Distribution contract conditions of January 2018 EUROPEAN COMMISSION DIRECTORATE-GENERAL JOINT RESEARCH CENTRE Directorate F Health, Consumers & Reference Materials Director CONTRACT FOR THE DISTRIBUTION OF REFERENCE MATERIALS MANAGED BY THE EUROPEAN COMMISSION'S JOINT RESEARCH CENTRE CONTRACT NUMBER [complete] The European Union ( the Union ), represented by the European Commission ( the Commission ) represented for the purposes of signing this contract by Ms Elke Anklam, Director Health, Consumers & Reference Materials of the Joint Research Centre (JRC), on the one part, and [Full official name] [Official legal form] [Statutory registration number or ID or passport number] [Full official address] [VAT registration number] [appointed as the leader of the group by the members of the group that submitted the joint tender] [For joint tenders, repeat these data as many times as there are contractors and continue numbering] ([collectively] the contractor ), represented for the purposes of the signature of this contract by [forename, surname, function of legal representative and name of company in the case of a joint tender], on the other part, Draft distribution contract page 1 of 24
HAVE AGREED the Special Conditions and the General Conditions below and the following Annexes: Annex I Tender Specifications (Introduction letter Technical specifications Administrative annex) Annex II Contractor's Tender (No [complete] of [complete]) which form an integral part of this contract (hereinafter referred to as the Contract ). The terms set out in the Special Conditions shall take precedence over those in the other parts of the Contract. The terms set out in the General Conditions shall take precedence over those in the Annexes. The terms set out in the Tender Specifications (Annex I) shall take precedence over the Tender (Annex II). Subject to the above, the several instruments forming part of the Contract are to be taken as mutually explanatory. Ambiguities or discrepancies within or between such parts shall be explained or rectified by a written instruction issued by the Commission, subject to the rights of the Contractor under Article I.11 should he dispute any such instruction. Draft distribution contract page 2 of 24
TABLE OF CONTENT I. SPECIAL CONDITIONS...4 I.1. Subject...4 I.2. Duration...4 I.3. Prices & discounts...5 I.4. Implementation of the contract...6 I.5. Guarantees...7 I.7-Bank account...8 I.8 - Obligations of the Commission...8 I.9-Transfer of risks/title and return of RMs & disposal of stocks...9 I.10-Use of logo's and trademarks...9 I.11- General administrative provisions...10 I.12-Applicable law and settlement of disputes...10 I.13-Data protection...11 I.14-Termination...12 II. GENERAL CONDITIONS...13 II.1. Performance of the contract...13 II.2. Liability...14 II.3. Conflict of interest and professional conflicting interests...14 II.4. General provisions concerning payments...15 II.5. Ownership of the results - Intellectual and Industrial Property...15 II.6. Confidentiality...15 II.7. Use, distribution and publication of information...16 II.8. Taxation...20 II.9. Force majeure...20 II.10. Subcontracting...21 II.11. Assignment...21 II.12. Termination by the Commission...21 II.14- Liquidated damages...23 II.15- Checks & audits...23 II.16-Amendements...24 II.17-Suspension of the contract...24 Draft distribution contract page 3 of 24
I. SPECIAL CONDITIONS I.1. Subject I.1.1 I.1.2 I.1.3 I.1.4 The Commission grants the Contractor the non-exclusive right to handle the marketing and distribution for sale of the Reference Materials (current materials as listed in Annex 2 to the technical specifications and which are hereinafter referred to as "the RMs") world-wide. Under this Contract, the Contractor is given the right by the Commission to sell the RMs in its own name to third parties, hereinafter called "the Purchasers". Once implementation of the Contract has commenced, the Contractor shall execute the tasks in accordance with all terms and conditions of the Contract. The Contract does not confer on the Contractor any exclusive right to provide the services described in Annex I to the Commission. I.2. Duration I.2.1 I.2.2 The contract enters into force on the date on which the last party signs it. The obligation to submit temperature and sales reports is waived until the consignment stock is established at the contractor. The performance of the contract cannot start before its entry into force. I.2.3 Distribution of reference materials under the contract must not exceed 120 months. Distribution of reference materials under the contract starts from 01/01/2020. The performance of the contract is divided into 2 phases. The contractor is authorised to continue the performance of the contract in the second phase only with a written consent of the contracting authority following: Acceptance of all the operations executed under phase 1 That notice, releasing explicitly phase 2, is given to the contractor by the contracting authority by registered letter or equivalent. Phase 1: Phase 2: Establishment of the technical requirements for storage and reporting, establishment of the consignment stock and any other related obligations: the execution of the tasks under this phase shall be completed before 31/12/2019. When all obligations are met, a letter of release of phase 2 will be sent by the contracting authority. Selling, reporting and any other related obligations: the duration of the tasks shall be 120 (hundred and twenty) months. The release of phase 2 shall start after receipt of the letter of the contracting authority releasing phase 2, but not before 1 January 2020. Draft distribution contract page 4 of 24
I.2.4 All time periods specified in the Contract are calculated in calendar days. Execution of the tasks shall start from the date of entry into force of the Contract. The period of execution of the tasks may be extended only with the express written agreement of the parties before such period elapses. I.3. Prices & discounts I.3.1. The prices of RMs as stated in Annex 2 to the technical specifications are the Commission's list prices for sales between the Commission and the Contractor subject to the provisions foreseen under clause I.3.3. hereinafter. The Contractor shall have the right to sell RMs to end-users at prices of his own discretion in order to be able to respond most effectively to developments in his market. I.3.2. For the first time 12 months after the commencement date and thereafter every subsequent period of 12 months, or more frequently, should circumstances so require, the Commission can review and, if deemed appropriate, set new list prices for the RMs and hence for the prices at which RMs are sold to the Contractor. These new prices shall become applicable in any case two months after they have been notified in a written form to the Contractor. Annex 2 to the technical specifications shall be modified accordingly through an exchange of letters signed by the competent representatives of the parties. If the Contractor cannot accept the new prices, he shall inform the Commission thereof in writing (letter, fax or e-mail) within 30 days after he received these new prices. In that case, the present Contract shall expire six months following the date of the Commission's written notification of new prices to the Contractor. With regard to the remaining stock, the provisions of Article I.8 hereafter apply. I.3.3. Two sorts of discounts will be applied on the list prices as given under clauses I.3.3.1 and I.3.3.2, one for materials sold from consignment stock and another one for all other sales: I.3.3.1. Discount for materials sold from consignment stock: Contractors can request consignment stocks of reference materials. Sales out of this stock give the right to a discount, based on the prices set by the Commission in Annex 2 to the technical specifications, that consists of a fixed part, subject to this procedure (see point 2.5.1.: "discount required" of the administrative annex) and a variable part reflecting the development of sales for each Contractor. The discount for each year is calculated as follows: discount = fixed + variable The fixed part is set at [percentage in figures and in words] Offers for the fixed part submitted by the Candidates will be valid for the complete duration of the Contract. Draft distribution contract page 5 of 24
The variable part is calculated as: variable = c 2 t c changes in the Contractor's sales (number of units) in % over the last year t change in the combined sales (number of units) of all Contractors in % over the last year This variable part is calculated each year after closing of the account of the previous year. The variable part is set equal to zero if the c < t. Total discount is capped at 40 %, regardless of the sales performance of a specific Contractor in any given year. For the first two years of the contract, no variable part can be applied. The discount will be the same for all Contractors for the first two years and will be set to [percentage in figures and words, filled in after evaluation of all offers by JRC-Geel], equal to the highest fixed discount of all awarded contracts. I.3.3.2. Discount for other sales by the Contractor: 10% of the list price, if due to insufficient stock of the Contractor, supplementary samples (below 250 units) have to be dispatched to the Contractor in addition to the regular, up to 4 yearly stock replenishments; for RMs, for which for technical reasons or due to limited availability, samples can only be dispatched directly to the purchaser by the Commission through the JRC-GEEL in Geel, Belgium. These materials are indicated in Annex 2 to the technical specifications. Said discount shall be understood to cover all expenditure incurred by the Contractor in the performance of its obligations under this Contract. I.4. Implementation of the contract The Contractor shall place orders for the RMs only in writing (letter, fax, e- mail) to: European Commission Joint Research Centre (JRC) Directorate F - Health, Consumers & Reference Materials Unit Retieseweg 111 B-2440 Geel Belgium Tel. +32-14-571 705 Fax +32-14-590 406 Email: jrc-rm-distribution@ec.europa.eu Draft distribution contract page 6 of 24
I.5. Guarantees I.5.1 The Contractor shall provide a guarantee from a financial institution ("The Guarantor") approved by the Commission to the amount of EUR 100.000,00, which will guarantee the correct performance by the Contractor of this Contract. The cost for providing such guarantee shall be borne by the Contractor. The financial institution or insurance company concerned shall guarantee the Commission's rights, being liable for the total amount of the guarantee. The Guarantor shall be liable and directly responsible towards the Commission. He permanently waives his right to require the Commission to take preventive action against the Contractor. The Guarantor will stand primarily and waive plea that the Commission shall have recourse against the principal debtor. Such guarantee shall be produced for the amount mentioned above and within 30 days following signature of the Contract by the Contractor. The Commission shall have the right to delay its signature of the Contract until the guarantee letter has been received. The guarantee shall specify that it comes into force at the moment at which the Contractor receives the stock of RMs from the Commission. The Commission shall release the Guarantor after the Contract has been cancelled, terminated or has expired, the remaining stock of RMs has been returned by the Contractor and received in good order by the Commission, and all other remaining obligations which the Contractor may have under this Contract have been fulfilled to the Commission's full satisfaction. I.6- Payments I.6.1. Invoicing of consignment stocks will be done on a monthly on the basis of samples sold or lost by the Contractor. Within 10 working days after the end of period concerned the Contractor shall inform the Commission, with regard to the RMs effectively sold or lost due to incorrect storage or storage or transport incidents during the period covered. The Contractor shall inform the Commission even if the number of the RMs effectively sold or lost, is equivalent to zero. I.6.2. The Commission shall then establish the corresponding invoice, which is to be paid by the Contractor, by bank transfer in euro (EUR) no later than 45 days from the date of the invoice from the Commission. Deliveries subject to the 10% discount will be invoiced immediately and will be paid by the Contractor, by bank transfer in euro (EUR) no later than 45 days from the date of the invoice from the Commission. I.6.3. The Contractor shall issue invoices to the Purchasers in its own name. Nonpayment or late payment by a Purchaser shall have no influence on the payment due to the Commission under clause I.6.2. I.6.4. The Contractor shall pay all taxes, withholdings, imposts, excises and charges that during the term of this Contract may be levied, imposed or charged by any legitimate authority having jurisdiction over the territories of the parties to this Contract. Draft distribution contract page 7 of 24
I.6.5. Pursuant to Articles 3 and 4 of the Protocol on the Privileges and Immunities of the European Union, the Commission is in respect of its financial interest in this Contract exempt from all duties and taxes, including value-added tax. I.7-Bank account Payments shall be made by the Contractor to the Commissions bank account denominated in euro, identified as follows: Name of bank: Address of branch in full: Country: Code SWIFT: IBAN: Name of beneficiary: Address of beneficiary: Country: ING LAAR 10 2400 MOL BELGIUM Belgium BIC SWIFT GEBABEBB BE13-3751-0172-9639 COMM.EUR.CCR/JRC-GEEL Retieseweg 111, 2440 Geel-Belgium BELGIUM I.8 - Obligations of the Commission I.8.1. The Commission shall at all time during the validity of the Contract observe and perform its terms and conditions and in particular shall: I.8.1.1.Supply RMs at least four times a year, provided no lower frequency is requested by the Contractor, at the dates agreed with each Contractor (see point 3.2 3 and following of the technical specifications). I.8.1.2.At all times use its best efforts to accept and execute at the agreed prices and against the agreed terms of purchase, the orders received from the Contractor for the RMs, subject to availability as determined solely by the Commission. The Commission reserves the right to limit quantities and to delay orders. I.8.1.3.Use its best efforts to advise the Contractor of any shortages or inability to supply RMs. I.8.1.4.Immediately advise the Contractor of the identity by RM number, RM name, and batch or lot number of any item being recalled and to accept for return at the Commission's expense any RM so identified; in this case the Commission will buy from the Contractor at the value invoiced, the RM samples being recalled. I.8.1.5.Provide the Contractor with copies of current and subsequent revisions of the Commission-prepared Safety Data Sheets in English (hereinafter named SDS) for the RMs and co-operate with the Contractor on the acquisition of data that may be required by the Commission for preparing the SDS. I.8.1.6.State the name and address of the Contractor in the JRC-GEEL Catalogue of non-nuclear reference materials, or equivalent catalogues that may be produced in the future by the Commission during the term of this Contract. I.8.1.7 Accept that the Contractors have the right, to inspect and determine the correctness of the Commission's bookkeeping that forms the basis of the determination of the variable part of the discount as specified in I.3.3.1 and its Draft distribution contract page 8 of 24
consistency with the general bookkeeping of the Contractor through a licensed auditor. The costs for such an audit shall be borne by the Contractor. I.9-Transfer of risks/title and return of RMs & disposal of stocks I.9.1 I.9.2 I.9.3 I.9.4 I.9.5 I.9.6 All items in this stock shall remain the property of the Commission until conclusion of a sales transaction between the Contractor and the Purchasers. Transfer of title on the RMs between the Commission and the Contractor shall take place the moment the Contractor delivers the RMs to the Purchasers. Therefore, the terms and conditions under which the Contractor operates his sales of RMs shall contain a clause to the effect that the RMs remains the property of the Commission until the RMs are delivered to the Purchasers. The RMs are supplied to the Contractor under Inco terms "Ex Works". The Contractor shall bear the full responsibility for customs clearance as well as loss or damage to the RMs. The Contractor shall assume full liability for the immediate reception and transfer of the RMs to its dedicated storage facilities. The unsold stocks of RMs stored at the premises of the Contractor may only be returned in accordance with the instructions of the Commission. Except for the cases mentioned in Article I.14, where return of stocks is governed by the last sentence of Article I.14.3, the cost of return of stocks is borne by the Contractor. The Commission has the right to call back materials from the Contractor's premises in the case of low stocks of a particular material to avoid creation of monopolies for the materials in question. In this case, samples will be distributed amongst JRC-GEEL and all Contractors on a "fair share" basis according to the sales of the materials in question in the last calendar year. In this case, samples shall be returned to JRC-GEEL under conditions set by the Commission and at expenses of the Commission. Unsold stocks of RMs remaining at the Contractor's premises at the expiry of the contract shall be returned to JRC-GEEL under conditions set by the Commission at the expenses of the Commission. The contractor must provide a detailed overview by article of the inventory at the end of each year. This list must be provided by 15th of the January of the consecutive year. The information must be provided in Excel-compatible format. I.10-Use of logo's and trademarks I.10.1 Neither party shall at any time now or hereafter, make or have any claim to each other's names, logo's, trademarks or the goodwill attaching thereto. I.10.2 The Contractor may present himself as "Authorised Distributor of JRC- GEEL/ERM/BCR/European Commission CRMs" in its commercial activities. Any use of the European Union flag, logos and trademarks are subject to the prior written approval of the Commission and shall be subject to conditions. Draft distribution contract page 9 of 24
I.11- General administrative provisions This Contract contains the entire understanding of the contracting parties concerning the subject matter hereof and shall not be modified except as provided for under Article II.16 of this Contract. Any notice or instrument required to be given by either party under the terms of this Contract or in connection with distribution settlement as provided for in Article I.12 shall be deemed to have been duly given or made if sent by registered letter or email with acknowledge of receipt addressed to the other party. Any communication relating to the Contract shall be made in writing and shall bear the Contract number. Ordinary mail shall be considered received by the Commission at the date it is registered by JRC-Geel. Notices and communications shall be in English and shall be sent to the following address: Commission: European Commission Directorate General JRC Joint Research Centre Finance & Procurement Department Retieseweg 111 B-2440 Geel For administrative issues please contact: JRC-GEEL-PROCUREMENT@ec.europa.eu For technical issues please contact: Thomas.Linsinger@ec.europa.eu For questions in relation to data protection, please contact: JRC-GEE-DATA-PROTECTION@ec.europa.eu Contractor: [Full name] [Function] [Company name] [Full official address] E-mail: [complete] For technical matters: [complete] For administrative matters: [complete] Please notice that the Commission will communicate only with the Contractor and not with its decentralized sales agencies. I.12-Applicable law and settlement of disputes I.12.1 The Contract shall be governed by Union law, complemented, where necessary, by the national substantive law of Belgium. Draft distribution contract page 10 of 24
I.12.2 Should any term or clause of this Contract be declared invalid, the remainder of the Contract shall remain in force as if the invalid terms had not been included. I.12.3 This Contract is binding upon and shall insure to the benefit of the parties hereto, their heirs, successors and assigns. I.12.4 Without prejudice to Article I.12.5., in the event that any dispute arises between the parties resulting from the interpretation or application of the Contract and the dispute is not resolved by negotiation, the parties may agree to submit the dispute to mediation. If any party to the dispute gives written notice to the other party of its desire to commence mediation, and the other party agrees in writing, the parties shall jointly appoint a mutually acceptable mediator within two weeks of the date of the said written agreement. If the parties are unable to agree upon the appointment of a mediator within that time period, any party may apply to the CEPANI (Belgian Centre for mediation and arbitration), for the appointment of a mediator. The mediator's written proposal or his written conclusion stating that no proposal can be made, shall be produced within two months of the date of the written agreement by the second party to commence mediation. The mediator's proposal or conclusion shall not be binding for the parties, who reserve the right to bring the dispute before the courts, as per Art. I.12.5. Within two weeks of the date of notification of the proposal by the mediator, the parties can conclude a written agreement, duly signed by all parties, based on the proposal. The parties further agree to share equally the costs of mediation by the mediator, which costs will not include any other costs incurred by a party in connection with the mediation. I.12.5 Any dispute between the parties resulting from the interpretation or application of the Contract which cannot be settled amicably shall be brought before the courts of Turnhout, Belgium. I.13-Data protection Any personal data included in the Contract shall be processed pursuant to Regulation (EU) 2016/679 and Regulation (EC) 2001/0045 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and applicable EU regulation.. The Parties may grant their personnel access only to data that is strictly necessary for implementing, managing and monitoring the Contract. The Parties must also ensure that any supply of personal data to any other Party is legitimate and compliant with EU and national laws. The Contractor and final customer shall have the right of access to his personal data and the right to rectify any such data that is inaccurate or incomplete. Should the Contractor or the final consumer have any queries concerning the processing of his personal data, he shall address them to director of the Health, Consumers & Reference Materials at JRC- Geel, Retieseweg 111, 2440 Geel, Belgium. The Contractor and the final consumer shall have right of recourse at any time to the European Data Protection Supervisor. Draft distribution contract page 11 of 24
I.14-Termination I.14.1 The Commission may terminate this Contract if its authorised research programme becomes incompatible with the execution of the present Contract. The intention to terminate the contract will be notified by sending a registered letter with acknowledge of receipt to the other party with six months written notice. I.14.2 In the event of serious failure by the Contractor, duly notified to the Contractor by the Commission, to fulfil any of his obligations under this Contract, or in case the number of sold unit/calendar year is below 500, the Commission shall have the right to terminate this Contract at any time by registered letter with acknowledge of receipt without formal prior notice or payment of any compensation whatsoever by the Commission. I.14.3 If, as a result of the implementation of clause I.14.2 above, remaining stocks of RMs have to be returned to the JRC-GEEL, this will be done by the Contractor, in full compliance with the Commission's instructions, at the expense and under the responsibility of the Contractor. In the case of termination under clause I.14.1, costs will be borne by the Commission. I.14.4 Without prejudice to any other rights or remedies which either party may have against the other for the breach or non-performance of any of the obligations contained in this Contract, either party shall have the right at any time to give notice in writing to the other to terminate this Contract forthwith in only the following events, and, in the event of such a termination occurring, the Contractor waives any right to post-termination compensation: If the Contractor enters into liquidation whether compulsorily or voluntarily other than for the purpose of amalgamation or reconstruction or compounds with its creditors or have a receiver appointed of all or any part of its assets or take or suffer any similar action in consequence of debt; If any governmental enactment or decree is made or passed which is deemed by either party in its absolute discretion to make it necessary or expedient to terminate this Contract; provided always that nothing in this article shall relieve either party of its obligations to observe the provisions of Article II.9 and any terms of payment hereof. I.14.5 The Contractor shall have the right to terminate this Contract under the conditions set out in clause I.3.2. I.14.6 In partial derogation of article II.12.1 (h), in case of merger or any other modification in the legal status of the Contractor, or in case that the Contractor is partly or wholly acquired by another company, especially in the case of mergers or acquisitions between the Contractor and another Contractor for the distribution of reference materials managed by the JRC, the Commission reserves the right to terminate this Contract by sending a formal prior notice one month before by registered letter with acknowledge of receipt without formal prior notice or payment of any compensation whatsoever by the Commission. Draft distribution contract page 12 of 24
II.1. Performance of the contract II. GENERAL CONDITIONS II.1.1 The Contractor shall perform the Contract to the highest professional standards. The Contractor shall have sole responsibility for complying with any legal obligations incumbent on him, notably those resulting from employment, tax and social legislation. II.1.2 The Contractor shall have sole responsibility for taking the necessary steps to obtain any permit or licence required for performance of the Contract under the laws and regulations in force at the place where the tasks assigned to him are to be executed. II.1.3 Without prejudice to Article II.3 any reference made to the Contractor s staff in the Contract shall relate exclusively to individuals involved in the performance of the Contract. II.1.4 The Contractor must ensure that any staff performing the Contract have the professional qualifications and experience required for the execution of the tasks assigned to him. II.1.5 The Contractor shall neither represent the Commission nor behave in any way that would give such an impression. The Contractor shall inform third parties that he does not belong to the European public service. II.1.6 The Contractor shall have sole responsibility for the staff who execute the tasks assigned to him. The Contractor shall make provision for the following employment or service relationships with his staff: staff executing the tasks assigned to the Contractor may not be given orders direct by the Commission; the Commission may not under any circumstances be considered to be the staff's employer and the said staff shall undertake not to invoke in respect of the Commission any right arising from the contractual relationship between the Commission and the Contractor. II.1.7 In the event of disruption resulting from the action of a member of the Contractor's staff working on Commission premises or in the event of the expertise of a member of the Contractor's staff failing to correspond to the profile required by the Contract, the Contractor shall replace him without delay. The Commission shall have the right to request the replacement of any such member of staff, stating its reasons for so doing. Replacement staff must have the necessary qualifications and be capable of performing the Contract under the same contractual conditions. The Contractor shall be responsible for any delay in the execution of the tasks assigned to him resulting from the replacement of staff in accordance with this Article. II.1.8 Should any unforeseen event, action or omission directly or indirectly hamper execution of the tasks, either partially or totally, the Contractor shall immediately and on his own initiative record it and report it to the Commission. The report shall include a description of the problem and an Draft distribution contract page 13 of 24
indication of the date on which it started and of the remedial action taken by the Contractor to ensure full compliance with his obligations under the Contract. II.1.9 Should the Contractor fail to perform his obligations under the Contract in accordance with the provisions laid down therein, the Commission may - without prejudice to its right to terminate the Contract - reduce or recover payments in proportion to the scale of the failure. II.2. Liability II.2.1 The Commission shall not be liable for damage sustained by the Contractor in performance of the Contract except in the event of wilful misconduct or gross negligence on the part of the Commission. This notwithstanding that nothing contained in this present Article relieves the Commission of its obligation to observe the provisions of Article I.8 hereof and any statutory rights and obligations. II.2.2 The Contractor shall be liable for any loss or damage caused by himself in performance of the Contract, including in the event of subcontracting under Article II.10. The Commission shall not be liable for any act or default on the part of the Contractor in performance of the Contract. II.2.3 The Contractor shall provide compensation in the event of any action, claim or proceeding brought against the Commission by a third party as a result of damage caused by the Contractor in performance of the Contract. II.2.4 In the event of any action brought by a third party against the Commission in connection with performance of the Contract, the Contractor shall assist the Commission. II.2.5 The Contractor shall take out insurance against risks and damage relating to performance of the Contract if required by the relevant applicable legislation. He shall take out supplementary insurance as reasonably required by standard practice in the industry. A copy of all the relevant insurance contracts shall be sent to the Contracting Authority should it so request. II.2.6 The Contractor shall assign to the Commission all credits against Purchasers or the covering funds of insurance under Article 3.1.20 of the technical specifications in case the funds available at the Contractor do not cover the Contractor's responsibility against the Commission. II.3. Conflict of interest and professional conflicting interests II.3.1 The contractor must take all the necessary measures to prevent any situation of conflict of interest or professional conflicting interest. II.3.2 The contractor must notify the Commission in writing as soon as possible of any situation that could constitute a conflict of interest or a professional conflicting interest during the performance of the contract. The contractor must immediately take action to rectify the situation. The Commission may do any of the following: (a) verify that the contractor s action is appropriate; Draft distribution contract page 14 of 24
(b) require the contractor to take further action within a specified deadline; II.3.3 The contractor must pass on all the relevant obligations in writing to: (a) (b) (c) its personnel; any natural person with the power to represent it or take decisions on its behalf; third parties involved in the performance of the contract, including subcontractors. The contractor must also ensure that the persons referred to above are not placed in a situation which could give rise to conflicts of interest.. II.4. General provisions concerning payments II.5.1 Payments shall be deemed to have been made on the date on which the Commission's account is credited. II.5.2 In the event of late payment the Commission shall be entitled to interest, provided the calculated interest exceeds EUR 200, within two months of receiving the payment. Interest shall be calculated at the rate applied by the European Central Bank to its most recent main refinancing operations ( the reference rate ) plus seven percentage points ( the margin ). The reference rate in force on the first day of the month in which the payment is due shall apply. Such interest rate is published in the C series of the Official Journal of the European Union. Interest shall be payable for the period elapsing from the calendar day following expiry of the time limit for payment up to the day of payment. II.5. Ownership of the results - Intellectual and Industrial Property Any results or rights thereon, including copyright and other intellectual or industrial property rights, obtained in performance of the Contract, shall be owned solely by the Commission, which may use, publish, assign or transfer them as it sees fit, without geographical or other limitation, except where industrial or intellectual property rights exist prior to the Contract being entered into or in the cases mentioned in article 3.1.15. of the technical specifications. II.6. Confidentiality II.6.1. The Commission and the contractor must treat with confidentiality any information or documents, in any format, disclosed in writing or orally relating to the performance of the contract and identified in writing as confidential. II.6.2 Each party must: (a) not use confidential information or documents for any purpose other than to perform its obligations under the contract without the prior written agreement of the other party; Draft distribution contract page 15 of 24
(b) (c) ensure the protection of such confidential information or documents with the same level of protection as its own confidential information and in any case with due diligence; not disclose, directly or indirectly, confidential information or documents to third parties without the prior written agreement of the other party. II.6.3 The confidentiality obligations set out in this Article are binding on the Commission and the contractor during the performance of the contract and for as long as the information or documents remain confidential unless: (a) (b) (c) the disclosing party agrees to release the receiving party from the confidentiality obligation earlier; the confidential information or documents become public through other means than a breach of the confidentiality obligation; the applicable law requires the disclosure of the confidential information or documents. II.6.4 The contractor must obtain from any natural person with the power to represent it or take decisions on its behalf, as well as from third parties involved in the performance of the contract, a commitment that they will comply with this Article. At the request of the Commission, the contractor must provide a document providing evidence of this commitment. II.7. Use, distribution and publication of information II.7.1 Licensing rights on pre-existing materials Unless provided otherwise in the special conditions, the Union does not acquire ownership of pre-existing rights under this contract. The contractor licenses the pre-existing rights on a royalty-free, non-exclusive and irrevocable basis to the Union, which may use the pre-existing materials for all the modes of exploitation set out in this contract. All pre-existing rights are licensed to the Union from the moment the results are delivered and approved by the Commission. The licensing of pre-existing rights to the Union under this contract covers all territories worldwide and is valid for the duration of intellectual property rights protection. The payment of the price as set out in the contract is deemed to also include any fees payable to the contractor in relation to the licensing of pre-existing rights to the Union, including for all forms of exploitation and of use of the results. Where performance of the contract requires that the contractor uses preexisting materials belonging to the Commission, the Commission may request that the contractor signs an adequate licence agreement. Such use by the contractor will not entail any transfer of rights to the contractor and is limited to the needs of this contract. II.7.2. Exclusive rights The Union acquires the following exclusive rights: Draft distribution contract page 16 of 24
(a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (i) reproduction: the right to authorise or prohibit direct or indirect, temporary or permanent reproduction of the results by any means (mechanical, digital or other) and in any form, in whole or in part; communication to the public: the exclusive right to authorise or prohibit any display, performance or communication to the public, by wire or wireless means, including the making available to the public of the results in such a way that members of the public may access them from a place and at a time individually chosen by them; this right also includes the communication and broadcasting by cable or by satellite; distribution: the exclusive right to authorise or prohibit any form of distribution of results or copies of the results to the public, by sale or otherwise; rental: the exclusive right to authorise or prohibit rental or lending of the results or of copies of the results; adaptation: the exclusive right to authorise or prohibit any modification of the results; translation: the exclusive right to authorise or prohibit any translation, adaptation, arrangement, creation of derivative works based on the results, and any other alteration of the results, subject to the respect of moral rights of authors, where applicable; where the results are or include a database: the exclusive right to authorise or prohibit the extraction of all or a substantial part of the contents of the database to another medium by any means or in any form; and the exclusive right to authorise or prohibit the re-utilization of all or a substantial part of the contents of the database by the distribution of copies, by renting, by on-line or other forms of transmission; where the results are or include a patentable subject-matter: the right to register them as a patent and to further exploit such patent to the fullest extent; where the results are or include logos or subject-matter which could be registered as a trademark: the right to register such logo or subject-matter as a trademark and to further exploit and use it; where the results are or include know-how: the right to use such know-how as is necessary to make use of the results to the full extent provided for by this contract, and the right to make it available to contractors or subcontractors acting on behalf of the Commission, subject to their signing of adequate confidentiality undertakings where necessary; where the results are documents: the right to authorise the reuse of the documents in conformity with the Commission Decision of 12 December 2011 on the reuse of Commission documents (2011/833/EU), to the extent it is applicable and the documents fall within its scope and are not excluded by any of its provisions; for the sake of this provision, reuse and document have the meaning given to it by this Decision; Draft distribution contract page 17 of 24
(ii) (l) (i) (ii) (m) the right to store and archive the results in line with the document management rules applicable to the Commission, including digitisation or converting the format for preservation or new use purposes; where the results are or incorporate software, including source code, object code and, where relevant, documentation, preparatory materials and manuals, in addition to the other rights mentioned in this Article: end-user rights, for all uses by the Union or by subcontractors which result from this contract and from the intention of the parties; the rights to decompile or disassemble the software; to the extent that the contractor may invoke moral rights, the right for the Commission, except where otherwise provided in this contract, to publish the results with or without mentioning the creator(s) name(s), and the right to decide when and whether the results may be disclosed and published. The contractor warrants that the exclusive rights and the modes of exploitation may be exercised by the Union on all parts of the results, be they created by the contractor or consisting of pre-existing materials. Where pre-existing materials are inserted in the results, the Commission may accept reasonable restrictions impacting on the above list, provided that the said materials are easily identifiable and separable from the rest, that they do not correspond to substantial elements of the results, and that, should the need arise, satisfactory replacement solutions exist, at no additional costs to the Commission. In such case, the contractor will have to clearly inform the Commission before making such choice and the Commission has the right to refuse it. II.7.3 Identification of pre-existing rights When delivering the results, the contractor must warrant that, for any use that the Commission may envisage within the limits set in this contract, the results and the pre-existing material incorporated in the results are free of claims from creators or from any third parties and all the necessary pre-existing rights have been obtained or licensed. To that effect, the contractor must establish a list of all pre-existing rights to the results of this contract or parts thereof, including identification of the rights owners. If there are no pre-existing rights to the results, the contractor must provide a declaration to that effect. The contractor must provide this list or declaration to the Commission together with the invoice for payment of the balance at the latest. II.7.4. Evidence of granting of pre-existing rights Upon request by the Commission, the contractor must provide evidence that it has the ownership or the right to use all the listed pre-existing rights, except for the rights owned or licensed by the Union. The Commission may request this evidence even after the end of this contract. This evidence may refer, for example, to rights to: parts of other documents, images, graphs, fonts, tables, data, software, technical inventions, know-how, IT development tools, routines, subroutines or other programs ( background Draft distribution contract page 18 of 24
technology ), concepts, designs, installations or pieces of art, data, source or background materials or any other parts of external origin. This evidence must include, as appropriate: (a) (b) (c) (d) (e) the name and version number of a software product; the full identification of the work and its author, developer, creator, translator, data entry person, graphic designer, publisher, editor, photographer, producer; a copy of the licence to use the product or of the agreement granting the relevant rights to the contractor or a reference to this licence; a copy of the agreement or extract from the employment contract granting the relevant rights to the contractor where parts of the results were created by its personnel; the text of the disclaimer notice if any. Provision of evidence does not release the contractor from its responsibilities if it is found that it does not hold the necessary rights, regardless of when and by whom this fact is revealed. The contractor also warrants that it possesses the relevant rights or powers to execute the transfer and that it has paid or has verified payment of all due fees including fees due to collecting societies, related to the final results. II.7.5. Quotation of works in the result In the result, the contractor must clearly point out all quotations of existing works. The complete reference should include as appropriate, the following: name of the author, title of the work, date and place of publication, date of creation, address of publication on the internet, number, volume and other information that allows the origin to be easily identified. II.7.6. Moral rights of creators By delivering the results, the contractor warrants that the creators will not object to the following on the basis of their moral rights under copyright: (a) (b) (c) that their names be mentioned or not mentioned when the results are presented to the public; that the results be divulged or not after they have been delivered in their final version to the Commission; that the results be adapted, provided that this is done in a manner which is not prejudicial to the creator s honour or reputation. If moral rights on parts of the results protected by copyright may exist, the contractor must obtain the consent of creators regarding the granting or waiver of the relevant moral rights in accordance with the applicable legal provisions and be ready to provide documentary evidence upon request. II.7.7. Image rights and sound recordings If natural persons appear in a result or their voice or any other private element is recorded in a recognisable manner, the contractor must obtain a statement by these persons (or, in the case of minors, by the persons exercising parental authority) giving their permission for the described use of their image, voice or Draft distribution contract page 19 of 24
private element and, on request, submit a copy of the permission to the Commission. The contractor must take the necessary measures to obtain such consent in accordance with the applicable legal provisions. II.7.8. Copyright notice for pre-existing rights When the contractor retains pre-existing rights on parts of the results, reference must be inserted to that effect when the result is used as set out in Article I.10.1, with the following disclaimer: year European Union. All rights reserved. Certain parts are licensed under conditions to the EU, or with any other equivalent disclaimer as the Commission may consider best appropriate, or as the parties may agree on a case-by-case basis. This does not apply where inserting such reference would be impossible, notably for practical reasons. II.7.9. Visibility of Union funding and disclaimer When making use of the results, the contractor must declare that they have been produced under a contract with the Union and that the opinions expressed are those of the contractor only and do not represent the Commission s official position. The Commission may waive this obligation in writing or provide the text of the disclaimer.. II.8. Taxation II.8.1 The Contractor shall have sole responsibility for compliance with the tax laws which apply to him. Failure to comply shall make the relevant invoices invalid. II.8.2 The Commission is exempt from all taxes and duties, including VAT, in accordance with Articles 3 and 4 of the Protocol on the privileges and immunities of the European Union. II.8.3 The contractor must complete the necessary formalities with the relevant authorities to ensure that the supplies and services required for performance of the contract are exempt from taxes and duties, including VAT. II.9. Force majeure II.9.1 Force majeure shall mean any unforeseeable and exceptional situation, or event beyond the control of the contracting parties, which prevents either of them from performing any of their obligations under the Contract that was not due to error or negligence on their part or on the part of a subcontractor, and could not have been avoided by the exercise of due diligence. Defects in equipment or material or delays in making it available, labour disputes, strikes or financial problems cannot be invoked as force majeure unless they stem directly from a relevant case of force majeure. II.9.2 If either contracting party is faced with force majeure, it shall notify the other party without delay by registered letter with acknowledgment of receipt or equivalent, stating the nature, likely duration and foreseeable effects. II.9.3 Neither contracting party shall be held in breach of its contractual obligations if it has been prevented from performing them by force majeure. Draft distribution contract page 20 of 24
II.9.4 The contracting parties shall take the necessary measures to reduce damage to a minimum. II.10. Subcontracting II.10.1 Sales through subsidiaries or decentralised sales agencies is authorised, provided the storage of the RMs takes place at the Contractor's central storage premises, which are controlled by the Commission and that their dispatch to the Purchasers is carried out from there under the direct control and responsibility of the Contractor. The use of more than one storage location is possible in exceptional cases upon explicit agreement of the JRC-GEEL. Each storage location has to fulfil all requirements given in this Contract and its Annexes. Communication with subsidiaries or decentralised sales agencies will be channelled through the Contractor to JRC-GEEL. II.10.2 The Contractor shall remain bound by his obligations to the Commission under the Contract and shall be solely responsible for the its performance. II.10.3 The Contractor shall make sure that subcontracting to subsidiaries or decentralised sales agencies does not affect the rights and guarantees under this Contract. II.11. Assignment II.11.1 The Contractor shall not assign the rights and obligations arising from the Contract, in whole or in part, without prior written authorisation from the Commission. II.11.2 In the absence of the authorisation referred to in 1 above, or in the event of failure to observe the terms thereof, assignment by the Contractor shall not be enforceable against and shall have no effect on the Commission. II.12. Termination by the Commission II.12.1 The Commission may terminate the Contract, in the following circumstances: (a) (b) (c) (d) where the Contractor is being wound up, is having his affairs administered by the courts, has entered into an arrangement with creditors, has suspended business activities, is the subject of proceedings concerning those matters, or is in any analogous situation arising from a similar procedure provided for in national legislation or regulations; where the Contractor has not fulfilled obligations relating to the payment of social security contributions or the payment of taxes in accordance with the legal provisions of the country in which he is established or with those of the country applicable to the Contract or those of the country where the Contract is to be performed; where the Commission has evidence or seriously suspects the Contractor or any related entity or person, of professional misconduct; where the Commission has evidence or seriously suspects the Contractor or any related entity or person, of fraud, corruption, involvement in a criminal Draft distribution contract page 21 of 24