— DRAFT —

Consortium Agreement

The Portuguese microBiological Resource Centre Network (Pt-mBRCN)
(Rede Portuguesa de Centros de Recursos Microbiológicos)

Preamble

The Organisation for Economic Co-operation and Development (OECD) Working Party on Biotechnology defined Biological Resource Centres (BRCs) as a key element of the scientific and technological infrastructure supporting life sciences and biotechnology. BRCs represent a new concept of repositories and providers of high quality biological materials and information. The OECD report published in 2001 recommends also the creation of a Global Biological Resource Centre Network (GBRCN) based on a system of accreditation for BRCs to foster international cooperation and economic development. Subsequently, OECD charged a task force consisting of delegates from OECD and non-OECD countries with a developing an implementation plan for (a) common operational standards, (b) information linkage and exchange standards, (c) appropriate security arrangements, (d) institutional architecture management and (e) funding. The Portuguese microBiological Resource Centre Network (Pt-mBRCN) recognizes the need to implement common policies, exchange technologies and seek collaborative projects within the OECD framework. In addition, a new legal framework implementation is needed, e.g., to address the Nagoya Protocol. The Consortium Partners (CP) to this Consortium Agreement (CA), agree to further scientific, technological and service development within the European (e.g. MIRRI, ECCO) and International (e.g. GBRCN, WFCC/WDCM) frameworks to create The Portuguese microBiological Resource Centre Network (Pt-mBRCN). The CP adopts the OECD definition for BRCs that are collections of culturable organisms (e.g. microorganisms, plant, animal and human cells), replicable parts of these (e.g. genomes, plasmids, viruses, cDNAs), viable but not yet culturable organisms, cells and tissues, as well as databases containing molecular, physiological and structural information relevant to these collections and related bioinformatics. The CP agrees that the provisions in the OECD Best Practice Guidelines for BRCs will be applied within the CA in order to preserve and provide biological resources for different user communities, conserve the biodiversity, protect the intellectual property, participate in policy formulation and, public information and awareness. By means of this CA, the CP will be particularly committed to achieve the goals stated in the CA by fulfilling these obligations with long-term cooperation.

The CP agree upon the following:

Chapter 1 - General

§ 1 Partners to the Agreement

This Agreement shall be made between the following Consortium partners:

1. Micoteca da Universidade do Minho (MUM) — represented by the Director, Prof. Dr. Nelson Lima
2. Portuguese Yeast Culture Collection (PYCC) — represented by the Director, Prof. Dr. José Paulo Sampaio
3. (Naming all the partners in the same way)
4. ….
5. ….

§ 2 Powers of Representation

One CP is not authorised to make binding statements on behalf of other CP nor to represent them unless the other CP has expressly declared his agreement to do so.

Chapter 2 - Executive Bodies

§ 3 Executive Bodies of the Consortium

3.1 The consortium shall consist of the following executive bodies:

1. Consortium Assembly
2. Coordinator
3. Secretary (when appropriate)
4. Treasurer (when appropriate)

3.2 By resolution of the Consortium Assembly, the Consortium may appoint Working Groups (WG) or Ad-Hoc Committees (AHC) for limited special tasks.

§ 4 Consortium Assembly

4.1 The Consortium Assembly is made up of one representative from each CP. The Chairman of the Consortium Assembly will be the Coordinator who will be elected by the assembly with a term for three years. The Consortium Assembly may admit additional persons to their meetings. However, every CP will only have one vote.

4.2 Insofar as individual tasks have not been referred to the Executive Bodies, the Consortium Assembly will be the overall competent executive body of the Consortium. In particular, the Consortium Assembly will decide, when appropriate, to enlarge the Executive Bodies with the Secretary and/or Treasurer to support the Coordinator on administrative and/or financial tasks, respectively.

4.3 Additional partners will be able to joint this CA after signing the CA and after approval by the Consortium Assembly. The Additive term signed will constitute an amendment to this CA.

4.4 The Consortium Assembly may assign individual tasks to another Executive Body of the Consortium.

§ 5 Coordinator

5.1 The Coordinator shall make day-to-day basic decisions in the period of time between meetings of the Consortium Assembly. She/he will be responsible in particular for the following tasks:

• Representing the Consortium
• Supervision of work-in-progress
• Definition of actions and deadlines
• Delegation of tasks to members of the Consortium
• Reaching decisions and solving problems with respect to Consortium goals
• Drafting proposals for the Consortium Assembly including reference to procedural regulations and administrative and organisational aspects which are vital to the Consortium

5.2 The Coordinator may submit for decision individual questions arising from its responsibility to the Consortium Assembly.

Chapter 3 - Procedural Regulations

§ 6 Voting Procedure

6.1 Insofar as decisions are to be made by the executive bodies of the Consortium, they will be made in meetings of the respective executive body. Invitations to these meetings are to be sent in writing by the Coordinator within a period of one week whilst stating the agenda. If members of the respective executive body and their representatives are prevented from participating in the meeting, they may be represented by another CP who has been authorised in writing. One CP may not represent more than one absent CP. Resolutions passed are to be written in minutes of the meeting, which are to be sent out to each partner immediately after the meeting.

6.2 Resolutions of the respective executive body may also be made in writing, whereby the Coordinator initiates and carries out the procedure. To this end, the Coordinator shall communicate via e-mail a draft resolution to all the CP and ask them for a vote within a reasonable period of time (within one week when correspondence takes place by e-mail). If the Coordinator does not receive an answer by a partner within the set deadline, this will be considered to be an abstention.

§ 7 Resolutions

7.1 As a principle, resolutions within the Consortium are made by the partners who are either present, represented or are participating by a written vote. A quorum of more than half of the executive body‘s members will be required for resolutions of the Consortium Assembly.

7.2 Resolutions shall be made by a single majority of the persons entitled to vote. In the case of equal votes, the vote of the Coordinator shall have the deciding vote.

Chapter 4 - Obligations

§ 8 Types of Obligations

8.1 The CP are responsible for delivering their work according to deadlines. The CP shall inform other CP without delay about deviations from the work schedule.

8.2 With respect to the Coordinator, the CP shall perform without delay all the cooperative acts necessary to carry out the work agreed.

Chapter 5 - Finances

§ 9 Annual Budget

Annual fees are agreed at the Consortium Assembly. The membership fees are invoiced every year and corresponds to 100 € for each partner. For Individual Members which support the network the annual fee is 50 €. Industrial or Commercial Sponsors will pay a minimum of 250 €.

§ 10 Budget Administration

The administration of the budget available to the Consortium as a result of the fees or revenues is the responsibility of the Coordinator according the actions-plan defined by the Consortium Assembly.

Chapter 6 - Agreements with Third Parties

§ 11 Types of Agreements

11.1 In order to achieve the goals which are the object of this Consortium, the CP may issue agreements with third parties or cooperate elsewhere with external partners. The approval of the agreements must be given by the Consortium Assembly.

11.2 Insofar as disagreements or legal disputes may arise with respect to granting exploitation rights or access rights between the Consortium, or one Consortium partner and the respective external contractual partner, the Consortium Assembly and the Coordinator must be informed. In such a case, the Consortium Assembly will decide immediately on the necessary measures to be taken and the Coordinator will be given the task to introduce appropriate steps in order to preserve the legal interests of the Consortium.

Chapter 7 - Exploitation of Results

§ 12 Ownership Assignment

Ownership of the results achieved within this CA will always be assigned to those CP who, alone or together with others, have acquired those results.

§ 13 Copyright

All the copyright of the results which are the object of this CA are reserved for the respective CP who may be considered to be an author(s). The CP grant each other the right to use the copyrighted results which are the object of this CA. Insofar as CP develop programmes, in particular for creating databases, software or portals, they shall transfer any exploitation rights on those to the Consortium. In individual cases, a CP who develops such programmes may be left with a regular right for further development.

§ 14 Patents

The registration and the required extension of the protection period of patents are the responsibility of the respective PC at their own cost, where the results are objects of this CA, and are considered for protection by patent law.

§ 15 Publications

Publications concerning the overall results of the Consortium which are the object of this CA shall be agreed jointly by the CP. The agreement will be made in the Consortium Assembly according to the procedural regulations of CA.

§ 16 Protection of Know-how

16.1 The CP are mutually obliged to refrain from using and passing on know-how of the other CP that has been revealed to them within the framework of this CA, insofar as this is not permitted by this CA or by express agreement with each of the other CP concerned.

16.2 The CP agree that in agreements with third parties, the rules of aforementioned section (16.1) shall be preserved through equivalent regulations.

Chapter 8 - Data Protection and Confidentiality

§ 17 Consent given

The CP are obliged to process data of partners and third parties only when they have given their consent to do so and when following the data protection laws.

§ 18 Data Protection

During the capture and processing of data of any kind, the CP are obliged to follow the regulations in force. The same applies for the data protection guidelines.

§ 19 Confidentiality

The parties to the agreement are obliged to treat as confidential the documents, data sources and details about each of the other parties to the agreement handed over within the framework of this agreement, insofar as the details are not already publicly known. Results of work, materials, documents and know-how of individual partners, but also of the whole Consortium are considered confidential for as long as the Consortium Assembly has not yet made a binding decision as to their publication.

Chapter 9 - Duration of the Consortium Agreement

§ 20 Start Date of the Consortium Agreement

This CA shall take effect following its signature by all the CP.

§ 21 End of the Consortium Agreement

This CA may not be ordinarily terminated except when the Consortium Assembly has agreed and defined the terms of the end.

§ 22 Post-Agreement Obligations

Following the ending of the CA, the CP are obliged towards each other as well as towards the Coordinator and towards their host organisations, to be funded at their own expense, for the resolution of questions that may arise in the context of results which they have acquired.

Chapter 10 - Settling of Disputes

§ 23 Choice of Law

This CA is subject to the Law of the Republic of Portugal.

§ 24 Jurisdiction

For the purpose of legal disputes arising from this CA, the court of jurisdiction shall be Braga.

§ 25 Arbitration of Disputes

In all disputes arising from this CA, all the parties shall carry out arbitration before going to court in order to settle the dispute as a whole, in parts, temporarily or finally. For the purpose of arbitration, they shall call upon the arbitration offices of their host institutions.

Final Clauses

§ 26 Language of the Consortium Agreement

The language of the CA is English. This also applies to additional annexes and all notifications, statements and terminations which are based on this CA.

§ 27 Notification in Writing, Electronic Communication

Changes, amendments and the annulment of this CA as well as the annulment of the requirement of notification in writing must be made in writing.

§ 28 Contact Persons

Each party to the CA shall appoint a person as contact person and another person as his/her representative, giving address, telephone number and e-mail address. This person and his/her representative are responsible for all the statements, explanations, queries and any information which are based on this CA.

§ 29 Copies

Each party shall receive one copy of this Consortium Agreement signed by all the other parties to the agreement plus all the annexes.