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The NEARESTThe NEARESTConsortium AgreementConsortium Agreement

Nearest Kick-off meetingNearest Kick-off meeting

Bologna, 11 October 2006Bologna, 11 October 2006

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What is the Consortium Agreement (CA)What is the Consortium Agreement (CA)

The CA is an agreement made between the project partners (the Contractors) to cover any aspect necessary for a smooth consortium management and an effective implementation of the project, including intellectual property provision.

The CA must comply with the rules of the EC Contract

The EC is not a party to the CA and plays no active role in the choices made by the Parties of the clauses they deem appropriate to the purpose of their collaboration and interests

The conclusion of a CA is mandatory under the FP6 (with few exceptions)

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Purpose of the NEAREST CA Purpose of the NEAREST CA

The purpose of this Consortium Agreement is to facilitate the fulfilment of the research work and related services and activities allocated to the Parties under the Contract (and as described in more detail in Contract, Annex I) by setting forth the terms and conditions pursuant to which the Parties agreed to function and cooperate in the performance of their respective tasks under the Contract.

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Main Contents of the CAMain Contents of the CA

• Purpose, nature and duration of the agreement

• Management Structure

• Responsibilities and Authority

• Financial and payment provision

• Confidentiality clauses

• Liabilities clauses

• Intellectual Property Rights

• Publication, press release

• Accession and Termination

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Management StructureManagement Structure

Steering Commettee

Coordinator

Advisory Board

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Steering CommitteeSteering Committee

Steering Committee is the supervisory body for the project execution and decision making body in all relevant project matters The Steering Committee shall be responsible for:

(a) supporting the Co-ordinator in fulfilling obligations towards the Commission,

(b) co-ordinating the research teams, allocating specific responsibilities for each project tasks execution, so that all work meets functional requirements,

(c) decide in disputes between the Parties concerning Intellectual Property Rights,

(d) providing Project management in relation to the activities of the Advisory Board on technical, and/or exploitation/ dissemination issues, as applicable,

(e) agreeing on press releases and joint publications by the Parties with regard to the Project,

(f) agreeing on procedures and policies for Dissemination of Knowledge from the Project which is not to be used by the Parties,

(g) checking the progress of the works on a six-monthly basis by assessing the intermediary reports by the Parties, and

(h) advising and directing the Parties on the developments necessary for the Project

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Advisory BoardAdvisory Board

The Advisory Board is a body set up by the Steering Committee to deal with specific issues related to Technology or Scientific problems, including Exploitation or Dissemination matters.

In particular the Advisory Board will advise on the adequacy of the developments of NEAREST and its experiments at sea with respect to the past experience and policy of mitigation of geo-hazard under construction in Europe.

The Advisory Board will be composed by at least 3 well-known experts, selected among those initially identified during the project kick-off meeting. The Steering Committee has the power to modify the Advisory Board composition.

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MeetingsMeetings

The Steering Committee shall meet at least half-yearly in principle at the request of its chairperson or at the request of a quarter (¼) of the Parties.

Extraordinary meetings may be called at any other time at the request of its chairperson or at the request of a quarter (¼) of the Parties

( ¼ means 3 out of 11 partner).

Ordinary and extraordinary meetings of the Steering Committee shall constitute a quorum if more than two third (⅔) of the Parties are present or duly represented by proxy. ( 2/3 means 7 out of 11 partner)

The Steering Committee may take decisions through its chairperson consulting with all members via teleconference and/or via e-mail, phone, etc. These decisions must be ratified by an ordinary meeting and shall be made available to all Parties.

The Advisory Board meetings will be arranged on occurrence of Steering Committee meetings. In principals an Advisory Board meeting will take place once a year

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Rules of VotingRules of Voting

In the cases of

• definition, allocation of tasks and changes in work sharing

• relevant budget review matters,

• the structure and restructuring of the Project,

• the alteration of the Consortium Agreement, and

• the premature completion/ termination of the Project.

Decisions of the Steering Committe need a two third (⅔) majority of all Parties,

( 2/3 means 7 parties)

In the cases of

making proposals to the Parties (other than the Defaulting Party) to serve notices on a Defaulting Party and to assign the Defaulting Party's tasks to specific entity(ies) (preferably chosen from the remaining Parties).

the exclusion of Parties and the acceptance of new parties.

decisions shall be taken unanimously by all of the non-Defaulting Parties.

In all other cases decisions will be taken by the majority vote of the Parties present or duly represented by proxy.

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Rules of Voting (Article5.2.5)Rules of Voting (Article5.2.5)

A Party may only issue its veto in the case of a decision to accept a new party in the Consortium if a substantial threat to its commercial or strategic interests is likely to exist which cannot be resolved by any other measure, or in case that any decision of the Steering Committee may substantially affect its allocated tasks or costs. .( ADDITION in blue colour NOTAPPROVED)

In reaching an amicable agreement the views of the concerned Party shall be taken into consideration.( ADDITION in blue colour APPROVED)

CSIC proposes to delete this sentence:

A veto may be overruled by the Steering Committee by unanimous vote of all the non-objecting Parties as far as these Parties represent more than two third (⅔) of all Parties.

DELETE NOT APPROVED

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Payment (Article 6.2)Payment (Article 6.2)

The Co-ordinator shall receive all payments made by the Commission.

Except for the part of the advance payments withheld for the Common Liability Reserve (if any), the Co-ordinator will transfer, in accordance with the Contract and the budget allocation decided by the Steering Committee, the appropriate sums to the respective Parties without unjustified delay, from the receipt thereof from the Commission. The Co-ordinator shall notify each Party promptly of the date and amount transferred to its respective bank account, as listed in Annex C, and shall give the relevant references.

Banking transaction costs related to handling of any financial resource shall be borne by the receiving Party

APPROVED

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Specific Authorisation of the Co-ordinator (Article5.3.4)

Specific Authorisation of the Co-ordinator (Article5.3.4)

(a) To the extent that serious concerns regarding the financial soundness of one or several Parties exist, the Co-ordinator has the authority to require the appropriate letter of comfort (except to Public bodies) to prove that the corresponding Party is able to fulfil the financial obligations with regard to the Contract and this Consortium Agreement.

Until this is provided, the Co-ordinator is entitled to refuse the disbursement of the financial contributions of the Commission to this Party.

(b) Furthermore, the Co-ordinator has the right to retain any payment if a Party is late in submitting or refuses to provide deliverables as defined in Section 4.3 of the Consortium Agreement and Contract, Annex II.7.

ADDITION in blue colour APPROVED

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Application for a Patent (Article 10.2.2)Application for a Patent (Article 10.2.2)

In respect of a country either specified by the Commission or agreed upon by the Parties, a Party shall notify the other Parties (via the Co-ordinator, if this is practical) if it does not intend to seek adequate and effective protection (as required by the Contract) of certain of its Knowledge from the Project or if that Party intends to waive such protection.

If another Party (or Parties) informs the notifying Party in writing within one calendar month of such notice that it wishes to obtain or maintain such protection, the notifying Party shall assign to such other Party(ies) all necessary rights which it owns. The terms of such assignment shall be negotiated among the Parties concerned

ADDITION in blue colour APPROVED

Such assignment shall ensure that the Access-rights of all Parties will be unaffected. For the avoidance of doubt, the Party which assigned its rights shall have at least the same Access-rights as the non-involved Parties.

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Entitlement for execution of the Project(Article 10.4.2.2)

Entitlement for execution of the Project(Article 10.4.2.2)

After conclusion of an agreement in accordance with Contract, Annex II.35, the receiving Party is entitled to Use the Pre-existing Know-how, Knowledge or Software for performing the Project work.

CSIC proposes to delete the following sentence:

If a Party applies Pre-existing Know-how of another Party without the grant of access, a penalty will be decided by the IPR-Council on a case by case basis depending on the value of the infringed rights.

DELETION APPROVED

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Procedure (Article 12.2)Procedure (Article 12.2)

CSIC proposes to modify the following sentence in this way :

If a dispute regarding a publication cannot be settled amicably within two (2) calendar months the Project Coordinator_ Steering Committee shall decide the issue within a month from the date on which the dispute has been referred to the Steering Committee . Should any member of the Steering Committee be involved in the dispute , it shall refrain from participating in the final decision. The Parties agree to be bound by the final decision issued by the Steering Committee.

MODIFICATION APPROVED

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Publication to qualify for a degree (Article 12.4)Publication to qualify for a degree (Article 12.4)

CSIC proposes to modify the following paragraph in this way :

Where a person carrying out work on the Project on behalf of a Party (the "Relevant Party") needs to include Pre-existing Know-how or Knowledge of another Party in a publication to qualify for a degree, approval for Use shall be obtained from the appropriate Party owning such rights or affected by the Use. To ensure that the planned date of publication can be met the approval of the relevant parties shall be sought at least three _ two (2) months before the latest date on which (pursuant to the qualification procedures) the contents of the planned publication can be altered.

However, except as stated below, no such publication will be made under the above procedure -

(i)without a majority agreement of the Parties and

(ii)provided no Party who would be adversely affected by the publication has vetoed such publication.

ALL MODIFICATIONs APPROVED

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Parts to be validatedParts to be validated

Parts whose conten has to be to confirmed

• Annex A Recipients of Notice ( data updated)

• Annex B Banks details

Parts to be filled in ( if necessary)

• Annex C Exclusion of Pre-existing know-how from Right Access

Decision:No exclusion of Pre-existing know-how from Right Access to be considered at the beginning of the project

Annex C deleted

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Signature proceduresSignature procedures

• The last version of the documents with all modifications agreed will be sent by the Coordinator to all “recipients of notice” as soon as it will be ready, in pdf format.

• Each Party will print 12 copies of the its respective page containing the “Declaration of Accession to the NEAREST Consortium Agreement”

• Each copy of the “delacaration page” has to be signed in original by the authorised person within the organization ( already indicated in the form and in the cover page of the CA. A date and a stamp or seal has also to be put on each signed doc

• All the 12 signed copy has to be sent by courier to the Coordinator (ISMAR-CNR Via Gobetti, 101- I-40129 Bologna, ITALY)

• The coordinator will collect all documents and will prepare 12 copies (each containing the signatures all the 11 Parties).

• Each Party will receive by courier one complete signed copy of the CA. The 12th copy will be sent to the European Commission