ASSOCIATED PARTNERSHIP AGREEMENT

ASSOCIATED PARTNERSHIP AGREEMENT BETWEEN Vrije Universiteit Brussel, with registered offices at Pleinlaan 2, 1050 Brussels, Belgium, represented by Professor Benjamin Van Camp, Rector; Hereinafter referred to as “VUB” or “Coordinator”; AND [Organisation], with registered offices at _________________, __________________________; Hereinafter referred to as “Organisation” or “Associated Partner”; Hereinafter individually or collectively referred to as “Party” or the “Parties”. represented by WHEREAS the VUB, in his capacity of Coordinator, has concluded a contract with the European Community in the framework of the project “Network of Excellence for MicroOptics (“NEMO”) (hereinafter referred to as the “EC-Contract”); WHEREAS the VUB, in execution of the EC-Contract, has concluded a consortium agreement with the parties who have acceded to the EC-Contract (hereinafter referred to as “Consortium Agreement”); WHEREAS the Consortium wish to establish a privileged relationship with parties who possess a valuable excellence in the field of NEMO; WHEREAS the VUB, in his capacity as Coordinator of NEMO, is authorized by the Consortium to conclude this Agreement for the benefit and the account of the Consortium; WHEREAS the Parties wish to determine the terms and conditions of the Associated Partnership Agreement; NOW THEREFORE IT IS HEREBY AGREED AS FOLLOWS : Article 1 : Definitions - “Access Rights” shall mean licenses and user rights to Knowledge or Pre-Existing KnowHow. - “Agreement” shall mean this Associated Partnership Agreement, including all its attachments. - “Consortium” shall mean all the partners participating in NEMO as covered by the ECContract and the Consortium Agreement. 1 - “Knowledge” shall mean the results, including information, whether or not they can be protected, arising from the execution of the Work, as well as copyrights or rights pertaining to such results following applications for, or the issue of patents, designs, plant varieties, supplementary protections certificates or similar forms of protection. - “NEMO Knowledge” shall mean the results, including information, whether or not they can be protected, arising from NEMO, as well as copyrights or rights pertaining to such results following applications for, or the issue of patents, designs, plant varieties, supplementary protection certificates or similar forms of protection. - “NEMO Pre-Existing Know-How” shall mean the information, which is held by the partners of the Consortium prior to the conclusion of the EC-Contract and the Consortium Agreement, or acquired in parallel with it, as well as copyrights or rights pertaining to such information following applications for, or the issue of patents, designs, plant varieties, supplementary protection certificates or similar forms of protection. - “Pre-Existing Know-How” shall mean the information, which is held by the Associated Partner in the field of Micro-Optics prior to the conclusion of this Agreement. - “Work” shall mean the tasks and the reporting as mutually agreed between the Associated Partner and one of the partners of the Consortium. The involved partner(s) of the Consortium and the Associated Partner shall mutually agree the terms and conditions, which will be applicable for the execution of the Work. This does not imply an obligation on the partners of the Consortium to assign Work to the Associated Partner. Article 2 : Purpose / Subject of the Agreement The purpose of this Agreement is : - to open the NEMO network to Associated Partners with the aim of broadening the expertise within NEMO; - to increase the involvement of these research groups with the aim of gaining new expertise within NEMO; - to assess new partners and their involvement and impact on NEMO activities and to evaluate the possibility for them to become a full partner within NEMO Article 3 : Requirements Associated Partner 3.1. In order to be accepted as Associated Partner, the Organisation needs to comply with the following requirements: - the key research domains of the Organisation need to match the scope of the activities of NEMO; - indication of the motivation to join NEMO and the added value for NEMO; - the know-how and expertise should be of added value for or complementary to the already existing know-how and expertise of the Consortium; - the Organisation may not be a consultancy agency. The Organisation acknowledges and accepts that the above-mentioned list of requirements can be updated at any time by decision of the Executive Committee of the Consortium. The 2 updated list of requirements will be disclosed to the Organisation and will form integral part of this Agreement. For the avoidance of any misunderstandings, there is no limitation with regard to the countries where the Associated Partners has its registered office. 3.2. The Organisation can only be accepted as an Associated Partner for the duration in which the Organisation fully complies with all the applicable requirements as set out in this Agreement and in any updated list of requirements. 3.3. The Organisation has no right to demand to be accepted as Associated Partner. Article 4 : Evaluation Associated Partner 4.1. The Executive Committee shall evaluate the Organisation as an Associated Partner each year. At the end of each year, the Executive Committee of the Consortium shall inform the Organisation about the results of the evaluation. 4.2. The Organisation acknowledges and accepts that in case of a favourable evaluation, this Agreement shall remain in force under the terms and conditions as set out in this Agreement, unless the Executive Committee has decided that additional terms and conditions are needed for the proper performance of this Agreement. The Associated Partner has the possibility to become a full partner within NEMO. The competent bodies within the Consortium will decide this autonomously. At the proposal of the involved partner(s) of the Consortium, the competent bodies of NEMO can invite an Associated Partner to become a full partner within NEMO and this in accordance with the provisions and procedures of the EC-Contract and the Consortium Agreement. 4.2. The Organisation acknowledges and accepts that in case of an unfavourable evaluation, this Agreement can be terminated by the Consortium in accordance with the provisions as set out in article 5 of this Agreement. Article 5 : Duration – Termination 5.1. This Agreement shall come into force on the date of signature of this Agreement and shall remain in force and effect in accordance with the provisions of article 5.4. of this Agreement. The duration of this Agreement can be extended in agreement between the Parties. 5.2. This Agreement can be terminated by the Consortium and/or the Associated Partner at any time by giving a three months written notice by means of registered letter. 5.3. This Agreement can be terminated immediately [alternative option : or after a remedy period] by the Consortium in case of any non-performance of the Associated Partner under this Agreement. In particular, this Agreement can be terminated in case of an unfavourable evaluation, as set out in article 4.2. of this Agreement. 3 5.4. This Agreement shall continue in full force and effect a) until the fulfilment of the EC-Contract and the Consortium Agreement and complete discharge of all obligations for the carrying out of the NEMO-project undertaken by the Consortium under the EC-Contract, the Consortium Agreement or under this Agreement, whichever is the later, or b) unless terminated earlier in accordance with the provisions of Article 5 of this Agreement. Article 6 : Access Rights 6.1. Access Rights of the Associated Partner 6.1.1. Access Rights to the NEMO Pre-Existing Know-How and NEMO Knowledge of the Consortium shall not be granted to the Associated Partner, unless the Associated Partner demonstrates that Access Rights are Needed for the proper execution of the Work that is assigned to the Associated Partner by one of the partners of the Consortium. For the avoidance of any misunderstandings, Parties agree that “Needed” shall mean that, without the grant of the requested Access Rights, the Associated Partner is not able to perform the assigned Work. The Associated Partner can only claim Access Rights on the NEMO Pre-Existing Know-How and NEMO Knowledge belonging to the partner(s) of the Consortium who have assigned the Work to the Associated Partner and only for the duration of execution of the Work. The Needed Access Rights shall be granted on a non-exclusive basis and upon written request towards the involved partner(s) of the Consortium stating the extent of the Access Rights Needed and the reasons for this need. Access Rights shall not include the right to grant sublicenses. The involved partner(s) of the Consortium shall decide autonomously whether or not to grant the requested Access Rights and/or the conditions under which those Access Rights will be granted. The Access Rights may only be used for the execution of the Work and may not be used for any other purposes. 6.1.2. The Associated Partner shall have access to the portal website, with the understanding that access to the hereunder specified parts of the portal website is conditional. The Associated Partner shall have access to the e-inventory under the condition of providing a reasonable contribution to the e-inventory. The Associated Partner shall have access to a virtual workspace under the condition that the Associated Partner contributes in an active way to a deliverable of the work package of the concerned virtual workspace. 6.1.3. The Associated Partner may attend the general network meetings. The Associated Partner may attend meetings of the Assembly, without the right to vote. 4 The Associated Partner may attend specific work package meetings, without the right to vote, if the Associated Partner can demonstrate a relevant interest in that specific work package. The Associated Partner acknowledges and accepts that any information (oral and written) of which the Associated Partner becomes aware and/or which is disclosed during the abovementioned meetings, is confidential information and need to be treated as confidential information in accordance with the provisions of article 10 of this Agreement. 6.1.4. The Associated Partner shall be invited to participate to summer schools. The Associated Partner shall get a 30% discount on the registration fee for the participation of one person from the Organisation to the summer schools. 6.2. Access Rights of the Consortium The Associated Partner needs to grant Access Rights to its Pre-Existing Know-How, which is related to the scope of the Work. Those Access Rights shall be granted to the partners of the Consortium involved in the execution of the Work. No transfer costs shall be charged for the granting of such Access Rights. Article 7 : Intellectual Property Rights The attribution of the intellectual property rights, the protection and publication of the Knowledge arising from the Work carried out by the Associated Partner shall be done in mutual agreement between the Associated Partner and the involved partner(s) of the Consortium. The Associated Partner acknowledges and accepts that the Access Rights of the Consortium on the Knowledge shall remain unaffected and this in accordance with the provisions of the Consortium Agreement. Article 8 : Financial provisions 8.1. The Associated Partner can, in no case whatsoever, claim any part of the financial contribution provided by the European Community in the framework of NEMO. 8.2. In case of assignment of Work, the involved partner(s) of the Consortium shall be responsible for the payment of the costs, resulting from the execution of the Work, and which were agreed between the involved partner(s) of the Consortium and the Associated Partner. For that purpose the Associated Partner shall invoice the involved partner(s) of the Consortium at the end of execution of the Work. The involved partner(s) of the Consortium shall pay these costs after receipt of the respective financial contribution of the European Commission and after approval of the executed Work and reporting by the involved partner(s) of the Consortium and the European Commission. The Associated Partner acknowledges and accepts that in case the European Commission claims the recovery of already paid amounts related to the execution of the Work and this is caused by the fault or negligence of the Associated Partner, the Associated Partner is required to pay back the claimed amounts. 8.3. If the Associated Partner and one or more partners of the Consortium collaborate with a third party in topics which are part of at least one of the aforementioned parties’ scope of 5 work in activities of NEMO, provided this collaboration is not subsidised with any national or regional governmental funding or EU funding, a fee of five (5) % of the contract value of the collaboration shall be made available by such parties to the Consortium for the execution of its activities. Such fee is due for the duration of the NEMO-project. Such fee shall be received and administered by the VUB. For the avoidance of doubt and misinterpretation, this fee only applies to collaborative research and development activities against payment (and thus not the sole supply and sales contracts for finished commercial products), which involves the Associated Partner and one or more partners of the Consortium and a third industrial or commercial party (in which case such collaboration will be deemed to result from or has been enabled by the integration/networking within NEMO) and started after the entry into force of the NEMO-project. 8.4. The Associated Partner shall maintain, on a regular basis and according to the normal accounting conventions imposed on it, proper books of account and appropriate supporting documentation to support and justify its costs being reported by the Coordinator to the European Commission. Article 9 : Responsibilities and Liability 9.1. The Associated Partner undertakes to perform all the obligations as set out in this Agreement, including the obligations as set out in the EC-Contract and the Consortium Agreement, which are applicable on the Associated Partner. 9.2. The Consortium cannot be held liable for acts or omissions committed by the Associated Partner performing this Agreement. The Associated Partner has to safeguard and indemnify the Consortium against any costs, remunerations, claims (including infringement of third party intellectual property rights claims), expenses or proceedings which are the result of claims by third parties, including the European Commission, which arises out of the noncompliance of the obligations as set out in this Agreement, including the obligations as set out in the EC-Contract and the Consortium Agreement, which are applicable on the Associated Partner, Article 10 : Confidentiality 10.1. In respect of all and any information in whatever form or mode of transmission, which has been marked as “confidential”, the receiving party hereby undertakes for a period of five (5) years from the date of disclosure of the information: i) not to use such information for any other purpose than for the purpose, for which it was disclosed; ii) not to disclose such information to any third party without the prior written consent by the disclosing party; iii) that internal distribution of information by the receiving party shall take place on a strict need-to-need basis; iv) that such information shall neither be copied, nor otherwise reproduced nor duplicated in whole or in part where such copying, reproduction or duplication have not been specifically authorised in writing by the disclosing party; v) to return to the disclosing party on demand all information which has been supplied to or acquired by the receiving party including all copies thereof and to delete all information stored in a machine readable form. 6 The receiving party shall be responsible for the fulfilment of the above mentioned obligations on the part of its employees and shall ensure that its employees shall be respectively obligated, as far as legally possible, during and after the end or after termination of employment. Such obligation will be deemed fulfilled by the receiving party if its employees are generally bound to confidentiality by their contract of employment or general regulations applicable to all personnel or categories of personnel. 10.2. The receiving party shall not be liable for disclosure or use of confidential information, if and in so far as without breach of this provision or any other agreement if it can prove : i) it is in or comes available to the public at any time from a source other than the disclosing party, or ii) is released for disclosure by the disclosing party, or iii) is received from third parties without having a confidentiality obligation, or iv) is at any time, developed by the receiving party completely independently of any such disclosure by the disclosing party proven by written records, or v) was already known to the receiving party prior to disclosure, or vi) is disclosed to comply with the law or legal process to which the receiving party is subject and the receiving party has exercised its reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to the information disclosed within that process. The receiving party shall notify the disclosing party before any disclosure. 10.3. The receiving party shall apply the same degree of care with regard to the confidential information disclosed within the scope of this Agreement as with its own confidential information and/or proprietary information, which in any case at the very least shall be reasonable standard of care. 10.4. The expiration or termination of this Agreement shall not relieve the Parties of any rights or any obligations that have arisen under this article during the term of this Agreement, but such obligations will not extend beyond five (5) years from the date of disclosure of the confidential information. Article 11 : Publication of information of the Associated Partner Publication of information regarding the Associated Partner on the public part of the portal website of NEMO and the providing of a link to the website of the Associated Partner will be done in mutual agreement between the Associated Partner and the involved partner(s) of the Consortium. Article 12 : Applicable law – Dispute resolution 12.1. This Agreement shall be construed in accordance with and governed by the laws of Belgium. 12.2. The Parties shall endeavour to settle disputes amicably. If the Parties are not able to settle the dispute amicably, the dispute shall be finally settled by arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce (ICC) as presently in force. The number of arbitrators shall be three and the chairman shall be of juridical education. In disputes, where the value of the dispute does not exceed 250.000 Euro, the 7 dispute shall be settled by arbitration with a sole arbitrator. The place of arbitration shall be Brussels and the language to be used in the arbitral procedure shall be English. Article 13 : Miscellaneous 13.1. The total agreement consist of this Agreement and the attachments to this Agreement. In the event of conflict or inconsistency between any provision contained in the body of this Agreement and any provision contained in the attachments, the provisions contained in the body of this Agreement shall prevail. In the event of conflict or inconsistency between any provision contained in this Agreement and the provisions of the Consortium Agreement and/or EC-Contract, the provisions of the Consortium Agreement and/or EC-Contract shall prevail. 13.2. This Agreement is not intended to and nothing in this Agreement shall be deemed to constitute, create, give effect to, or otherwise recognise such creation of a joint venture, agency, partnership, interest grouping or any other kind of formal business grouping or entity between the Parties. 13.3. Any rights or obligations of the Associated Partner arising from this Agreement may not be assigned or transferred in all or in part to any third party without the prior written approval of the Consortium. 13.4. All and any amendments and modifications to this Agreement require the consent in writing between all Parties, duly signed by the respectively authorised representatives of the Parties. 13.5. Should any provision of this Agreement prove to be invalid or incapable of fulfilment, or subsequently become invalid or incapable of fulfilment, whether in whole or in part, this shall not affect the validity of the remaining provisions of this Agreement. In such a case, the Party concerned shall be entitled to demand that a valid and practicable provision be negotiated which most nearly fulfils the purpose of the invalid or impracticable provision. 13.6. The total agreement consist of this Agreement and the following Appendices, which shall form an integral part of this Agreement : - the EC-Contract, and - the Consortium Agreement. IN WITNESS whereof the Parties have signed this Agreement in duplicate by their duly authorised representatives at Brussels on [ ]. Each Party confirms having received one signed original. For the Consortium, Vrije Universiteit Brussel Coordinator 8 Prof. Benjamin Van Camp Rector Prof. Hugo Thienpont Promoter For the Associated Partner, _____________________ Read and approved, [Involved NEMO partners] 9