Legal disclaimer of Use – MICRODIS Website!
• Partners in secure Access Area.
• Annex II – General Conditions.
• Consortium Agreement (Confidenciality).
• Intellectual Property Rights & Access Right.
• Publications, Press Releases & Reports to the Commission.
Information given in this website, www.microdis-eu.be, reflects the authors' views only. The Community is not liable for any use that may be made of the information contained therein.
All materials used from this website, www.microdis-eu.be, or from the MICRODIS project in general must have the following statements clear in the publication:
• Funding for this report/document/etc was made available by the European Commission under the Sixth Framework Programme – Contract number GOCE-CT-2007-0368771.
• Information given in this report/document/etc reflects the authors’ view only. The Community is not liable for any use that may be made of the information contained therein.
The following stipulations were taken from Annex II of the Contract or in the MICRODIS Consortium Agreement which has been signed by ALL partners involved in the MICRODIS Project. This Consortium Agreement was signed on 21/03/2007 under contract number 036877.
II.9 – Confidentiality (p. 12-13)
The Commission and the contractors undertake to preserve the confidentiality of any document, information, knowledge, pre-existing know-how or other material identified as confidential in relation to the execution of the project, or where such information was provided orally, it has been confirmed as such in writing within 30 days after disclosure. Where the contract provides for the communication of any data, knowledge, pre-exiting know-how or other document, the contractors and the Commission shall first satisfy themselves that the recipient will keep it confidential and use it only for the purpose for which it is communicated.
The confidentiality of any document, information or other material, the disclosure of which could harm, interfere with or otherwise limit the effective protection of their intellectual property rights, must be maintained during the life of the project. Unless other agreements are made between the contractors, this confidentiality must be maintained for the period in which use of any knowledge or pre-existing know-how is to be made available after the end of the project.
This obligation no longer applies where:
• the content of any of the document, information or material becomes publicly available through work or actions lawfully performed outside this contract and not based on activities under it, or
• the content of the document, information or material has been communicated without confidentiality restrictions or these are subsequently waived, or
• the information is lawfully received from a third party who is in lawful possession thereof and under no obligation of confidence to the disclosing party.
6. CONFIDENTIALITY (p.15-16)
During the term of the Project and for a period of five (5) years thereafter, the partners shall treat as confidential any information which is designated as proprietary by the disclosing partner by an appropriate stamp, legend or any other notice in writing, or when disclosed orally, has been identified as confidential at the time of disclosure and has been promptly (thirty (30) days at the latest) confirmed and designated in writing as confidential information by the disclosing partner.
Accordingly, each partner undertakes (in addition and without prejudice to any commitment under the Contract) that:
• the receiving partner shall not use any such information for any purpose other than in accordance with the terms of the Contract and this Consortium Agreement, and
• the receiving partner shall not disclose any such confidential information to any third party except with the disclosing partner’s prior written consent, and
• such information shall neither be copied, nor otherwise reproduced nor duplicated in whole or in part where such copying, reproduction or duplication have not been specifically authorised in writing by the disclosing partner.
The confidentiality obligation stipulated above shall not apply to information for which the receiving partner can prove that it:
• had a public nature prior to its communication by the disclosing partner or fell within the public domain after such communication but though not fault of its own;
• was already in its possession at the time of signature of this Consortium Agreement;
• is received from a third party without any breach of any secrecy obligation;
• is subsequently developed by or for the receiving partner independently of the confidential information received from the disclosing partner;
• had to be communicated to comply with applicable laws or regulations or with a court of administrative order provided that insofar as reasonably possible the receiving partner shall have informed the disclosing partner of such need and shall have complied with the disclosing partner’s reasonable instructions designed to protect the confidentiality of such information;
The partners shall Contractually impose the same obligations on all of their employees or any other person working for them who may have access to confidential information, to the maximum extent and for the maximum duration authorised by law, including upon the end or the termination of their employment.
The partners shall impose the same obligations on their subPartners, third parties contributing to the Project in accordance with article II-19-1-(e) of EC Contract or Members they represent if specified in a special clause n?23 inserted in the addendum of the Contract.
9.1 Intellectual Property Rights
9.1.1. General Principles.
Each partner is bound by the terms and conditions of the Contract Annex 2 II General Conditions – Part C entitled “Intellectual Property Rights” as hereby complemented or specified. Therefore, each partner is and remains the sole owner of its Intellectual Property Rights with respect to the pre-existing know-how generated by that partner.
9.1.2. Ownership and Protection of Knowledge.
Knowledge arising from work carried out under the project shall be the property of the partner(s) generating that knowledge.
Where several partners have jointly carried out work generating the knowledge and where their respective share of the work cannot be separated for the purpose of applying for, obtaining and/or maintaining the relevant patent right or other intellectual property rights, the partners concerned agree that they shall be co-owners and have joint ownership of such knowledge. They shall agree among themselves on a case-by-case basis on the allocation and the terms of exercising the ownership, protection, use, licensing and commercial exploitation of said knowledge and set up amongst themselves appropriate agreements to do so.
Unless otherwise agreed during the period any such right is in force, the partners that jointly own knowledge will all be entitled to use the jointly owned knowledge as they see fit for internal research purposes on a non-exclusive and non-transferable basis. However, the co-owners will only be entitled to use the jointly owned knowledge for commercial purposes upon economic conditions to be agreed upon by the co-owners and they shall not assign, license or otherwise grant any rights or interests in or under its interests in such jointly owned knowledge to any third party without the prior written consent of the other joint owner partners, which consent shall not be unreasonably withheld.
For the avoidance of doubt, joint ownership of an invention, design or work shall not affect the obligations arising under this Consortium Agreement or the Contract.
9.1.3. Transfer of Employees’ Rights.
In addition to the obligations pursuant to the Annex 2 II.32.3 of the Contract, each partner shall ensure that it can grant access rights and fulfil the obligations under the Contract and this Consortium Agreement notwithstanding any rights of its employees, or persons it engages to perform part of its allocated work, in the knowledge they create after the effective date of this Consortium Agreement.
9.1.4. Protection of Knowledge.
The partners shall make reasonable endeavours to protect the knowledge arising out of their performance of the project, according to their own policy and legitimate interest and in observance of their obligations under the Contract.
Each partner shall be entitled to protect its own knowledge under its own name and at its sole expense unless specifically agreed otherwise between the partners concerned. Such partner shall inform the other partners on a timely fashion and, where necessary, under appropriate non-disclosure agreement of any patent and other intellectual property rights.
Partners co-owning knowledge will act together to protect such jointly owned knowledge. A co-ownership agreement will be established on a case-by-case basis between those partners who share rights to knowledge to define the arrangement between them for applying for, obtaining and/or maintaining the relevant patent protection or any other intellectual property right.
If dissemination of knowledge does not adversely affect its protection or use and subject to legitimate interest(s), the partners shall ensure further dissemination of their own knowledge as provided under the Contract and this Consortium Agreement.
9.2 Access Rights
9.2.1. General Principles Relating to Access Rights.
All access rights granted in accordance with this Section shall be granted on a non-exclusive non-transferable basis and expressly exclude any rights to sub-license and, safe in exceptional circumstances shall be made free of any transfer costs.
Access rights shall only be granted upon written request stating the extent of the access rights needed and the reasons for such need. Knowledge and pre-existing know-how shall be used only for the purposes for which access rights to it have been granted and only for so long as is necessary for those purposes.
Upon request of the partner granting access rights and without prejudice to the Contract provisions, a bilateral agreement will be concluded between the partners to specify the conditions of such access rights but not restricting the rights set forth in the Contract nor in the Consortium Agreement. The provisions of any such agreement shall ensure that the potential access rights of the other partners are maintained.
In relation to the grant of access rights "needed" or "need" shall mean that, without the grant of such access rights:
a) in the case of access rights granted for the execution of the project, carrying out the tasks assigned to the recipient partner would be impossible, significantly delayed, or require significant additional financial or human resources.
b) in the case of access rights granted for use, the use of a defined and material element of the recipient partner’s own knowledge would be technically or legally impossible.
The burden of proof in relation to a claimed need for access rights shall be on the receiving partner. This receiving partner shall provide such proof to the granting partner within thirty (30) days of receipt of a written request. During a period of dispute between partners over the need for access rights, such access rights will not be deemed to be granted to the receiving partner.
Any grant of access rights not covered by this Section shall be at the absolute discretion of the owning partner and subject to such terms and conditions as may be agreed between the owning and receiving partners.
In the event of a dispute between partners with respect to the need for access rights for execution of the project or use of own knowledge, the partners concerned shall, as a first instance, take the matter to the Project Steering Committee who shall try and mediate between the partners concerned. A member of the Project Steering Committee who is associated with any of the partners in dispute shall not participate in its deliberations or vote on its decision. In the event the partners concerned are not satisfied with the solution suggested by the Project Steering Committee, they can take the matter to arbitration as provided for in Section 16 of this Consortium Agreement.
If this Consortium Agreement has already been terminated and the Project Steering Committee has been dissolved, the partners shall have recourse to the settlement of disputes procedures provided in Section 16 of this Consortium Agreement.
Unless explicitly agreed on a case-by-case basis by the partner or partners owning the knowledge and/or the pre-existing know-how, access rights shall not be granted to third parties, nor included in the right to grant sub-licenses.
span class="Font_006">9.2.2. Exclusion of Access Rights to Pre-Existing Know-How.
In accordance with the Contract, Annex 2 II.35.1.d, each partner has the right to exclude specific pre-existing know-how from the other partners’ access, as far as the restrictions are announced as described hereinafter before the signature of the Contract or before the effective joining of a new partner or if acquired parallel to the project.
In the event that a new partner is admitted to the project, any other partner may exclude access to pre-existing know-how only to such new partner.
The procedure for the exclusion of access rights to pre-existing know-how is:
• The owning partner shall first notify the Project Steering Committee (through the Project Manager) in writing about the type and scope of their pre-existing know-how for which exclusion from other partners’ access is requested.
• The Project Steering Committee will inform the other partners about such requests.
• The exclusion from access to pre-existing know-how will become effective in accordance with the Contract, Annex 2 II.35, subject to the written contradiction of the other partners to be substantiated in accordance with the Contract, Annex 2 II.35.
• Pre-Existing know-how excluded from access at any time or any modification thereof will be listed in Annex C and become part of this Consortium Agreement.
9.2.3. Access Rights Needed for the Execution of the Project.
Access rights to knowledge and pre-existing know-how needed for the execution of the project shall be granted on a royalty-free basis following written request from the requesting partner, specifying the scope and duration of their application.
9.2.4. Access Rights Needed for Use of Own Knowledge.
Access rights to pre-existing know-how needed for use of own knowledge shall be granted on fair and non-discriminatory market conditions subject to a separate agreement between the partners concerned, unless decided otherwise by the partner owning the pre-existing know-how and/or unless granted for use purposes defined under paragraph (2) hereunder.
Access rights to pre-existing know-how needed for use of own knowledge in non commercial research that enters into the scope/purpose of the project shall be granted on royalty-free conditions subject to a separate agreement between the partners concerned.
Unless granted for use purposes defined in the paragraph hereunder, access rights to knowledge needed for use of own knowledge is made conditional on the conclusion of separate agreements and shall be granted on preferential conditions to be agreed between the partners concerned.
Access rights needed for use of own knowledge for teaching and/or for non commercial research shall be granted on royalty-free conditions. Access rights to knowledge needed for use of own knowledge for the purpose of carrying out non commercial research in collaboration with and/or for a third party shall be granted on royalty-free conditions, provided the research carried out enters into the scope/purpose of the project and this Consortium Agreement and provided that the third party does not have direct access to confidential knowledge from the project generated by other partners.
The granting of access rights needed for use shall be made conditional on to the following principles:
a) the access is limited to the field of research of the project. Outside this identified area, access may be granted on market conditions only and at the absolute discretion of the proprietor.
b) access has to be granted within six (6) months after written request by the potential user to the owning partner unless such access would not be in accordance with the legitimate interests of the owning partner. It is agreed that existing Contractual obligations of a partner with a third party(s) relating to pre-existing know-how constitute a legitimate interest.
In accordance with the Contract, Annex 2 II.35.3(b), access rights can be requested until two (2) years after completion of the project or in case of prior termination of a certain partner after the time of leaving of such partner.
9.2.5. Inability to Grant Access Rights Due to Third Party Rights.
It is understood that each of the partners may have ongoing research activities in the field as set forth in Annex I of the Contract, that are subject to third party obligations, such as, but not limited to grants funded by governmental agencies, Contracts with private companies, and material transfer agreements governing the use of third party proprietary materials in the project.
When due to the existence of third party rights a partner is unable to grant access rights which it reasonably believes that another partner will require, it will promptly notify such other partner and in particular where possible shall do so before submission of the proposal to the Commission or entering into the Contract. In the event of conflict between the terms of the Consortium Agreement and those obligations, the obligations undertaken by the partners prior to this agreement shall take precedence.
9.2.6. Access Rights to Third Parties.
Notwithstanding the provisions of Section 9 of this Consortium Agreement and the provisions as set out in Annex 2 II.35 of the Contract, each partner may enter into a technical co-operation or licensing arrangement with a third party in respect of its own knowledge even if there are minor amounts of knowledge owned by another partner, or even pre-existing know-how (associated with that other partner’s knowledge), unavoidably incorporated into or amalgamated with such own knowledge. In such circumstances and upon request of the partner entering the co-operation or arrangement, the other partner shall grant non-exclusive rights to permit such cooperation or arrangement against terms and conditions to be agreed, provided that no legitimate interest of the other partner opposes the grant of such rights.
9.2.7. Access Rights for Partners Joining and Leaving the Project.
Partners joining the project after the date of the Contract will be granted the access rights as provided for in Sections 9 hereof as from the date of their signature of the Declaration of Accession or of their accession to the Contract, whichever shall be the later upon written request stating the need for such access rights.
For Partners leaving the project in accordance with the provisions of Section 13 hereof the following will apply:
a) With the exception of the cases where the participation of a partner is terminated by reason of default, the access rights accrued up to the date of termination and the obligations to grant access rights pursuant to the Contract and this Consortium Agreement shall continue to be in full force and effect.
b) Defaulting partners are obliged to continue to grant access rights pursuant to the Contract and this Consortium Agreement, but the access rights granted to the defaulting partner pursuant to this Consortium Agreement shall cease immediately upon termination of the participation of the defaulting partner in the Contract.
c) Any partner leaving voluntarily from the project has access rights to knowledge that exists at the date of their membership expiration of the consortium and is needed to use their own knowledge. Unless otherwise agreed by the providing partner, the granting of such access rights shall be for a period of two (2) years from the date of the leaving partner’s membership expiration and subject to conclusion of a bilateral agreement with the providing partner.
10.1 General Principles
It is understood that any publications or communication made pursuant to this Section is required to indicate the contribution made by each of the partners in the project. All written or oral public disclosures will acknowledge the Project and acknowledge that the Project received funding from the Commission’s Sixth Framework Programme.
Nothing in this Consortium Agreement shall be construed as conferring rights to use in advertising, publicity, or otherwise, the name of the partners or any of their marks or logos, without their prior written approval.
All publications will expressly reflect that they have been developed within the project and will include a disclaimer saying: “This publication is an output of MICRODIS, a research project supported by the European Commission’s Sixth Framework Programme”.
10.2 Publications of Own Knowledge
For the avoidance of doubt, each partner shall have the right to publish or allow the publishing of data which constitutes such partner’s knowledge, pre-existing know-how or Confidential Information it owns in accordance with the Contract, Annex 2 II.33.3. For the avoidance of doubt, no partner shall have the right to publish or allow the publishing of data which constitutes another partner’s knowledge, pre-existing know-how or confidential information, unless approved by that partner prior to publication.
10.3 Other Publications
Any publication or communication incorporating another partner’s knowledge, pre-existing know-how or confidential information, whether written or oral, is required to have obtained the consent of the partners concerned. To this end, the partner or partners wishing to make a publication will provide a copy of the abstract of the publication manuscript and a reasonably detailed description of any oral presentation to the other partners and the Commission via the Coordinator at the earliest practicable time, but in any event within at least thirty (30) days prior to any proposed submission for publication of any manuscript or any presentation or other public disclosure date.
Each partner is entitled to request that its confidential information shall be deleted from such publication or communication. Each partner may also object to the publication within a period of twenty (20) days from receipt of the proposed publication, if they consider that the protection of their knowledge would be adversely affected. In such case, the partners agree to delay the publication up to a maximum of sixty (60) days after objection to allow for protection.
If none of the partners object to the publication within one (1) calendar month from the date of referral, consent shall be deemed to be given.
The Project Steering Committee shall try a prior settlement of the disputes on the matters provided by this Section. However, none of the partners concerned may withhold its consent to publication or communication upon the expiry of a period of four (4) calendar months following the first submission of the proposed publication or communication.
10.4 Disclaimer and Marking of Confidential Information Provided to the Commission
In addition to Annex 2 II.12 of the Contract,
a) All information provided to the Commission, publications and press releases, shall have a disclaimer saying “The information in this document is provided as is and no guarantee or warranty is given that the information is fit for any particular purpose. The user thereof uses the information at its sole risk and liability.”
b) Confidential information provided to the Commission will be marked stating the information is confidential and may be used only for information purposes by Community Institutions to whom the Commission has supplied it.
10.5 Publication to Qualify for a Degree
Where a person carrying out work on the project on behalf of a partner (the “Relevant partner”) needs to include pre-existing know-how or knowledge of another partner in a publication to qualify for a degree, dissertation or thesis, approval for use shall be obtained from the appropriate partner owning such rights or affected by the use in accordance with the provisions of Annex 2 II.12 of the Contract, such approval not to be unreasonably withheld.
To ensure that the planned date of publication can be met the approval of the relevance parties shall be sought at least three (3) months before the latest date on which (pursuant to the qualification procedures) the contents of the planned publication can be altered. The partners agree to cooperate to allow the timely submission, examination, publication and defence of any dissertation or thesis for a degree, which includes their knowledge and/or pre-existing know-how. The partners undertake to cooperate to resolve disputes as to the contents of such publications in order to ensure timely release of the publication.