Complementary to Article 4 of the arrangement the General Conditions applicable
to all PECS Experiment Arrangements are included in their original version hereafter
(therefore, the word “contract(s)” and “contractor(s)”
are to be read “arrangement(s)” and “institute(s)” respectively
in the following provisions) :
PART I OF THE GENERAL CONDITIONS :
CLAUSE 1 - APPLICABLE CLAUSES AND RULES
The following general clauses and conditions shall apply to contracts placed
by the Agency insofar as not stated otherwise in the relevant contract. Furthermore,
specific clauses and conditions may be set out or invoked in a contract and
its annexes. The annexes form an integral part of the contract.
CLAUSE 2 - APPROVAL
Offers and acceptances with regard to contracts are not binding on the Agency
unless approved in writing by its Director General or his authorised representative.
Unless otherwise stated in the contract the date of such approval shall be the
commencing date of the contract.
CLAUSE 4 - ORIGINALS OF THE CONTRACTS
The number of originals of a contract shall be equal to the number of parties
to the contract and this number shall be stated in the contract. These originals
are intended for the parties to the contract.
CLAUSE 5 - AGENCY'S REPRESENTATIVES - INSPECTIONS
The Agency shall have the right to check the technical performance of the contract,
and for this purpose, and for the general purpose of collaboration, the Agency
shall nominate a representative(s) whose name(s) shall be notified in writing
to the Contractor. Any information made available by the Contractor to such
representative(s) shall be regarded as commercially confidential.
The Contractor shall, in this respect, and in accordance with any relevant
security regulations, give the representative(s) of the Agency access to his
premises and shall give all other necessary assistance in order that he (they)
may fulfil his (their) task.
CLAUSE 7 - COMMUNICATIONS
All communications affecting the terms and conditions of the contract and concerning
its execution shall be made or confirmed in writing.
CLAUSE 12 - APPLICABLE LAW
The law governing the contract shall be specified in the contract itself.
CLAUSE 13 - ARBITRATION
13.1 Any dispute arising out of the interpretation or execution
of the contract shall, at the request of either party, be submitted to arbitration.
13.2 The contract shall specify the country where the Arbitration
Tribunal shall sit; normally the Arbitration Tribunal shall have its seat in
the country where the Contractor has his legal seat or where the contract is
to be executed.
13.3 If no other arbitration is foreseen in the contract,
any dispute arising out of the contract shall be finally settled in accordance
with the Rules of Conciliation and Arbitration of the International Chamber
of Commerce by one or more arbitrators designated in conformity with those rules.
13.4 When arbitration other than in accordance with the Rules
of Conciliation and Arbitration of the International Chamber of Commerce is
provided for in the contract, the procedure of the Arbitration Tribunal shall
be that of the country mentioned in subclause 13.2.
13.5 The award shall be final and binding on the parties;
no appeal shall lie against it. The enforcement of the award shall be governed
by the rules of procedure in force in the state / country in which it is to
CLAUSE 14 - INFRINGEMENTS OF THE LAW
The Agency shall not be responsible if the Contractor infringes the laws or
statutes of his country or of any other country whatsoever.
CLAUSE 15 - INFRINGEMENTS OF THIRD-PARTY RIGHTS
15.1 Unless otherwise stipulated in Part II of this document,
the Contractor shall indemnify the Agency from and against all claims, proceedings,
damages, costs and expenses arising from the infringement of patent rights and
intellectual property rights of third-parties with respect to the subject of
the contract - excluding any infringement resulting from the use of documents,
patterns, drawings or goods supplied by the Agency - which may be made, or brought
against the Agency, or to which the Agency may be put by reason of such infringement
or alleged infringement.
15.2 The Agency shall notify the Contractor immediately of
any written claim or notice of infringement of third-party rights which it received
concerning the contract.
The Contractor shall immediately take all necessary steps within his competence
to prevent or end a dispute and shall assist the Agency to defend against, or
make settlement in respect of, any claim or notice of infringement or suit for
infringement. Written claims or notices of infringement of third-party rights
will be accepted or met by the Agency only in agreement with the Contractor.
15.3 The parties shall notify each other of any known intellectual
property rights connected with the use of documents, patterns, drawings and
goods supplied by the one party to the other or connected with the execution
of the specifications laid down by the other party.
CLAUSE 21 - FINAL SETTLEMENT
21.1 The Contractor shall be allowed to claim final settlement
when all his obligations under the contract have been fulfilled. For the application
of this clause, these obligations shall not include those of guarantee. The
Contractor shall, in addition, certify whether or not any inventions as defined
in Part II hereof, were made in the course of the contract.
He shall submit a final statement in five copies.
If the contract provides for several batches of settlement, each batch is to
be paid and settled separately.
21.2 The Contractor shall supply the Agency with all documents
specified in Annex I and necessary for payment, without explicit request by
21.3 Unless otherwise provided for in the contract, a period
of one month shall be granted to the Agency for the execution of the final payment.
This period shall begin on a date to be stated in the contract.
21.4 Whenever any sum of money shall be recoverable from,
or payable to, the parties, the sum may be deducted from the sum due, or thereafter
becoming due, to the parties under any other contract between the parties.
CLAUSE 34 - CANCELLATION IN SPECIAL CASES
Contrary to all other General Conditions listed in this Appendix 4, Clause
34 as such is not applicable; certain situations described therein however do
have the consequences laid down in Article 6 of the contract. Therefore the
text of Clause 34.1 is repeated hereafter for convenience :
34.1 The Agency may at any time cancel the contract by giving
written notice with immediate effect in any of the following events:
a) if the Contractor becomes insolvent or if his financial position is such
that within the framework of his national law, legal action leading towards
bankruptcy may be taken against him by his creditors;
b) if the Contractor resorts to fraudulent practices in connection with the
contract, especially by deceit concerning the nature, quality or quantity of
the supplies, and the methods or processes of manufacture employed or by the
giving or offering of gifts or remuneration for the purpose of bribery to any
person in the employ of a Member State or of the Agency or acting on its behalf,
irrespective of whether such bribes or remuneration are made on the initiative
of the Contractor or otherwise.
PART II OF THE GENERAL CONDITIONS (CLAUSES 36, 37 and 38) :
Unless otherwise agreed with all parties to arrangements concluded
for the purpose of “co-operative activities” as planned in the PECS
Charter and provided that appropriate provisions are then included in the special
conditions of the arrangement in question (Article 4, Clauses 37 & 38),
the following general provisions 36 & 38 shall apply.
CLAUSE 36 - GENERAL RULE AND DEFINITIONS
36.1 General Rule
Contracts to which the special conditions of this Part II apply shall also
be governed by the provisions of Part I insofar as the provisions of Part II
are not in contradiction.
A State which is party to the Convention of the European Space Agency.
A Member State having subscribed a Declaration on an Optional Programme.
For the purposes of these Special Conditions Member States and Participating
States shall be deemed to include persons and bodies under their jurisdiction.
The extent to which these Special Conditions shall apply to a non-Member State
when becoming a Participating State or Associated Member State shall be detailed
in the relevant agreement concluded between the Agency and the State concerned.
Agency's own requirements:
Activities and programmes undertaken by the Agency according to Articles V.1.a
and V.1.b of the Convention
This expression shall be deemed to include any other industrial property right
for which application is required such as registered designs and utility models
but not trade marks.
Any recorded information which can be protected by patent in accordance with
Any recorded information not developed under or resulting from a contract with
Software required for essential spacecraft check-out or space operation purposes
and which has been developed with a fundamental intellectual contribution by
the Agency's staff (the development, operation and maintenance of this software
will normally be performed under contract to the Agency at its facilities and
under its technical supervision and responsibility).
CLAUSE 37 - PATENTS AND OTHER FORMS OF LEGAL PROTECTION FOR WHICH APPLICATION
37.1 The Contractor shall be the owner of any invention made
in the course of or resulting from work undertaken for the purpose of the contract
and shall be entitled to protect such invention by patent or other form of industrial
property right in accordance with applicable laws.
37.2 In the event of a patent obtained by the Contractor in
respect of any invention made in the course of or resulting from work undertaken
for the purpose of the contract the Agency and the Member States (or Participating
States) shall be entitled to a free of charge, non-exclusive, irrevocable licence
to use the invention for their own requirements in the field of space research
and technology and their space applications and shall be allowed to grant sub-licences
for these purposes within the territory of the Member States (or Participating
States). The Agency shall supply to the Contractor a list of the sub-licences
it has granted.
37.3 The following provisions shall apply in the case of any
invention made in the course of or resulting from work undertaken by the Contractor
or any third party employed by him, whether under sub-contract or otherwise,
for the purpose of the contract;
a) In order to allow the Contractor to file an application for patent the Agency,
on request of the Contractor, shall defer the dissemination of any information
relevant to the application for not more than six months from the date that
the information was communicated to it.
b) The Contractor shall within two months of the filing of his application
notify the Agency of the patent office or offices where the application has
been filed, the application number, the filing date, the inventor's and the
applicant's name(s), the reference number of the relevant contract and, subject
to applicable laws, shall supply it with a copy of the description and drawings
filed with the application.
Within nine months following the initial filing the Contractor shall, in addition,
provide the Agency with a list of any other countries in which he has filed
or intends to file corresponding applications for patent.
c) Except with the agreement of the Contractor the Agency shall not disclose
any information related to the patent application as long as the patent, or
the application for it, has not been officially published, this restriction
being limited to a period of 18 months following the filing of the application.
However, the Agency shall have the right to make use or have made use of the
information free of charge for its own requirements in the field of space research
and technology and their space applications subject to conditions which do not
jeopardise the patent application.
d) If the Contractor does not wish to apply for a patent or intends to abandon
a patent or patent application he shall without delay notify the Agency and
shall, on request, transfer his rights free of charge to the Agency who may
take action in his stead. The provisions stipulated above in paragraphs a) and
c) first sentence shall, in such event, apply mutatis mutandis to the Contractor.
The Agency shall, furthermore, be entitled to file applications for a patent
in any country in which the Contractor himself does not wish to apply for such
In respect of any patent secured by the Agency under the terms of this paragraph
the Contractor shall be entitled to a free of charge, non-exclusive, irrevocable
licence, without the right to grant sub-licences in addition to those which
he may have granted already.
CLAUSE 38 - PROTECTION OF INFORMATION OTHER THAN THROUGH PATENT; COPYRIGHT,
PROTECTION OF BACKGROUND INFORMATION, PROTECTION OF COMPUTER SOFTWARE
38.1.1 The Contractor shall furnish the Agency with comprehensive
information in documentary or other appropriate form giving full details concerning
the work performed for the purpose of the contract and the results achieved.
Information, for the purposes of Clause 38.1, is defined as any recorded technical
result provided in order to meet the objectives of the contract, e.g. documentation,
know-how, detailed drawings and designs, etc. but excluding computer software.
38.1.2 The Contractor shall be the owner of any information
generated in the course of or resulting from work undertaken for the purpose
of the contract and shall be entitled to protect such information by copyright
in accordance with applicable laws.
38.1.3 Notwithstanding the copyright of the Contractor, and
with due respect to the existence of any rights of third parties arising otherwise
than from work performed for the purpose of the contract, the Agency and the
Member States (or Participating States) shall be entitled to a free of charge,
non-exclusive, irrevocable right to use, copy and disseminate the information
for their own requirements in the field of space research and technology and
their space applications.
Information produced under the contract shall, consequently, not contain any
copyright statements restricting the rights of the Agency or the Member States
(or Participating States) under this paragraph. Where the contract requires
a specific form of copyright statement, this shall be used.
38.1.4 The Contractor may, nevertheless, request the Agency
to accept a more restrictive dissemination and use of the information than that
to which it would be entitled by virtue of paragraph 1.3 above. The Agency has
the right to refuse such request if the information concerned is the result
of work performed for the purpose of the contract. If the information, however,
is of a proprietary nature and not the result of an Agency contract, or if the
dissemination of the information would prejudice the justified interests of
the Contractor, the Agency shall accept a restriction of the dissemination.
38.1.5 In regard to information the dissemination of which
it is agreed under paragraph 1.4 should be restricted, the right of the Agency
to disseminate and use such information shall, except if otherwise agreed, be
a) to the extent required to achieve the purpose of the contract, including
integration, operation, testing or maintenance of any equipment or software
to be studied, designed or developed under the contract,
b) to the extent required for the exercise by the Agency itself of any reproduction
right provided for by the contract.
38.1.6 When disseminating any information under the provisions
of paragraph 1.5, the Agency shall ensure that it is used only for the purpose
of the contract and that it is not disseminated to third parties without securing
written undertakings in advance protecting the information against any unauthorised
use and further dissemination.
38.2 Protection of Background Information
Prior to any contract being placed the Contractor shall inform the Agency of
the existence of any background information or inventions which do not result
from an Agency contract and which he intends to use for the purpose of the contract.
Except if otherwise agreed the Agency's right to disseminate and use such information
shall be subject to the provisions of paragraphs 1.5 and 1.6 above.
If the Contractor in the course of the contract provides any further background
information necessary to achieve the purpose of the contract and has immediately
notified the Agency thereof, this shall not affect any rights which the Contractor
may have with respect to such information provided he can demonstrate that such
information was not the result of an Agency contract. The rights of the Agency
in respect of such additional background information shall be as described in
paragraphs 1.5 and 1.6 above.
38.3 Protection of Computer Software
38.3.1 The right to apply for and enjoy legal protection in
accordance with applicable laws in respect of computer software developed in
the course of or resulting from work undertaken for the purpose of the contract
shall belong to the Contractor.
38.3.2 Notwithstanding any legal protection obtained by the
Contractor, the Agency and the Member states (or Participating States) shall
be entitled to a free of charge, non-exclusive, irrevocable right to use and
copy the software for their own requirements in the field of space research
and technology and their space applications and shall be allowed to grant sub-licences
for these purposes within the territory of the Member States (or Participating
States). The Agency shall, in addition, have the right to modify the software
for the purposes described above. A copy of the modified software shall be made
available free of charge to the Contractor. The above rights shall be subject
to the provisions of Clauses 38.1.4, 38.1.5 and 38.1.6 above.
38.3.3 In the specific case of "operational software"
as defined in Clause 36.2 above, the Agency may in the conditions of contract
reserve to itself ownership of intellectual property rights. In such case the
Contractor shall however be entitled to a right of use of the software, this
right being subject to the provisions of the clause entitled "Royalties".
ANNEX I TO THE GENERAL CONDITIONS
CLAUSE 9 - LIMITATION OF LIABILITY
9.1 The limit of liability is an amount to be stated in the
contract, which shall be the maximum amount to which the Agency is committed
and which can only be increased by a written agreement of the Agency.
9.2 If at any time the Contractor has reason to believe that
the commitments which he will incur in the performance of the contract in the
next succeeding sixty (60) days, when added to all costs previously incurred,
will exceed seventy-five percent (75%) of the limit of liability, the Contractor
shall notify the Agency in writing to that effect, giving the revised estimate
of the total cost.
9.3 The Agency shall not be obliged to reimburse the Contractor
for costs incurred in excess of the limit of liability and the Contractor shall
not be obliged to continue performance under the contract or to incur costs
in excess of the limit of liability, unless and until the Agency shall have
notified the Contractor in writing that such limit has been increased up to
a revised amount. Any costs incurred by the Contractor in excess of such limit
prior to the approval of the increase shall be allowable to the same extent
as if such costs had been incurred after the increase.
CLAUSE 10 - RIGHT TO AUDIT
The Agency reserves the right to audit, either itself or through an authorised
representative, the claim of the Contractor, for cost incurred in the execution
of any cost-reimbursement type contract or any contract with ceiling price to
be converted into a fixed price which according to the provisions of Clause
3.4 is to be treated as a cost reimbursement contract.