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IMPROVESTORE
Consortium Agreement
Contract No: JOR3 - CT98 - 0221
Research funded in part by
THE EUROPEAN COMMISSION
in the framework of the
Non Nuclear Energy Programme
JOULE III
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CONSORTIUM AGREEMENT
_________________________________________________________________
This agreement is made the day of 31 March 99 between the
Laboratoires SORAPEC SA, ("SORAPEC") established in France,
Accumuladores Autosil SA, Direccao de Novos Produtos e Novas Tecnologias
("AUTOSIL") established in Portugal,
Angewandte Solarenergie - ASE GmbH, Marketing and Sales ("ASE") established in
the Federal Republic of Germany,
Photowatt International SA, Research and Development Department ("Photowatt")
established in France,
Shell Solar Energy B.V. ("Shell Solar ") established in the Nederlands,
Commissariat a l'Energie Atomique, Direction des Reacteurs Nucleaires -
Departement d'Etudes des Reacteurs, GENEC - Laboratoire de Valorisation
Technologique ("GENEC") established in France,
(collectively "the Contractors") represented by their authorised
representatives, and hereinafter referred to as "the Parties".
WHEREAS the Parties have decided to enter into a Contract with the Commission
of the European Communities (hereinafter referred to as "the Commission") to
carry out the project:
Title: Improvement of the Storage process of Electricity in Remote
Photovoltaic Installations (IMPROVESTORE)
Contract No: JOR3-CT98-0221 (DG 12 - WSMN)
organised within the framework of the Non-Nuclear Energy research and
technological development programme ("the Specific RTD Programme");
AND WHEREAS the Parties wish to define certain of their rights and obligations
with respect to carrying out of the EC Contract.
NOW THEREFORE IT IS HEREBY AGREED AS FOLLOWS:
ARTICLE 1
DEFINITIONS
In this Agreement, unless the context otherwise requires:
1.0 Agreement shall mean this document entitled" Consortium Agreement "
including its Annexes and amendments made in accordance with Article 15
of this Agreement.
1.1 The legal terms "Parties" and "Project" shall have the
respective meanings hereinbefore.
1.2 "EC Contract" shall mean the Contract No. JOR3-CT98-0221
(DG 12 - WSMN) (including Annexes I and II) between the
Commission of the one part and the Parties of the other part for the
undertaking by the Parties of the Project.
1.3 "Annex I" shall mean Annex I (Technical Annex) to the EC Contract.
1.4 " Annex II " shall mean Annex II (General Conditions) to the EC Contract.
1.4 bis "Project" shall mean the Work Programme defined in Annex I up to the
milestone covered by Article 3.1 of the EC Contract.
1.5 "Part A/B" shall mean Part A/B of Annex II (General Conditions) to the EC
Contract.
1.6 "Coordinator" shall mean SORAPEC
1.7 "Foreground Information", "Foreground Patents", "Background Information",
"Background Patents", "Proprietary Information" and "Complementary
Contractor" shall have the respective meanings given to such expressions
in Article 14 of Part B.
1.8 "Project Coordination Committee" shall mean the Project Coordination
Committee established by the Parties in accordance with Article 2
(Project Management) of Annex I.
1.9 "Project Share" shall mean for each Party that Party's share of the total
cost of the Project as shown in the project proposal submitted to the
Commission.
ARTICLE 2
PURPOSE AND SCOPE
2.1 The Parties undertake to cooperate under the conditions of this Agreement
in order to execute and fulfil the EC Contract.
2.2 The scope of the Project is set out in Annex I and the performance of the
Project shall be shared between the Parties according to the tasks and
amounts respectively indicated in Annex I.
ARTICLE 3
COORDINATOR (SORAPEC)
It is hereby agreed that the Coordinator shall assume overall
responsibility for liaison between the Parties and the Commission concerning
the Project, and for the administration of the implementation of the EC
Contract. To this effect, the Coordinator shall discharge on behalf of the
Parties such functions as are defined by this Agreement, the EC Contract and,
from time to time, by the Project Coordination Committee.
Such functions shall be limited to:
a) the coordination of the further negotiation of the EC Contract;
b) supervision of the progress relative to the time schedule in
Annex I or otherwise set up by common agreement of the Parties;
c) subject as provided in Article 5. 1, collection of the Parties'
documents and cost and other statements and forwarding thereof
to the Commission.
d) transmission of any documents connected with the Project
between the Parties and from the Parties to the Commission and
vice versa including, without limitation, the reports required
by the EC Contract to be submitted to the Commission after
their approval by the Project Coordination Committee.
ARTICLE 4
PROJECT COORDINATION COMMITTEE
-4.1 The Parties shall establish a Project Coordination Committee composed of
one (1) representative of each of them. Such Committee shall be chaired by the
Coordinator. Each representative shall have one (1) vote, and decisions of the
Project Coordination Committee shall be taken by a unanimous vote. After
having informed the others (in writing), each Party shall have the right to
replace its representative and to appoint a proxy.
4.2 The Project Coordination Committee shall be in charge of:
a) managing the Project.
b) reviewing and/or amending:
- the terms of the EC Contract;
- the costs or time schedules under the EC Contract; or
- the termination date of the EC Contract.
ARTICLE 5
PAYMENTS
5.1 As the EC Contract provides for payments by the Commission to be made
solely to the Party named in the EC Contract for that purpose, that Party
shall ensure that, within twenty-eight (28) working days following receipt by
it of:
a) notification that any such payment has been made to that Party, or
b) advice from the Commission as to the amounts included in such
payment for each of the Parties (whichever is received later).
A sum is transferred to each of the other Parties in the currency in which
such payment is received from the Commission. Bank costs for the transfer of
the money shall be born by that other Party. If the EC Contract provides for
payments by the Commission to be made to a Party other than the Coordinator
that Party shall be responsible (to the exclusion of the Coordinator) for
complying with Article 3c of this Agreement.
ARTICLE 6
RESPONSIBILITIES
6.1 Towards the Coordinator and the Project Coordination Committee
Each Party undertakes:
promptly to supply to the Coordinator and the Project Coordination
Committee all such information or documents as the Coordinator and the
Project Coordination Committee may require in connection with the EC
Contract to fulfil their obligations as provided for in this Agreement or
as the Commission may properly request and to keep the Coordinator and
the Project Coordination Committee informed of all such requests from the
Commission and responses thereto;
all reports are to conform to the guidelines set forth by the European
Commission in the document entitled "JOULE III, Non Nuclear Energy
Programme, Guidelines for Reporting" which is provided to the Contractors
by the Co-ordinator.
6.2 Towards each other
a) Each Party undertakes to use all reasonable endeavours:
i) to perform on time the tasks and work packages
assigned solely to it under the schedule shown in
Annex I and to make available rights and
information on time to other Parties under the
terms and conditions defined in Part B;
ii) promptly to notify the Co-ordinator and each of
the other Parties of any delay in performance in
accordance with i) above;
iii) to prepare and present the reports to be submitted
to the Commission under the EC Contract in
sufficient time to enable the Co-ordinator to
submit them to the Commission in accordance with
the timescales of the EC Contract; and
iv) promptly to make to the other Parties, and to
Complementary Contractors and the Commission, any
notification required under Article 16 in Part B
and, in the event of any such notification by
another Party, to transmit to the Commission its
observations thereon in accordance with Article 16
of Part B.
b) In supplying any information or materials to any of the other
Parties hereunder or under the EC Contract each Party undertakes to
use all reasonable endeavours to ensure the accuracy thereof and (in
the event of any error therein) promptly on being notified to
correct the same but the supplier Party shall be under no further
obligation or liability in respect of the same and no warranty
condition or representation of any kind is made, given or to be
implied in any case as to the sufficiency, accuracy or fitness for
purpose of such information or materials, or the absence of any
infringement of statutory monopoly or industrial property rights of
third parties by the use of such information and materials and the
recipient Party shall in any case be entirely responsible for the
use to which it puts such information and materials.
c) Each Party shall indemnify each of the other Parties, within the
limits set out in Articles 6.3 and 6.6 of this Agreement, in respect
of the acts and omissions of itself and of its employees and agents
provided always that such indemnity shall not extend to claims for
indirect or consequential loss or damages such as but not limited to
loss of profit, revenue, contracts or the like.
6.3 Claims of the Commission
If the Commission, in accordance with the provisions of the EC Contract
claims any reimbursement, indemnity or payment of damages from one or
more Parties:
a) each Party whose default has caused or contributed to the claim
being made shall indemnify each of the other Parties against such
claims provided always that the total limit of liability of that
Party to all of the other Parties collectively in respect of any and
all such claims shall not exceed that Party's Project Share. Any
excess shall be apportioned between all the Parties pro rata to
their Project Shares; and
b) in the event that it is not possible to attribute default to any
Party under a) above, the amount claimed by the Commission shall be
apportioned between all the Parties prorata to their Project Shares.
6.4 Towards Third Parties:
- Each Party shall be solely liable for any loss incurred by, or
damage or injury to third parties resulting from the implementation
by such Party's Project share.
6.5 Associated Contracts and Subcontractors
- Each Party shall be fully responsible for the performance
of any part of its Project share in respect of which it
enters into an associated contract or a subcontract (as
defined in Article 1 of Part A).
6.6 Defaults and Remedies
- In the event of a substantial breach by a Party ("the
Defaulting Party") of its obligations under this Agreement
or the EC Contract which is irremediable or which is not
remedied within sixty (60) days of written notice from the
other Parties requiring that it be remedied and the other
Parties jointly terminate this Agreement with respect to the
Defaulting Party by not less than one month's prior written notice,
such termination shall (without prejudice to Article 6.3) take place
with respect to the Defaulting Party and the Defaulting Party shall
be deemed to have agreed to the termination of the EC Contract in
respect of the participation of the Defaulting Party under whichever
of Articles 5.2 and 5.5 of Part A as the other Parties and/or the
Commission shall decide provided always that:
- a) without prejudice to any other rights of the other
Parties, the licenses granted to the Defaulting Party by the
other Parties under this Agreement as well as under the EC
Contract shall cease immediately but the licenses so granted by
the Defaulting Party to the other Parties and their Affiliated
Companies shall remain in full force and effect;
- b) the scope of the tasks of the Defaulting Party as
specified in Annex I shall be assigned to one or several
companies and/or entities which are chosen by the other Parties
and are acceptable to the Commission and which agree to be
bound by the terms of this Agreement.
- c) the Defaulting Party shall:
i) assume all reasonable direct cost increase (if
any) resulting from the assignment referred to in
b) above in comparison with the costs of the tasks
of the Defaulting Party as specified in Annex I;
and
ii) be liable for any such resulting additional direct
cost incurred by the other Parties, up to a total
amount which, taken together with any liability to the
Commission under Article 6.3 of this Agreement, shall not
exceed the total maximum limit of liability specified in
that Article in respect of the Defaulting Party, and any
excess amount shall be shared between the Parties
(including the Defaulting Party) pro rata to their Project
Shares at the time of termination; and
d) the agreement which is deemed to have been given by the
Defaulting Party as aforesaid shall be without prejudice to the
rights of the Defaulting Party to appeal against the
termination.
6.7 Continuation in Force
- The provisions of this Article 6 shall survive the expiration or
termination of this Agreement (whether under Article 6.6 or
otherwise) to the extent necessary to enable the Parties to pursue
the remedies provided for in this Article.
ARTICLE 7
FORCE MAJEURE
The provisions of the EC Contract relating to Force Majeure shall apply
to this Agreement
- The Parties shall bear no liability towards each other for any non-
fulfilment of this Agreement caused by cases of Force Majeure, such
as, but not limited to, strike, lockout, labour disputes, fire
explosions, nuclear catastrophes, transportation accidents, natural
disaster, earthquake, riot, rebellion, government seizures, laws, or
any other cases which are beyond the control of the affected Party.
The Party affected by Force Majeure will notify the other Parties
immediately of the existence and probable duration of the effects of
Force Majeure and will make any reasonable effort to keep to a
minimum the effects of Force Majeure on the other Parties and resume
complete fulfilment of the Agreement as soon as possible. If Force
Majeure should continue for a period in excess of six (6) months,
the Parties shall consult and agree the further steps to be taken.
If no agreement can be reached between the Parties, the matter shall
be decided by the Project Coordination Committee.
ARTICLE 8
OWNERSHIP, EXPLOITATION AND DISSEMINATION OF RESULTS
8.1 Foreground for exploitation
- Each Contractor and each Complementary Contractor shall be entitle
to exploit all the foreground, including to procure the manufacture
of products by third parties for exploitation by the contractor at
its risks and account and shall grant each other access right for
exploitation of foreground, on a royalty-free basis.
Any Contractor not generally undertaking commercial activities and
unable itself to commercialise its foreground may grant the above
access right on, instead of royalty-free conditions, fair and
reasonable financial or similar conditions which have regard to the
Contractors contribution to the project and the commercialisation
potential of the foreground. Agreement shall not delay or prejudice
commercialisation , and , if necessary, the access right to enable
commercialisation to commence shall be granted prior to the final
conditions to be agreed. Any Contractor applying this subparagraph
shall not use the foreground in commercial activities.
8.2 As stated in Article 9.1 of Part B, Foreground Information or Patents
generated during the course of the Project shall be owned by the
Contractor generating such information or patents.
8.3 Access rights given to the Parties on Foreground Patents and Information
shall include the right to sub-license.
8.4 If any Party proposes to employ a subcontractor or an associated
contractor (as defined in Article 1 of Part A) to carry out any part of
that Party's work on the Project, such employment shall only be on terms
which enable that Party to carry out its obligations under the EC
Contract and this Agreement (including but not limited to Articles 8.1,
8.2 and 9 of this Agreement and Part B) and shall be subject to the
approval of the Commission as provided for in the EC Contract. That Party
shall not without the prior written agreement of the other Parties grant
to the subcontractor or associated contractor any rights to or under any
Foreground Information or Foreground Patents of the other Parties except
to the extent required by the Commission under the terms of the EC
Contract.
8.5 If, in the course of carrying out work on the Project, employees and/or
subcontract and/or associated contractors of more than one Party jointly
make an invention design or work, and if the features of such joint
invention design or work are such that it is not possible to separate
them for the purpose of applying for or obtaining the relevant patent
protection or other industrial property rights, the Parties concerned may
jointly apply for the relevant patent or other industrial property
rights.
8.6 The provisions of this Article 8 shall survive the termination or
expiration of this Agreement.
ARTICLE 9
CONFIDENTIALITY
9.1 As respects all information (including Foreground and Background
Information and whether oral, in writing or computer form), whether of a
technical nature or otherwise relating in any manner to the business or
affairs of another Party, as is disclosed to a Party on a confidential
basis by any other Party hereunder or otherwise in connection with the
Project whether pending or after execution of the EC Contract each Party
(in addition and without prejudice to any undertaking given by that Party
under the EC Contract as to use or confidence) undertakes to each of the
other Parties that:
- (a) it will not, during the term of this Agreement, directly or
indirectly divulge such confidential information without prior
written approval of the other Parties or of their nominees
- (b) it will during the period of five (5) years, treat the same as
(and use reasonable endeavours to procure that the same be
kept) confidential and not disclose the same to any other
person, without the prior written consent of the disclosing
Party in each case;
- (c) it will not, during a period of five (5) years from the date of
disclosure, use any such information for any purpose other than
in accordance with the terms of the EC Contract and this
Agreement; and
- (d) each Party and its employees shall take all reasonable
precautions to ensure that, when dealing with confidential
information submitted to it by other Parties, it will prevent
any unauthorised person from having access to such information
or to any report or records of any tests or trials carried out
in relation thereto or concerning the research covered by this
Agreement;
provided always that
i) Such undertaking shall not in any case be deemed to extend
to any information which a Party can show:
A) was at the time of receipt published or otherwise
generally available to the public,
B) has after receipt by the receiving Party been
published or become generally available to the public
otherwise than through any act or omission on the
part of the receiving Party,
C) was already in the possession of the receiving Party
at the time of receipt without any restrictions on
disclosure,
D) was rightfully acquired from others without any
undertaking of confidentiality imposed by the
disclosing Party, or
E) was developed independently of the work under the EC
Contract by the receiving Party.
ii) nothing herein contained shall prevent the communication
of the same to the Commission or (against similar
undertakings of confidence and for delivery up of such
information as are contained in this Agreement) to any
Affiliated Company or to any permitted third party insofar
as necessary for the proposer carrying out of the EC
Contract and/or the exploitation and/or the
commercialisation of Foreground Information of
Foreground Patents.
9.2 No provision in this Article 9 will limit the rights of the Parties under
Part B.
9.3 The provisions for this Article 9 shall survive the termination or
expiration of this Agreement.
ARTICLE 10
DURATION, TERMINATION
10.1 This Agreement shall come into force as of the date of its signature and
shall thereafter continue in full force and effect, in the event that the
EC Contract is duly entered into, until complete discharge of all
obligations undertaken by the Parties under the EC Contract and under
this Agreement as well as any amendment or extension thereof.
10.2 No Party shall be entitled to withdraw from or to terminate this
Agreement and/or its participation in the project unless:
- a) the Party has obtained the prior written consent of the other
Parties (which shall be deemed to be given if, in the case of a
termination by the Coordinator, the Coordinator gives six
months notice in writing to the other Parties and to the
Commission) and of the Commission to the withdrawal or
termination, or
- b) that Party's participation in the EC Contract is terminated by
the Commission pursuant to the provisions of Article 5.3 of
Part A, or
- c) the EC Contract is terminated by the Commission for any reason
whatsoever, provided always that a Party shall not by
withdrawal or termination be relieved from:
- i) any of its obligations under this Agreement which are
intended to survive such event, and
- ii) its responsibilities under this Agreement or the EC
Contract in respect of that part of that Party's work on
the Project which has been carried out (or which should
have been carried out up to the date of withdrawal or
termination), or and
- iii) from any of its obligations or liabilities arising out
of such withdrawal or termination.
10.3 In the event that any Party's participation in the EC Contract is
terminated by the Commission pursuant to the provisions of Article 5.3 of
Part A, then without prejudice to any other rights of the other Parties
the provisions of paragraphs a), b) and c) of Article 6.6 of this
Agreement shall apply correspondingly.
10.4 In the event that any Party enters into bankruptcy or liquidation or any
other arrangement for the benefit of its creditors the other Parties
shall, subject to approval by the Commission, be entitled to take over
the fulfilment of such Party's obligations and to receive subsequent
payments under the EC Contract in respect thereof. In such event all
rights and obligations under the EC Contract and this Agreement shall in
good faith be re-distributed among the remaining Parties and the affected
Party on the basis of the work performed by the affected Party prior to
the occurrence of the above circumstances.
ARTICLE 11
SETTLEMENT OF DISPUTES
11.1 In case of dispute or difference between the Parties arising out of or in
connection with his Agreement, the Parties shall first endeavour to
settle it amicably.
11.2 All disputes or differences arising in connection with this Agreement
which cannot be settled as provided for in the preceding Article 11.1
shall be finally settled by arbitration according to the Rules of
Arbitration of the International Chamber of Commerce, Paris (1998
edition). Place of Arbitration shall be Paris, France.
11.3 The award of Arbitrator will be final and binding upon the Parties
concerned. The Arbitrator shall determine by whom and to whom the costs
of arbitration shall be paid.
ARTICLE 12
LANGUAGE
This Agreement is drawn up in English which language shall govern all
documents, notices and meetings for its application and/or extension or in any
other way relative thereto.
ARTICLE 13
APPLICABLE LAW
This Agreement shall be construed according to and governed by the law of
France;
ARTICLE 14
NOTICE PROVISION
14.1 Any notice to be given under this Agreement to the Parties shall be in
writing and may be served by leaving it or sending it by prepaid recorded
delivery or registered post to their respective addresses recorded on the
first page of this Agreement or at such other address as may have been
notified in accordance with this Agreement for such purpose.
14.2 Any notice so served by post shall (unless the contrary is proved) be
deemed to have been served on the fifth working day after the envelope
containing the same was posted, and in proving such service it shall be
sufficient to prove that the notice was properly addressed and was posted
in accordance with Article 14.1.
ARTICLE 15
ENTIRE AGREEMENT, AMENDMENTS
This Agreement, and the EC Contract constitute the entire Agreement
between the six (6) Parties in respect of the Project.
Amendments or changes to this Agreement shall be valid only if made in
writing and signed by an authorised signatory of each of the Parties. Any
verbal Agreement has to be confirmed in writing by each of the Parties.
AS WITNESS the Parties have caused this Agreement to be duly signed by the
undersigned authorised representative the day and year first above written.
Authorized to sign on behalf of SORAPEC ("the Coordinator"), France
___________________________ ________________________________
Signature Title
Name
Authorized to sign on behalf of AUTOSIL, Portugal
___________________________ _________________________________
Signature Title
Name
Authorized to sign on behalf of TRANSENERGIE, France
___________________________ _________________________________
Signature Title
Name
Authorized to sign on behalf of ASE, Germany
___________________________ _____________________________
Signature Title
Name
Authorized to sign on behalf of PHOTOWATT, France
___________________________ _____________________________
Signature Title
Name
Authorized to sign on behalf of SHELL SOLAR, The Nederlands
___________________________ ______________________________
Signature Title
Name
Authorized to sign on behalf of GENEC, France
___________________________ ______________________________
Signature Title
Name
