Work Package 9 Transnational Access End User Agreement Fiona Grant & Rosemarie Butler

Work Package 9Transnational AccessEnd 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

TNA Agreement between Project Coordinator, Facility Operator and TNA End UserUser1. Sets out general conditions of access2. End user commitments in terms of financing &

reporting3. Data requirements4. Publications and acknowledgementsOperator5. Commitments and reimbursement of expensesTNA Coordinator RoleAlso: Confidentiality, Liability, Force Majeure,

Duration, Applicable Law & Jurisdiction, Scope of Work etc

TNAWP 9 – Transnational AccessWP leader: Eric Delory

WP 9 – Transnational AccessWP 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

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.

“End User” AGREEMENTWP 9 – Transnational AccessWP leader: Eric Delory

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.


“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.



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;



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.



(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.



(option in case the END USER is a member of FixO3 Consortium Agreement)

4.1.2 Travel and shipment costsThe 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.





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.

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.



http://cordis.europa.eu/fp7/capacities/questionnaire_en.html

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”.



• 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.



4.6 Intellectual property rights

4.6.1 BackgroundEach 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.




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.



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.



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.


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.





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


(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.




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.



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.

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.



9.2. 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.



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.



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.



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.



ARTICLE 12 - APPLICABLE LAW This Agreement is subject to Belgian law.



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.



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)



Thank you

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Documents

Work Package 9 Transnational Access End User Agreement Fiona Grant & Rosemarie Butler