EUROnu CONSORTIUM AGREEMENT
29th October 2008
SUBJECT TO CONTRACT
CONSORTIUM AGREEMENT
THIS CONSORTIUM AGREEMENT is based on REGULATION (EC) No 1906/2006 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 18 December 2006 laying down the rules for the participation of undertakings, research centres and universities in actions under the Seventh Framework Programme and for the dissemination of research results (2007-2013) (“Rules for Participation”) and the EC Grant Agreement, adopted on 1st September 2008(“the Grant Agreement”) and Annex II adopted on 1st September 2008(“Annex II of the Grant Agreement”) and is made on 1st September 2008, (the “Effective Date”).
BETWEEN:
1.THE SCIENCE AND TECHNOLOGY FACILITIES COUNCIL Polaris House, North Star Avenue, SwindonSN2 1SZ(“STFC” as “The Coordinator”)
2.COMMISSARIAT A L’ÉNERGIE ATOMIQUE 25 rue Leblanc, Immeuble le Ponant D, Paris 75015 France (“CEA”)
3.EUROPEAN ORGANISATION FOR NUCLEAR RESEARCH385 Route de Meyrin, Geneva CH-1211, Switzerland (“CERN”),
4.UNIVERSITY OF GLASGOW University Avenue, GlasgowG12 8QQUK (“Glasgow“)
5.IMPERIALCOLLEGE OF SCIENCE, TECHNOLOGY AND MEDICINE Exhibition Road, London SW7 2AZUK (“Imperial”)
6.CONSEJO SUPERIOR DE INVESTIGACIONES CIENTIFICAS 117 Serrano, Madrid28006Spain (“CSIC”)
7.CENTRE NATIONAL DE LA RECHERCHE SCIENTIFIQUE 3 Rue Michel-Ange, Paris 75794 France (“CNRS”)acting on its own behalf and for the following Third Party Linked to a Beneficiary: - UNIVERSITE DENIS DIDEROT PARIS 7
8.CRACOWUNIVERSITY OF TECHNOLOGY 24 Warszawska, Krakow PL 31-155, Poland (“CUT”)
9.UNIVERSITY OF DURHAM University Office, Old Elvet, Durham DH1 3HP (“UDUR”)
10. INSTITUTO NAZIONALE DI FISCIA NUCLEARE 40 ViaE.Fermi, Frascati, Roma 00044 Italy (“INFN”)
11.MAX-PLANCK-GESELLSCHAFT ZUR FORDERUNG DER WISSENSCHAFTEN e.V. 8 Hofengartenstraβe, Munich 80539 (“MPG”)
12.THE CHANCELLOR, MASTERS AND SCHOLARS OF THE UNIVERSITY OF OXFORD, University Offices, Wellington Square, OxfordOX1 2JDUK (“UOXF[1].DL“)
13.SOFIAUNIVERSITY ST.KLIMENT OHRIDSKI15 Tsar Osvoboditel BoulevardSofia 1504, Bulgaria (“UniSofia“)
14.UNIVERSITY OF WARWICK Kirby Corner Road, CoventryCV4 8UWUK (“Warwick”)
15.UNIVERSITE CATHOLIQUE DE LOUVAIN I Place de l’Université, Louvain-la-Neuve 1348 Belgium(“UCL”)
Jointly or individually, referred to as”Parties” or ”Party”
relating to the Project entitled A High Intensity Neutrino Oscillation Facility in Europe(Design Study) in short EUROnu (“the Project”), funded by the EU Commission.
AGREEMENT
Section 1: Definitions
1.1 Definitions
Words beginning with a capital letter shall have the meaning defined either herein or in the Rules for Participation or in the Grant Agreement including its Annexes without the need to replicate said terms herein.
1.2 Additional Definitions
“Consortium Plan” means the description of the work based on a combination of the technical work plan (of attachment 1 of the Consortium agreement) and Annex 1 of the Grant Agreement (the non-technical work plan) and the related agreed Consortium Budget, including the payment schedule, as updated and approved by the Governing Board.
“Consortium Budget” means the allocation of all the resources in cash or in kind for the activities as defined in the technical work planand Annex I of the Grant Agreement and in the Consortium Plan thereafter including both the funding from the EU Commission and the additional external funding.
“Defaulting Party” means a Party which the Governing Board has identified to be in breach of this Consortium Agreement and/or the Grant Agreement as specified in Article 4.2 of this Consortium Agreement.
“Needed” means for the implementation of the Project.
Access Rights are Needed if, without the grant of such Access Rights, carrying out the tasks assigned to the recipient Party would be impossible, significantly delayed, or require significant additional financial or human resources.
For Use of own Foreground:
Access Rights are Needed if, without the grant of such Access Rights, the Use of own Foreground would be technically or legally impossible.
“Party” means a Signatory Party (Party that signs the Grant Agreement or its Accession Form) as well as Third Party Linked to a Beneficiary it may represent in this Consortium Agreement. All the Parties shall have the same rights and obligations under this Consortium Agreement unless expressly stated otherwise.
“Software” means sequences of instructions to carry out a process in, or convertible into, a form executable by a computer and fixed in any tangible medium of expression.
“Third Party Linked to a Beneficiary”means legal entities, either public or private, represented in the Grant Agreement by a Signatory Party according to the terms of Special Clause n°10 of the Grant Agreement. This Signatory Party and the Third Party Linked to a Beneficiary it represents shall be partners in a “Joint Research Unit”.
“Work Package”means a designated body of coherent work that forms part of the overall project plan.
“Work Package Coordinator” refers to the designated individual who is responsible for coordinating the output of a Work Package or group of Work Packages with other Work Package Coordinators and the Coordinator.
Section 2: Purpose
The purpose of this Consortium Agreement is to specify with respect to the Project the relationship among the Parties, in particular concerning the organisation of the work between the Parties, the management of the Project and the rights and obligations of the Parties concerning inter alia liability, Access Rights and dispute resolution.
Section 3: Entry into Force, Duration and Termination
3.1 Entry into force
An entity becomes a Party to this Consortium Agreement upon signature of this Consortium Agreement by a duly authorised representative.
This Consortium Agreement shall have effect from the Effective Date identified at the beginning of this Consortium Agreement.
A new Party enters the Consortium upon signature of the Accession document [Attachment 3] by the new Party and the Coordinator. Such accession shall have effect from the date identified in the Accession document.
3.2 Duration and termination
This Consortium Agreement shall continue in full force and effect until complete fulfilment of all obligations undertaken by the Parties under the Grant Agreement and under this Consortium Agreement.
However, this Consortium Agreement may be terminated prematurely in accordance with the terms of this Consortium Agreement and Annex II of the Grant Agreement (Article II.37 and II.38).
3.3 Survival of rights and obligations
The provisions relating to Access Rights, Confidentiality, Liability, Applicable law and Settlement of disputes shall survive the expiration or termination of this Consortium Agreement as agreed in respective articles.
Termination shall not affect any rights or obligations of a Party leaving the Consortium incurred prior to the date of termination, unless otherwise agreed between the Governing Board and the leaving Party. This includes the obligation to provide all input, deliverables and documents for the period of its participation.
Section 4: Responsibilities of Parties
4.1 General principles
Each Party undertakes to take part in the efficient implementation of the Project, and to cooperate, perform and fulfil, promptly and on time, all of its obligations under the Grant Agreement and this Consortium Agreement as may be reasonably required from it.
Each Party undertakes to notify promptly, in accordance with the governance structure of the Project, any significant information, fact, problem or delay likely to affect the Project.
Each Party shall provide promptly all information reasonably required by a Consortium Body or by the Coordinator to carry out its tasks.
Each Party shall take reasonable measures to ensure the accuracy of any information or materials it supplies to the other Parties.
4.2 Breach
In the event the responsible Consortium Body identifies a breach by a Party of its obligations under this Consortium Agreement or the Grant Agreement, the Coordinator will give written notice requiring that such breach be remedied within 30 calendar days. Should the offending Party be the Coordinator, the Governing Board will issue the written notice.
If this does not occur, the Governing Board may decide to declare the Party to be in abreachDefaulting Party and to decide on the consequences thereof.
4.3 Involvement of third parties
A Party that enters into a subcontract or otherwise involves third parties (including but not limited to Affiliated Entities) in the Project remains solely responsible for carrying out its relevant part of the Project and for such third party’s compliance with the provisions of this Consortium Agreement and of the Grant Agreement. It has to ensure that the use of third parties does not affect the rights and obligations of the other Parties regarding Background and Foreground.
Section 5: Liability towards each other
5.1 No warranties
In respect of any information or materials supplied by one Party to another under the Project, no warranty or representation of any kind is made, given or implied as to the sufficiency or fitness for purpose nor as to the absence of any infringement of any proprietary rights of third parties.
The recipient Party shall in all cases be entirely and solely liable for the use to which it puts such information and materials.
5.2 Limitations of contractual liability
No Party shall be responsible to any other Party for punitive damages, indirect or consequential loss or similar damage such as, but not limited to, loss of profit, loss of revenue or loss of contracts.
A Party’s aggregate liability towards the other Parties collectively in respect of any and all claims shall be limited to the Party’s share of the total costs of the Project as identified in Annex I of the Grant Agreement provided such damage was not caused by a wilful act or gross negligence.
The exclusions and limitations of liability stated above shall not apply in the case of damage caused by a wilful act or gross negligence.
The terms of this Consortium Agreement shall not be construed to amend or limit any non-contractual liability.
5.3 Damage caused to third parties
Each Party shall be solely liable for any loss, damage or injury to third parties resulting from the performance of the said Party’s obligations under this Consortium Agreement or from its use of Foreground or Background.
5.4 Force Majeure
No Party shall be considered to be in breach of this Consortium Agreement if such breach is caused by Force Majeure. Each Party will notify the competent Consortium Bodies of any Force Majeure as soon as possible. If the consequences of Force Majeure for the Project are not overcome within 6 weeks after such notification, the transfer of tasks - if any - shall be decided by the competent Consortium Bodies.
Section 6: Governance Structure
6.1 General structure
The organisational structure of the Consortium shall comprise the following Consortium Bodies:
a)The Governing Board is the ultimate decision-making body of the Consortium and is responsible for strategic managementof the Project,including strategic direction, funding, and technical aspects and is the supervisory body for the execution of the Project.
b) The Management Board is responsible for the implementation of the Grant Agreement and the Consortium Agreement and for ensuring that all obligations of the Partieswithin the contract are met. It will meet according to the needs of the contract implementation.
c)The Coordination Board is responsible for ensuring the global coherence of the Design Study through continuous monitoring of the work and planning of all tasks, updating of reports and analysis of the results achieved during the implementation of the Project. It will monitor the progress of each Work Package and how the results compare with international developments. It will also evaluate possible synergies with other projects. It will meet at least 3 times per year.
d)The International Advisory Panel provides independent advice to the Project.
e)The Dissemination Board reviews all publications and reports created in the Project and advises the Governing Board and the Management Board on dissemination of Foreground.
f)The Participants’ Forum is an annual meeting for all participants in the Project.
g)The Coordinator is the entity acting as the intermediary between the Parties and the European Commission. The Coordinator shall, in addition to its responsibilities as a Party, perform the tasks assigned to it as described in the Grant Agreement and this Consortium Agreement.
6.2 General operational procedures for all Consortium Bodies
The rules of Article 6.2 of this Consortium Agreement apply to all the Consortium Bodies:Governing Board, Management Board, International Advisory Panel, Co-ordination Board and the Dissemination Board.
6.2.1 Representation in meetings
Any member of a Consortium Body:
a) should be present or represented at any meeting of such Consortium Body;
b) may appoint a substitute or a proxy to attend and vote at any meeting; and
c)shall participate in a cooperative manner in the meetings.
6.2.2 Preparation and organisation of meetings
The chairperson of a Consortium Body shall convene meetings of that Consortium Body.
In extraordinary cases the Consortium Bodies may take decisions through their chairperson consulting with all members via teleconference and/or via e-mail, phone, etc. These decisions must be included in the Minutes of the next ordinary meeting.
Meetings of each Consortium Body can also be held by teleconference, videoconference or other telecommunication means.
Decisions may only be executed once the relevant part of the Minutes is accepted according to Article 6.2.3.
6.2.3 Minutes of meetings
The chairperson of a Consortium Body shall produce written Minutes of each meeting which shall be the formal record of all decisions taken. He/she shall send the draft to all of its members within 15 calendar days of the meeting.
The Minutes shall be considered as accepted if, within 15 calendar days from sending, no member has objected in writing to the chairperson with respect to the accuracy of the draft of the Minutes.
The accepted Minutes shall be sent to all of the members of the Consortium Body and the Project Coordinator, who shall safeguard them. If requested the Project Coordinator shall provide authenticated duplicates to Parties.
6.3 Specific operational procedures for the Consortium Bodies
6.3.1 Governing Board
In addition to the rules described in Article 6.2, the following rules apply:
6.3.1.1 Members
The Governing Board shall consist of one representative of each Party.
Ex-officio members are the Management Board, a representative from each of The European Committee for Future Accelerators (ECFA), the International Design Study for the Neutrino Factory (IDS-NF), the EURISOL FP6 Design Study, the LAGUNA FP7 Design Study and the NEU2012 network of the EuCARD FP7 IA. Ex-officio members attend meetings of the Governing Board as observers and may speak but not vote. They will be required to sign a confidentiality agreement before attending closed Consortium meetings.
Each Governing Board member shall be deemed to be duly authorised to deliberate, negotiate and decide on all matters listed in Article 6.3.1.2 of this Consortium Agreement.
Ordinary meetings of the Governing Board shall be held once a year and extraordinary meetings can be held at any time on the written request of the Management Board or 1/3 of the members of the Governing Board.
The Governing Board will choose a Chair from among the participant representatives. The appointment shall be for a period of 2 years, after which it may be extended for a further 2 years or terminated.
The Parties agree to abide by all decisions of theGoverning Board.
This does not prevent the Parties to submit a dispute to resolution in accordance with the provisions of Settlement of Disputes in Article 11.8.
6.3.1.2 Decisions
The Governing Board shall be free to act on its own initiative to formulate proposals and take decisions in accordance with the procedures set out herein. In addition, all proposals made by the Management Board shall also be considered and decided on upon by the Governing Board.
Normally decisions will be based upon and following the proposals of the Management Board, as reflected in its proposed agenda for the Governing Board.
The Governing Board shall be responsible for overseeing the Project and verifying that the Coordinator, the Management Board and the Coordination Board are meeting their obligations.
The Governing Board may make decisions on the following issues:
-Content, finances and intellectual property rights
-Proposals for changes to Annex I of the Grant Agreement to be agreed by the European Commission
-Changes to the Consortium Plan (including the Consortium Budget)
-Changes to the technical work plan and deliverables
-withdrawals from [Attachment 1 (Background included)
-Additions to [Attachment 2 (Background excluded)]
-Additions to [Attachment 4 (Listed Affiliated Entities)
-Additions to [Attachment 7 (List of Third Parties)]
-Proposals to the Parties to amend the Consortium Agreement.
-Evolution of the Consortium
-Entry of a new Party to the Consortium and approval of the settlement on the modalities and conditions of the accession of such a new Party
-Withdrawal of a Party from the Consortium and the approval of the settlement on the modalities and conditions of the withdrawal
-Declaration of a Party to be a Defaulting Party
-Remedial provisional measures against a Defaulting Party
-Termination of a Defaulting Party’s participation in the Consortium and measures relating thereto
-Proposal to the European Commission for a change of the Coordinator
-Suspension of all or part of the Project
-Termination of the Project and/or the Consortium Agreement
6.3.1.3 Voting rules and quorum
The Governing Board shall not deliberate and decide validly unless a quorum of sixty sevenpercent (67%) of its members are present or represented.
Each member of the Governing Board present or represented in the meeting shall have one vote, except for partners representing more than one research unit. For these, special arrangements will be made by the Governing Board
Defaulting Party members may not vote.
Decisions shall be taken by a majority of two thirds of the votes of themembers present or represented.
6.3.1.4 Veto rights
A Member which can show that its own work, time for performance, costs, liabilities, intellectual property rights or other legitimate interests would be severely affected by a decision of the Governing Board may exercise a veto with respect to the corresponding decision or relevant part of the decision, providing it is agreed by the Governing Board that the Member has supplied adequate evidence representing such circumstances.
When the decision is foreseen on the original agenda, a member may veto such a decision during the meeting only.
When a decision has been taken on a new item added to the agenda before or during the meeting, a member may veto such decision during the meeting and within 15 days after the Minutes of the meeting are sent.