loss, damage or injury to third parties resulting from the performance of the said Party’s obligations under this Consortium Agreement or from its use of Foreground or Background. 5.5 Force Majeure No Party shall be considered to be in breach of this Consortium Agreement if such breach is caused by Force Majeure. Each Party will notify the competent consortium bodies of any Force Majeure as soon as possible. If the consequences of Force Majeure for the Project are not overcome within sixth (6) weeks after such notification, the transfer of tasks - if any - shall be decided by the competent Consortium Bodies.

Section 6 : Governance structure

6.1 General structure The Steering Committee is the decision-making body of the Consortium The Steering Committee shall have three different configurations depending the decisions to be taken: -General Steering Committee, for general management purposes. It is in charge of the overall direction and major decisions with regard to the project. -SME Steering Committee, to ensure “industrial efficiency and consistency” of the results in connection with individual future commercialization targets. -RTD Performers Steering Committee, for decisions relating to technical achievements and to promote the further RTD work, the definition of the current state of the art and the proposal for the change of the technical work. The Coordinator is the legal entity acting as the intermediary between the Parties and the European Commission. The Coordinator shall, in addition to its responsibilities as a Party, perform the tasks assigned to it as described in the Grant Agreement and this Consortium Agreement. The role of coordinator should usually be played by RTD Performers; however, the SME Parties may assume this responsibility if they have the appropriate capability (in organisational and financial terms) and the interest to do it.

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[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD]

6.2 Members

6.2.1 Members of the General Steering Committee The General Steering Committee shall consist of one representative of each party (Member). Each Member shall be deemed to be duly authorised to deliberate, negotiate and decide on all matters listed in Article 6.3.6. of this Consortium Agreement. The Coordinator shall chair all meetings of the General Steering Committee, unless decided otherwise by the General Steering Committee. The Parties agree to abide by all decisions of the General Steering Committee. This does not prevent the Parties from submitting a dispute for resolution in accordance with the provisions of settlement of disputes in Article 11.8 of this Consortium Agreement. 6.2.2 Members of the SME Steering Committee The SME Steering Committee shall consist of one representative of each SME (Member). RTD Performers may participate as guest without voting right. The chairperson of the SME Steering Committee shall be a SME. It may be the Coordinator in case it is an SME. Tasks of the SME Steering Committee are to propose to the consortium major decisions that cannot be taken without being fully approved by SMEs, such as major change in technological solutions departing from the starting views of SMEs. The goal in setting up the SME Steering Committee is to make sure that SMEs agree between themselves on “industrial efficiency and consistency” of the results in connection with individual future commercialization targets. 6.2.3 Members of the RTD Performers Steering Committee The RTD Performers Steering Committee shall consist of one representative of each RTD Performer (Member). SMEs may participate as guest without voting right. The chairperson of the RTD Performers Steering Committee shall be a RTD Performer. It may be the Coordinator in case it is a RTD Performer. 6.3 Operational procedure for the Steering Committee (in its three configurations)

6.3.1 Representation in meetings Any Member of the relevant Steering Committee: - should be present or represented at any meeting; - may appoint a substitute or a proxy to attend and vote at any meeting; - shall participate in a cooperative manner in the meetings. 6.3.2 Preparation and organisation of meetings

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[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD] 6.3.2.1 Convening meetings The chairperson shall convene ordinary meetings of the relevant Steering Committee at least before the closure of each contractual reporting period and shall also convene extraordinary meetings at any time upon written request of any Member of the relevant Steering Committee. 6.3.2.2 Notice of a meeting The chairperson shall give notice in writing of a meeting to each Member of the relevant Steering Committee as soon as possible and within at least 21 calendar days preceding an ordinary meeting and 14 calendar days preceding an extraordinary meeting. 6.3.2.3 Sending the agenda The chairperson shall send each Member of the relevant Steering Committee a written original agenda within at least 14 calendar days preceding the meeting or 7 days preceding an extraordinary meeting, and shall send a copy of the agenda to all other Parties (who are not Members of the relevant Steering Committee) 6.3.2.4 Adding agenda items Any agenda item requiring a decision by the Members of the relevant Steering Committee must be identified as such on the agenda. Any of such Members may add an item to the original agenda by written notification to all of the other Members of the relevant Steering Committee within at least 7 calendar days preceding the meeting or 2 working days preceding an extraordinary meeting. 6.3.2.5 During a meeting of a Steering Committee the Members present or represented can unanimously agree to add a new item to the original agenda. Copy is sent to all the Parties of the Consortium for information. E.g. a RTD Performer may participate as guest in a SME Steering Committee meeting

6.3.2.6 Any decision may also be taken without a meeting by the Chairperson circulating to all relevant Members a written document which is then signed by the defined majority of such Members (see Article 6.3.3. of this Consortium Agreement). 6.3.2.7 Meetings of the Steering Committee may also be held by teleconference or other telecommunication means as specified in the above mentioned notice. 6.3.2.8 Decisions will only be binding once the minutes have been accepted according to Article 6.3.5 of this Consortium Agreement

6.3.3 Voting rules and quorum

6.3.3.1 The Steering Committee (in its three configurations) shall not deliberate and decide validly unless two-thirds (2/3) of its relevant Members are present or represented (quorum). March 2008 – DRAFT Model CA related to Research for SMEs (New scenario) 10 / 30

[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD] 6.3.3.2 Each Member shall have one vote. For avoidance of doubt: In the general Steering Committee, each member shall have one vote; In the SME Steering Committee, each SME shall have one vote; In the RTD Performer Steering Committee, each RTD performer shall have one vote. 6.3.3.3 Defaulting Party may not vote.

6.3.3.4 Decisions shall be taken: In the General Steering Committee: Main decisions are taken in the General for the decisions a) and b) : by a majority of 2/3 of the votes and prior Steering Committee. But for some of them agreement (unanimity) of the SME Steering Committee the Consortium agreement shall ensure the for the decisions d) to n): unanimously; lead of the Project to the SMEs In the RTD Performer Steering Committee : unanimously; In the SME Steering Committee: unanimously; 6.3.4 Veto rights

6.3.4.1 A Member which can show that its own work, time for performance, costs, liabilities, intellectual property rights or other legitimate interests would be severely affected by a decision of the General Steering Committee may exercise a veto with respect to the corresponding decision or relevant part of the decision. 6.3.4.2 When the decision is foreseen on the original agenda, a Member may veto such a decision during the meeting only.

6.3.4.3 When a decision has been taken on a new item added to the agenda before or during the meeting, a Member may veto such decision during the meeting and within 15 days after the minutes of the meeting are sent. 6.3.4.4 In case of exercise of veto, the Members shall make every effort to resolve the matter which occasioned the veto to the general satisfaction of all its Members. 6.3.4.5 A Member may not veto decisions relating to its identification as a Defaulting Party. The Defaulting Party may not veto decisions relating to its participation and termination in the Consortium or the consequences of them. 6.3.4.6 A Party requesting to leave the Consortium may not veto decisions relating thereto.

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[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD]

6.3.5 Minutes of meetings

6.3.5.1 The chairperson shall produce written minutes of each meeting which shall be the formal record of all decisions taken. He shall send draft minutes to all of its Members and shall send a copy to the Coordinator (for its information when he doesn’t attend the meeting) within [10] calendar days of the meeting. 6.3.5.2 The minutes shall be considered as accepted if, within 15 calendar days from sending, no Member of the relevant Steering Committee has objected in writing to the chairperson with respect to the accuracy of the draft of the minutes. 6.3.5.3 The chairperson shall send the accepted minutes to the Coordinator who shall send them for information to all the Parties, and safeguard them. If requested the Coordinator shall provide authenticated duplicates to Parties. 6.3.6 Role and decisions of the Steering Committee

6.3.6.1 Role and decisions of the General Steering Committee The General Steering Committee shall be free to act on its own initiative to formulate proposal and take decisions in accordance with the procedures set out herein. The General Steering Committee shall be responsible for : Content, finances and intellectual property rights : a) Proposals for changes to Annex I of the Grant Agreement (including the Transaction) to be agreed by the European Commission, b) Changes to the Consortium Plan (including the Consortium Budget and its payment schedule) , c) Determining information required from the Members for the purpose of article 4.1 and frequency of the submission of the information to the Coordinator, d) Withdrawals from [Attachment 1 (Background included)] e) Additions to [Attachment 3 (Listed Affiliated Entities)], f) Additions to [Attachment 5 (List of Third Parties)]. Evolution of the Consortium : g) Entry of a new Party to the Consortium and approval of the conditions of the accession of such a new Party, h) Withdrawal of a Party from the Consortium and the approval of the conditions of the withdrawal i) Declaration of a Party to be a Defaulting Party, j) Remedies to be performed by a Defaulting Party, k) Termination of a Defaulting Party’s participation in the Consortium and measures relating thereto, Proposal to the European Commission for: March 2008 – DRAFT Model CA related to Research for SMEs (New scenario) 12 / 30

[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD] - l) A change of the Coordinator, - m) Suspension of all or part of the Project - n) Termination of the Project and/or the Consortium Agreement.

Majority opinion of non-SME Parties must not be disregarded and consensus should Monitor the execution of the Project, both in terms of the work performed by be sought for SME members and in terms of the work carried out by RTD Performers; Assess technical and exploitation reports Seek solutions to issues related to modifications and/or changes that need to be implemented with respect to initial plans foreseen by SMEs; Ensure that SMEs agree on a common position regarding industrial efficiency and consistency with respect to their individual commercialisation objectives; Propose an update of the Transaction to the General Steering Committee; Prepare and propose to the General Steering Committee the following decisions: - Proposals for changes to Annex I of the Grant Agreement (including the Transaction) to be agreed by the European Commission, - Proposal for a changes to the Consortium Plan (including the Consortium Budget and the payment schedule) ,

6.3.6.2 Role of the SME Steering Committee

Majority opinion of non-RTD Performers must not be disregarded and consensus Monitor the execution of the project, both in terms of the work performed by should be sought for RTD Performers and in terms of the orientations provided by SME Parties, trying to stick to the Consortium plan; Assess the RTD progress through verification of technical reports and fulfilment of technical requirements; Seek solutions to issues related to changes that need to be implemented with respect to initial Consortium plan; Ensure that the RTD Performers agree on a common position with SME Parties regarding the use and exploitation to be made of the project results; Propose an update of the Transaction to the General Steering Committee; 6.4 Coordinator The Coordinator shall be the intermediary between the Parties and the European Commission and shall perform all tasks assigned to it as described in the Grant Agreement and in this Consortium Agreement. In particular, the Coordinator shall be responsible for : monitoring compliance by the Parties with their obligations, keeping the address list of Members and other contact persons updated and available, collecting, reviewing and submitting information on the progress of the Project and reports and other deliverables (including financial statements and related certification) to the European Commission, preparing the meetings, proposing decisions and preparing the agenda of General Steering Committee meetings, chairing the meetings, preparing the minutes of the meetings and monitoring the implementation of decisions taken at meetings, transmitting promptly documents and information connected with the Project including copies of accession documents, amendments to the grant agreement, changes of contact information to the Parties, and also March 2008 – DRAFT Model CA related to Research for SMEs (New scenario)

6.3.6.3 Role of the RTD performers Steering Committee

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[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD] information such as the date of delivery of the periodic technical and management reports to the European Commission, date of receipt of the Community financial contribution, administering the Community financial contribution and fulfilling the financial tasks described in Article 7.3, providing, upon request, the Parties with official copies or originals of documents which are in the sole possession of the Coordinator when such copies or originals are necessary for the Parties to present claims. If the Coordinator fails in its coordination tasks, the General Steering Committee may propose to the European Commission to change the Coordinator. The Coordinator shall not be entitled to act or to make legally binding declarations on behalf of any other Party. The Coordinator shall not enlarge its role beyond the tasks specified in this Consortium Agreement and in the Grant Agreement. The General Steering Committee shall be responsible for determining the level of details regarding information requested by the Coordinator for the management of the Project and the frequency for providing such information beyond the reporting periods set in the Grant Agreement (including the Transaction). A reasonable frequency for such submission should not be more than twice a year and should only contain estimated data. The Coordinator shall provide evidence of any particular European Commission request for information to a Party. In the event such a request concerns a piece of information that the Party considers as sensitive said Party may elect to directly provide the information to the European Commission and will inform the Coordinator of such communication. Section 7: Financial provisions 7.1 General Principles 7.1.1 Distribution of the Financial Contribution The financial contribution of the European Commission to the Project shall be distributed by the Coordinator according to: the Consortium Budget as included in the Consortium Plan (see Annex X to this CA) and the Transaction. the approval of reports by the European Commission, and the provisions of payment in Article 7.3. A Party shall be funded only for its tasks carried out in accordance with the Consortium Plan. The Coordinator is the banker of the Consortium. 7.1.2 Justifying Costs In accordance with its own usual accounting and management principles and This accounting system cannot be affected practices, each Party shall be solely responsible for justifying its costs with by the European Commission, Consortium respect to the Project towards the European Commission. Neither the or one of the Parties. Coordinator nor any of the other Parties shall be in any way liable or responsible for such justification of costs towards the European Commission.

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[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD]

7.1.3 Funding Principles A Party which spends less than its allocated share of the Consortium Budget will be funded in accordance with its actual duly justified eligible costs only. A Party that spends more than its allocated share of the Consortium Budget will In such a case that Party may ask for a be funded only in respect of duly justified eligible costs up to an amount not supplement. exceeding that share. In any event, the General Steering Committee is responsible for the definition and modification of the Consortium Budget. 7.1.4 Financial Consequences for a leaving Party A Party leaving the Consortium shall refund all payments it has received except the amount of EC Contribution accepted by the European Commission as well as possible costs agreed to be refunded within the Consortium. . A non-defaulting RTD performer leaving shall in addition be due 75 % of the payments agreed in the transaction for the tasks it has performed and of any further cost reasonably occurred for the performance of its tasks. Furthermore a Party shall, within the limits specified in Article 5.2 of this Consortium Agreement, bear any additional costs occurring to the other Parties in order to perform its and their tasks. 7.2 Budgeting All resources made available for the Project shall be valued in accordance with the usual accounting and management principles and practices of the respective Parties and shall be budgeted. 7.2.1 Budgeted costs eligible for 100% reimbursement These costs shall be budgeted in the Consortium Budget in the following order of priority: - RTD Costs banking and transaction costs related to the handling of any financial resources made available for the Project by the Coordinator the delivery of certification of financial statements according to the Grant Agreement costs related to updating this Agreement management costs of the Coordinator any other costs eligible for 100% reimbursement All costs eligible for 100% reimbursement are defined by the European Commission. In order to claim these costs and to facilitate an effective management of the Project it is strongly advised to budget all these costs specifically and fully. If the EC funding does not cover all these costs, the Consortium need to prioritize them for reimbursement in the order propose in the CA. Warning: you may have to pay travel costs to meetings etc. – be aware to either reserve funds for it in the consortium budget or to pay them out of your own funds 7.3 Payments Payment is based upon the Consortium Plan and its payment schedule as foreseen in the Transaction.

As referred above, the Consortium Plan undergoes a cyclic update. As the 7.3.1 Payment of the Pre-financing: Consortium Plan comprises the Project March 2008 – DRAFT Model CA related to Research for SMEs (New scenario) 15 / 30

[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD] Budget, which in itself comprises the payment scheme, both the Consortium Budget and the payment scheme are subject to the same dynamics as the Consortium Plan. Declaration of eligible costs: For clarification there is a clear distinction between the management of the payments by the consortium and the declaration of eligible costs by the beneficiaries ; RTD performer is a Beneficiary. He’ll fill in his own Form C in which he’ll declare its management costs and « other costs » if any.

The Coordinator shall forward the pre-financing to the Parties in accordance with the Transaction and the Consortium plan within 30 days upon receipt thereof on a pro-rata basis. The Coordinator shall forward the pre-financing for R&D costs directly to the RTD Performer in accordance with the payment schedule included in the Consortium budget and the Transaction. SMEs shall not receive on their accounts the fund dedicated to the payment of the RTD performer costs. At the request of SMEs, the Coordinator will pay the RTD performer in accordance with the three instalments mechanism described in article 7.3.3 of this consortium Agreement The co-ordinator must document in an appropriate way what payments are made to the RTD performers and which part of these payments refer to which SME partner. A copy of this documentation shall be sent to each SME partner.

But RTD performer don’t declare any R&D Any invoice by an RTD performer for work carried out shall contain cost because he is acting as a a reference to the payment received from the coordinator, which will subcontractor of the SME. allow SME to register it in their books. As such he will send an invoice (which include VAT and Profit margin) to the SME. 7.3.2 Payments based on registered expenses This invoice is an eligible cost of R&D of the Further Payments shall be made by the SME trough the Coordinator according SME even if it is paid directly by the to the payment schedule of the transaction. Coordinator. Usually some R&D costs have not been paid by the SME when the request for the final payment is sent, in particular because the SME is waiting for the final payment of the grant in order to be able to pay this expenditure. In this case the invoice of RTD performer shows that a debt exists for RTD activity supplied during the lifetime of the project and the final cost is known; 7.3.3 Payments mechanism foreseen in the Transaction At the end of the research period the RTD performer will invoice their full research price as it was estimated in Annex 1 and the SME will pay the outstanding amount not already covered by earlier payments, in order that the RTD performer receive altogether 75 % of such invoice, provided the work performed by the relevant RTD performer was performed according to the specifications agreed in the Consortium Plan. The amount of the invoice (VAT excluded) will appear in the Form C of the SME (as VAT is not an eligible cost). RTD performer won’t have to justify any cost of R&D.

Where obligatory under national tax law in relation to one or more SME beneficiaries, Value Added Tax (VAT) accruing from the invoiced amounts will be shown on the RTD performers' invoices and has to be reimbursed by such SME beneficiary accordingly. According to the EC Grant Another 10 % of the invoice will be paid by the SME trough the coordinator as Agreement, VAT is not an eligible cost. soon as a license agreement has been signed. Such license agreement shall contain the obligation for the SME to ensure It shall be an exclusive licence in the field of within 12 months sufficient exploitation of the Foreground. The RTD may the SME revoke exclusivity if those obligations are not fulfilled. The remaining 15 % of the invoice will be paid by the SME as soon as the The SME will have to provide a foreground is put on the market as shown in the commercialisation report and commercialisation report 12 months after the end of the research period, at the end at latest at the end of the project. of the project. A project is generally 3 years long with 2 main periods: -A RTD period lasting from 18 to 24 months -An Exploitation period lasting from 12 to 18 months. March 2008 – DRAFT Model CA related to Research for SMEs (New scenario) 16 / 30

[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD] 7.3.4 Payments to Parties are the exclusive tasks of the Coordinator. In particular, the Coordinator shall: notify the Party concerned promptly of the date and composition of the amount transferred to its bank account, giving the relevant references perform diligently its tasks in the proper administration of any funds and in maintaining financial accounts undertake to keep the Community contribution to the Project separated from its normal business accounts, its own assets and property, except if the Coordinator is a Public Body or is not entitled to do so due to statutory legislation. The Coordinator is entitled to withhold any advances due to a Defaulting Party. The Coordinator is entitled to recover any advances already paid to a Defaulting Party. Section 8 Intellectual Property rights Preamble related to IPR rules - This model proposes a sustainable risk sharing co-operation between RTD performers and SMEs based on responsible partnering principles. - In FP7 there is no more automatic transfer to SMEs as it was the case in the former traditional CRAFT scenario. - The Transaction is drawing up rights and obligations between Beneficiaries related to intellectual property rights (in particular ownership of Foreground, needed access rights for use the Foreground, exclusive licence, protection of the Foreground and business plan including payment of royalties). Transaction principles: - Any beneficiary owns the Foreground he has produced. - RTD performers own the Foreground they have produced and grant an exclusive license for use to SMEs in the scope of the Project. Scope and commercial conditions of the licence is part of the Transaction negotiation. The granted license shall be exclusive in the scope of the Project for the relevant needs of any assignee (SMEs of the project).

Which scenario to choose in which situation ? The main criteria is the ownership of the background needed to perform the project. Who is the owner ? -SMEs are the owners : choose the same scenario as for CRAFT in FP6. -RTD Performers are the owners : choose the new scenario provided by this model CA. When SMEs have a limited or selective technological need (e.g. to improve their products), prefer the new scenario.

Also when the project creates interest in IPR (intention to patent) : choose the new -RTD Performers may grant several exclusive licenses to different SMEs of the scenario. project in the scope of the Project for their respective not rival needs. - RTD Performers shall protect the Foreground in the field of the granted license and shall bear the relevant costs of protection (they may choose secret agreement instead of patenting. RTD performers shall never be enforced to patent but negotiate with SMEs). -RTD Performers are paid 75% cash of their R&D invoice, 10% when they grant Art 41 RoP: “Foreground shall be jointly owned by the participants which are exclusive licence on Foreground to the SMEs, 15% when the SME use the Foreground and put it on the market; and they may negotiate further royalties members of the specific group benefiting from the action (SMEs), unless otherwise with SMEs on the exploitation of the licence. agreed by those participants. Furthermore RTD performers can use their Foreground for further research and Where the owners of the foreground are not members of that group, they shall for Commercial use [in other fields than the exclusive license one]. In such kind of project, SMEs involved in a same project are not competitors in ensure that the group is provided with all the rights to that foreground required for the a same field. Some SMEs may participate to the project as End users helping the Parties to purposes of using and disseminating it in accordance with the technical annex to the better define the needs of the potential market. They don’t hold any exclusive grant agreement.” licence from the project but they are interested to buy under preferential conditions the results and to integrate them in their own systems first. March 2008 – DRAFT Model CA related to Research for SMEs (New scenario) 17 / 30

[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD] SMEs who have been granted an exclusive licence may also sublicense to third parties [Sub licences shall be granted intuitu personae and shall be restricted to European Companies] - SMEs own the Foreground they have produced by themselves. Most often, their IPR will be issued from the integration of the RTD Performers Foreground in their products or services. If needed, SMEs may have to grant access rights to their Foreground. - Any access right granted within the framework of the Project shall be negotiated and foreseen in the Transaction

Licence on Foreground shall be exclusive licence to give to the SMEs sufficient preferential treatment to accept to waive the ownership of Foreground to the RTD Performers. Licence to background shall be non exclusive licence. Payment of the RTD Performers: 75% cash + 25% Success Fees (10% when exclusive licence is signed and 15% when the SME use the result on the market) + Sucess fees (based on SME turn over in relation with the use of the licence: to be negotiated in the licence agreement) Special statute of RTD Performers. RTD performers are beneficiaries with specific rights and obligations defined by the parties in the Transaction. They carry out research or technological development activities for the benefit of the SMEs. They charge their remuneration to SMEs in accordance with the transaction and are paid directly by the SMEs. RTD performers may only charge their eligible costs to the EC for management and other activities. A RTD performer is not a sub contractor. He is not a third party (unlike sub contractor) but a Party who has signed the Grant Agreement. He is responsible for carrying out the project and for compliance with the provisions of the Grant Agreement. RTD Performers usually cover the execution of the main part of the project (unlike sub contractors).

8. Foreground 8.1 Ownership of foreground See Grant Agreement Article II.26. - Article II.29. and Annexe 3 related to Research for Regarding Foreground, Grant Agreement Article II.26. - Article II.29. shall apply. SMEs Foreground shall be the property of the beneficiary carrying out the work generating that foreground. For the avoidance of doubt, in this model Foreground generated by RTD performers remains the property of RTD the property of the Foreground generated Performers. by RTD performers remains the property of RTD performers (No automatic transfer to March 2008 – DRAFT Model CA related to Research for SMEs (New scenario) 18 / 30

[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD] SMEs as it is the case in the former traditional CRAFT scenario). Option 2 of DESCA model (where any of the joint owners is entitled to use the joint In case of joint ownership of Foreground, Joint owners have to conclude a coForeground without any consent from or ownership agreement. paying compensation to any other joint As long as the co-ownership agreement is not yet concluded, the rules foreseen owner) doesn’t fit to the scenario of this by the Grant Agreement apply. model CA as it is discouraging RTD performers who are paid only 75% of their costs and would not receive any compensation in the case SMEs use the joint Foreground. 8.2 Transfer of Foreground The scenario provided in this model CA makes the transfer of Foreground by RTD Each Party may transfer ownership of its own Foreground following the Performers extremely rare. procedures of the Grant Agreement Article II 27. Usually a RTD Performer transfers its Nevertheless, Parties may decide in the Transaction the ban for RTD ownership when he doesn’t succeed in performers to transfer to third parties ownership of Foreground which has been granting a licence. But in this scenario, the licensed to SMEs, except to their technology transfer company which may be transaction provides from the beginning the an Affiliate. grant of an exclusive license to the SME. Nevertheless RTD Performers agree that Foreground which has been RTD performers join the consortium exclusively licensed to SMEs shall not be transferred to any third party except because they are interested in the to their technology transfer company. technology or in the research matter. Transfer would therefore be exceptional. Parties may identify specific third parties (eg: technology transfer company) they intend to transfer Foreground to in [Attachment (6)] to this Consortium The case which is likely to occur is the Agreement. The other Parties hereby waive their right to object to a transfer to transfer by the RTD performer of its Foreground to its Affiliates (e.g. a listed third parties according to the Grant Agreement Article II.27.3. technology transfer company). The transferring Party shall, however, notify the other Parties of such transfer and shall ensure that the rights of the other Parties will not be affected by such Disputes about conflicts of interests should transfer. Any addition to [Attachment (6)] after signature of this Agreement requires a be solved in the Consortium Agreement negotiation phase as soon as one Party decision of the Steering Committee. lists a third party which is considered to be The Parties recognize that in the framework of a merger or an acquisition of an problematic by other Parties. important part of its assets, a Party may be subject to confidentiality obligations which prevent it from giving the full 45 days prior notice foreseen in Grant II27.3: a beneficiary may object any Agreement Article II 27.2. envisaged transfer of ownership on the grounds that it would adversely affect its access rights only (not for legitimate interest). Where there is no patented or protected knowledge, Parties may grant exclusive licences on secret knowledge (not patented) or authoring rights. In most cases the exclusive licence will cover a mix of patented and not patented knowledge. Parties have to know precisely what is included in the terms of the licence. Exclusive licences for specific Foreground shall be granted subject to written confirmation by all the other beneficiaries in 19 / 30 8.1.1 Joint ownership

8.3 Limited Exclusive licence with the right to sublicence RTD performers shall grant to SMEs exclusive non free licenses on the March 2008 – DRAFT Model CA related to Research for SMEs (New scenario)

[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD] Foreground in the scope of the Project, with the right to sublicense. SMEs may grant sublicences strictly limited within the same scope of activity. Such exclusive licences are deemed to be accepted by other beneficiaries from the beginning of the project when they sign the CA including the Transaction. By signing the CA, Beneficiaries confirm they waive their access rights to the Foreground covered by these exclusive licences. The Transaction may foresee preferential treatment for SME participants who contribute to the project as end users and are interested in the results to integrate them under preferential conditions in their own systems first. the transaction that they waive their access rights thereto. Exclusive licences include all access rights to Foreground and Background which are needed to use the granted knowledge. RTD performers may carry on using their Foreground for their own needs even when they’ve granted exclusive license. The right to sublicense gives the licence more value in the interest of the SMEs and the RTD performers. 8.4 Dissemination 8.4.1 Publication Dissemination activities including but not restricted to publications and It’s possible for participants to change the presentations shall be governed by Article II.30 of the Grant Agreement. delays foreseen by Grant Agreement Article II.30.3. Reasons to extend the period [30] days can be to have more time to examine intended publications and to block them in the meantime. Reasons to shorten the period can be to make prior notification easier, considering that e.g. presentations for conferences tend to be prepared rather close to the actual event and not months before. In case considered necessary the time limits set by the Grant Agreement can be changed by using: The time limit to give a prior notice of any Dissemination activity shall be […] days. The time limit for a Party to object on grounds stated in Article II.30 of the Grant Agreement is […] days. The Party objecting a publication has to show that its legitimate interests will suffer disproportionately great harm and shall include a request for necessary modifications. 8.4.2 Publication of another Party’s Foreground or Background For the avoidance of doubt, a Party may not publish Foreground or Background of another Party, even if such Foreground or Background is amalgamated with the Party’s Foreground, without the other Party’s prior written approval. 8.4.3 Cooperation obligations March 2008 – DRAFT Model CA related to Research for SMEs (New scenario) 20 / 30

[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD] The Parties undertake to cooperate to allow the timely submission, examination, publication and defence of any dissertation or thesis for a degree which includes their Foreground or Background. However, confidentiality and Use standard submission clauses if available. publication clauses have to be respected. 8.4.4 Use of names, logos or trademarks Nothing in this Consortium Agreement shall be construed as conferring rights to use in advertising, publicity or otherwise the name of the Parties or any of their logos or trademarks without their prior written approval. Section 9: Access Rights 9.1 Background covered Most of needed Background will belong to RTD performers. SMEs may need access rights to RTD performers’ background to use the licence they have been granted. Also RTD performers may need access rights to SMEs Background to perform the Research. These access rights are granted upon conditions negotiated in the framework of the Transaction. Positive list (+ negative list when needed) Positive list: only the Background listed is subject to Access Rights of other Parties, all other Background is therefore excluded from access. The positive list may serve also for narrowing down Access Rights to a specific department (or work team, institute The owning Party may add further Background to [Attachment 1] during the etc.) within the Party. Project by written notice. All Parties should thoroughly check whether However, only the Steering Committee can permit a Party to withdraw any of its all input they will need from other Parties is Background from [Attachment 1]. included on the list in order to prevent The Parties shall identify in the [Attachment 1] the Background to which they are ready to grant Access Rights, subject to the provisions of this Consortium Agreement and the Grant Agreement. Such identification may be done by e.g. naming a specific department of a Party and/or by subject matter. blockages during The Parties agree that all Background not listed in [Attachment 1] shall be implementation. explicitly excluded from Access Rights. They agree, however, to negotiate in good faith additions to [Attachment 1] if a Party asks them to do so and those are needed. For the avoidance of doubt, the owner is under no obligation to agree to additions of his Background to [Attachment 1]. In addition, if a Party wishes to exclude specific Background, it shall list such Background in the [Attachment 2]. The owning Party may withdraw any of its Background from [Attachment 2] during the Project by written notice. However, only the Steering Committee can permit a Party to add Background to [Attachment 2]. the Project

9.2 General Principles March 2008 – DRAFT Model CA related to Research for SMEs (New scenario) 21 / 30

[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD] Each Party shall implement its tasks in accordance with the Transaction and Possible restrictions Parties have to inform shall bear sole responsibility for ensuring that its acts within the Project do not about are e.g.: a Party has already granted knowingly infringe third party property rights. an exclusive license to a third party; a Party is not owner but only has license without As provided in the Grant Agreement Article II.32.3. Parties shall inform the right to sublicense, etc. Consortium as soon as possible of any limitation to the granting of Access Rights to Background or of any other restriction which might substantially affect The Grant Agreement requires the Party to the granting of Access Rights (e.g. the use of open source code software in the inform the other Parties as soon as possible of important limitations/restrictions. Project). The Grant Agreement also requires the Furthermore, RTD performers shall inform individually each of the SMEs of Party to grant Access Rights to the Background only “provided the Beneficiary such restrictions. concerned is entitled to grant them”. If the Steering Committee considers that the restrictions have such impact, which is not foreseen in the Transaction, it may decide to update the As soon as a Party informs of such Transaction accordingly. restriction, the Consortium has to decide whether this has an impact on the Project, including the Use as foreseen in Annex I and the Transaction. If there is an impact, the Transaction can be updated accordingly. The Consortium can also keep Transaction as it is. This can mean that you are not allowed to use certain restricted Background and you have to implement the task in another way. An Access right may include the right to grant a sub licence. It shall be Subject to Article II 32.7 and II.32.8, negotiated in the framework of the Transaction Exclusive license and sublicensing rights Access Rights shall be free of any administrative transfer costs. may be agreed by the beneficiaries in the Transaction. Access Rights to Background are granted on a non-exclusive basis Access Rights to Foreground are granted in the framework of the Transaction on an exclusive basis in the scope of the Project Foreground and Background shall be used only for the purposes for which See definition of needed and purpose of Access Rights to it have been granted. access rights All Access Rights shall be granted upon written request. See Grant Agreement Articles II.32.1 and II.32.2.

The granting of Access Rights may be made conditional on the acceptance of specific conditions aimed at ensuring that these rights will be used only for the These specific conditions (if any) shall be listed in the Transaction intended purpose and that appropriate confidentiality obligations are in place. The requesting Party must show that the Access Rights are Needed. See definition of “Needed” and the purpose of the access rights.

March 2008 – DRAFT Model CA related to Research for SMEs (New scenario)

22 / 30

[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD]

Transaction Access Right

To PERFORM the project

By RTD performer By SMEs

AR to BACKGROUND AR to RTD AR to SMEs’ Performers’ Background Background 1 Royalty Free

AR to FOREGROUND AR to RTD AR to Performers’ SMEs’ Foreground Foreground

In the 2 scope of Not Foreseen in this model * the By project RTD Outside 3 4 For USE and Performer the MC FRC FURTHER s scope of RESEARCH the of the Project Foreground In the 7 8 owned by or scope of FRC MC licenced to the the requesting Party By Project SMEs Outside 11 the Not Foreseen in this model scope of (article 9.6) the Project Numbers refer to elucidation notes below MC: Market Conditions FRC: Fair and Reasonable Conditions to be negotiated

5 MC *

6 FRC *

9 FRC

10 Not Foreseen in this model

* For Further research, Access Rights to Foreground shall be granted to RTD performers on fair and reasonable conditions to be agreed. Transaction Access Rights : This matrix of “Transaction Access Rights” is a guideline to negotiate the Transaction. AR to RTD Performers Background are granted on a non exclusive basis AR for use to RTD Performers Foreground are granted on an exclusive basis 1.RF: All AR needed to perform the Project are granted on RF conditions whatever it is Background or Foreground and whatever it is owned by SMEs or RTD Performers. 2.Not Foreseen in this model : As RTD performers shall not use the results in the field of the SMEs scope of the Project, they shall not have any AR for Use and Further Research of the Foreground in the field of SMEs scope of the Project. SMEs have an Exclusive Licence for use the Foreground in the scope of the Project as if they were the owners. However on request of SMEs and in their interest, (e.g to further improve the Foreground), RTD Performers or SMEs may grant AR for Further Research to RTD Performers by additional bilateral agreement. For Further research, Access Rights to Foreground shall be granted to RTD performers on fair and reasonable conditions to be agreed. Internal research is not included in Further research. 3.MC 4.FRC: RTD have clearly an interest to use the knowledge in other fields and may need AR to the background of SMEs and it is also the interest of the SMEs to grant such AR but not for Free. 5.MC 6.FRC: RTD have clearly an interest to use the knowledge in other fields and may need AR to the Foreground of SMEs and it March 2008 – DRAFT Model CA related to Research for SMEs (New scenario) 23 / 30

[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD] is also the interest of the SMEs to grant such AR but not for Free. 7.FRC: major AR to be negotiated in the framework of the Transaction (to be agreed prior to the signing of the grant agreement (article 50.6 of the Rules of participation) 8.MC: this case may not occur in such Consortia but it may happen in special cases. 9.FRC: major AR to be negotiated in the framework of the Transaction (exclusive licence) 10.Not Foreseen in this model: SMEs shall have nothing to fear from other SMEs. They must be sure they won’t be each other in competition in their own field of activity. 11. Not Foreseen in this model: the negotiation of the Transaction will mainly concern the extent of the scope of the Project and of the exclusive licence. SMEs access rights outside the scope of the Project shall not be covered by the Consortium Agreement and shall be at the absolute discretion of the owning Party and subject to such terms and conditions as may be agreed between the owning and receiving Parties (article 9.2 of the CA). 9.3 Access Rights for implementation Access Rights to Foreground and Background Needed for the execution of the Whatever the owning party or the own work of a Party under the Project shall be granted on a royalty-free basis. requesting Party is a RTD performer or a SME. AR for implementation to RTD Performers Background and Foreground are granted on a non exclusive basis. 9.4 Access Rights for Use AR for Use mean AR for Use and further research of the background and the Foreground which the requesting Party own. Due to the transaction and the specificity of this funding scheme, it means also the right for the SMEs to use the Foreground for which they have an exclusive licence for use (granted by RTD Performers). AR for use to RTD Performers Foreground are granted on an exclusive basis. AR for use to RTD Performers Background are granted on a non exclusive basis.

Access Rights to foreground for Use and further research - Access rights to Foreground for Use, in the scope of the Project, by RTD Performers are not covered by this CA. (cases 2c, 2d) SMEs have an Exclusive Licence for use the Foreground in the scope of the Project as if they were the owners. - Access rights to RTD Performers Foreground for Use, outside the scope of the Project, by RTD Performers are granted on Market conditions. (case 5) - Access rights to SMEs Foreground for Use, outside the scope of the Project, by RTD Performers are granted on Fair and reasonable conditions to be agreed. (case 6) - Access rights to RTD Performers Foreground for Use, in the scope of the Project, by SMEs are granted on Fair and reasonable conditions to be agreed. (case 9) - Access rights to SMEs Foreground for Use, in the scope of the project by SMEs are not covered by this CA. (case 10)

SMEs have the obligation to Use the Foreground for which they have been granted an exclusive licence. If not, SMEs shall loose the benefit of the exclusive license. The plan for use and dissemination shall be part of the transaction. - As RTD performers shall not use the results in the scope of the Project, they shall not have any AR for Use and Further Research of the Foreground in the scope of the Project. - Some foreground may be owned by SMEs or other RTD performers - RTD have clearly an interest to use the knowledge in other fields and may need AR to the Foreground of SMEs and it is also the interest of the SMEs to grant such AR but not for Free. (case 6) - Major AR to be negotiated in the framework of the Transaction (case 9) - SMEs shall have nothing to fear from other SMEs. They must be sure they won’t be each other in competition in their own field (case 10)

- Access rights to Foreground for Further research, in or outside the scope of - RTD Performers or SMEs may grant AR the Project whatever it is owned by RTD performers or SMEs shall be granted for Further Research to RTD Performers by to RTD performers on fair and reasonable conditions to be agreed (article 50.5 March 2008 – DRAFT Model CA related to Research for SMEs (New scenario) 24 / 30

[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD] of the Rules of participation). (cases 2c, 2d, 5 et 6) additional bilateral agreement. However It should be on request of SMEs and in their interest, (e.g to further improve the Foreground) (cases 2c, 2d, 5 et 6).

Access Rights to Background for Use and further research - Access rights to Background for Use, in the scope of the Project, by RTD Performers are not covered by this CA. (cases 2a, 2b) SMEs have a licence for use the Foreground in the scope of the Project. The Transaction shall ensure such access rights. - Access rights to RTD Performers Background for Use, outside the scope of the Project, by RTD Performers are granted on Market conditions. (case 3) - Access rights to SMEs Background for Use, outside the scope of the Project, by RTD Performers are granted on Fair and reasonable conditions to be agreed. (case 4) - Access rights to RTD Performers Background for Use, in the scope of the Project, by SMEs are granted on Fair and reasonable conditions to be agreed. (case 7) RTD have clearly an interest to use the knowledge in other fields and may need AR to the background of SMEs and it is also the interest of the SMEs to grant such AR but not for Free.(case 4) Major AR to be negotiated in the framework of the Transaction (to be agreed prior to the signing of the grant agreement (article 50.6 of the Rules of participation) (case 7) This case may not occur in such Consortia but it may happen in special cases. The negotiation of the Transaction will mainly concern the extent of the SMEs’ field scope of the Project and of the exclusive licence. SMEs access rights outside their field the scope of the Project shall not be covered by the Consortium Agreement and shall be at the absolute discretion of the owning Party and subject to such terms and conditions as may be agreed between the owning and receiving Parties (article 9.2 of the CA). (case 11) As RTD performers shall not use the results in the scope of the Project, they shall not have any AR for Use and Further Research of the Background in the scope of the Project.

- Access rights to SMEs Background for Use, in the scope of the Project, by SMEs are granted on Market conditions. (case 8) - Access Rights to Background and Foreground, by SMEs, outside their field, are not covered by this CA and shall be at the absolute discretion of the owning party and subject to such terms and conditions as may be agreed between the owning and receiving Parties.

9.5 Access Rights for Affiliated Entities Affiliated Entities have Access Rights under the conditions of the Grant Besides the Grant Agreement access, Agreement Article II.34.3. affiliates which hold a license on Foreground and fulfill the other conditions In addition, Affiliate Entities shall also enjoy Access Rights if they can show that: listed also have Access Rights. they hold a license on Foreground developed by a Party they are affiliated to; and they Need Access Rights in order to Use such Foreground; and they are established in a Member State or an Associated Country; and they are listed in Attachement X (Listed Affiliated Entities) to this Consortium Agreement. Such Access Rights to Affiliated Entities shall be granted on fair and reasonable conditions and upon written bilateral agreement. March 2008 – DRAFT Model CA related to Research for SMEs (New scenario) 25 / 30

[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD]

Affiliated Entities which obtain Access Rights in return grant Access Rights to all Parties and fulfil all confidentiality and other obligations accepted by the Parties under the Grant Agreement or this Consortium Agreement as if such Affiliated Entities were Parties. Access Rights may be refused to Affiliate Entities if such granting is contrary to the legitimate interests of the Party which owns the Background or the Foreground. Access Rights granted to any Affiliated Entity are subject to the continuation of the Access Rights of the Party to which it is affiliated, and shall automatically terminate upon termination of the Access Rights granted to such Party. Upon cessation of the status as an Affiliated Entity, any Access Rights granted to such former Affiliated Entity shall lapse. Further arrangements with Affiliated Entities may be negotiated in separate agreements. 9.6 Additional Access Rights For the avoidance of doubt any grant of Access Rights not covered by this Consortium Agreement shall be at the absolute discretion of the owning Party and subject to such terms and conditions as may be agreed between the owning and receiving Parties. Shall be part of the transaction 9.7 Access Rights for Parties entering or leaving the Consortium 9.7.1 New Parties entering the Consortium All Foreground developed before the accession of the new Party shall be considered to be Background with regard to said new Party. 9.7.2 Parties leaving the Consortium 9.7.2.1 Access Rights granted to a leaving Party 9.7.2.1.1 Defaulting Party Access Rights granted to a Defaulting Party and such Party's right to request Any consequences for sub-licenses have to Access Rights shall cease immediately upon receipt by the Defaulting Party of be covered in the sub-license itself. the formal notice of the decision of the Steering Committee to terminate its participation in the Consortium. 9.7.2.1.2 Non-defaulting Party A Party leaving voluntarily and with the other Parties' consent shall have Access Rights to the Foreground developed until the date of the termination of its participation. He may request access rights for one year from this date. To be reviewed 9.7.2.2 Access Rights to be granted by any leaving Party Any Party leaving the Project shall continue to grant Access Rights pursuant to Parties leaving the Project in principle have the Grant Agreement and this Consortium Agreement as if it had remained a to continue granting Access Rights in order Party for the whole duration of the Project. not to hinder the progress of the Project. March 2008 – DRAFT Model CA related to Research for SMEs (New scenario) 26 / 30

[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD]

When deciding about a Party’s request to leave the Consortium, the Steering Committee may, however, decide that such Access Rights will not be necessary. 9.8 Specific Provisions for Access Rights to Software For the avoidance of doubt, the general provisions for Access Rights provided for in this Section 9 are applicable also to Software. Parties’ Access Rights to Software do not include any right to receive source code or object code ported to a certain hardware platform or any right to receive respective Software documentation in any particular form or detail, but only as available from the Party granting the Access Rights. Section 10: Non-disclosure of information 10.1 All information in whatever form or mode of transmission, which is disclosed by a Party (the “Disclosing Party”) to any other Party (the “Recipient”) in connection with the Project during its implementation and which has been explicitly marked as “confidential”, or when disclosed orally, has been identified as confidential at the time of disclosure and has been confirmed and designated in writing within 15 days from oral disclosure at the latest as confidential information by the Disclosing Party, is “Confidential Information”. 10.2 The Recipients hereby undertake in addition and without prejudice to any commitment of non-disclosure under the EC-GA, for a period of 5 years after the end of the Project: not to use Confidential Information otherwise than for the purpose for which it was disclosed; not to disclose Confidential Information to any third party without the prior written consent by the Disclosing Party; to ensure that internal distribution of Confidential Information by a Recipient shall take place on a strict need-to-know basis; and to return to the Disclosing Party on demand all Confidential Information which has been supplied to or acquired by the Recipients including all copies thereof and to delete all information stored in a machine readable form. If needed for the recording of ongoing obligations, the Recipients may however request to keep a copy for archival purposes only. 10.3 The Recipients shall be responsible for the fulfilment of the above obligations on the part of their employees and shall ensure that their employees remain so obliged, as far as legally possible, during and after the end of the Project and/or after the termination of employment. 10.4 The above shall not apply for disclosure or use of Confidential Information, if and in so far as the Recipient can show that: the Confidential Information becomes publicly available by means other than a breach of the Recipient’s confidentiality obligations; the Disclosing Party subsequently informs the Recipient that the Confidential Information is no longer confidential; the Confidential Information is communicated to the Recipient without any obligation of confidence by a third party who is in lawful possession thereof and under no obligation of confidence to the Disclosing Party; March 2008 – DRAFT Model CA related to Research for SMEs (New scenario) 27 / 30

[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD] the disclosure or communication of the Confidential Information is foreseen by provisions of the EC-GA; the Confidential Information, at any time, was developed by the Recipient completely independently of any such disclosure by the Disclosing Party; or the Confidential Information was already known to the Recipient prior to disclosure. 10.5 The Recipient shall apply the same degree of care with regard to the Confidential Information disclosed within the scope of the Project as with its own confidential and/or proprietary information, but in no case less than reasonable care. 10.6 Each Party shall promptly advise the other Party in writing of any unauthorised disclosure, misappropriation or misuse by any person of Confidential Information after it becomes aware of such unauthorised disclosure, misappropriation or misuse. 10.7 If any Party becomes aware that it will be required, or is likely to be required, to disclose Confidential Information in order to comply with applicable laws or regulations or with a court or administrative order, it shall, to the extent it is lawfully able to do so, prior to any such disclosure -notify the Disclosing Party, and -comply with the Disclosing Party’s reasonable instructions to protect the confidentiality of the information. 10.8 The confidentiality obligations under this Consortium Agreement and the EC-GA shall not prevent the communication of Confidential Information to the European Commission. Section 11: Miscellaneous 11.1 Attachments, inconsistencies and severability This Consortium Agreement consists of this body text and [Attachment 1 (Background included)] [Attachment 2 (Background excluded)] [Attachment 3 (Accession document)] [Attachment 4 (Listed Affiliated Entities)] [Attachment 5 (initial list of Members and other contact persons)] [Attachment 6 (List of Third Parties to which transfer of Foreground is possible without prior notice to other Parties)] In case the terms of this Consortium Agreement are in conflict with the terms of the EC-GA, the terms of the latter shall prevail. In case of conflicts between the attachments and the core text of this Consortium Agreement, the latter shall prevail. Should any provision of this Consortium Agreement become invalid, illegal or unenforceable, it shall not affect the validity of the remaining provisions of this Consortium Agreement. In such a case, the Parties concerned shall be entitled to request that a valid and practicable provision be negotiated which fulfils the purpose of the original provision. 11.2 No representation, partnership or agency March 2008 – DRAFT Model CA related to Research for SMEs (New scenario) 28 / 30

[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD] The Parties shall not be entitled to act or to make legally binding declarations on behalf of any other Party. Nothing in this Consortium Agreement shall be deemed to constitute a joint venture, agency, partnership, interest grouping or any other kind of formal business grouping or entity between the Parties. 11.3 Notices and other communication Any notice to be given under this Consortium Agreement shall be in writing to the addresses and recipients as listed in the most current address list kept by the Coordinator based on the initial list of Members and other contact persons in [Attachment 5]. Formal notices: If it is required in this Consortium Agreement (Article. 9.7.2.1.1 and 11.4) that a formal notice, consent or approval shall be given, such notice shall be signed by an authorised representative of a Party and shall either be served personally or sent by mail with recorded delivery or telefax with receipt acknowledgement. Other communication: Other communication between the Parties may also be effected by other means such as e-mail with acknowledgement of receipt (e.g. minutes). Any change of persons or contact details shall be notified immediately by the respective Party to the Coordinator. The address list shall be accessible to all concerned. 11.4 Assignment and amendments No rights or obligations of the Parties arising from this Consortium Agreement may be assigned or transferred, in whole or in part, to any third party without the other Parties’ prior formal approval. Amendments and modifications to the text of this Consortium Agreement not explicitly listed in [Article 6.3.1.2 require a separate agreement between all Parties. 11.5 Mandatory national law Nothing in this Consortium Agreement shall be deemed to require a Party to breach any mandatory statutory law under which the Party is operating. 11.6 Language This Consortium Agreement is drawn up in English, which language shall govern all documents, notices, meetings, arbitral proceedings and processes relative thereto. 11.7 Applicable law This Consortium Agreement shall be construed in accordance with and governed by the laws of [Belgium]. 11.8 Settlement of disputes All disputes arising out of or in connection with this Consortium Agreement, which cannot be solved amicably, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The place of arbitration shall be Brussels if not otherwise agreed by the conflicting Parties. March 2008 – DRAFT Model CA related to Research for SMEs (New scenario) 29 / 30

[Acronym of the Project] Consortium Agreement, version [……., YYYY-MM-DD]

The award of the arbitration will be final and binding upon the Parties. Nothing in this Consortium Agreement shall limit the Parties' right to seek injunctive relief or to enforce an arbitration award in any applicable competent court of law. Section 12: Signatures AS WITNESS: The Parties have caused this Consortium Agreement to be duly signed by the undersigned authorised representatives in [Insert the form of signing: separate signature pages or counterparts or accession forms] the day and year first above written. [INSERT NAME OF PARTY] Signature(s) Name(s) Title(s) [INSERT NAME OF PARTY] Signature(s) Name(s) Title(s) [INSERT NAME OF PARTY] Signature(s) Name(s) Title(s)

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