Terms & Conditions
General Cooperation Conditions of the
Equipment – BOKU Vienna Institute of Bio Technology GmbH
- Scope of Cooperations
The Equipment – BOKU Vienna Institute of Bio Technology GmbH, hereinafter “EQ-GmbH“, is an independent research and service organisation located at Muthgasse 18, 1190 Vienna, and a subsidiary company of the University of Natural Ressources and Life Sciences Vienna. EQ-GmbH operates a series of high end state of the art technical instruments and equipment (hereinafter “Facilities“) and appropriately trained scientific personnel for projects of fundamental research on the area of life sciences.
EQ-GmbH shares its Facilities with other university or extra-university research organisations and research enterprises (hereinafter “Partner“) in the framework of research cooperations. Research cooperations can take different forms, e.g. joint research projects, the provision of research services, the sharing of Facilities or the delivery of biotechnological products as specified by the Partner and designed for further research.
- Project Agreement
Basis of each research cooperation is a Project Agreement concluded in writing between EQ-GmbH and the Partner and including the General Cooperation Conditions of EQ-GmbH, hereinafter “GCC”, as applicable at the time. Any research cooperation with EQ-GmbH shall be based exclusively on these GCC.
Initially a Partner sends EQ-GmbH a request containing a description of the project and the desired sharing of Facilities via the EQ-GmbH. The EQ-GmbH will examine the request whether, within which timeframe and under which conditions EQ-GmbH is in a position to carry through the project. In general one or more meetings between EQ-GmbH and the Partner will be required to define the details of the cooperation and the precise specifications of services or products. EQ-GmbH will make best efforts for rapid implementation but it has to be taken into account that the timetable is subject to the criteria of priority applicable to the relevant Facilities.
The details of the cooperation and the precise specifications will be laid down in writing in the Project Agreement which is concluded by affixing legally valid signatures both of EQ-GmbH and the Partner.
Generally for each cooperation a separate Project Agreement is to stipulate with the scientists of the University of Natural Ressources and Life Sciences Vienna. Modifications or extensions of existing cooperations require a written agreement in that regard between EQ-GmbH and the Partner.
- Services and Deliveries
As the Facilities generally are used for several research projects the duration of which cannot always be precisely predicted, periods indicated in the Project Agreement as to the provision of services or the delivery of products are non-binding estimates only, unless otherwise agreed upon in writing. Place of execution of cooperation services is the location of the relevant Facility. Employees of the Partner will get an authorization of access to the Facility to the extent necessary and they have to comply with the working and security rules in force. The Partner is responsible for such compliance by its employees. In case of delivery of products these will be hold available for collection by the Partner at the location of the Facility. If the Partner requests another way of delivery or a specific packaging the Partner bears all related costs. Ownership and risk pass over to the Partner in the moment of collection or of dispatching by EQ-GmbH.
For each research cooperation EQ-GmbH charges fees calculated on the basis of the internal principles of calculation and laid down in writing in the Project Agreement. The fee is increased by legally mandatory value added tax. Unless otherwise agreed upon in writing after completion of the cooperation the Partner is sent a fee note in the form prescribed by law. Payment has to be effected within 30 days from the date of the fee note without deductions and without any commissions charged by the bank. In case of delay the Partner is obliged to pay interest amounting to 10 per cent p.a. on a current account basis for the time until complete payment of the open amounts. Setting off fees against claims, if any, against EQ-GmbH is not permitted.
- Provisions on utilization and security
The results of services and the products (sample material and electronic data) of EQ GmbH in the framework of cooperation projects are based on research work and will be used by the Partner for further research work or for other purposes laid down in the Project Agreement. The Partner acknowledges that products of EQ-GmbH may be biological material in the meaning of the laws on genetic technology or may contain toxic substances. In any case EQ-GmbH will inform the Partner about such facts upon delivery. It is the obligation of the Partner to care for further safe use and utilization of the services and products of EQ-GmbH. The Partner is also obliged to care for a safe disposal of the products according to the relevant waste regulations in force. The Partner is responsible to inform its employees and all other persons that may possibly comeinto contact with the products about all risks that could result therefrom in any way for persons or objects and to instruct them in the safe handling and utilization of the products.
- Intellectual property, exploitation and publications
The results of a research cooperation project shall be owned by Partner and will be analysed as to potential intellectual property rights. Intellectual property pertaining to the research area of the Partner and which directly relate to the Partner’s product(s), shall belong to that Partner. The research area of the Partner and the Partner’s product(s) shall be defined in detail in the Project Agreement. Intellectual property pertaining to any other area (i.e., any area other than the Partner’s area and product(s)), including without limitation the EQ-GmbH technology shall belong to EQ-GMBH. Each party agrees to render its full assistance and cooperation to the other party in obtaining and enjoying such ownership rights. The Partner is granted the limited license to use the EQ-GmbH-intellectual property resulting from the research cooperation project solely for research purposes. The license shall be royalty-free and perpetual, but non-exclusive, non-sublicenseable and non-transferable. Each party is responsible for its respective intellectual property rights, and may file, prosecute, maintain and exploit or otherwise commercialize intellectual property rights at its sole discretion and expense. EQ-GmbH shall have the right to publish those results of research cooperation projects which pertain to EQ-GmbH‘s intellectual property upon consent of the Partner which shall not unreasonably be withheld. The Partner is obliged to describe the contributions of EQ-GmbH in an appropriate way under “acknowledgements” in all of its own publications.
Subject to the foregoing, each party shall not disclose any information about subject and content of the cooperation and the other party’s results . The non-disclosure period ends after the lapse of five (5) years from the termination of the Project Agreement. Each party shall take care that also their employees, co-workers and consultants are included in the non-disclosure obligation. Excepted from the non-disclosure obligation is information which has already been previously known to the recipient or is or becomes common knowledge or in case disclosure is based on legal provisions or on decisions of public authorities.
- Quality of products, warranty and indemnification
EQ-GmbH will use its reasonable commercial efforts to cooperate and provide services in the research cooperation. The Partner is aware that products of EQ-GmbH in general are biological material of experimental nature and therefore subject to variations of quality and to changes of products beyond EQ-GmbH‘s control. Though EQ-GmbH is committed to adhere to high quality standards in its laboratory work, EQ-GmbH does not give any explicit or implicit warranty or guarantee and hereby expressly disclaims any warranty, express or implied, in relation to the provision of services or the delivery of materials or products by EQ-GmbH, in particular regarding the merchantability or fitness for a particular purpose, the durability or certain quality of results or products, or the non-infringement of third party intellectual property rights. EQ-GmbH explicitly does not warrant that the use or sale of any materials, products and results delivered in a research cooperation or under a Project Agreement will not infringe any intellectual property rights. The Partner shall defend EQ-GmbH, its employees, agents, affiliates and contractors (the “EQ-GmbH Indemnitees”), and shall hold the EQ-GmbH Indemnitees harmless from and against all suits, actions, or proceedings, at law or in equity, and from all claims, costs, damages, losses and expenses (including, without limitation, attorney’s fees, consultants’ fees, experts’ fees) of third parties that are related to or in connection with the materials, products, the provision of the services and results in the course of a research cooperation or under a Project Agreement with the Partner.
- Limitation of liability
All risks of the cooperation projects is borne by the Partner. EQ-GmbH does not assume any liability for the breach of third party rights to intellectual property in
course of the cooperation. EQ-GmbH furthermore is not liable for delays in the carrying through of the project or in case of a project discontinuation. In any case the liability of EQ-GmbH is limited to damages in case of intent or gross negligence only. The liability for any negligence other than gross negligence is excluded. In no case encompassed by any liability are mere economic losses, lost profit and indirect or consequential damages of any kind whatsoever. Liability of EQ-GmbH in any case is limited to the amount paid by the Partner under the Project Agreement.
- Term of the Agreement
The Project Agreement terminates upon completion of the agreed cooperation and payment of the fee note issued. An early termination of the Project Agreement by the Partner for any reason requires two (2) weeks prior notice in writing to EQ-GmbH. The Project Agreement may be terminated by either party
with immediate effect by written notice, if the other Party breaches the agreement in any material manner and shall have failed to remedy such default within two (2) weeks, after written notice thereof from the terminating party. In case EQ-GmbH terminates a Project Agreement with a Partner because of the non-payment or the delay of payment of fees, EQ-GmbH shall have the right to terminate any and all further current Project Agreement(s) with the same Partner at will. Upon termination for any reason, EQ-GmbH is entitled to the contractual fees for all services or parts of services already provided plus all costs of EQ-GmbH that result from the termination which includes payments for residual expenses that result from actual obligations until the date of termination. Provisions of the Project Agreement pertaining to intellectual property ownership, licenses and exploitation, publications as well as provisions on the non-disclosure shall survive the termination of the Project Agreement.
The Project Agreement together with these GCC constitutes the entire content of the agreements between EQ-GmbH and the Partner. Should any terms of the Project Agreement or the GCC be or become void or otherwise ineffective the other terms thereof are not affected. The parties are obliged to replace the ineffective terms by effective ones coming as near as possible to the scientifically and economically intended result. No variation of the terms and conditions of the
GCC will be binding upon EQ-GMBH unless agreed to in writing and signed by an authorized representative of EQ-GmbH. Should any terms and conditions of a Project Agreement be inconsistent with or in addition to the GCC, those inconsistent or additional terms of the Project Agreement shall prevail. Until a Project Agreement is in place or where there is no Project Agreement, the terms and conditions in this GCC constitute the entire agreement of the parties in relation to a research cooperation. The Project Agreement and the GCC is subject to Austrian law expressly excluding the rules of conflict of laws and the UN Convention on Contracts for the International Sale of Goods. The parties to the Project Agreement shall endeavour to settle any disputes amicably and shall ask the User Committee of the relevant Facility for its opinion. Exclusive place of jurisdiction is the materially competent Court at the seat of the EQ-GmbH in Vienna, Austria.