PROJECT MANAGEMENT AGREEMENT

Evitherm Project Management Agreement

BETWEEN

(1) NPL Management Ltd (NPLM), (the coordinator), established in Xxxxxx Xxxx, Xxxxxxxxxx, XX00 XXX, Xxxxxx Xxxxxxx

(2) ARC Seibersdorf Research GmbH, (ARCS.MPE) established in Xxxxxxxxxxx 0, 0000, Xxxx, Xxxxxxx

(3) Xxxxxxxxx Nazionale delle Ricerche (CNR.IMC) established in Xxxxxxxx Xxxx Xxxx 0, 00000 Xxxx Xxxxx

Laboratoire National d’Essais (LNE) established in Xxx Xxxxxx Xxxxxxxx 0, 00000, Xxxxx Xxxxx 00, Xxxxxx

Xxxxxxxxxxxxxx Xxxxxxxxxxx (BRD.PTB) established in 00000 Xxxxxx, Xxxxxxx

Known collectively as the Principal Contractors.

Thermal Consulting (TC)Pierre Le Parlouer

University of Stuttgart (UVS), Institut fuer Kernenergetik und Energiesysteme. Xxxxxxxxxxxxxxx 00, 00000 Xxxxxxxxx, Xxxxxxx

Xxxxx Xxxxx Consulting (PLG), 00 Xxxxxx, Xxxxxxxxxx, Xxxxxxx, XX0 0XX

All known as the Evitherm Work Package Leaders

relating to the Project entitled “European Virtual Institute for Thermal Metrology” (hereinafer referred to as Evitherm)

WHEREAS:

(A) The Evitherm Work Package Leaders, having considerable experience in the field concerned, have submitted a Proposal No. GTC1-2002-73009 for a Project entitled “ The European Virtual Institue for Thermal Metrology (Evitherm) ” in the framework of the specific research and technological development programme “Competitive and Sustainable Growth”.

(B) NPLM, ARC Seibersdorf Research GmbH, Xxxxxxxxx Nazionale delle Ricerche, Laboratoire National d’Essais, and Bundesrepublik Deutschland, have entered into Contract G7RT-CT-2002-05111 (relating to the Project; hereby attached as exhibit A) with the European Commission as Principal Contractors.

(C) Said Principal contractors have entered into a Principal Contractors Agreement in execution of the Contract in the frame of which their respective rights and duties regarding fiscal and contractual obligations resulting from the Contract are outlined (exhibit B).

(D) A Steering Group has been set up comprising the Evitherm Work Package Leaders.

(E) This Project Management Agreement outlines the role of the Steering Group in relation to the Evitherm Project as well as anticipated operation of the Evitherm Legal entity.

NOW THEREFORE IT IS HEREBY AGREED AS FOLLOWS:

Section 1 Definitions

1.1 Evitherm Work Package Leader means a party which has entered into this Project Management Agreement.

Principal Contractors Agreement means the agreement of which a copy is hereby attached as exhibit B.

1.3 Words appearing in italics have the same meaning as in the Principal Contractors Agreement.

Section 2 Purpose

2.1 Purpose

The purpose of this Project Management Agreement is to elaborate specific arrangements between the Evitherm Work Package Leaders in order to manage the Evitherm Project in conformance with the EC Contract and to set out rights and obligations of the Evitherm Work Package Leaders supplementing but not conflicting with those of the Contract except those concerned with the control of EC funds and the obligations of the Project, e.g. reporting, contractual disputes etc, which are as per the Principal Contractors Agreement.

2.2 Duration

This Project Management Agreement shall come into force as of the date of its signature by the Evitherm Work Package Leaders but shall have retroactive effect as from January 1st, 2003, and shall continue in full force and effect until December 31st, 2005, save termination in accordance with Section 11 or complete discharge of all obligations for the carrying out of the Project undertaken by the Principal Contractors under the Contract and under this Agreement, whichever is the earlier.

Section 3 Coordinator

3.1 In addition to the Coordinator's functions pursuant to the Contract, the Coordinator shall have the following functions :

(a) administration, preparation of minutes and provision of the chairman of the Steering Group, and follow‑up of its decisions;

(b) transmission of any documents and information connected with the Project between the Evitherm Work Package Leaders and (as appropriate) to the Members concerned.

3.3 Except for the capacity as representative of the Evitherm Work Package Leaders described in the Contract, the Coordinator shall not be entitled to act or to make legally binding declarations on behalf of any other Party.

Section 4 Steering Group

4.1. The EvithermWork Package Leaders have established the Steering Group, which is composed of the authorised representative of each of the Evitherm Work Package Leaders listed in Section 14. The Evitherm Work Package Leaders will add additional members from Industry to the steering group, subject to the new members signing a suitable non-disclosure Agreement. The purpose of the Steering Group shall be to manage all aspects of the project except the fiscal, reporting and contractual obligations required by the EC which are as per the Principal Contractors Agreement.

After having informed the others in writing, each Evitherm Work Package Leader shall have the right to replace its representative and/or to appoint a proxy although it shall use all reasonable endeavours to maintain the continuity of its representation.

Each representative shall have a deputy.

4.2 The Steering Group shall be chaired by the Coordinator's representative.

The Steering Group shall meet at least six monthly in principle at the request of its chairman or at any other time when necessary at the request of one of the EvithermWork Package Leaders. Meetings shall be convened by the chairman with at least fifteen (15) calendar days prior notice with an agenda.

Minutes of the meetings of the Steering Group shall be transmitted to the representatives of the other Evitherm Work Package Leaders without delay. The minutes shall be considered as accepted by the other Evitherm Work Package Leaders if, within fifteen (15) calendar days from receipt, no Party has objected in a traceable form to the Coordinator.

If necessary, the Steering Group may invite representatives of other Members to observe (but not to participate in) the meetings of the Steering Group.

4.3 Without prejudice to the Contract, the Steering Group shall be in charge of overall direction of the Project. To that end, the Steering Group shall amongst others be responsible for:

(a) reviewing and proposing to the Evitherm Work Package Leaders and Members budget transfers in accordance with the Contract;

(b) making proposals to the Evitherm Work Package Leaders and Members for the review and/or amendment of the terms of the Contract to be approved unanimously;

(c) agreeing press releases and joint publications by the Evitherm Work Package Leaders with regard to the Project;

(d) assisting the Coordinator to prepare reports on the whole Project and in particular agreeing whether a report referred to in the Contract should be publishable;

(e) making proposals to the Evitherm Work Package Leaders (other than the Defaulting Party) and Members to service of notices on a Defaulting Party and to assign the Defaulting Party's tasks to specific entity(ies) (preferably chosen from the remaining Evitherm Work Package Leaders).

At the latest within 12 months before the expiration date of the current Project Management Agreement the Evitherm Work Package Leaders shall evaluate the opportunity to continue Evitherm and to set up Evitherm as an independent legal entity. The Evitherm Work Package Leaders and other participants in the Evitherm Project will publish a document entitled the “Evitherm Legal Entity Constitution” during the course of the Project, which will govern the operation of Evitherm, the legal entity;

accepting new Steering Group members, to be decided unanimously.

4.4 In voting, each Evitherm Work Package Leader shall have one vote. A quorum shall be a minimum of 2/3 of the Evitherm Work Package Leaders. Where decisions are to be taken unanimously, all Evitherm Work Package Leaders must be represented at the meeting.

Decisions shall be taken by the majority of the votes of the Evitherm Work Package Leaders present or represented by proxy at a quorate meeting.

In the event of deadlock when voting, the vote of the chairman is the decisive.

Any decision requiring a vote at a Steering Group meeting must be identified as such on the pre‑ meeting agenda, unless there is unanimous agreement to vote on a decision at that meeting and all Evitherm Work Package Leaders are present or represented.

However, any decision required or permitted to be taken by the Steering Group may be taken in accordance with the above (i) in meetings via teleconference and/or via email; (ii) without a meeting without prior notice and/or (iii) without a vote, if, in any such case, a consent in writing, setting forth the decision so taken, is signed by the representatives of the Evitherm Work Package Leaders having not less than the minimum number of votes that would be necessary to take such decision at a meeting at which all EvithermWork Package Leaders entitled to vote on such decision were represented and voted, and provided the consent has been delivered for signature to all Evitherm Work Package Leaders’ representatives.

Section 5 Responsibilities of each EvithermWork Package Leader

5.1 General Responsibilities

Each Evitherm Work Package Leader undertakes to all other Evitherm Work Package Leaders to use reasonable endeavours to perform and fulfil, promptly, actively and on time, all of its obligations under the Contract and this Project Management Agreement and other related agreements.

5.2 Towards the Coordinator and the Steering Group

Each Evitherm Work Package Leader hereby undertakes to use reasonable endeavours to supply promptly to the Coordinator all such information or documents as the Coordinator and the Steering Group need to fulfil obligations pursuant to the Contract.

5.3 Towards each other

5.3.1 (a) Each Evitherm Work Package Leader undertakes to use reasonable endeavours:

(i) to notify each of the Evitherm Work Package Leaders promptly of any significant delay in performance;

(ii) to inform other Evitherm Work Package Leaders (and via them their Members) of relevant communications it receives from third parties in relation to the Project.

(b) Each Evitherm Work Package Leader shall use reasonable endeavours to ensure the accuracy of any information or materials it supplies hereunder or under the Contract and promptly to correct any error therein of which it is notified. The recipient Evitherm Work Package Leader shall be entirely responsible for the use to which it puts such information and materials.

5.4 Towards third Parties

(a) Each Evitherm Work Package Leader shall be fully responsible for the performance of any part of its share of the Project, or other Contract obligation, in respect of which it enters into any contract with a third party (e.g. a Subcontractor) and shall ensure that such contracts enable fulfilment of the Contract;

(b) Each Evitherm Work Package Leader shall in writing inform the other Evitherm Work Package Leaders if it intends to enter into a contract referred to in Section 5.4 (a) (giving the rationale therefore) if such an event has not been detailed in the Contract and the contract is other than for a minor or trivial part of its share of the Project. Such Evitherm Work Package Leader shall consider in good faith comments made, pursuant to the Contract, in relation to such contract.

Section 6 Confidentiality

6.1 As respects all information of whatever nature or form as is disclosed to a Evitherm Work Package Leader in connection with the Project after the signing of the Contract, each Evitherm Work Package Leader agrees such information is communicated on a confidential basis and its disclosure may be prejudicial to the owner of the information, and undertakes that:

(A) it will not during a period of three (3) years from the date of disclosure to the Evitherm Work Package Leader use any such information for any purpose other than in accordance with the terms of the Contract and of this Project Management Agreement; and

(B) it will during the period of three (3) years treat the same as (and use reasonable endeavours to procure that the same be kept) confidential and not disclose the same to any other third party without the prior written consent of such owner in each case;

provided always that:

(i) such agreement and undertaking shall not extend to any information which the receiving Evitherm Work Package Leader can show:

(A) was at the time of disclosure to the Evitherm Work Package Leader published or otherwise generally available to the public, or

(B) has after disclosure to the Evitherm Work Package Leader been published or become generally available to the public otherwise than through any act or omission on the part of the receiving Evitherm Work Package Leader, or

(C) was already in the possession of the receiving Evitherm Work Package Leader, without any restrictions on disclosure, at the time of disclosure to the Evitherm Work Package Leader, or

(D) was rightfully acquired from others without any undertaking of confidentiality, or

(E) was developed independently of the work under the Contract by the receiving Evitherm Work Package Leader;

(ii) nothing in this Section 6.1 shall prevent the communication of information

(A) as is needed to be communicated to comply with applicable laws or regulations or with a court of administrative order provided that insofar as reasonably possible the complying Evitherm Work Package Leader shall have informed the owner of the information of such need and shall have complied with such owner's reasonable instructions designed to protect the confidentiality of such information;

(B) subject to Section 6.2, to any Affiliate or to any other third party (including the Commission) insofar as needed for the proper carrying out of the Contract and/or this Consortium Agreement;

(C) subject to Section 6.2, to any third party (including to the public) as strictly needed for technical reasons and insofar as needed for proper use of Knowledge from the Project.

6.2 As respects any permitted communication of any of the information referred to in Section 6.1 by the recipient Evitherm Work Package Leader to a third party (including but not limited to its Affiliates) such Evitherm Work Package Leader will use reasonable endeavours to procure due observance and performance by such third party of the undertakings referred to in Section 6.1, (A) and (B) and all relevant undertakings in the Contract.

Section 7 Liabilities

7.1 Liability towards each other

In respect of information or materials supplied by one Evitherm Work Package Leader to another hereunder or under the Contract, the supplier Evitherm Work Package Leader shall be under no obligation or liability other than as stated in Section 5.3.1 (b) and no warranty condition or representation of any kind is made, given or to be implied as to the sufficiency, accuracy or fitness for purpose of such information or materials, or, subject to Section 5.3.1 (c), the absence of any infringement of any proprietary rights of third parties by the use of such information and materials and the recipient Evitherm Work Package Leader shall in any case be entirely responsible for the use to which it puts such information and materials.

7.2 Indemnification of each other

Each Evitherm Work Package Leader shall indemnify each of the other Evitherm Work Package Leaders in respect of liability resulting from negligent acts or omissions of itself, its employees or its agents provided always that such indemnity shall not extend to claims for indirect or consequential loss or damages such as but not limited to loss of profit, revenue, contracts or the like.

7.3 Liability towards Third Parties

Subject always to such other undertakings and warranties as are provided for in this Project Management Agreement and the Contract, each Evitherm Work Package Leader shall be solely liable for any loss, damage or injury to third Parties resulting from its carrying out its parts of the Project and from its use of Knowledge and/or Pre‑existing Know-How.

Each Evitherm Work Package Leader shall fully indemnify the other EvithermWork Package Leaders for claims of third Parties resulting from acts of ommissions of such EvithermWork Package Leader.

7.4 Defaults and Remedies

In the event of a substantial breach, but not in case of force majeure, by a Evitherm Work Package Leader of its obligations under this Agreement or the Contract which is irremediable or which is not remedied within one month of written notice from the other Evitherm Work Package Leaders requiring that it be remedied, this contract may be terminated and rights granted to the Defaulting Party pursuant to this Agreement shall cease immediately in accordance with clause 12.

The Defaulting Party shall be deemed to have agreed as the case may be to the termination pursuant to the Contract or its withdrawal from the Project pursuant to the Contract with the proviso that such deemed agreement shall be without prejudice to the rights of the Defaulting Party to appeal against such termination or withdrawal as the case may be.

Section 8 Force Majeure

A failure in the performance of this Agreement cannot be imputed or assumed to a Evitherm Work Package Leader to the extent it is due to "Force Majeure".

The expression "Force Majeure" shall mean any unforeseeable and insuperable event affecting the Evitherm Work Package Leader fulfilling its obligations hereunder.

Each Evitherm Work Package Leader will notify the other Evitherm Work Package Leaders in writing of any Force Majeure as soon as possible. The Evitherm Work Package Leaders shall discuss in good faith the possibilities of a transfer of tasks affected by the event. Such discussions shall commence as soon as reasonably possible. If such Force Majeure event is not overcome within six (6) weeks after such notification, the transfer of tasks shall be carried out.

Section 9 – Intellectual Property Rights

Ownership and rights of use for Intellectual Property rights are to be dealt with in a separate IP Agreement, which shall be appended to this agreement as exhibit C. Such IP rights shall be in full accordance with the tems of the main EC Contract. Final arrangements for IP will be be developed and the most appropriate form of agreement devised during the Evitherm Project.

Section 10 Publications, Press Releases and Reports to the Commission

10.1. Without prejudice to any obligation of confidentiality in respect of another Party's information, publications and oppositions pursuant to the Contract shall accord with the following.

(i) When the Work Package Leaders have agreed a Project Deliverable is to be available to the public, any Party may publish information from that Project Deliverable without reference to any other Party.

(ii) In respect of other publications, a copy of the planned publication shall be supplied together with the prior warning required by the Contract. Any opposition to the planned publication shall be made in accordance with the Contract in writing to the Coordinator and to any Party concerned. If no such opposition is made within the time limit set in the Contract, the publication is permitted.

When there is an opposition, the involved Parties shall discuss how to overcome the justified grounds of the opposition (for example by amendment to the planned publication) and the opposing Party shall not unreasonably continue the opposition if appropriate actions are performed following the discussion.

10.2 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 for a qualification for a degree, the above procedures shall be followed save that the planned date of publication shall be deemed to be the date three months before the last 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.

Notwithstanding the foregoing, such a publication can be made if the relevant Party has as soon as reasonably possible, but in any case prior to entering the Project Management Agreement notified in writing the other Parties of the intention to make such a publication.

10.3 In addition to the Contract,

(i) 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.";

(ii) 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.

Section 11 Assignment

No EvithermWork Package Leader shall, without the prior written consent of the other Evitherm Work Package Leaders, assign or otherwise transfer partially or totally any of its rights and obligations under this Project Management Agreement. Such consent shall not be unreasonably withheld when such assignment or transfer is in favour of an Affiliate of that Evitherm Work Package Leader.

Section 12 Termination

12.1 After signature of the Contract, no Evitherm Work Package Leader shall be entitled to withdraw from this Project Management Agreement and/or participation in the Project unless:

(a) that Evitherm Work Package Leader has obtained the prior written consent of the other Evitherm Work Package Leaders (such consent not to be unreasonably withheld), to the withdrawal from, or termination of, the Contract; or

(c) the Contract is terminated by the Commission for any reason whatsoever, provided always that a Evitherm Work Package Leader shall not by withdrawal or termination be relieved from

(i) its responsibilities under this Project Management Agreement or the Contract in respect of that part of that Evitherm Work Package Leaders's work on the Project which bas been carried out (or which should have been carried out) up to the date of withdrawal or termination; or

(ii) any of its obligations or liabilities arising out of such withdrawal or termination.

12.2 If any Evitherm Work Package Leader enters into bankruptcy or liquidation or any other arrangement for the benefit of its creditors the other Evitherm Work Package Leaders shall, subject to approval by the Commission, be entitled to take over the fulfilment of such ’Work Package Leader’s obligations and to receive subsequent payments under the Contract in respect thereof.

12.3 The provisions of Sections 1, 6, 7, 9, 12, 13 and 16 shall survive the expiration or termination of this Project Management Agreement to the extent needed to enable the Evitherm Work Package Leader to pursue the remedies and benefits provided for in those Sections.

12.4 For the avoidance of doubt, termination or withdrawal shall not affect any rights or obligations incurred prior to the date of the termination.

Section 13 Settlement of Disputes

13.1 All disputes or differences arising in connection with this Project Management Agreement which cannot be settled amicably shall be finally settled by arbitration in Brussels under the CEPANI rules, by one or more arbitrators to be appointed under the terms of those rules.

13.2 The award of the arbitration will be final and binding upon the EvithermWork Package Leaders concerned.

Section 14 Language

This Project Management Agreement is drawn up in English which language shall govern all documents, notices and meetings for its application and/or extension or in any other way relative thereto.

Section 15 Notices

Any notice to be given under this Project Management Agreement shall be in writing to the following addresses and recipients, the authorised representatives. It shall be deemed to have been served when personally delivered, or, if transmitted by telefax, electronic or digital transmission when transmitted provided that such transmission is confirmed by receipt of a successful transmission report and confirmed by mail.

(1) NPL Management Ltd (NPLM),

Xxxxxx Xxxx, Xxxxxxxxxx, XX00 XXX, Xxxxxx Xxxxxxx,

Xx Xxxxxx Xxxxx

Tel no. x00 00 0000 0000

E-mail xxxxxx.xxxxx@xxx.xx.xx

(2) ARC Seibersdorf Research GmbH, (ARCS)

Xxxxxxxxxxx 0, 0000, Xxxx, Xxxxxxx,

Xx. Xxxx Xxxxxx

Tel no. x00 000000000

E-mail xxxxxx.xxxx@xxxx.xx.xx

(3) Xxxxxxxxx Nazionale delle Ricerche (CNR)

Istituto di Metrologia “G.Colonnetti”

Xxxxxx xxxxx Xxxxx 00, 00000 Xxxxxx, Xxxxx

Xx Xxxxxx Xxxxxx

Tel no. 00 000 0000 000

E-mail x.xxxxxx@xxxx.xxx.xx

(4) Laboratoire National d’Essais (LNE)

Rue Xxxxxx Xxxxxxxx 1, 75724, Xxxxx Xxxxx 00, Xxxxxx,

Mr Xxxxxxxxx Xxxx

Tel no. x00 00 00 00 0000

E-mail xxxx.xxxxxxxxx@xxx.xx

Bundesrepublik Deutschland (BRD.PTB):

Physikalisch-Technische Bundesanstalt

Xxxxxxx. 0-00

00000 Xxxxxx, Xxxxxxx,

Xx Xxxx Xxxxxxx

Tel no. x00 00 0000 000

E-mail Xxxx.Xxxxxxx@xxx.xx

Thermal Consulting (TC)

00 Xxxxxx xx Xxxxxxxx

00000 Xxxxxxx

Xxxxxx

Pierre Le Parlouer

E-mail leparlouer@thermalconsulting .com

(7) University of Stuttgart

Institut fuer Kernenergetik und Energiesysteme.

Xxxxxxxxxxxxxxx 00

00000 Xxxxxxxxx, Xxxxxxx

Xxxxxxx Xxxxx

Tel no. x00 000 000 0000

E-mail xxxxx@xxx.xxx-xxxxxxxxx.xx

(8) Xxxxx Xxxxx Consulting (PLG)

Thermal Technology Consulting

00 Xxxxxx Xxxx

XxxxxxxxxxXxxxxxx

XX0 0XX

Xx Xxxxx Xxxxx

Tel no. 00 00 0000 000 000

E-mail xxxxx.xxxxx@xxxxxxxxxxx.xxx

or to such other address and recipient as a Evitherm Work Package Leader may designate in respect of that Evitherm Work Package Leader by written notice to the others.

Section 16 Applicable Law

This Project Management Agreement shall be construed according to and governed by the law provided in the Contract.

Section 17 Entire Agreement ‑Amendments

This Project Management Agreement, the Principal Contractors Agreement, the Contract, and - when such exist(s) ‑ Complementary Contract(s), constitute the entire agreement between the Evitherm Work Package Leaders in respect of the Project, and supersede all previous negotiations, commitments and writings concerning the Project including any memorandum of understanding between the Evitherm Work Package Leaders (whether or not with others) which relate to the Project or its proposal to the Commission.

Amendments or changes to this Project Management Agreement shall be valid only if made in writing and signed by the authorised signatory of each of the Evitherm Work Package Leaders.

Section 18 Counterparts

This Project Management Agreement may be executed in any number of counterparts, each which shall be deemed an original, but all of which shall constitute one and the same instrument.

Section 19 Exhibits

The parties acknowledge and agree that the present Consortium Agreement is completed by 3 exhibits hereby attached which form an integral part of this Project Management Agreement: Exhibit A, the EC contract G7RT-CT-2002-05111. Exhibit B, the Principal Contractors Agreement. Exhibit C, the IPR agreement.

AS WITNESS the Evitherm Work Package Leaders have caused this Project Management Agreement to be duly signed by the undersigned authorised representatives the day and year under written.

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PROJECT MANAGEMENT AGREEMENT

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