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  PECS - General Conditions
 

 


Complementary to Article 4 of the arrangement the General Conditions applicable to all PECS Experiment Arrangements are included in their original version hereafter (therefore, the word “contract(s)” and “contractor(s)” are to be read “arrangement(s)” and “institute(s)” respectively in the following provisions) :


PART I OF THE GENERAL CONDITIONS :


CLAUSE 1 - APPLICABLE CLAUSES AND RULES

The following general clauses and conditions shall apply to contracts placed by the Agency insofar as not stated otherwise in the relevant contract. Furthermore, specific clauses and conditions may be set out or invoked in a contract and its annexes. The annexes form an integral part of the contract.

CLAUSE 2 - APPROVAL

Offers and acceptances with regard to contracts are not binding on the Agency unless approved in writing by its Director General or his authorised representative. Unless otherwise stated in the contract the date of such approval shall be the commencing date of the contract.

CLAUSE 4 - ORIGINALS OF THE CONTRACTS

The number of originals of a contract shall be equal to the number of parties to the contract and this number shall be stated in the contract. These originals are intended for the parties to the contract.

CLAUSE 5 - AGENCY'S REPRESENTATIVES - INSPECTIONS

The Agency shall have the right to check the technical performance of the contract, and for this purpose, and for the general purpose of collaboration, the Agency shall nominate a representative(s) whose name(s) shall be notified in writing to the Contractor. Any information made available by the Contractor to such representative(s) shall be regarded as commercially confidential.

The Contractor shall, in this respect, and in accordance with any relevant security regulations, give the representative(s) of the Agency access to his premises and shall give all other necessary assistance in order that he (they) may fulfil his (their) task.

CLAUSE 7 - COMMUNICATIONS

All communications affecting the terms and conditions of the contract and concerning its execution shall be made or confirmed in writing.

CLAUSE 12 - APPLICABLE LAW

The law governing the contract shall be specified in the contract itself.

CLAUSE 13 - ARBITRATION

13.1 Any dispute arising out of the interpretation or execution of the contract shall, at the request of either party, be submitted to arbitration.

13.2 The contract shall specify the country where the Arbitration Tribunal shall sit; normally the Arbitration Tribunal shall have its seat in the country where the Contractor has his legal seat or where the contract is to be executed.

13.3 If no other arbitration is foreseen in the contract, any dispute arising out of the contract shall be finally settled in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one or more arbitrators designated in conformity with those rules.

13.4 When arbitration other than in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce is provided for in the contract, the procedure of the Arbitration Tribunal shall be that of the country mentioned in subclause 13.2.

13.5 The award shall be final and binding on the parties; no appeal shall lie against it. The enforcement of the award shall be governed by the rules of procedure in force in the state / country in which it is to be executed.

CLAUSE 14 - INFRINGEMENTS OF THE LAW

The Agency shall not be responsible if the Contractor infringes the laws or statutes of his country or of any other country whatsoever.

CLAUSE 15 - INFRINGEMENTS OF THIRD-PARTY RIGHTS

15.1 Unless otherwise stipulated in Part II of this document, the Contractor shall indemnify the Agency from and against all claims, proceedings, damages, costs and expenses arising from the infringement of patent rights and intellectual property rights of third-parties with respect to the subject of the contract - excluding any infringement resulting from the use of documents, patterns, drawings or goods supplied by the Agency - which may be made, or brought against the Agency, or to which the Agency may be put by reason of such infringement or alleged infringement.

15.2 The Agency shall notify the Contractor immediately of any written claim or notice of infringement of third-party rights which it received concerning the contract.

The Contractor shall immediately take all necessary steps within his competence to prevent or end a dispute and shall assist the Agency to defend against, or make settlement in respect of, any claim or notice of infringement or suit for infringement. Written claims or notices of infringement of third-party rights will be accepted or met by the Agency only in agreement with the Contractor.

15.3 The parties shall notify each other of any known intellectual property rights connected with the use of documents, patterns, drawings and goods supplied by the one party to the other or connected with the execution of the specifications laid down by the other party.

CLAUSE 21 - FINAL SETTLEMENT

21.1 The Contractor shall be allowed to claim final settlement when all his obligations under the contract have been fulfilled. For the application of this clause, these obligations shall not include those of guarantee. The Contractor shall, in addition, certify whether or not any inventions as defined in Part II hereof, were made in the course of the contract.

He shall submit a final statement in five copies.

If the contract provides for several batches of settlement, each batch is to be paid and settled separately.

21.2 The Contractor shall supply the Agency with all documents specified in Annex I and necessary for payment, without explicit request by the Agency.

21.3 Unless otherwise provided for in the contract, a period of one month shall be granted to the Agency for the execution of the final payment. This period shall begin on a date to be stated in the contract.

21.4 Whenever any sum of money shall be recoverable from, or payable to, the parties, the sum may be deducted from the sum due, or thereafter becoming due, to the parties under any other contract between the parties.

CLAUSE 34 - CANCELLATION IN SPECIAL CASES

Contrary to all other General Conditions listed in this Appendix 4, Clause 34 as such is not applicable; certain situations described therein however do have the consequences laid down in Article 6 of the contract. Therefore the text of Clause 34.1 is repeated hereafter for convenience :

34.1 The Agency may at any time cancel the contract by giving written notice with immediate effect in any of the following events:

a) if the Contractor becomes insolvent or if his financial position is such that within the framework of his national law, legal action leading towards bankruptcy may be taken against him by his creditors;

b) if the Contractor resorts to fraudulent practices in connection with the contract, especially by deceit concerning the nature, quality or quantity of the supplies, and the methods or processes of manufacture employed or by the giving or offering of gifts or remuneration for the purpose of bribery to any person in the employ of a Member State or of the Agency or acting on its behalf, irrespective of whether such bribes or remuneration are made on the initiative of the Contractor or otherwise.


PART II OF THE GENERAL CONDITIONS (CLAUSES 36, 37 and 38) :

Unless otherwise agreed with all parties to arrangements concluded for the purpose of “co-operative activities” as planned in the PECS Charter and provided that appropriate provisions are then included in the special conditions of the arrangement in question (Article 4, Clauses 37 & 38), the following general provisions 36 & 38 shall apply.

CLAUSE 36 - GENERAL RULE AND DEFINITIONS

36.1 General Rule

Contracts to which the special conditions of this Part II apply shall also be governed by the provisions of Part I insofar as the provisions of Part II are not in contradiction.

36.2 Definitions

Member State:
A State which is party to the Convention of the European Space Agency.

Participating State:
A Member State having subscribed a Declaration on an Optional Programme.

For the purposes of these Special Conditions Member States and Participating States shall be deemed to include persons and bodies under their jurisdiction. The extent to which these Special Conditions shall apply to a non-Member State when becoming a Participating State or Associated Member State shall be detailed in the relevant agreement concluded between the Agency and the State concerned.

Agency's own requirements:
Activities and programmes undertaken by the Agency according to Articles V.1.a and V.1.b of the Convention

Patent:
This expression shall be deemed to include any other industrial property right for which application is required such as registered designs and utility models but not trade marks.

Invention:
Any recorded information which can be protected by patent in accordance with applicable laws.

Background Information:
Any recorded information not developed under or resulting from a contract with the Agency.

Operational Software:
Software required for essential spacecraft check-out or space operation purposes and which has been developed with a fundamental intellectual contribution by the Agency's staff (the development, operation and maintenance of this software will normally be performed under contract to the Agency at its facilities and under its technical supervision and responsibility).

CLAUSE 37 - PATENTS AND OTHER FORMS OF LEGAL PROTECTION FOR WHICH APPLICATION IS REQUIRED

37.1 The Contractor shall be the owner of any invention made in the course of or resulting from work undertaken for the purpose of the contract and shall be entitled to protect such invention by patent or other form of industrial property right in accordance with applicable laws.

37.2 In the event of a patent obtained by the Contractor in respect of any invention made in the course of or resulting from work undertaken for the purpose of the contract the Agency and the Member States (or Participating States) shall be entitled to a free of charge, non-exclusive, irrevocable licence to use the invention for their own requirements in the field of space research and technology and their space applications and shall be allowed to grant sub-licences for these purposes within the territory of the Member States (or Participating States). The Agency shall supply to the Contractor a list of the sub-licences it has granted.

37.3 The following provisions shall apply in the case of any invention made in the course of or resulting from work undertaken by the Contractor or any third party employed by him, whether under sub-contract or otherwise, for the purpose of the contract;

a) In order to allow the Contractor to file an application for patent the Agency, on request of the Contractor, shall defer the dissemination of any information relevant to the application for not more than six months from the date that the information was communicated to it.

b) The Contractor shall within two months of the filing of his application notify the Agency of the patent office or offices where the application has been filed, the application number, the filing date, the inventor's and the applicant's name(s), the reference number of the relevant contract and, subject to applicable laws, shall supply it with a copy of the description and drawings filed with the application.

Within nine months following the initial filing the Contractor shall, in addition, provide the Agency with a list of any other countries in which he has filed or intends to file corresponding applications for patent.

c) Except with the agreement of the Contractor the Agency shall not disclose any information related to the patent application as long as the patent, or the application for it, has not been officially published, this restriction being limited to a period of 18 months following the filing of the application. However, the Agency shall have the right to make use or have made use of the information free of charge for its own requirements in the field of space research and technology and their space applications subject to conditions which do not jeopardise the patent application.

d) If the Contractor does not wish to apply for a patent or intends to abandon a patent or patent application he shall without delay notify the Agency and shall, on request, transfer his rights free of charge to the Agency who may take action in his stead. The provisions stipulated above in paragraphs a) and c) first sentence shall, in such event, apply mutatis mutandis to the Contractor.

The Agency shall, furthermore, be entitled to file applications for a patent in any country in which the Contractor himself does not wish to apply for such protection.

In respect of any patent secured by the Agency under the terms of this paragraph the Contractor shall be entitled to a free of charge, non-exclusive, irrevocable licence, without the right to grant sub-licences in addition to those which he may have granted already.

CLAUSE 38 - PROTECTION OF INFORMATION OTHER THAN THROUGH PATENT; COPYRIGHT, PROTECTION OF BACKGROUND INFORMATION, PROTECTION OF COMPUTER SOFTWARE

38.1 Copyright

38.1.1 The Contractor shall furnish the Agency with comprehensive information in documentary or other appropriate form giving full details concerning the work performed for the purpose of the contract and the results achieved. Information, for the purposes of Clause 38.1, is defined as any recorded technical result provided in order to meet the objectives of the contract, e.g. documentation, know-how, detailed drawings and designs, etc. but excluding computer software.

38.1.2 The Contractor shall be the owner of any information generated in the course of or resulting from work undertaken for the purpose of the contract and shall be entitled to protect such information by copyright in accordance with applicable laws.

38.1.3 Notwithstanding the copyright of the Contractor, and with due respect to the existence of any rights of third parties arising otherwise than from work performed for the purpose of the contract, the Agency and the Member States (or Participating States) shall be entitled to a free of charge, non-exclusive, irrevocable right to use, copy and disseminate the information for their own requirements in the field of space research and technology and their space applications.

Information produced under the contract shall, consequently, not contain any copyright statements restricting the rights of the Agency or the Member States (or Participating States) under this paragraph. Where the contract requires a specific form of copyright statement, this shall be used.

38.1.4 The Contractor may, nevertheless, request the Agency to accept a more restrictive dissemination and use of the information than that to which it would be entitled by virtue of paragraph 1.3 above. The Agency has the right to refuse such request if the information concerned is the result of work performed for the purpose of the contract. If the information, however, is of a proprietary nature and not the result of an Agency contract, or if the dissemination of the information would prejudice the justified interests of the Contractor, the Agency shall accept a restriction of the dissemination.

38.1.5 In regard to information the dissemination of which it is agreed under paragraph 1.4 should be restricted, the right of the Agency to disseminate and use such information shall, except if otherwise agreed, be limited :

a) to the extent required to achieve the purpose of the contract, including integration, operation, testing or maintenance of any equipment or software to be studied, designed or developed under the contract,

b) to the extent required for the exercise by the Agency itself of any reproduction right provided for by the contract.

38.1.6 When disseminating any information under the provisions of paragraph 1.5, the Agency shall ensure that it is used only for the purpose of the contract and that it is not disseminated to third parties without securing written undertakings in advance protecting the information against any unauthorised use and further dissemination.

38.2 Protection of Background Information

Prior to any contract being placed the Contractor shall inform the Agency of the existence of any background information or inventions which do not result from an Agency contract and which he intends to use for the purpose of the contract. Except if otherwise agreed the Agency's right to disseminate and use such information shall be subject to the provisions of paragraphs 1.5 and 1.6 above.

If the Contractor in the course of the contract provides any further background information necessary to achieve the purpose of the contract and has immediately notified the Agency thereof, this shall not affect any rights which the Contractor may have with respect to such information provided he can demonstrate that such information was not the result of an Agency contract. The rights of the Agency in respect of such additional background information shall be as described in paragraphs 1.5 and 1.6 above.

38.3 Protection of Computer Software

38.3.1 The right to apply for and enjoy legal protection in accordance with applicable laws in respect of computer software developed in the course of or resulting from work undertaken for the purpose of the contract shall belong to the Contractor.

38.3.2 Notwithstanding any legal protection obtained by the Contractor, the Agency and the Member states (or Participating States) shall be entitled to a free of charge, non-exclusive, irrevocable right to use and copy the software for their own requirements in the field of space research and technology and their space applications and shall be allowed to grant sub-licences for these purposes within the territory of the Member States (or Participating States). The Agency shall, in addition, have the right to modify the software for the purposes described above. A copy of the modified software shall be made available free of charge to the Contractor. The above rights shall be subject to the provisions of Clauses 38.1.4, 38.1.5 and 38.1.6 above.

38.3.3 In the specific case of "operational software" as defined in Clause 36.2 above, the Agency may in the conditions of contract reserve to itself ownership of intellectual property rights. In such case the Contractor shall however be entitled to a right of use of the software, this right being subject to the provisions of the clause entitled "Royalties".

ANNEX I TO THE GENERAL CONDITIONS


CLAUSE 9 - LIMITATION OF LIABILITY

9.1 The limit of liability is an amount to be stated in the contract, which shall be the maximum amount to which the Agency is committed and which can only be increased by a written agreement of the Agency.

9.2 If at any time the Contractor has reason to believe that the commitments which he will incur in the performance of the contract in the next succeeding sixty (60) days, when added to all costs previously incurred, will exceed seventy-five percent (75%) of the limit of liability, the Contractor shall notify the Agency in writing to that effect, giving the revised estimate of the total cost.

9.3 The Agency shall not be obliged to reimburse the Contractor for costs incurred in excess of the limit of liability and the Contractor shall not be obliged to continue performance under the contract or to incur costs in excess of the limit of liability, unless and until the Agency shall have notified the Contractor in writing that such limit has been increased up to a revised amount. Any costs incurred by the Contractor in excess of such limit prior to the approval of the increase shall be allowable to the same extent as if such costs had been incurred after the increase.

CLAUSE 10 - RIGHT TO AUDIT

The Agency reserves the right to audit, either itself or through an authorised representative, the claim of the Contractor, for cost incurred in the execution of any cost-reimbursement type contract or any contract with ceiling price to be converted into a fixed price which according to the provisions of Clause 3.4 is to be treated as a cost reimbursement contract.

 

 

 

 

 

 

 

 

 

 

 

 

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