GENERAL CLAUSES AND CONDITIONS - EMITS …

1 GENERAL CLAUSES AND CONDITIONSFOR ESA CONTRACTSESA/C/290, , rev 5page 1 PART I - GENERAL CLAUSES AND CONDITIONS APPLICABLE TO ESAEXTRAMURAL CONTRACTSC hapter 1 GENERAL provisionsChapter 2 Special guaranteesChapter 3 Legal provisionsChapter 4 GENERAL financial provisionsChapter 5 Execution of workChapter 6 AcceptanceChapter 7 CancellationPART II - INTELLECTUAL PROPERTY AND ASSOCIATED RIGHTS ANNEX I Part 1 - Prices Part 2 - Cost controlANNEX II - PENALTY SCALESESA/C/290, rev 5page 2 CONTENTSCHAPTER I - GENERAL PROVISIONSCLAUSE 1 Applicable CLAUSES and rules CLAUSE 2 ApprovalCLAUSE 3 LanguagesCLAUSE 4 Originals of the contractsCLAUSE 5 Agency's representatives - inspectionsCLAUSE 6 ReportsCLAUSE 7 CommunicationsCLAUSE 8 Contractor's obligations relating to documentation andmaterial supplied or sites designated by the AgencyCLAUSE 9 Publicity relating to contractsCHAPTER II - SPECIAL GUARANTEESCLAUSE 10 Equipment, supplies and technical documents made available by the Agency to the contractorCLAUSE 11 Compensation for damage caused to persons.

2 Goods or propertyCHAPTER III - LEGAL PROVISIONSCLAUSE 12 Applicable lawCLAUSE 13 ArbitrationCLAUSE 14 Infringements of the lawCLAUSE 15 Infringements of third party rightsCLAUSE 16 Disclosure and use of information by the Contractor CHAPTER IV - GENERAL FINANCIAL PROVISIONSCLAUSE 17 PricingCLAUSE 18 Taxes, customs dutiesCLAUSE 19 Packing and transport expensesCLAUSE 20 Advances and progress paymentsCLAUSE 21 Final settlementCLAUSE 22 Place and currency of paymentCHAPTER V - EXECUTION OF WORKCLAUSE 23 GENERAL CONDITIONS of executionCLAUSE 24 Transfer of contractCLAUSE 25 Sub-contracts CLAUSE 26 Changes and modifications to projects, engineering and specificationsESA/C/290, rev 5page 3 CLAUSE 27 Time-limits for the provision of supplies and services CLAUSE 28 Penalties for late deliveryCHAPTER VI - ACCEPTANCECLAUSE 29 Acceptance and rejectionCLAUSE 30 GuaranteesCHAPTER VII - CANCELLATIONCLAUSE 31 GENERAL ruleCLAUSE 32 Cancellation without any fault of the ContractorCLAUSE 33 Cancellation with fault of the ContractorCLAUSE 34 Cancellation in special casesCLAUSE 35 Provisions to be observed in sub-contracts as to cancellationPART II - SPECIAL CONDITIONS CONERNING INTELLECTUALPROPERTY AND ASSOCIATED RIGHTS FOR STUDY, RESEARCH ANDDEVELOPMENT CONTRACTSCLAUSE 36 GENERAL rule and definitionsCLAUSE 37 Patents and other forms of legal protection for which application isrequiredCLAUSE 38 Protection of information other than through patent.

3 Copyright,protection of background information, protection of computersoftwareCLAUSE 39 Right of reproductionCLAUSE 40 RoyaltiesCLAUSE 41 Modifications and improvementsCLAUSE 42 Transfer of contract results outside the member statesANNEX 1 to the GENERAL CONDITIONS FOR ESA CONTRACTSPART I - DETERMINATION OF PRICESCLAUSE 1 Types of pricesCLAUSE 2 Fixed price contract CLAUSE 3 Contract with ceiling price to be converted into a fixed priceCLAUSE 4 Cost reimbursement price contractCLAUSE 5 Provisions applicable to cost-reimbursement type contractsCLAUSE 6 Allowability of costsCLAUSE 7 Cost groupingsCLAUSE 8 Overhead ratesESA/C/290, rev 5page 4 CLAUSE 9 Limitation of liabilityPART II - COST CONTROLCLAUSE 10 Right to auditCLAUSE 11 Development cost plan CLAUSE 12 Quarterly financial reportsCLAUSE 13 Accounting requirementsCLAUSE 14 Control operationsCLAUSE 15 Preservation of vouchersANNEX II to the GENERAL CONDITIONS FOR ESA CONTRACTSPENALTY price contracts reimbursement price assistance and service contractsESA/C/290, rev 5page 5 PART I - GENERAL CLAUSES AND CONDITIONS APPLICABLE TO ESAEXTRAMURAL CONTRACTS(with the exception of contracts relating to civil engineering and construction)CHAPTER I - GENERAL PROVISIONSCLAUSE 1 - APPLICABLE CLAUSES AND RULESThe following GENERAL CLAUSES and CONDITIONS shall apply to contracts placed by theAgency insofar as not stated otherwise in the relevant contract.

4 Furthermore, specificclauses and CONDITIONS may be set out or invoked in a contract and its annexes. Theannexes form an integral part of the 2 - APPROVALO ffers and acceptances with regard to contracts are not binding on the Agencyunless approved in writing by its Director GENERAL or his authorised representative. Unless otherwise stated in the contract the date of such approval shall be thecommencing date of the 3 - LANGUAGESThe contract and the documents attached shall be drawn up in English or in Frenchat the Contractor's choice unless there are special circumstances which warrant theuse of another 4 - ORIGINALS OF THE CONTRACTSThe number of originals of a contract shall be equal to the number of parties to thecontract and this number shall be stated in the contract. These originals are intendedfor the parties to the 5 - AGENCY'S REPRESENTATIVES - INSPECTIONSThe 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 shallnominate a representative(s) whose name(s) shall be notified in writing to theContractor.

5 Any information made available by the Contractor to suchrepresentative(s) shall be regarded as commercially , rev 5page 6 The Contractor shall, in this respect, and in accordance with any relevant securityregulations, give the representative(s) of the Agency access to his premises and shallgive all other necessary assistance in order that he (they) may fulfil his (their) 6 - REPORTSR eports giving details of the progress of the work shall be sent to the Agency atintervals specified in the contract and beginning on a date specified in the 7 - COMMUNICATIONSAll communications affecting the terms and CONDITIONS of the contract andconcerning its execution shall be made or confirmed in 8 - CONTRACTOR'S OBLIGATIONS RELATING TODOCUMENTATION AND MATERIAL SUPPLIED OR SITES DESIGNATEDBY THE AGENCYThe Contractor shall check with the proper care normally used in these fields thattechnical or other documentation.

6 Material or equipment supplied and sitesdesignated by the Agency are satisfactory for the performance of the contract andshall notify the Agency immediately if he is not so 9 - PUBLICITY RELATING TO CONTRACTSP ress releases or other specialised publicity documents, including the Contractor'sadvertising and news bulletins, which are related to a contract placed by the Agencyand are intended by the Contractor for the press, broadcasting, or television, shall bedrawn up in consultation with the Agency. Should the Agency wish to give specialpublicity to a contract, it shall do so in consultation with the Contractor. Similarly,the promotion through exhibitions or otherwise of the Contractor's role in an Agencycontract, or of the products resulting therefrom, shall require prior consultationbetween the II - SPECIAL GUARANTEESCLAUSE 10 - EQUIPMENT, SUPPLIES AND TECHNICAL DOCUMENTSMADE AVAILABLE BY THE AGENCY TO THE for the execution of the contract the Agency supplies to the Contractor:a)machines, tools and other equipment,b)documents, samples and models,c)finished or semi-finished items or components,ESA/C/290, rev 5page 7the Contractor shall be responsible for the above equipment and componentsand their proper maintenance.

7 He shall not alienate them or use them forpurposes other than those specified in the pattern, sample or information in documentary or other physical formmentioned in sub-clause remains the property of the Agency and shall bereturned to the Agency after execution of the the case of loss, destruction or damage, except damage through properuse or caused by a representative or an employee of the Agency, theContractor shall be required, unless otherwise provided in the contract, toreplace or to repair at his own expense any article issued to him, or to refundits value. For this purpose a delivery document shall stipulate the price, withprovision for possible revision of that price. The Contractor shall also berequired to keep a permanent inventory and / or utilisation account of thearticles placed under his control and, unless already marked by the Agency,to mark these articles in an unambiguous way as being the property of other specific CONDITIONS relating to such issues shall be determined inthe Contractor shall impose the aforesaid provisions on the 11 - COMPENSATION FOR DAMAGE CAUSED TO PERSONS,GOODS OR PROPERTYU nless otherwise provided in the contract.

8 Claims in respect of damage occurringduring the execution of the contract or during the acceptance tests shall be settled inthe following in respect of damage of any nature sustained by the Agency's or theContractor's representatives or employees participating in the execution ofthe contract or in the acceptance tests shall be settled in accordance with thelaw governing the for damage caused to movable or immovable property owned by theAgency or the Contractor shall be settled in accordance with the lawgoverning the contract. However, any damage caused to equipment, suppliesand technical documents made available by the Agency to the Contractorshall be governed by the provisions of clause , rev 5page 8 Liability for damage occurring to the articles covered by the contract shall rest withthe Contractor until the time specified in the III - LEGAL PROVISIONSCLAUSE 12 - APPLICABLE LAWThe law governing the contract shall be specified in the contract 13 - dispute arising out of the interpretation or execution of the contractshall, at the request of either party, be submitted to contract shall specify the country where the Arbitration Tribunal shall sit.

9 Normally the Arbitration Tribunal shall have its seat in the country where theContractor has his legal seat or where the contract is to be no other arbitration is foreseen in the contract, any dispute arising out ofthe contract shall be finally settled in accordance with the Rules ofConciliation and Arbitration of the International Chamber of Commerce byone or more arbitrators designated in conformity with those arbitration other than in accordance with the Rules of Conciliation andArbitration of the International Chamber of Commerce is provided for in thecontract, the procedure of the Arbitration Tribunal shall be that of thecountry mentioned in subclause award shall be final and binding on the parties; no appeal shall lie againstit. The enforcement of the award shall be governed by the rules of procedurein force in the state / country in which it is to be 14 - INFRINGEMENTS OF THE LAWThe Agency shall not be responsible if the Contractor infringes the laws or statutesof his country or of any other country , rev 5page 9 CLAUSE 15 - INFRINGEMENTS OF THIRD-PARTY otherwise stipulated in Part II of this document, the Contractor shallindemnify the Agency from and against all claims, proceedings, damages,costs and expenses arising from the infringement of patent rights andintellectual property rights of third-parties with respect to the subject of thecontract - excluding any infringement resulting from the use of documents,patterns, drawings or goods supplied by the Agency - which may be made, orbrought against the Agency.

10 Or to which the Agency may be put by reason ofsuch infringement or alleged Agency shall notify the Contractor immediately of any written claim ornotice of infringement of third-party rights which it received concerning Contractor shall immediately take all necessary steps within hiscompetence to prevent or end a dispute and shall assist the Agency to defendagainst, or make settlement in respect of, any claim or notice of infringementor suit for claims or notices of infringement of third-party rights will beaccepted or met by the Agency only in agreement with the parties shall notify each other of any known intellectual property rightsconnected with the use of documents, patterns, drawings and goods suppliedby the one party to the other or connected with the execution of thespecifications laid down by the other 16 - DISCLOSURE AND USE OF INFORMATION BY the documents supplied are marked "restricted use" the Contractor shalltake all necessary steps to ensure that the CONDITIONS o