Work Package 9
Transnational Access
End User Agreement
Fiona Grant & Rosemarie Butler
End User Agreement
• Based on the legal agreement developed by
Jerico (coastal observations) but will have to
be modified
• Some of the clauses are “non-negotiable”
• Some issues with the TNA expenses and how
these are disbursed from the TNA
coordinator’s office (Plocan)
• Data policy
• Obligations on reporting
WP 9 – Transnational Access
WP leader: Eric Delory
TNA
TNA Agreement between Project Coordinator, Facility
Operator and TNA End User
User
1. Sets out general conditions of access
2. End user commitments in terms of financing &
reporting
3. Data requirements
4. Publications and acknowledgements
Operator
1. Commitments and reimbursement of expenses
TNA Coordinator Role
Also: Confidentiality, Liability, Force Majeure, Duration,
Applicable Law & Jurisdiction, Scope of Work etc
WP 9 – Transnational Access
WP leader: Eric Delory
Potential Issues and Jerico experience : TNA agreements and delays
 Issues within the agreement process
 Agreements adapted case by case
 A lot of interaction between the JERICO TNA Office, the
coordinator, the facility operators and the end users
 Take into account that the signature process can be long (almost a
year for one case)
 Delays in delivering the scheduled access
 Projects were late to start or haven’t started yet
 Need to harmonize assigned periods with the regular operating
schedules of targeted facilities
 Problems related to the definition of the agreement between the
end user and the facility operator
WP 9 – Transnational Access
WP leader: Eric Delory
“End User” AGREEMENT
ARTICLE 1 - PURPOSE
The purpose of this Agreement is to define the
terms whereby the FACILITY OPERATOR will put
at disposal to the END USER the Facility as a
platform to carry out the Experiment.
WP 9 – Transnational Access
WP leader: Eric Delory
“End User” AGREEMENT
ARTICLE 2 – GENERAL ACCESS CONDITIONS
2.1 The management and operation of the instrumentation on/inside
the Facility and the overall safety of the Facility, as well as the access of
the Facility by any required transport mean, shall be the sole
responsibility of the FACILITY OPERATOR.
2.2 The FACILITY OPERATOR will endeavour to fulfil END USER requests
concerning the execution of the Experiment as defined in Appendix 1,
as well as, if specified in Appendix 1, the implementation of the
Equipment on the Facility, subject to the management and safety rules
defined here above and meteorological/oceanographic risks.
Those requests will be expressed to FACILITY OPERATOR by the
Principal Investigator designated by END USER.
WP 9 – Transnational Access
WP leader: Eric Delory
“End User” AGREEMENT
ARTICLE 3 – SPECIFIC ACCESS CONDITIONS
3.1 Taking into due account the “FP7 Grant Agreement – ANNEX
III – SPECIFIC PROVISIONS FOR TRANSNATIONAL ACCESS
ACTIVITIES”, the access condition are established by the FACILITY
OPERATOR and specified in Appendix 1 – IV.
3.2 END USER will endeavour to fulfil FACILITY OPERATOR
requests concerning the specific access condition.
WP 9 – Transnational Access
WP leader: Eric Delory
“End User” AGREEMENT
ARTICLE 4 – END USER COMMITMENTS
4.1 Expenses
4.1.1 Upon signature of this Agreement, the END USER is
committed to conduct the Experiment.
In case of cancellation by the END USER, whatever the reason,
the Parties agree that :
1: the FACILITY OPERATOR shall make its best efforts to
reschedule the Experiment on a schedule commonly agreed with
the END USER;
WP 9 – Transnational Access
WP leader: Eric Delory
“End User” AGREEMENT
2: when the END USER and the FACILITY OPERATOR cannot reach
an agreement on a new schedule, the END USER shall be liable for
all reasonable costs incurred or obligated by the FACILITY
OPERATOR.
The END USER shall pay the FACILITY OPERATOR for such costs
within 30 days of receipt of an invoice for same.
3: when the above applies, if the TNA COORDINATOR advanced a
grant for travel and shipment costs, the END USER shall return the
sum to the TNA OORDINATOR within 30 days of receipt of an
invoice for same.
WP 9 – Transnational Access
WP leader: Eric Delory
“End User” AGREEMENT
(option in case the END USER is NOT a member of FixO3 Consortium Agreement)
4.1.2 Travel and shipment costs
According to articles 7.1 and 7.2 of this agreement, the END USER will receive
from the TNA COORDINATOR before the start of the Experiment a 1st
instalment of 75% of the maximum amount for travel and shipment costs
granted to the END USER as stated in the Granting Letter.
The END USER is responsible for the distribution of funds and reimbursements
of costs incurred by all members of his/her scientific on-site party. The END
USER acknowledges that, in case of cancellation of the Experiment, whatever
the reason, all travel and shipment incurred costs related to its staff and
equipment shall remain at END USER charge.
WP 9 – Transnational Access
WP leader: Eric Delory
“End User” AGREEMENT
(option in case the END USER is a member of FixO3 Consortium Agreement)
4.1.2 Travel and shipment costs
The END USER is responsible for the distribution of funds and
reimbursements of costs incurred by all members of his/her
scientific on-site party. The END USER acknowledges that, in case
of cancellation of the Experiment, whatever the reason, all travel
and shipment incurred costs related to its staff and equipment
shall remain at END USER charge.
4.1.3
The END USER shall check with the FACILITY OPERATOR the
insurance conditions applying for accessing the Facility. The END
USER undertakes to contract when necessary, at its own expense,
an insurance policy covering the risks agreed between the Parties.
WP 9 – Transnational Access
WP leader: Eric Delory
“End User” AGREEMENT
4.2 TNA Project Report of the Experiment
The END USER shall provide the FACILITY OPERATOR and the
COORDINATOR with the TNA Project Report within 30 days
following the end of the Experiment.
4.3 Safety rules
The END USER undertakes to apply the FACILITY OPERATOR’s
requests regarding safety during its in-person access to the
Facility.
WP 9 – Transnational Access
WP leader: Eric Delory
“End User” AGREEMENT
4.4 Scientific and Scientific Party Data
4.4.1 The END USER undertakes to provide the COORDINATOR
and a National Oceanographic Data Centre, namely [name to be
precised here] with the metadata and, when possible, all the raw
data collected during the Experiment.
4.4.2 The END USER undertakes to fill in correctly:
• the information collected in the European Commission MS
Access database that are part of the TNA Project Report
template provided in Appendix 3, and
• the online questionnaire which is available at the following
address
:
http://cordis.europa.eu/fp7/capacities/questionnaire_en.html,
• The END USER undertakes also to send a copy of this filled in
questionnaire available at URL aforementioned to the FACILITY
OPERATOR and the COORDINATOR within 30 days following
completion of the Experiment.
WP 9 – Transnational Access
WP leader: Eric Delory
“End User” AGREEMENT
4.5 Publications and miscellaneous
Any publication, report, databases, etc. incorporating the results
developed, acquired or obtained during the Experiment, including TNA
Project Report, shall mention “the Research leading to these results
has received funding from the European Union Seventh Framework
Programme (FP7/2007-2013) under grant agreement n° 312463,
FixO3” as well as the participation of the FACILITY OPERATOR.
Should the case arises, any promotion or communication on an
invention developed with incorporation of the results developed,
acquired or obtained during the Experiment, these promotion or
communication shall mention “The work leading to this invention has
received funding from the European Union Seventh Framework
Programme (FP7/2007-2013) under grant agreement n°312463,
FixO3”.
WP 9 – Transnational Access
WP leader: Eric Delory
“End User” AGREEMENT
• This article applies to any publication and/or products
derived from the Experiment, whatever the inventor.
• The END USER undertakes to send a copy of all publications
to the FACILITY OPERATOR and the COORDINATOR.
• The END USER shall also participate at his/her own cost in
the final FixO3 scientific results workshop to be held in
2017, which is intended as a showcase to present all
scientific results gained through the FixO3 project to a wider
audience including the European Commission.
WP 9 – Transnational Access
WP leader: Eric Delory
“End User” AGREEMENT
4.6 Intellectual property rights
4.6.1 Background
Each Party remains the sole owner of the results, products and
processes (patented or not), held prior to this Agreement or
acquired outside the scope of this Agreement.. This Agreement
shall not give any right over the aforementioned knowledge to the
other Party. The other Party is credited only for the purpose of the
Experiment and for the term of validity of this Agreement, a
personal and non-transferable right to use.
Each recipient Party agrees to maintain in confidence and not to
disclose any knowledge (know-how, patents, software, raw data or
validated ...) received from the other Party to third parties without
the prior written consent of the disclosing Party.
WP 9 – Transnational Access
WP leader: Eric Delory
“End User” AGREEMENT
4.6.2 Data acquired by the Facility and/or Equipment during the
Experiment
The Parties agree that the access to data collected during the Experiment
regarding environmental parameters, such as metadata (CSR) and all the
raw data, shall be granted to third parties, without the prior written
consent of the Parties.
4.6.3 Results of the Experiment
Subject to article 4.5 here above, the results of the Experiment shall
belong to the END USER.
END USER grants to the other Parties a royalty free and transferable
license to use all or part of the TNA Project Report defined in article 4.2 for
the purpose of the aforementioned FixO3 Project and of this Agreement.
The TNA Project Report shall be published on the FixO3 website.
WP 9 – Transnational Access
WP leader: Eric Delory
“End User” AGREEMENT
ARTICLE 5 – FACILITY OPERATOR COMMITMENTS
5.1 The FACILITY OPERATOR shall send a written confirmation to
END USER before the Experiment commencement. A copy of this
confirmation will be sent by the FACILITY OPERATOR to the
COORDINATOR.
5.2 According to Article 4.1.3 here above, the FACILITY OPERATOR
shall notify within reasonable period before the Experiment to
the END USER its requests regarding the insurance policy to be
taken by the END USER and the applicable safety rules on-site.
5.3 The FACILITY OPERATOR undertakes to make its best efforts to
reschedule the Experiment as provided in Article 4.1.1.
WP 9 – Transnational Access
WP leader: Eric Delory
“End User” AGREEMENT
ARTICLE 6 – CONDITIONS REGARDING END USER EXPENSES
REIMBURSEMENT
END USER expenses defined in Article 4.1.2 will be reimbursed to the END USER
as established in Article 7.1 and under the following cumulative conditions:
6.1: approval of the END USER TNA Project Report by the FixO3 Selection Panel,
and
6.2: proof of provision of all metadata and when possible raw data collected
during the Experiment to COORDINATOR and to a National Oceanographic Data
Centre or XXX to Article 4.4.1 here above, by the END USER to the COORDINATOR,
and
6.3 : delivery of a copy of the TNA Project Report containing the information for
the European Commission MS Access database and the online questionnaire,
according to Article 4.4.2 hereabove, by the END USER to the COORDINATOR.
WP 9 – Transnational Access
WP leader: Eric Delory
“End User” AGREEMENT
ARTICLE 7 – COORDINATOR ROLE
(option in case the END USER is NOT a member of FixO3 Consortium Agreement)
7.1. As grantee of the TNA travel budget, the TNA COORDINATOR, will proceed
to reimburse to the END USER in 2 instalments, as follows:
Installment 1: 75% of the maximum amount for travel and shipment costs
granted to the END USER as stated in the Granting Letter upon signature of the
Agreement and within 45 days after receipt of the related invoice,
Installment 2: the remaining balance of the total reimbursement of actual travel
and shipment costs, within 45 days after receipt of the related invoice and after
fulfillment of the conditions defined in article 6 of this Agreement, limited to
the maximum amount defined in the Granting Letter.
All costs incurred need to be duly justified by the END USER.
WP 9 – Transnational Access
WP leader: Eric Delory
“End User” AGREEMENT
7.2 Invoices
END USER invoices shall be drawn up in 2
copies, referencing the respective Agreement
number: XX/XXXXXX and sent to:
Plocan etc
WP 9 – Transnational Access
WP leader: Eric Delory
“End User” AGREEMENT
(option in case the END USER is a member of FixO3 Consortium Agreement)
7.1. As grantee of the TNA budget, TNA COORDINATOR, will proceed to
reimburse to the END USER travel and shipment costs limited to the
maximum amount defined in the Granting Letter through END USER Form C.
All costs incurred need to be duly justified by the END USER.
7.2 Evidences of travel and shipping costs
The END USER shall keep evidences of travel and shipping costs in order to
justify the incurred costs in case of financial Audit by the European
Commission.
Incurred costs should be claimed on FixO3 periodic financial reports by the
FixO3 contact person of the END USER Institute.
WP 9 – Transnational Access
WP leader: Eric Delory
“End User” AGREEMENT
7.3 The COORDINATOR shall coordinate all communication,
including TNA Project Reports and publications regarding the
relations between FACILITY OPERATOR and END USER, towards the
European Commission.
7.4 The COORDINATOR shall receive a copy of all publications as
defined in Article 4.5.
WP 9 – Transnational Access
WP leader: Eric Delory
“End User” AGREEMENT
ARTICLE 8 - CONFIDENTIALITY
All data and information encountered during the Experiment which are
not related to the purpose of Experiment of the END USER are considered
to be confidential.
END USER shall ensure that all scientific staff shall hold information not
related to the scientific mission of the END USER, if so considered by
FACILITY OPERATOR, to be confidential and will not disclose such
information to any individual, group or company outside END USER and
initially only to the scientific team participating to the Experiment, unless
written authorisation is given by FACILITY OPERATOR to do so.
Each Party undertakes consequently to keep confidential all this
information, for a period of five years from receiving it.
WP 9 – Transnational Access
WP leader: Eric Delory
“End User” AGREEMENT
ARTICLE 9 - LIABILITY
As the Experiment is operated involving a Facility, the Parties agree
upon the following provisions:
9.1.
Damages
Except in case of FACILITY OPERATOR’s gross negligence or intentions
as specified in section 9.3, END USER undertakes to cover all damages
caused to END USER’s staff members, its guests and its equipment
during the Experiment.
END USER waives any right to sue FACILITY OPERATOR for all direct or
consequential damages caused to END USER’s staff members, its
guests and its Equipment during the Experiment.
WP 9 – Transnational Access
WP leader: Eric Delory
9.2.
“End User” AGREEMENT
Safety
The FACILITY OPERATOR shall be responsible for all operational decisions,
especially for safety or technical reasons, and can postpone or cancel
operations for the same reasons.
9.3.
Liability
Liability of FACILITY OPERATOR and END USER and their assistants is restricted
to gross negligence or intentions. This agreement applies for both,
contractual as well as tortious liability. Accountability is limited to estimated
costs of the Experiment. In no event shall the Parties be liable for any
consequential damages or loss of profit arising out of or in connection with
this contract.
FACILITY OPERATOR and END USER waive any right to sue the COORDINATOR
for all direct or consequential damages caused to END USER and/or FACILITY
OPERATOR in the scope of this Agreement.
WP 9 – Transnational Access
WP leader: Eric Delory
“End User” AGREEMENT
ARTICLE 10 - FORCE MAJEURE
Each of the Parties shall inform the other Party of the occurrence of
any event which constitutes a “force majeure”, preventing it from
executing its obligations set out in this Agreement.
Any event which is unforeseeable, and the effects of which are
uncontrollable, which prevents one of the Parties from executing its
obligations agreed within the scope of this Agreement shall be
considered to be a case of “force majeure”. The obligations of the
Party impeded shall be suspended for as long as the “force majeure”
subsists.
If the work is interrupted by such events, the Parties shall quickly
consult each other in order to study the postponement or possible
termination of the Experiment or the adaptation of the terms of this
Agreement.
WP 9 – Transnational Access
WP leader: Eric Delory
“End User” AGREEMENT
ARTICLE 11 - DURATION - TERMINATION
11.1 This Agreement enters into force upon its signature by the
Parties and will expire on the completion of the FixO3 project i.e.
on XXX, 2017.
11.2
The Article 8 shall remain in force for its own duration.
11.3 Each of the Parties expressly declares being bound by the
terms of this Agreement, which shall constitute the law between
the Parties. Each of the Parties shall consequently take all
necessary steps to prevent or remedy all and any failure that
could arise during the performance of this Agreement.
WP 9 – Transnational Access
WP leader: Eric Delory
“End User” AGREEMENT
In case of major difficulties, leading one of the Parties to
consider the termination of this Agreement, such cancellation
will be exceptionally admitted, provided a prior written notice,
giving the nature of the difficulties encountered and the reasons
entitling the Party to terminate this Agreement, together with an
appropriate financial compensation, be addressed by the
defaulting Party to the other. Such termination proposal shall not
be reasonably withheld.
In such case, the termination of this Agreement will be
considered and the Parties shall have to draw and sign a
termination addendum to cancel this Agreement.
WP 9 – Transnational Access
WP leader: Eric Delory
“End User” AGREEMENT
ARTICLE 12 - APPLICABLE LAW
This Agreement is subject to Belgian law.
WP 9 – Transnational Access
WP leader: Eric Delory
“End User” AGREEMENT
ARTICLE 13 - JURISDICTION
13.1 In case of a dispute over the execution and/or the interpretation of this
Agreement, the Parties undertake to seek a friendly solution, within a
maximum of two months from the date of their dispute occurring.
13.2 Any dispute arising out of or relating to this Agreement, including any
question regarding its existence, validity or termination, which cannot be
amicably resolved by the Parties, shall be settled before three arbitrators, one
to be appointed by each Party and the two so appointed shall appoint the third
arbitrator, in accordance with the Arbitration Rules of the International
Chamber of Commerce with the arbitration to be held in Brussels, Belgium or
such other location as agreed by the Parties.
The language of the arbitration shall be English. A dispute shall be deemed to
have arisen when either Party notified the other Party in writing to that effect.
WP 9 – Transnational Access
WP leader: Eric Delory
“End User” AGREEMENT
ARTICLE 14 – APPENDIX
Appendix 1: Presentation of Scope of Work and
Schedule of the Experiment
Appendix 2: Granting Letter
Appendix 3: TNA Project Report (Template)
WP 9 – Transnational Access
WP leader: Eric Delory
Thank you
FixO3.TNA@plocan.eu