Formatconsortium Agreement

FORMATCONSORTIUM AGREEMENT

ThisConsortium Agreement format is provided for your convenience. It may be helpful in preparing a consortium agreement for your research Project. WOTRO provides this draft without assuming any warranty or responsibility. You are free to adapt the text as you wish, however, it is in any form subordinate to the WOTRO Regulations, on which it will be checked by the WOTRO bureau. The use of the text in total or in part takes place on your own risk and does not release you from legal examination to cover your interests and protect your rights.
Please fill out the grey parts. Parts between brackets are explanatory and need to be removed.

Between:

PARTY 1established in [address], represented by [name] [title], hereafter “ACRONYM”, the Coordinator;

PARTY 2established in [address], represented by [name] [title], hereafter “ACRONYM”,

Hereafter: the Academic Partners

PARTY3established in [address], represented by [name] [title], hereafter “ACRONYM”,

PARTY4established in [address], represented by [name] [title], hereafter “ACRONYM”,

Hereafter: the Private Partners

ETC

Hereinafter individually or jointly referred to as respectively "Party" or "Parties",

relating to the Project entitled[NAME OF Project] (in short [acronym]), hereinafter referred to as “Project”

WHEREAS:

-The Parties, having considerable experience in the field concerned, have submitted a proposal (attached to this agreement as Annex 1, hereafter: “the Proposal”)for the Project to NWO-WOTROScience for Global Development), hereafter: WOTRO, in the [CALL] call;

-WOTRO awarded to the Parties funds for the Project as further stated in the grant decision of WOTRO including the approved budget of [date], attached to this agreement as Annex 2 (hereafter: the Grant Decision);

-the Parties wish to specify or supplement binding commitments among themselves in addition to the provisions of the NWO and WOTRO regulations that are applicable to the Project;

therefore Parties have agreed as follows:

Definitions:

Words beginning with a capital letter shall have the meaning defined either herein or in the NWO regulations or in the WOTRO Regulations.

Article 1 Purpose and scope of the cooperation

(1)The Parties undertake to co-operate under the conditions of the Grant Decision and this Consortium Agreement in order to achieve the goals of the Project.

(2)The goals of the Project and activities are described in the Proposal and the Grant Decision.

(3)The Parties agree and undertake reasonable endeavours to perform those parts of the Project as are allocated to each of them in the Grant Decision.

(4)The Project shall be performed in accordance with the following documents which constitute an integral part hereof and are listed in order of precedence in case of conflict:

-the Grant Decision;

-the NWO regulations;

-the WOTRO Regulations;

- the Call for Proposals;

-this Consortium Agreement;

-the Proposal.

Article 2 Duration of the Agreement

(1)This Consortium Agreement shall have effect from the date that the Project officially starts.

(2)This Consortium Agreement shall continue in full force and effect until complete fulfilment of all obligations undertaken by the Parties under the Grant Decision and under this Consortium Agreement.

However, this Consortium Agreement or the participation of one or more Parties to it may be terminated in accordance with the terms of this Consortium Agreement.

(3)If the Grant Decision is terminated by WOTRO or if a Party's participation in the Grant Decision is terminated, this Consortium Agreement shall automatically terminate in respect of the affected Party/ies, subject to the provisions surviving the expiration or termination. Termination shall not affect any obligations of a Party leaving the Consortium incurred prior to the date of termination, unless otherwise agreed between the Parties. This includes the obligation to provide all input, deliverables and documents for the period of its participation.

The references mentioned in 2(4) need to be checked in the final versionof the Consortium Agreement as articles may move or numbers may change.

(4)In the event of (premature) termination, the Parties will remain bound by the Articles 1(4), 3(2), 7, 9 and 10 of this Consortium Agreement, for the term as set forth in such Article.

Article 3 Financial

The payment schedule is stated in the grant decision. For clarity reasons it might be good to copy the payment schedule for each partner in the consortium agreement. Therefore, there are two options for 3(1). If the payment schedule is not taken over in detail, it is sensible to insert an overall share of the project.

(1)The Coordinator shall receive the funding from WOTRO according to the financial schedule in the Grant Decision. The Coordinator shall distribute the funding within 30 days after receipt thereof as follows:

PAYMENT SCHEDULE

(1)The Coordinator shall receive the funding from WOTRO according to the financial schedule in the Grant Decision. The Coordinator shall distribute the funding within 30 days after receipt thereof according to the schedule stated in the Grant letter. The overall share of each Party is as follows:

Party: / Share:
[ ] / [ ]
[ ] / [ ]
[ ] / [ ]

A Party shall be funded only for its tasks carried out in accordance with the Proposal and the Grant Decision.

(2)Each Party shall be solely responsible for justifying its costs with respect to the Project towards WOTRO. Neither the Coordinator nor any of the other Parties shall be in any way liable or responsible for such justification of costs towards WOTRO.

(3)A Party which spends less than its allocated share of the budget as set out in the Proposal or will be funded in accordance with its actual duly justified eligible costs only. A Party that spends more than its allocated share of the budget as set out in the Proposal will be funded only in respect of duly justified eligible costs up to an amount not exceeding that share.

(4)The Coordinator is entitled to withhold any payments due to a Party identified by the Project Board to be in breach of its obligations under this Consortium Agreement or the Grant Decision. The Coordinator is entitled to recover any payments already paid to a defaulting Party. The Coordinator is equally entitled to withhold payments to a Party when this is suggested by or agreed with WOTRO.

Article 4 Project Organisation – Project Board

The project organisation/governance is stated in the proposal. The consortium agreement should be in line with what is stated in the proposal. Therefore this article is a simple example, but the terms and definitions and the actual organisation can be different.

(1)The Project Board is the decision-making body of the consortium. The Coordinator is the legal entity acting as the intermediary between the Parties and WOTRO. The Coordinator shall, in addition to its responsibilities as a Party, perform the tasks assigned to it as described in the Grant Decision and this Consortium Agreement.

(2)The Project Board shall consist of one representative of each Party (hereinafter referred to as “Member”).Each Member shall be deemed to be duly authorised to deliberate, negotiate and decide on all matters listed in this Consortium Agreement.The Coordinator shall chair all meetings of the Project Board, unless decided otherwise by the Project Board.

(3)The Project Board shall be free to act on its own initiative to formulate proposals and take decisions in accordance with the procedures set out herein.

The following decisions shall be taken by the Project Board:

These are examples. From project to project it may differ which decisions the Project Board takes. Also this is often stated in the proposal.

-Proposals for changes of the Project, to WOTRO;

-Changes to the distribution of the budget, to be agreed with WOTRO

-Entry of or withdrawal of Party to/from the consortium and approval of the settlement on the conditions thereof (needs approval from WOTRO)

-Identification of a breach by a Party and handling a defaulting party.

-Permission of objections for Publications according to article V of the WOTRO regulations

-IP issues according to article 8.

(4)The Parties agree to abide by all decisions of the Project Board. This does not prevent the Parties from submitting a dispute for resolution in accordance with the provisions of settlement of disputes in article 10(2) and 10(3) of this Consortium Agreement.

(5)The Coordinator shall convene meetings of the Project Board at least once every

[ ] months and at any time upon written request of any Member. Meetings may take place in person or via electronic means. The coordinator shall send each Member a written agenda no later than 14calendar days preceding the meeting. Any decision may also be taken without a meeting if the chairperson circulates to all Members a written document which is then signed by the defined majority of Members.

(6)The Project Board shall not deliberate and decide validly unless two-thirds (2/3) of its Members are present or represented (quorum). Each Member shall have one vote. Defaulting Parties may not vote. Decisions shall be taken by a majority of two-thirds (2/3) of the votes cast.

(7)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 Project Board may exercise a veto with respect to the corresponding decision or relevant part of the decision. In case of exercise of veto, the Members shall make every effort to resolve the matter which occasioned the veto to the general satisfaction of all Members.

(8)The Coordinator shall produce written minutes of each meeting which shall be the formal record of all decisions taken and shall send minutes to all Members within 10 calendar days of the meeting.The minutes shall be considered as accepted if, within 15 calendar days from sending, no Member has sent an objection in writing to the Coordinator with respect to the accuracy of the draft of the minutes.

Article 5Project organisation - Coordinator

(1)The Coordinator shall be the intermediary between the Parties and WOTRO and shall perform all tasks assigned to it as described in the Grant Decision and in this Consortium Agreement.

These are examples. The Coordinator could have more tasks than this.

(2)In particular, the Coordinator shall be responsible for:

-monitoring compliance by the Parties with their obligations;

-collecting, reviewing and submitting information on the progress of the Project and reports and other deliverables (including financial statements and related certification) to WOTRO in accordance with the Grant Decision;

-preparing the meetings, proposing decisions and preparing the agenda of Project Board meetings, chairing the meetings, preparing the minutes of the meetings and monitoring the implementation of decisions taken at meetings;

-transmitting promptly documents and information connected with the Project;

-administering the financial contribution of WOTRO and fulfilling the financial tasks described in Article 3.

(3)If one or more of the Parties is late in submission of any project deliverable, the Coordinator may nevertheless submit the other parties’ project deliverables and all other documents required by the Grant Agreement to the WOTRO in time.

Article 6Execution of the Project

(1)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 Decision and this Consortium Agreement as may be reasonably required from it and in a manner of good faith.

(2)Each Party undertakes to notify promptly the other Parties any significant information, fact, problem or delay likely to affect the Project.

(3)Each Party shall promptly provide all information reasonably required by the Project Board or the Coordinator to carry out its tasks.

(4)Each Party shall take reasonable measures to ensure the accuracy of any information or materials it supplies to the other Parties.

Article 7Publications

These publication rules are an excerpt of the rules in the WOTRO regulations. They contain the most important issues, however, the WOTRO regulations are more detailed. The WOTRO regulations also contain a clause arranging secrecy. This clause is also applicable between the parties.

With regard to publications, Parties shall comply to the WOTRO regulations. In particular this means that:

(1)Up to a period of three years after termination of the Project, all publications based on Results derived from the Project, must have the prior consent of all Parties.

(2)All publications should be made accessible by Open Access publication.

(3)All data generated during the Project must, after the prior consent of all Parties be offered to an internationally recognized Open Access repository within three years after termination of the Project.

(4)Analyzed data upon which publications are based, including meta-data, should be made accessible for further research by Open Access publication simultaneously with the publication.

(5)For Open Access publication of data that are relevant for re-use but not generated during the Project (background data), the consent of the Party that provided those data is needed.

Article 8Intellectual Property rights

(1)All Results are available to all Parties for the purpose of execution of the Project and for non-commercial research and education.

(2)Intellectual Property Rights to Results are owned by the Party that generated such Result. In the event Parties generate Results jointly, the Intellectual Property Rights to such Results are owned jointly by those Parties.

(3)In the event a Result is capable of protection by Intellectual Property Rights and one or more of the Parties wish to protect such Result, the Parties, together with WOTRO will consult and agree who will bear the cost of such protection. Intellectual Property Rights are applied for in the name of the owning Party(ies).

(4)In the event a Private Party wishes to obtain or (non)exclusively license Results that are protected by Intellectual Property Rights for commercial purposes, such Private Party, the Party(ies) owning the Intellectual Property and WOTRO shall negotiate in good faith an agreement in which at least the following issues are incorporated:

-compensation in conformity with the market price of such Results. 50% of the revenues received is allocated to the Academic Party that generated the Results, the other 50% is allocated to WOTRO;

-an obligation for the Private Party to enhance the accessibility, affordability and applicability of Results in Developing Countries and, where relevant, include support of humanitarian use licenses, independent of any market value;

-an obligation for the Private Party to grant affordable licenses to the Results to third parties from Developing Countries that need such licenses to exploit results from follow up research.

(5)All Results of the Project for which it is decided not to apply for a patent and/or which have appeared to be not patentable or otherwise protected through intellectual property rights, shall become public knowledge and be made available through Open Access.

Article 9 Liability

(1)In respect of any information or materials (incl. Results and Background) supplied by one Party to another Party 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.

Therefore,

- the recipient Party shall in all cases be entirely and solely liable for the use to which it puts such information and materials, and

-no Party granting rights to another Party shall be liable in case of infringement of proprietary rights of a third party resulting from any other Party exercising its Access Rights.

(2)No Party shall be responsible to any other Party for any indirect or consequential loss or similar damage such as, but not limited to, loss of profit, loss of revenue or loss of contracts, provided such damage was not caused by a wilful act or gross negligence.

A Party’s aggregate liability towards the other Parties collectively shall be limited to the Party’s share of the total costs of the Project as identified in article 3(1),provided such damage was not caused by a wilful act or gross negligence.

(3)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 by it or on its behalf under this Consortium Agreement or from its use of Results or Background.

(4)No Party shall be considered to be in breach of this Consortium Agreement if it is prevented from fulfilling its obligations under the Consortium Agreement by Force Majeure. Each Party will notify Project Board of any Force Majeure without undue delay. 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 Project Board.

Article 10 Applicable laws and disputes

(1)This Consortium Agreement shall be construed according to and governed by the laws of The Netherlands.

(2)In case of dispute or difference between two or among several Parties arising out of or in connection with this Consortium Agreement, the Parties shall first endeavour to settle it amicably. Should this, however not lead to a settlement either, each Party concerned has the right to request the dispute to be brought to mediation or any other form of alternative dispute resolution (ADR). The other Parties involved shall give constructive consideration to such request.