Common use of Background covered Clause in Contracts

Background covered. 9.1.1 In Attachment 1, the Parties have identified and agreed on the Background that shall be included for the Specific Grant Agreements under the Project and have also, where relevant, informed each other that Access Rights to specific Background is subject to legal restrictions or limits. In Attachment 2, the Parties have identified and agreed on the Background that shall be excluded from the Specific Grant Agreements under the Project and have also, where relevant, informed each other that Access Rights to specific Background that is explicitly excluded is subject to legal restrictions or limits. Each Party may choose whether to identify its Background in Attachment 1 and/or Attachment 2. Each Party may propose, during the term of the Project and not later than within the duration of the Specific Grant Agreement it participates in to add into Attachment 1 and/or Attachment 2 a reference to any of its Background not yet so listed. Anything that is not identified in Attachment 1 or that is excluded in Attachment 2 shall not be the object of Access Rights obligations regarding Background. 9.1.2 If a Party has chosen to identify its Background in Attachment 1 the following shall apply: Notwithstanding anything else in this Consortium Agreement, there shall be no obligation to grant, and no right to be granted, Access Rights to any Background that is not listed as included in Attachment 1 to this Consortium Agreement (“Unlisted Background“). Each Party agrees not to use knowingly, in the implementation of the Project, any Unlisted Background, if such use would result in such Unlisted Background being Needed by any other Party for implementation of the Project or Exploitation of that other Party’s own Results. If a Party has chosen to identify its Background in Attachment 2 the following shall apply: Notwithstanding anything to the contrary in the preceding paragraph or elsewhere in this Consortium Agreement, there shall be no obligation to grant, and no right to be granted, Access Rights to any Background that is listed as excluded in Attachment 2 to this Consortium Agreement (“Listed Background“).

Background covered. 9.1.1 In OPTION 1: The Parties may identify in the [Attachment 1] the background to which they are ready to grant Access Rights, subject to the Parties have identified provisions of this Consortium Agreement and agreed on the Grant Agreement. Such identification may also be done by naming a specific department of a Party. The owning Party may add further Background that shall be included for the Specific Grant Agreements under to [Attachment 1] during the Project and have alsoby written notice. However, where relevant, informed each other that Access Rights only the General Assembly can permit a Party to specific Background is subject to legal restrictions or limits. In Attachment 2, the Parties have identified and agreed on the Background that shall be excluded from the Specific Grant Agreements under the Project and have also, where relevant, informed each other that Access Rights to specific Background that is explicitly excluded is subject to legal restrictions or limits. Each Party may choose whether to identify its Background in Attachment 1 and/or Attachment 2. Each Party may propose, during the term of the Project and not later than within the duration of the Specific Grant Agreement it participates in to add into Attachment 1 and/or Attachment 2 a reference to withdraw any of its Background from [Attachment 1]. The Parties agree that all Background not yet so listedlisted in [Attachment 1] shall be explicitly excluded from Access Rights. Anything In addition, if a Party wishes to exclude specific Background, it shall list such Background in the [Attachment 2] The owning Party may withdraw any of its Background from [Attachment 2] during the Project by written notice. However, only the General Assembly can permit a Party to add Background to [Attachment 2]. OPTION 2: In accordance with and subject to the provisions of the Grant Agreement, any Party may enter in [Attachment 2] any specific Background excluded from the obligation to grant Access Rights in accordance with the provisions of this Consortium Agreement. All other Background except that is not identified listed in [Attachment 1 or that is excluded in Attachment 2 2] shall not be available for the object granting of Access Rights obligations regarding Background. 9.1.2 If a Party has chosen to identify its Background in Attachment 1 accordance with the following shall apply: Notwithstanding anything else in provisions of this Consortium Agreement. Uses a positive list ( only the background listed is subject to access rights of other Parties, there shall be no obligation all other background is therefore excluded from access) and additionally gives participants the option to grantspecifically exclude background in a negative list if they wish to. The positive list may serve also for narrowing down Access rights to a specific department (or work team, and no right institute etc.) within the Party. When using a positive list, all partners should thoroughly check whether all input they will need from other partners is included on the list in order to be granted, Access Rights to any Background that is not listed as included in Attachment 1 to this Consortium Agreement (“Unlisted Background“). Each Party agrees not to use knowingly, in prevent blockages during the implementation of the Project, any Unlisted Background, if such use would result in such Unlisted Background being Needed by any other Party for implementation of the Project or Exploitation of that other Party’s own Results. If a Party has chosen to identify its Background in Attachment 2 the following shall apply: Notwithstanding anything to the contrary in the preceding paragraph or elsewhere in this Consortium Agreement, there shall be no obligation to grant, and no right to be granted, Access Rights to any Background that is listed as excluded in Attachment 2 to this Consortium Agreement (“Listed Background“)project implementation.

Background covered. 9.1.1 In The Parties shall identify in the Attachment 1, the Parties have identified and agreed on 1 the Background that shall to which they are ready to grant Access Rights, subject to the provisions of this Consortium Agreement and the EC-GA. Such identification may be included for the Specific Grant Agreements under done by e.g. - subject matter and possibly in addition by - naming a specific department of a Party. 9.1.2 The owning Party may add further Background to Attachment 1 during the Project and have alsoby written notice. However, where relevant, informed each other that Access Rights only the General Assembly can permit a Party to specific Background is subject to legal restrictions or limits. In Attachment 2, the Parties have identified and agreed on the Background that shall be excluded from the Specific Grant Agreements under the Project and have also, where relevant, informed each other that Access Rights to specific Background that is explicitly excluded is subject to legal restrictions or limits. Each Party may choose whether to identify its Background in Attachment 1 and/or Attachment 2. Each Party may propose, during the term of the Project and not later than within the duration of the Specific Grant Agreement it participates in to add into Attachment 1 and/or Attachment 2 a reference to withdraw any of its Background from Attachment 1. 9.1.3 The Parties agree that all Background not yet so listed. Anything that is not identified listed in Attachment 1 or that shall be explicitly excluded from Access Rights. The Parties agree, however, to negotiate in good faith additions to Attachment 1 if a Party asks them to do so and those are Needed. For the avoidance of doubt, the owner is excluded under no obligation to agree to additions of its Background to Attachment 1, as long as it is in compliance with the EC-GA. 9.1.4 In addition, if a Party wishes to list specific Background as excluded, it shall identify such Background in Attachment 2 shall not be the object of Access Rights obligations regarding Background. 9.1.2 If a Party has chosen to identify its Background in Attachment 1 the following shall apply: Notwithstanding anything else in this Consortium Agreement. Excluded Background may be subject to special conditions disclosed as soon as possible by the respective Party. For the avoidance of doubt, there shall be no obligation subject to grantthis Agreement and the EC-GA, and no right to be granted, Access Rights to any Background that is Needed should not listed as included be excluded. The owning Party may withdraw any of its Background from Attachment 2 during the Project by written notice. However, only the General Assembly can permit a Party to add Background to Attachment 2. In addition, each Party agrees not knowingly to use, in Attachment 1 the execution of the Project any Background excluded pursuant to the EC-GA or this Consortium Agreement (“Unlisted Background“). Each Party agrees not to use knowingly, in the implementation of the Project, any Unlisted Background, if where such use would result in such Unlisted excluded Background being Needed by any other Party for implementation the Use of the Project or Exploitation of that other Party’s own Results. If a Party has chosen to identify its Background in Attachment 2 the following shall apply: Notwithstanding anything to the contrary in the preceding paragraph or elsewhere in this Consortium Agreement, there shall be no obligation to grant, and no right to be granted, Access Rights to any Background that is listed as excluded in Attachment 2 to this Consortium Agreement (“Listed Background“)Foreground.

Background covered. 9.1.1 In OPTION 1: 9. 1.1 The Parties shall identify in the Attachment 1, the Parties have identified and agreed on 1 the Background that shall to which they are ready to grant Access Rights, subject to the provisions of this Consortium Agreement and the EC-GA. Such identification may be included for the Specific Grant Agreements under done by e.g. - subject matter and possibly in addition by - naming a specific department of a Party 9. 1.2 The owning Party may add further Background to Attachment 1 during the Project and have alsoby written notice. However, where relevant, informed each other that Access Rights only the General Assembly can permit a Party to specific Background is subject to legal restrictions or limits. In Attachment 2, the Parties have identified and agreed on the Background that shall be excluded from the Specific Grant Agreements under the Project and have also, where relevant, informed each other that Access Rights to specific Background that is explicitly excluded is subject to legal restrictions or limits. Each Party may choose whether to identify its Background in Attachment 1 and/or Attachment 2. Each Party may propose, during the term of the Project and not later than within the duration of the Specific Grant Agreement it participates in to add into Attachment 1 and/or Attachment 2 a reference to withdraw any of its Background from Attachment 1. 9. 1.3 The Parties agree that all Background not yet listed in Attachment 1 shall be explicitly excluded from Access Rights. The Parties agree, however, to negotiate in good faith additions to Attachment 1 if a Party asks them to do so listedand those are needed. Anything For the avoidance of doubt, the owner is under no obligation to agree to additions of his Background to Attachment 1. 9. 1.4 In addition, if a Party wishes to list specific Background as excluded, it shall identify such Background in the Attachment 2. The owning Party may withdraw any of its Background from Attachment 2 during the Project by written notice. However, only the General Assembly can permit a Party to add Background to Attachment 2. OPTION 2: In accordance with and subject to the provisions of the EC-GA, any Party may enter in Attachment 2 any specific Background excluded from the obligation to grant Access Rights in accordance with the provisions of this Consortium Agreement. All other Background except that listed in Attachment 2 shall be available for the granting of Access Rights in accordance with the provisions of this Consortium Agreement. OPTION 1: Uses a positive list, so only the Background listed is subject to Access Rights of other Parties, all other Background is therefore excluded from access. Legally speaking there consequently is no need to further exclude anything not on the list, but it may in some cases be helpful for maximum transparency towards the partners to clearly state that some specific piece of background is not identified available to them –see 9.1.4. Another use for that clause can be to specify e.g. that while you have listed all the know-how of your department X in Attachment 1, you wish to exclude their patents A, B and C – but in order to avoid confusion we recommend specifying this already in Attachment 1 or at least making a reference to Attachment 2 (“we include all knowledge of Department X except the items listed in Attachment 2”. It is vital to be very precise on what Background is included; therefore any naming has to allow clear identification of the background. We therefore recommend stating as many details as possible, using as a possible reference the information necessary for licence agreements. When using a positive list, all Parties should thoroughly check whether all input they will need from other Parties is included on the list in order to prevent blockages during the Project implementation. OPTION 2: This option provides a negative list only (just the Background listed by the partners is explicitly excluded). Anything not listed therefore is accessible to the Partners if they need it. Context explanation: The EC-GA Article II.31 mentions both the possibility to define the Background needed for the Project AND to exclude specific Background. It thus cites both the concept of a positive list and of a negative list. DESCA’s OPTION 1 therefore allows both lists and clearly states that anything not listed on a positive list is excluded in Attachment 2 shall from Access Rights. This gives participants the legal certainty regarding the positive list. In order to ensure that necessary Background is not be excluded by error there is an obligation to negotiate the object addition of further needed Background. This obligation to negotiate forces partners to discuss the terms of further Access Rights obligations regarding Background. 9.1.2 If a Party has chosen – it does not, however, force them to identify its Background in Attachment 1 the following shall apply: Notwithstanding anything else in this Consortium Agreement, there shall agree to every request for access. More information can be no obligation to grant, and no right to be granted, Access Rights to any Background that is not listed as included in Attachment 1 to this Consortium Agreement (“Unlisted Background“). Each Party agrees not to use knowingly, found in the implementation of the ProjectEC “Guide to Intellectual Property Rules for FP7 projects”, any Unlisted Background, if such use would result in such Unlisted Background being Needed by any other Party for implementation of the Project or Exploitation of that other Party’s own Resultspages 18 ff. If a Party has chosen to identify its Background in Attachment 2 the following shall apply: Notwithstanding anything to the contrary in the preceding paragraph or elsewhere in this Consortium Agreement, there shall be no obligation to grant, and no right to be granted, Access Rights to any Background that is listed as excluded in Attachment 2 to this Consortium Agreement (“Listed Background“xxxx://xxxxxx.xxxxxx.xx/fp7/find-doc_en.html ).

Background covered. 9.1.1 In OPTION 1: 9. 1.1 The Parties shall identify in the Attachment 1, the Parties have identified and agreed on 1 the Background that shall to which they are ready to grant Access Rights, subject to the provisions of this Consortium Agreement and the EC-GA. Such identification may be included for done by e.g. - subject matter and possibly in addition by - naming a specific department of a OPTION 2: In accordance with and subject to the Specific Grant Agreements under provisions of the Project and have alsoEC-GA, where relevant, informed each other that any Party may enter in Attachment 2 any specific Background excluded from the obligation to grant Access Rights to specific in accordance with the provisions of this Consortium Agreement. All other Background except that listed in Attachment 2 OPTION 1: Uses a positive list, so only the Background listed is subject to legal restrictions or limitsAccess Rights of other Parties, all other Background is therefore excluded from access. In Attachment 2, the Parties have identified and agreed Legally speaking there consequently is no need to further exclude anything not on the list, but it may in some cases be helpful for maximum transparency towards the partners to clearly state that some specific piece of background is not available to them –see 9.1.4. Another use for that clause can be to specify e.g. 1.2 The owning Party may add further Background that shall be excluded from the Specific Grant Agreements under to Attachment 1 during the Project and have alsoby written notice. However, where relevant, informed each other that Access Rights only the General Assembly can permit a Party to specific Background that is explicitly excluded is subject to legal restrictions or limits. Each Party may choose whether to identify its Background in Attachment 1 and/or Attachment 2. Each Party may propose, during the term of the Project and not later than within the duration of the Specific Grant Agreement it participates in to add into Attachment 1 and/or Attachment 2 a reference to withdraw any of its Background from Attachment 1. 9.1.3 The Parties agree that all Background not yet listed in Attachment 1 shall be explicitly excluded from Access Rights. The Parties agree, however, to negotiate in good faith additions to Attachment 1 if a Party asks them to do so listedand those are needed. Anything For the avoidance of doubt, the owner is under no obligation to agree to additions of his Background to Attachment 1. 9.1.4 In addition, if a Party wishes to list specific Background as excluded, it shall identify such Background in the Attachment 2. The owning Party may withdraw any of its Background from Attachment 2 during the Project by written notice. However, only the General Assembly can permit a Party to add Background to Attachment 2. shall be available for the granting of Access Rights in accordance with the provisions of this Consortium Agreement. that is not identified while you have listed all the know-how of your department X in Attachment 1, you wish to exclude their patents A, B and C – but in order to avoid confusion we recommend specifying this already in Attachment 1 or at least making a reference to Attachment 2 (“we include all knowledge of Department X except the items listed in Attachment 2”. It is vital to be very precise on what Background is included; therefore any naming has to allow clear identification of the background. We therefore recommend stating as many details as possible, using as a possible reference the information necessary for licence agreements. When using a positive list, all Parties should thoroughly check whether all input they will need from other Parties is included on the list in order to prevent blockages during the Project implementation. OPTION 2: This option provides a negative list only (just the Background listed by the partners is explicitly excluded). Anything not listed therefore is accessible to the Partners if they need it. As stated under Option 1 above, the Attachment 2 can also be used in combination with Attachment 1 (see above) Context explanation: The EC-GA Article II.31 mentions both the possibility to define the Background needed for the Project AND to exclude specific Background. It thus cites both the concept of a positive list and of a negative list. DESCA’s OPTION 1 therefore allows both lists and clearly states that anything not listed on a positive list is excluded in Attachment 2 shall from Access Rights. This gives participants the legal certainty regarding the positive list. In order to ensure that necessary Background is not be excluded by error there is an obligation to negotiate the object addition of further needed Background. This obligation to negotiate forces partners to discuss the terms of further Access Rights obligations regarding Background. 9.1.2 If a Party has chosen – it does not, however, force them to identify its Background in Attachment 1 the following shall apply: Notwithstanding anything else in this Consortium Agreement, there shall agree to every request for access. More information can be no obligation to grant, and no right to be granted, Access Rights to any Background that is not listed as included in Attachment 1 to this Consortium Agreement (“Unlisted Background“). Each Party agrees not to use knowingly, found in the implementation of the ProjectEC “Guide to Intellectual Property Rules for FP7 projects”, any Unlisted Background, if such use would result in such Unlisted Background being Needed by any other Party for implementation of the Project or Exploitation of that other Party’s own Resultspages 18 ff. If a Party has chosen to identify its Background in Attachment 2 the following shall apply: Notwithstanding anything to the contrary in the preceding paragraph or elsewhere in this Consortium Agreement, there shall be no obligation to grant, and no right to be granted, Access Rights to any Background that is listed as excluded in Attachment 2 to this Consortium Agreement (“Listed Background“xxxx://xxxxxx.xxxxxx.xx/fp7/find-doc_en.html ).