Project · Web viewThe Project Partners submitted an innovation proposal to develop such products and/or services, called Project “ Project ”), which InnoEnergy favorably assessed;

T. +31 (0) 40 247 31 [email protected] InnoEnergy SEKennispoort 6th floorJohn F. Kennedylaan 25612 AB EindhovenThe Netherlands

Innovation Project AgreementInnovation Project Agreement Project {*METRIC:strProjectTitle_WP0*}XX XXXX 2019. Eindhoven, The Netherlands

Relating to:

KIC InnoEnergy SE Innovation Project{*METRIC:strProjectTitle_WP0*}

Project Manager: {*METRIC:strProposalManagerName_WP0*}

CC Manager: {*METRIC:strCCManager*}, CC Manager of Co-Location Center

{*METRIC:strCCOffice*}

Project ID: [Complete Project Reference – Provided by InnoEnergy not the Accolade Project ID]

Effective Date: {*METRIC:datExpectedProjectStartingDate_WP0*}

Investment Round 2019

InnoEnergy Project Agreement {*YYYY_IP_KIC NUMBER_NAME}© Copyright KIC InnoEnergy SE

Table of Contents

Section 1. Project 4

Section 2. Intellectual Property 5

Section 3. Business Planning 8

Section 4. Operational Cost Reporting 8

Section 5. Annual Cost Reporting 9

Section 6. Cash Flows 10

Section 7. Feasibility Study 11

Section 8. Progress and Evaluation 12

Section 9. Governance Structure 13

Section 10. Fee 14

Section 11. Confidentiality 16

Section 12. Liability 17

Section 13. Term and Termination 18

Section 14. Notices 21

Section 15. Miscellaneous 22

Section 16. Governing Law and Competent Court 23

LIST OF EXHIBITS

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INNOVATION PROJECT AGREEMENT

This Innovation Project Agreement (the “Project Agreement”), is hereby made

BY AND BETWEEN:

(1) KIC InnoEnergy SE, a European company (Societas Europaea) incorporated and existing under the laws of the Netherlands, having its registered office at Kennispoort 6th floor, John F. Kennedylaan 2 (5612 AB) Eindhoven, the Netherlands, registered with the trade register with the Dutch Chamber of Commerce under number 51418886 (“InnoEnergy”);

and

(2) {*METRIC:strPartner1LegalName_WP0*}, a company/organisation incorporated and existing under the laws of {*METRIC:lisPartner1Country_WP0*}, having its registered office in {*METRIC:strPartner1ZIPCode_WP0*} {*METRIC:strPartner1City_WP0*}, at {*METRIC:strPartner1Address_WP0*}, registered with the trade register {*METRIC: strPartner1RegisteredVATCountry_WP0*} under number {*METRIC:strPartner1VATNumber_WP0*}, (“Project Partner 1”);



(5) [to be completed for other partners, If any]

Project Partner 1, Project Partner 2, Project Partner 3, [etc.] hereinafter jointly referred to as “Project Partners” (each individually as a “Project Partner”), InnoEnergy and Project Partners hereinafter jointly referred to as “Parties” (each individually as a “Party”).

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WHEREAS:

1) InnoEnergy launched an Investment Round (“IR2019”) to identify promising ideas to develop new marketable products and/or services in the field of new technologies;

2) The Project Partners submitted an innovation proposal to develop such products and/or services, called Project [Name] (“Project”), which InnoEnergy favorably assessed;

3) The Parties now wish to lay down the terms of the Project;

4) InnoEnergy is a party to the Framework Partnership Agreement (“FPA”) between InnoEnergy and the European Institute of Innovation and Technology (“EIT”), a copy of which was made available to the Project Partners (as part of the application materials) and was assessed by the Project Partners prior to signing this Project Agreement;

5) The Project Partners signed or shall sign an Accession Form to accede to the FPA as Knowledge and Innovation Community Partner (“KIC Partner”, as defined in the FPA) and as such accept all rights and obligations arising out of the FPA; and

6) InnoEnergy furthermore enters into a Specific Agreement (“SGA”, as defined in the FPA) with the EIT on a yearly basis and a copy of the most recent version of the SGA was also made available to the Project Partners (as part of the application materials).

Section 1. Project

1.1 Each Project Partner undertakes to fulfil its tasks for the Project as described in Exhibit 1 (the “Project Plan”).

1.2 The Project shall be fulfilled according to the “Project Schedule” as included in Exhibit 2.

1.3 Each of the Project Partners and InnoEnergy shall make certain contributions, as set out in Exhibit 3 hereto (the “Project Budget”). The co-funding provided by all Project Partners jointly needs to be at least 20% of the total Project Budget.

1.4 The Project Partners undertake that at least one of the Project Partners is or becomes a Platinum, Gold+, or Gold member to the InnoEnergy Innovation Ecosystem. Alternatively, each Exploiting Partner (as defined in Section 10.2) is at least a Silver member. If needed, the relevant Project Partner or Project Partners submit their membership application(s) to InnoEnergy, prior or together with this Project Agreement.

1.5 Each Project Partner is aware of its own rights and obligations under the FPA and SGA, as well as of InnoEnergy’s rights and obligations thereunder. By signing this Project Agreement, each

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Project Partner commits itself to render such efforts as are reasonably necessary for InnoEnergy to meet its obligations and exercise its rights (including those towards the EIT) under the FPA and SGA. With a view thereto, each Project Partner shall (among other things) provide such information, with such frequency and in such form (this may include reporting via automated means) as reasonably required by InnoEnergy, the Project Manager and / or the CC Manager.

Section 2. Intellectual Property

Under this Project Agreement, and in line with the ‘KIC InnoEnergy SE IP Policy’ (as was made available for the IR2019 on www.investmentround.innoenergy.com), under “Reference documents”, the following provisions apply:

2.1 Definitions

“Background” means tangible or intangible data, know-how, information or rights (including intellectual property rights) that are (a) held by a Project Partner before the Effective Date (or the date a new Project Partner accesses this Project Agreement as per Section 15.1); and (b) needed to implement the Project, or to exploit the results thereof.

“Foreground” (called ‘results’ in the FPA) means tangible or intangible output of the Project such as data, knowledge, know-how, information or rights (including intellectual property rights), whether it can be protected or not, that is generated during and in execution of the Project.

“IP” means the Background and Foreground collectively.

“Affiliated Partner Entity” means a legal entity that is under (in)direct control of, or under the same (in)direct control as a Project Partner. Control means the (in)direct holding of (a) more than fifty per cent of issued share capital; (b) a majority of voting rights; or (c) decision-making powers, in fact or in law.

“Restrictions” means legal restrictions or limitations which are of relevance for the use of Background under this Project Agreement.

“Fair Conditions” means appropriate conditions, including possible financial terms or royalty-free conditions, taking into account the specific circumstances of the request for access.

2.2 Identification of Background

Each Project Partner shall identify the Background held by it in Exhibit 4 (as updated from time to time). In doing so, each Project Partner shall clearly identify any Restrictions.

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2.3 Access rights to IP for other Project Partners

Following a request by a Project Partner (“request for access”) each Project Partner shall grant the requesting Project Partner a non-transferable and non-sublicensable license under the granting Project Partner’s IP, if such license is needed:

(a) to implement the requesting Project Partner’s tasks under the Project . Only in such case shall the license be royalty-free. Such license is granted (only) for as long as required for implementation of the Project; or

(b) for exploiting the requesting Project Partner’s own Foreground . Such license shall be granted under Fair Conditions. In deviation of Article 31.3 last paragraph and Article 37.3 last paragraph of the FPA a request for access under this Section 2.3(b) may be made for a minimum period of two years after the end of the Project (except as otherwise stated in Section 13). The Project Partners may agree on a longer period.

2.4 Access rights for Affiliated Partner Entities

By deviation to Section 2.3 above and to Article 31.1 last sentence of the FPA, and in addition to Articles 31.5 and 37.5 of the FPA, a Project Partner may sub-license the IP rights received under Section 2.3 to any of its Affiliated Partner Entities, if such sub-license is needed;

(a) to implement such Affiliated Partner Entity’s share of the tasks under the Project . Such sub-license is granted (only) for as long as is required for implementation of the Project by the Affiliated Partner Entity; or

(b) for exploiting the Affiliated Partner Entity’s own Foreground or that of the Project Partner to which it is affiliated. In deviation of Article 31.3 last paragraph and Article 37.3 last paragraph of the FPA a request for access under this subparagraph may be made for a minimum period of two (2) years after the end of the Project (except as otherwise stated in Section 13). The Project Partners may agree on a longer period.

Sub-licensing pursuant to this Section 2.4 is conditional upon (a) the Project Partner granting the sub-license demonstrating that the Affiliated Partner Entity is bound by the same obligations with respect to the IP as it is, and (b) the provisions of Sections 10.4, 10.6, 10.6 and 10.7.

2.5 Transfer of ownership and exclusive licensing of IP

A Project Partner shall have the right to transfer the ownership of its IP to any of its Affiliated Partner Entities, any other Project Partner (or any Affiliated Partner Entity of such other Project Partner) or a third party (all individually a “Beneficiary”). The same applies for exclusive licenses granted under a Project Partner’s IP.

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Such right is conditional upon the Project Partner transferring / licensing such IP demonstrating that (a) the Beneficiary is bound by the same obligations with respect to the IP as the Project Partner transferring /licensing such IP and (b) subject to the provisions of Sections 10.4, 10.5, 10.6 and 10.7.

In addition to the foregoing, if a transfer or exclusive licensing of Foreground is intended to a third party, this is subject to (a) InnoEnergy’s prior written approval, which shall not be withheld or postponed unreasonably; and (b) the other Project Partners concerned waiving their access rights in writing (as per Articles 36.2 and 31.1 of the FPA).

2.6 Joint ownership of Foreground (Article 32 of the FPA)

In deviation of Article 32.2 of the FPA, each Project Partner jointly owning Foreground has the right to transfer its share of such joint ownership to a Beneficiary;

(a) under the conditions of notification, deadlines and objection, but also of deviation set forth in Article 36.1 of the FPA. Such right is in any event conditional upon the Project Partner transferring such IP demonstrating to the other Parties that the Beneficiary is bound by the same obligations as the Project Partner transferring such IP;

(b) if the other joint owners of the relevant Foreground are given at least 45 days notice and fair and reasonable compensation;

(c) if the contemplated transfer is intended to a Beneficiary who is a third party, subject to the prior written approval of InnoEnergy, which approval shall not be withheld or postponed unreasonably; and

(d) subject to the provisions of Section 10.4, 10.5 and/or Section 10.6.

The same applies for exclusive licensing of jointly owned Foreground. Furthermore exclusive licensing is subject to (a) agreement by the jointly owning Project Partners and (b) the other Project Partners concerned waiving their access rights in writing (as per Article 36.2 and 31.1 of the FPA).

Jointly owning Project Partners may agree (in writing) to apply another regime than joint ownership (such as, for instance, transfer to a single owner), provided they do not limit the rights of the other Parties under this Agreement without their prior written consent.

2.8 Protection of Foreground (Article 33 of the FPA)

In addition to Article 33 of the FPA, the Project Partners shall use all reasonable diligence to enforce their rights against infringing third parties.

2.9 Exploitation of Foreground (Article 34 of the FPA)

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In addition to Article 34 of the FPA, given the nature of the Project, exploitation of the Foreground generated under the Project is primarily expected to be carried out by the Exploiting Partner(s) (as defined in Section 10.2).

Section 3. Business Planning

3.1 Exhibit 1 and Exhibit 3 establish the envisaged scope of the Project with respect to:

(a) the activities which fall under “KIC added value activities” as defined in the FPA (each a “KAVA”),

(b) the “KIC complementary activities” as defined in the FPA (each a “KCA”), and(c) the sources of funding.

The scope of the Project may be subject to changes according to Sections 7, 8.4 and/or 9.6. Such changes shall be reflected in a revision of the relevant Exhibits without undue delay.

3.2 To allow InnoEnergy to submit the annual business plan for the following year (“ Y+1”) with the EIT, the PSB (as defined in Section 9.2) proposes a detailed Project Plan, Project Schedule and Project Budget per Project Partner for year Y+1 (altogether the ”Annual Planning”). The proposed Annual Planning shall be based upon Exhibits 1, 2 and 3 in their latest version as attached to this Project Agreement. InnoEnergy has the right to propose changes to the Annual Planning as submitted by the PSB. If the PSB does not comply with InnoEnergy’s proposed changes, InnoEnergy may reject (part of) the Annual Planning and not include it in its annual business plan.

3.3 The final acceptance of the Annual Planning by InnoEnergy is subject to the total grant awarded by the EIT. The total grant awarded by the EIT may result in the Project Partners being asked to revise their Annual Planning in accordance with InnoEnergy’s instructions, or InnoEnergy rejecting the Annual Planning or part thereof.

Section 4. Operational Cost Reporting

4.1 The Project Partners report operational costs on a regular basis to the Project Manager (as defined in Section 9.1). Dates, format and frequency of such reports shall be agreed upon between the Project Partners and the Project Manager.

4.2 The Project Manager consolidates the reports received as per Section 4.1 and shares the consolidated report with the CC Manager in the format and at the frequency requested by the CC Manager, but at least twice per year.

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4.3 Operational costs do not need to be financially audited but should provide the Project Manager and the CC Manager with a correct understanding of the current financial status of the Project.

Section 5. Annual Cost Reporting

5.1 The Project Partners report their actual costs for KAVA and KCA and the sources of funding for a certain calendar year in Y+1 to the Project Manager and InnoEnergy. The format and deadline are established by InnoEnergy.

5.2 All cost reports need to comply with the relevant provisions of the SGA. Upon signature of the FPA and yearly SGA, InnoEnergy shall make available to the Project Partners a copy thereof to the Project Partners via intranet. 5.3 All cost must be reported in Euros. Any conversion of declared costs into Euro shall be made according to the provisions laid down in the FPA and yearly SGA.

5.4 The requested InnoEnergy funding for actual costs of KAVA per Partner shall not exceed the amounts laid down in Exhibit 1.3.

5.5 The cost reports of a Project Partner may, upon request from EIT or InnoEnergy, be audited by an auditor appointed by the EIT or InnoEnergy at any point in time. If the auditor asks for it, a Project Partner is required to provide an auditor’s certificate on KAVA.

5.6 Based on the costs reports submitted by the Project Partners, the Project Manager drafts a consolidated annual cost report. If the Project Manager rejects certain costs, it will notify the relevant Project Partner thereof and, if capable of remedy, ask the Project Partner to remedy the wrongfully reported costs within a time frame set by the Project Manager. If the wrongfully reported costs cannot or are not remedied in line with the Project Manager’s instructions, the rejected costs will not be included in the consolidated annual cost report. The Project Manager subsequently submits the consolidated annual cost report with InnoEnergy.

5.7 Upon receipt of the consolidated annual cost report, InnoEnergy assesses the consolidated annual cost report. If InnoEnergy rejects certain costs, it will notify the Project Manager thereof and, if capable of remedy, ask the Project Manager to remedy the wrongfully reported costs within a time frame as determined by InnoEnergy. If the wrongfully reported costs cannot or are not remedied in line with InnoEnergy’s instructions, the rejected costs will not be included in the annual report to be submitted by InnoEnergy to the EIT. Notwithstanding Section 8.3, budget overruns may be a reason (inter alia) for InnoEnergy to withhold acceptance.

5.8 The EIT assesses KIC SE’s annual report and establishes the balance payment to InnoEnergy.

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5.9 The “EIT funds ratio” is calculated as the ratio of the total estimated KAVA costs and the InnoEnergy funding requested in the estimated Project Budget, as per Section 3.3, and such rate is fixed in Exhibit 3. This rate shall be applied when calculating the settlement of the balance due to each Project Partner as per Section 6.

Section 6. Cash Flows

6.1 InnoEnergy shall support the Project Partners in the pursuit of the Project objectives with financial support as set forth in this Section 6.

6.2 The EIT will provide one advance payment to InnoEnergy as per the FPA and yearly SGA.

6.3 Within 30 calendar days of receipt of the advance payment from the EIT, InnoEnergy shall assess the cash flow requirements of the Project and make an advance payment (“Pre-financing”) directly to each Project Partner requesting funding, on the basis of the below parameters:

(a) each Project Partner shall receive a certain percentage of the requested InnoEnergy funding for the given year as provided in the Annual Planning, based on the amount of pre-financing received by InnoEnergy from the EIT, and

(b) at InnoEnergy’s own discretion, more than the initial percentage of the agreed EIT requested funding for the given year as provided in the Project Budget, in the event a Project Partner is qualified as a “small enterprise” by InnoEnergy.

The percentage under (a) will be communicated by InnoEnergy to the Project Partners for each year promptly after InnoEnergy having received the indication of the amount of the pre-financing from the EIT.

6.4 As per the rules of the FPA and SGA, each Project Partner is responsible for following the applicable procurement rules to select and engage subcontractors and keep appropriate evidence thereof. InnoEnergy may issue additional instructions with respect to their procurement and may audit the Project Partners to verify whether they comply with the procurement rules (by having a proper procurement policy in place and abiding by such policy).If a Project Partner does not comply with the procurement rules, InnoEnergy reserves the right, at its sole discretion, to withhold the Pre-financing in part or in its entirety for such Project Partner.

6.5 A Project Partner is eligible for Pre-financing, and payment of the balance for each given year solely if all the following provisions are complied with:

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(a) all relevant obligations under this Project Agreement are fulfilled;(b) the Project Partner is not in default (as per Section 12.1);(c) the Project Partner has been formally recognized by the EIT as a partner of InnoEnergy

eligible for InnoEnergy funding, through – among other formalities – having signed the accession form to the FPA;

(d) if applicable, the specific Project Partner paid the annual contribution to InnoEnergy; (e) InnoEnergy has received the relevant pre-financing or payment of the balance from EIT; and(f) the Fee Agreement (as defined in Section 7.1.b) has been signed (this condition does not

apply to the first pre-payment).

6.6 The Project Partners shall use the funding transferred from InnoEnergy’s bank account only for the implementation and execution of the KAVA as reflected in the Project Plan and Project Budget.

6.7 Within 30 calendar days after payment of the final balance by EIT to InnoEnergy, InnoEnergy shall settle the balance per Project Partner. The final balance to be paid for a given year is the difference between the advance payment and the costs for KAVA considered eligible by EIT up to the amount of EIT requested funding established in Exhibit 3.

6.8 In the event a Project Partner did not use the pre-financing for the purpose of the Project, it is under the obligation to return the unused amounts within 30 calendar days upon notification from InnoEnergy.

Section 7. Feasibility Study

7.1 The Project shall include a phase of up to maximum 12 months starting from the Effective Date (the “Feasibility Study Phase”) in which the feasibility of its objectives is critically assessed (“Feasibility Study”) by InnoEnergy. The Feasibility Study is described in detail in Exhibit 1.1 and Exhibit 1.2 and shall (except as expressly agreed otherwise in writing by InnoEnergy) include the following:

(a) agreement by the Project Partners on the final Background IP list pursuant to Exhibit 2.1 (“Final Background IP list”); and

(b) a fully signed fee agreement laying down the main principles governing the fee due to InnoEnergy for the particular Project in line with Section 10 (“Fee Agreement”).

If the relevant Parties fail to reach an agreement on the above items, each Project Partner is entitled to terminate its participation to the Project at the end of the Feasibility Study Phase (or any earlier date as agreed by InnoEnergy) in application of Section 13.4.

7.2 Continuation of the Project after completion of the Feasibility Study requires the written approval of InnoEnergy and only upon such written approval shall the costs incurred by the Project Partners for KAVA beyond the Feasibility Study become eligible for funding.

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7.3 Based on the Feasibility Study and any complementary information requested by InnoEnergy during the assessment thereof, InnoEnergy, at its sole discretion, may decide not to continue the Project and may terminate this Project Agreement in accordance with Section 13.4.

7.4 Alternatively, InnoEnergy may, in writing, condition the continuation of the Project to certain adjustments to the scope of the Project. In such a case, the PSB (as defined in Section 9.2) shall, together with the CC Manager, assess and revise without undue delay the scope of the remaining parts of the Project, through revising the relevant Exhibits to this Project Agreement.

7.5 From the confirmed receipt of the revised Exhibits (which confirmation may be given by email) as per Section 7.3, InnoEnergy shall without undue delay: a) approve the revised Exhibits, or b) request additional information deemed necessary to allow the approval of the revised Exhibits, or c) request changes in the revised Exhibits. Parties hereby explicitly agree that if the additional information given under b) is not sufficiently convincing or the changes requested under c) are not implemented, InnoEnergy is, at its sole discretion entitled to terminate this Project Agreement in accordance with Section 13.4.

Section 8. Progress and Evaluation

8.1 The Project Manager independently assesses the progress of the Project and reacts to any deviation.

8.2 The Project Manager and the CC Manager shall meet quarterly (“Project Evaluation Meetings”) to jointly assess the progress of the Project in line with the project evaluation criteria described in Exhibit 6 (“Project Evaluation Criteria”) and the achievement of the Project objectives, in particular its contribution to the KIC key performance indicators as described in Exhibit 1, the IP developed, the products or services envisaged and the Fee scheme (see Exhibit 8). In addition, the CC Manager may request for a Project Evaluation Meeting at any other time by giving 2 weeks prior notice.

8.3 InnoEnergy shall make available to the Project Partners an evaluation report with the findings and conclusions of the Project Evaluation Meeting (hereinafter referred to as “Evaluation Report”).

In the Evaluation Report InnoEnergy may:

(a) increase or decrease the InnoEnergy funding requested (in the aggregate for the whole Project) until the end of the Project by up to 25% (twenty-five percent);

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(b) request an amendment to the Fee Agreement to ensure that InnoEnergy receives a fee as much as possible in line with the starting points of the Fee Agreement (positive and negative);

(c) request counter actions to be taken by the Project Partners within a certain timeframe if the Evaluation Report concludes that the achievement of certain Project objectives, in particular the contribution to the KIC key performance indicators, is at risk.

8.4 An increase or decrease in the requested InnoEnergy funding per Section 8.3(a) above shall, without undue delay, be reflected in a revision of the relevant Exhibits in accordance with Section 9.6. Until the relevant Exhibits have been adjusted accordingly, InnoEnergy is under no obligation to accept the Annual Planning. Adjustments to the requested InnoEnergy funding according to Section 8.3(a) shall have no retroactive effect.

8.5 If a subsequent Evaluation Report concludes that the counter actions as per Section 8.3(c) above have not proven successful in eliminating or significantly reducing the identified risks over a reasonable period of time defined in the Evaluation Report, InnoEnergy shall be entitled to request the PSB to either:

(a) suspend implementation of the Project until further counter actions have been taken and have eliminated or significantly reduced the identified risk. In such case, any further payment is suspended, which suspension shall have no retroactive effect; or

(b) terminate the Project Agreement according to Section 13.5.

Section 9. Governance Structure

9.1 There shall be a project manager who is responsible and accountable for executing the Project in line with the Exhibits (“Project Manager”). The initial Project Manager and his/her deputy (in case of absence) are listed in Exhibit 7. The PSB (as defined below in Section 9.2) may replace the initial Project Manager and his/her deputy. As the Project Manager and his/her deputy are crucial enablers for achieving the Project objectives, they must have the minimum capabilities and minimum availability as requested by InnoEnergy from time to time. InnoEnergy is entitled to request the candidates to cooperate in a competence assessment and to reject them if their profile manifestly deviates from such minimum capabilities. Either the Project Manager or the deputy project manager must be a representative of the industry partner(s) participating in the Project.

9.2 The Project Partners shall create a project steering board (“PSB”) which shall be comprised of one natural person (“Project Representative”) appointed by each Project Partner. Each Project Representative shall have one, binding vote on:

- changes to the Exhibits;- entry of a new Project Partner including the attached conditions;- the consequences of the exit / termination of a Project Partner;

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- the appointment of dismissal of the Project Manager and his/her deputy; and- all other decisions that are explicitly reserved for the PSB in this Project Agreement,on behalf of the Project Partner it represents. Each Project Partner shall also appoint another natural person as proxy. Project Representatives and their proxies are listed in Exhibit 9.2. This Exhibit can be amended by each Project Partner unilaterally with respect to its Project Representative and proxy.

9.3 Meetings of the PSB shall be held at least quarterly and be convened and chaired by the Project Manager. The Project Manager shall send convocations (including agenda) of meetings of the PSB to the Project Representatives at least four weeks in advance of the meeting (counting after the date the notification is sent) by mail, fax, or e-mail.

9.4 Project Representatives may participate in a meeting of the PSB in person, by telephone, video conference or any other means of communication, provided that (besides the Project Manager being able to chair the meeting) all the Project Representatives participating in the meeting can: a) follow all the proceedings of the meeting without interruption and directly, b) actively participate in the deliberations, and c) cast their votes.

Alternatively, in straightforward cases in which no debate nor deliberation is needed, all Project Representatives and the Project Manager may agree to use a simplified procedure to achieve and document proper PSB decisions, i.e. through e-mail exchange, provided that: a) all the Project Representatives receive all proposed decisions and revised Exhibits to be approved attached in the same e-mail from the Project Manager, with a request to approve them by return e-mail, and b) the Project Representatives representing the required quorum and majority give their unconditional approval without any ambiguity nor request for modification, by return e-mail.

9.5 Resolutions of the PSB require a quorum of two thirds of the Project Representatives and a simple majority of the votes cast, unless otherwise provided for in Sections 9.6 and 9.7.

9.6 Resolutions of the PSB on changes to the Exhibits 1.1, 1.2, 1.3, and 6 and on the consequences of a Party being in default under this Project Agreement, shall require a quorum of two thirds of the Project Representatives, a majority of two thirds of the votes cast, and InnoEnergy’s approval.

Notwithstanding the foregoing, if a resolution of the PSB results in a Project Partner’s budget or tasks being increased, or its tasks being modified in such a way that the Project Partner lacks the right competences to perform them, such Project Partner may veto such resolution in whole or in part.

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9.7 Resolutions of the PSB on the entry of a new Project Partner and changes to Exhibit 4, shall require a unanimous decision of all of the Project Representatives and the approval of InnoEnergy.

9.8 A Project Partner and its Project Representative shall not have any voting rights in the PSB during the time it is in default (as per Section 12.1).

Section 10. Fee

10.1 InnoEnergy shall be entitled to financially share in the success of a Project (hereinafter called “Fee”) in exchange for, a.o. the Project Partners receiving InnoEnergy Funding and the Project Partners joining the ‘InnoEnergy Innovation Ecosystem’ (offering access to an extensive network of industrial, research and university partners, access to knowledge, coaching, coordination, project selection and eligibility services).

10.2 The Fee is fully based on the exploitation of the results, including Foreground, generated under the Project (“Project Results”). With a view to the exploitation model envisaged, the Parties have chosen for the Fee scheme described in Exhibit 8. The exact terms and conditions of the Fee will be negotiated in good faith between the Project Partners and InnoEnergy and described in detail in a Fee Agreement (in a form substantially as attached hereto as Exhibit 9) to be signed by the Project Partner(s) that will commercialize the Project Results (each an “Exploiting Partner”) and InnoEnergy during the Feasibility Study Phase.

10.3 It is up to the Project Partners to identify among themselves the Exploiting Partner(s) (as the case may be and subject to InnoEnergy’s prior written approval). The Exploiting Partner(s) will be liable towards InnoEnergy for meeting the Fee obligations arising out of the Fee Agreement;

10.4 Each Project Partner hereby represents that it has provided and will provide InnoEnergy with all information, in a sufficient level of completeness, accuracy and reliability, necessary for InnoEnergy to assess the Fee proposed by the Project Partners, including but not limited to a clear description of the Project Results, including IP, (that will be) owned, (intended to be) transferred and/or licensed among the Project Partners and/or their Affiliated Partner Entities, or (intended to be) transferred and/or licensed to a third party, and the value thereof, the prospective exploitation model and revenues, and any significant change or evolution in the foregoing.

10.5 The Project Partners who will not become Exploiting Partners at the time the Fee Agreement is signed (“Initially Non-Exploiting Partners”) shall perform certain manufacturing, commercialization, support services and/or fulfil certain asset transfer obligations, as the case may be, as described in Exhibit 1, which pave the way for the commercialization of the Project Results by the Exploiting Partner(s). The Initially Non-Exploiting Partners shall agree with the

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Exploiting Partners on detailed provisions covering these services and obligations, in separate agreements.

In the same way, the Initially Non-Exploiting Partners have the duty to negotiate and conclude in good faith and within a reasonable time all additional (bilateral) agreements (such as transfer of IP ownership agreement, license agreements etc.) with the Exploiting Partner(s), as necessary for the Exploiting Partner(s) to commercialize the Project Results.

10.6 Each Project Partner is bound by the surviving obligation to promptly disclose to InnoEnergy any (envisaged) new commercial use of the Project Results:

(a) for Initially Non-Exploiting Partners this means any (envisaged) commercial use of the Project Results. By commercially using the Project Results, the Initially Non-Exploiting Partner becomes an Exploiting Partner and must accede to the Fee Agreement.

(b) for Exploiting Partners this means any (envisaged) commercial use of the Project Results beyond the commercial use already envisaged in the Fee scheme (Exhibit 8). Such new commercial use gives rise to a new separate Fee obligation towards InnoEnergy which must be added to the Fee Agreement.

The obligation of transparency set out in this Section 10.6 extends to providing any document or agreement (to be) entered into by the Project Partner evidencing the new commercial use, if so requested by InnoEnergy.

10.7 For the avoidance of doubt, if a Project Partner grants a sublicense under the Project Results owned by other Project Partners or transfers the ownership of its Project Results or grants a license under its Project Results to:

(a) any of its Affiliated Partner Entities that will use the Project Results solely for non-commercial R&D purposes (i.e. pure testing and demonstration purposes), such (sub)license or transfer of ownership shall not constitute an exploitation of Project Results as meant in Section 10.6 and therefore no Fee duty arises; or

(b) an Exploiting Partner, such (sub)license or transfer or ownership shall not qualify as a form of exploitation of the Project Results by the Project Partner as meant in Section 10.6(a), and the Fee shall only apply to the exploitation of the transferred or licensed Project Results by the Exploiting Partner, and not to the initial transfer of or (sub)license of the Project Results itself.

Section 11. Confidentiality

11.1 Notwithstanding Clause 42 of the FPA, for the purposes of this Project Agreement “Confidential Information” means all information in whatever form or mode of transmission,

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which is disclosed by a Party (“Disclosing Party”) to any other Party (“Recipient”) in relation to the Project and which has been marked as confidential or which can be reasonable be deemed to be of a confidential nature by the Recipient.

11.2 Each Recipient hereby undertakes during the term of this Project Agreement and thereafter:

(a) not to use Confidential Information otherwise than for the performance of the Project;(b) to apply the same degree of care with regard to the Confidential Information disclosed to it

within the scope of this Project Agreement as with its own confidential and/or proprietary information, but not less than reasonable care;

(c) not to disclose Confidential Information to any third party without the prior written consent by the Disclosing Party, except (i) to an Affiliated Partner Entity of the Recipient, its staff or third parties involved in the performance of the Project, on a need-to-know basis, or, (ii) in the case the Recipient is InnoEnergy or its co-locations, to its or their service providers, contractors, advisors, officers, staff (seconded or not), EU institutions, or other third parties if necessary to implement this Project Agreement and/or to safeguard InnoEnergy, its co-locations, or the EIT’s financial interests, provided however, in cases (i) and (ii), that these third parties are bound by confidentiality obligations; and

(d) to return to the Disclosing Party on written demand all Confidential Information which has been supplied to the Recipient including all copies thereof or to delete all information stored in a machine readable form and certify the destruction thereof, unless the Recipient is required to maintain the Confidential Information or part thereof by order of the EIT and other official (EU) bodies, in accordance with applicable law or regulations or to comply with a competent court or administrative order.

11.3 The above will not apply for disclosure or use of Confidential Information, if and in so far as the Recipient can prove that:

(a) the Confidential Information has become publicly available by means other than a breach of the Recipient’s confidentiality obligations and the Disclosing Party subsequently informs the Recipient that the Confidential Information is no longer confidential;

(b) the Confidential Information is communicated to the Recipient or one or more of its Affiliated Partner Entities without any obligation of confidence by a third party;

(c) the disclosure is made in order to comply with applicable reporting and disclosure obligations towards the EIT and other official (EU) bodies, with applicable law or regulations or with a competent court or administrative order;

(d) the Confidential Information, was developed by the Recipient or one or more of its Affiliated Partner Entities completely independently of disclosure by the Disclosing Party; or

(e) the Confidential Information was already known to the Recipient prior to disclosure.

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Section 12. Liability

12.1 No Party shall initiate legal proceedings – either by provisional measures, preliminary relief, attachment, or otherwise – against any of the other Parties for a breach under this Project Agreement unless the other Party and/or Parties are in default. A Party is in default if it has been requested to remedy a breach by the non-defaulting Party or Parties with a twenty (20) calendar day written notice and such breach has not been remedied by the defaulting Party within said twenty (20) calendar days, unless the breach is incapable of remedy, in which case the breaching party is immediately in default. The non-defaulting Party or Parties shall simultaneously submit a copy of such notice to, or upon discovery thereof inform InnoEnergy of such immediate default incapable of remedy.

12.2 Without prejudice to the liability provisions applying to the Project Partners as per the accession form (signed by the Project Partners in application of the FPA), no Party shall be responsible to any other Party for any indirect or consequential damages arising out of a default. The limitations on liability set forth under this Section shall not apply in cases of gross negligence or willful misconduct, damages to persons (injury or death), breach of the confidentiality or privacy obligations hereunder, and in any other cases in which the applicable mandatory law prevents a limitation of liability.

Section 13. Term and Termination

13.1 This Project Agreement is concluded for the period that the Project shall be executed in accordance with the provisions of this Project Agreement, as from the Effective Date. For the avoidance of doubt, if the Project Partners have performed the Feasibility Study before officially signing this Project Agreement, in agreement and under the boundary conditions set by InnoEnergy (in the investment letter issued / ramp-up agreement entered into at the time of project proposal selection), the work performed during the Feasibility Study Phase shall be considered as having been performed under this Project Agreement, and all rights and obligations under this Project Agreement shall retroactively apply during the Feasibility Study Phase.

13.2 This Project Agreement shall automatically end with immediate effect on that specific date that all of the following conditions are fulfilled:

(a) The Parties complied with all obligations under this Project Agreement, including submitting the last financial reports to InnoEnergy;

(b) InnoEnergy made all final payments in accordance with this Project Agreement, and the Project Partners, have reimbursed unused pre-financing, if so requested by InnoEnergy;

(c) The Fee Agreement has been signed pursuant to Section 10.2; and

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(d) Following the approval of EIT of the relevant reports, InnoEnergy has provided a written confirmation to the Project Partners that the Project has ended.

13.3 At the end of this Project Agreement as per Section 13.2:

(a) all existing terms relating to the allocation of rights (i.e. ownership rights, and rights and obligations relating to access to IP for exploitation) shall survive, and

(b) any agreement laying down the Fee for InnoEnergy shall survive.

13.4 Termination at the stage of the Feasibility Study phase

(a) InnoEnergy may terminate this Project Agreement with immediate effect as permitted under Sections 7.2 or 7.4. In such case:(i) each Project Partner remains fully obliged to fulfil its reporting obligations, for the

work performed under the Feasibility Study; (ii) each Project Partner retains its respective IP ownership rights, is released from any

existing obligation to grant access to its respective IP to the other Project Partners, and waives its existing right to access the IP of the other Project Partners; and

(iii) each Project Partner is released from the obligation to provide a Fee to InnoEnergy, considering no exploitable Project Results are expected to be generated in this phase.

(b) Each Project Partner may ask the PSB to terminate its participation in this Project Agreement as permitted under Section 7.1. In such case: (i) Section 13.4(a)(i) to (iii) included shall apply, whereby ‘each Project Partner’ shall read

‘the exiting Project Partner’; and(ii) the remaining Project Partners shall take over the Project tasks of the terminated

Project Partner, or inform InnoEnergy promptly of the reasons for which none of the remaining Project Partners is able to take over such tasks, nor for which no new Project Partner is able to take over such tasks, so that InnoEnergy can request the EIT to relieve the remaining Project Partners from such obligation to take over.

13.5 Termination based on negative Evaluation Report

The PSB may terminate this Project Agreement with immediate effect as permitted under Section 8.5. In such case:

(a) each Project Partner remains obliged to fulfil its reporting obligations, for the work it has performed under the Project up until such termination becomes effective;

(b) each Project Partner retains its respective IP ownership rights, remains bound by the existing obligation to grant access to its respective IP to the other Project Partners, and retains its existing right to access the IP of the other Project Partners, i.e. for further non-commercial internal research, and commercial exploitation of exploitable Project Results (if any); and

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(c) each Project Partner is released from its obligations under Section 10, except when exploitable Project Results would nevertheless have been generated.

13.6 Termination for bankruptcy of, a default by or at the request of a Project Partner

(a) The PSB may terminate this Project Agreement with respect to a Project Partner with immediate effect (i) in the event of a (filing for) bankruptcy, dissolution, suspension of payments, appointment of an administrator or liquidator, having its affairs administered by the courts, has entered into an arrangement with its creditors, has suspended its business activities or a similar concept, of such Project Partner, during the term of this Project Agreement, to the fullest extent permitted under the local law of the Project Partner concerned, or (ii) a Project Partner admits inability to pay its debts as they fall due (iii) a Project Partner suspends or threatens to suspend making payments of any of its debts (iv) a Project Partner, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its debts; and (v) in the event such Project Partner is in default, as per Section 12.1. If the PSB has not terminated a Party in any of the above events yet, InnoEnergy may request the PSB to do so.

(b) A Project Partner may ask the PSB to terminate this Project Agreement with respect to such Project Partner (i) for convenience, during the Project but after the Feasibility Study has been passed successfully, such termination taking effect at least 6 months after such request, or (ii) in the event its requested InnoEnergy funding as laid down in the annual Project Budget has been reduced by thirty-six percent (36 %) or more.

(c) In such cases under (a) and (b); (i) the terminated Project Partner remains obliged to fulfil its reporting obligations, for the

work it has performed under the Project up until such termination becomes effective;(ii) the terminated Project Partner retains its IP ownership rights, remains bound by the

existing obligation to grant access to its IP to the other Project Partners and waives its existing right to access the other Project Partners’ IP;

(iii) Section 10 remains applicable to the exiting Project Partner, should it exploit its Project Results; and

(iv) Section 13.4(b)(ii) shall apply to the remaining Project Partners.

13.7 Termination for bankruptcy of InnoEnergy or for a default by InnoEnergy

A Project Partner may request the PSB to terminate this Project Agreement with respect to itself with immediate effect (i) in the event of bankruptcy, dissolution, suspension of payments, appointment of an administrator, or a similar concept, of InnoEnergy before InnoEnergy has made all the (rightfully due) final payments in accordance with this Project Agreement, and to the fullest extent permitted under the local law of InnoEnergy, or (ii) in the event InnoEnergy is in default, as per Section 12.1. In each of such cases;

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(a) the same consequences as stated under Section 13.6(c) (i), (ii) and (iv) shall apply; and(b) the terminated Project Partner is released from its obligations under Section 10. By

exception to the foregoing, if InnoEnergy has (partially) made the payments, the obligations under Section 10 shall apply in proportion to such (partial) payments.

13.8 Cross-Default

The termination of the SGA as a whole or with respect to a Project Partner automatically leads to termination of this Project Agreement as a whole or with respect to the relevant Project Partner.

In case of the termination of the SGA with respect to a Project Partner, the same consequences as stated under Section 13.6(c) shall apply.

13.9 Consequences of termination for Fee Agreement, FPA and SGA

Except as specifically stated otherwise under this Section 13, the termination of this Project Agreement as a whole or with respect to a Party has no effect on:

(a) any agreement laying down the Fee for InnoEnergy; and(b) the FPA

but leads to an amendment of the SGA solely to reflect such termination.

13.10 Surviving obligations

Except as specifically stated otherwise under this Section 13, in case of a termination of this Project Agreement, only the obligations arising out of Sections 11 (Confidentiality), 12 (Liability), 13 (Term and Termination), 15 (Miscellaneous), and 16 (Governing Law and Competent Court) shall survive the end or the termination of this Project Agreement.

Section 14. Notices

14.1 Notices relating to this Project Agreement must be given in by registered mail or email to the following addresses:

If to InnoEnergy:KIC InnoEnergy SEAttn.: Maurits KolkmanAddress: Kennispoort 6th floor, John F. Kennedylaan 2 5612 AB EindhovenCountry: The NetherlandsEmail: [email protected]

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If to Project Partner 1:{*METRIC:strPartner1LegalName_WP0*}Attn: [•]Address: [•]Country: [•]Email:[•]

[Complete for other Partners]

If to the PSBAttn: [•]Address: [•]Country: [•]Email:[•]

14.2 Each Party shall notify the other Parties about changes in its address or addressee(s).

Section 15. Miscellaneous

15.1 Accession by new Project Partners A party wishing to enter the Project can do so subject to a) obtaining the approvals mentioned in Section 9.7, and b) its accession to this Project Agreement and its Exhibits.

15.2 Precedence The body of this Project Agreement shall prevail over its Exhibits.

15.4 Invalidity If a provision of this Project Agreement becomes invalid, illegal or unenforceable, this does not affect the remainder of this Project Agreement.

15.5 AmendmentsAmendments to the body of this Project Agreement shall be made in writing. When necessary because of changes to the FPA and/or SGA such amendments shall take place without undue delay.

15.6 PrivacyFor the purpose of this Project Agreement:

“Personal Data” means data that relate to a natural person that is either (a) identified in, or (b) easily identifiable from the data in connection with easily obtainable other information.

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Each Party may process Personal Data obtained from another Party in connection with the Project or this Project Agreement solely (a) to the extent necessary for the obtaining Party to perform its obligations under this Project Agreement and (b) in compliance with all applicable privacy and data protection laws (including the European General data Protection Regulation).

More specifically Each Party commits itself to:

(a) maintain the security, confidentiality, integrity and availability of the Personal Data;(b) implement and maintain appropriate technical, physical, organizational and administrative

security measures to protect the Personal Data against loss and/or unauthorized access; and(c) promptly inform the Party from which it received the Personal Data of any suspected or

actual personal data breach involving such Personal Data.

15.7 AssignmentExcept as expressly stated otherwise in this Project Agreement, a transfer or pledge of (part of) a Party’s position under this Project Agreement is subject to (a) prior written approval from all other Parties; and (b) EIT eligibility rules.

Section 16. Governing Law and Competent Court

This Project Agreement is governed exclusively by and construed in accordance with Dutch law. Conflicts relating to this Project Agreement shall in the first instance be submitted to the competent court of Amsterdam, the Netherlands.

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LIST OF EXHIBITS

All Exhibits to this Project Agreement are listed below:

Exhibitnumber

Related topic

Content Drafted / completed by

Template

1.1 Project Project Plan Consortium IR2019 - Project Plan to be submitted

1.2 Project Project Schedule Consortium IR2019- Project Schedule to be submitted

1.3 Project Project Budget ConsortiumIR2019 - Project Budget to be submitted

2.1 IP Project Background

Consortium Exhibit 2.1 - IP Background Template

Exhibit 2.1 - Guidelines_to_draft_Exhibit_2.1_BG_IP_FINAL

6 Evaluation Project Evaluation Criteria

InnoEnergy See Chapter 5 of the IR2019-1 General Document

9.2. Governance Structure

List of PSB representatives

Consortium Exhibit 9.2 - Project Steering Board members

10.2 Fee Fee Scheme one-pager

Consortium Exhibit 10.2 – Fee Scheme

- Signature page(s) to follow –

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SIGNATURE PAGE 1 OF [ COMPLETE ]

__________________________ __________________________

KIC InnoEnergy SE {*METRIC:strPartner1LegalName_WP0*}

Name of signatory: Diego Pavia Name of signatory: [full name]

Position of signatory: CEO Position of signatory: [complete]

Date: [DD/MM/YYYY] Date: [DD/MM/YYYY]

Place: [complete] Place: [complete]

__________________________ __________________________

{*METRIC:strPartner2LegalName_WP0*} {*METRIC:strPartner3LegalName_WP0*}

Name of signatory: [full name] Name of signatory: [full name]

Position of signatory: [full name] Position of signatory: [full name]

Date: [DD/MM/YYYY] Date: [DD/MM/YYYY]

Place: [complete] Place: [complete]

[Include additional signature pages for additional Project Partners]

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Documents

Project · Web viewThe Project Partners submitted an innovation proposal to develop such products and/or services, called Project “ Project ”), which InnoEnergy favorably assessed;