General conditions for the performance of research and development contracts

The Research Studios Austria Forschungsgesellschaft (RSA FG) brings sustainable innovations from universities to the market in the field of digital intelligence. It networks universities and industry in the field of new technologies and their applications. The RSA FG as a not-for-profit GmbH pursues exclusively and directly purposes of knowledge and technology transfer. It carries out contract research in the field of applied research and opens up new technological territory. The RSA FG is an institution for research and knowledge dissemination according to the EU definition. Its business model can also be subsumed under the term Translational Research Organisation (TRO). In accordance with EU state aid law and the General Block Exemption Regulation, it must manage at least 80% of its activities as non-economic activities and does not want to exceed the threshold of 20% of economic activities. The following terms and conditions are tailored to these particularities.

Version 2019/I

Scope of application

1.1 The following conditions apply to all research and development orders placed with RSA FG. Deviating, conflicting or supplementary conditions of the customer will not become part of the contract, unless RSA FG agrees to their validity in writing. As far as the following terms and conditions do not provide for other regulations, the provisions of Austrian and European law shall apply to all research and development orders.

1.2 If the following terms and conditions contain an exclusion or limitation of liability of RSA FG, its legal representatives or vicarious agents for damages, this exclusion or limitation does not apply to liability for damages resulting from injury to life, body or health.

Subject matter of the contract, processing time

2.1 The object of a research and development order is the work provided for in the offer of RSA FG.

2.2 As far as the offer or the research and development order contains a processing time or deadlines, these shall only be considered as binding if RSA FG has expressly confirmed their binding nature. If the RSA FG recognizes that the binding processing time or the binding deadline cannot be met, the RSA FG will inform the customer about the reasons for the delay and will agree upon an appropriate adjustment with the customer.

Remuneration

3.1 The remuneration is calculated as a fixed price. Deviating from this, the contracting parties may agree that remuneration is to be paid according to expenditure – with a cost ceiling if necessary. The

Value added tax is added to the remuneration in each case.

3.2 RSA FG will inform the customer immediately, if it is foreseeable that the intended research and development result cannot be achieved with the agreed remuneration. At the same time, RSA FG will propose an adjustment of the remuneration to the customer. In case this adjustment becomes necessary for reasons that were neither foreseeable by RSA FG at the time of placing the order nor for which RSA FG is responsible, and no other agreement with the customer is reached, the proposed adjustment will become binding.

Payments

4.1 Payments are due in accordance with the agreed payment schedule. In the absence of a payment plan, the due date is determined by the due date stated in the invoice. Payments shall be made without deduction to the account of RSA FG, stating the invoice number and the Research Studio processing the order.

4.2 A set-off against claims of the RSA FG is only permissible if the counterclaim is undisputed or legally binding.

4.3 The client may only exercise a right of retention if his counterclaim is based on the same contractual relationship.

Research and development result, rights of use

5.1 The research and development result shall be made available to the Client after completion of the order in accordance with the offer.

5.2 The client shall be granted a non-exclusive right of use, free of charge, for the application purpose on which the contract is based, in respect of the inventions created during the performance of the contract and in respect of the industrial property rights applied for and granted by Fraunhofer Gesellschaft. The client shall reimburse RSA FG for a share of the costs for application, maintenance and defence of the industrial property rights to be agreed upon, and shall pay a lump-sum compensation for employee inventions in case of use, the amount of which shall be agreed upon in each individual case.

5.3 Upon request, the customer shall receive an exclusive, remunerated compensation in lieu of the right according to No. 5.2 for the inventions made during the execution of the order and for the industrial property rights applied for and granted by RSA FG.

5.4 The client shall receive a non-exclusive, free right of use for the purpose underlying his order for the copyright-protected works, databases created and know-how created during the execution of the order. The granting of an exclusive right of use for the application purpose requires a separate agreement.

5.5 Inventions which are jointly achieved by the contracting parties in the course of the execution of the order (co-inventions) may be used and licensed by each contracting party without financial compensation. The contracting parties shall each bear an agreed share of the costs for application, maintenance and defence of the industrial property rights concerned. In the case of works protected by copyright, which are jointly created by the contractual partners in the course of the execution of the order (co-inventions), item 5.5 sentence 1 shall apply accordingly.

5.6 If already existing industrial property rights of RSA FG are used during the execution of the order, which are necessary for the utilization of the research and development results by the customer, the customer shall receive a non-exclusive right of use against payment to be agreed upon separately, as far as no other obligations of RSA FG are opposed to this.

Property rights of third parties

6.1 RSA FG will immediately inform the customer about any third party industrial property rights which become known to RSA FG during the execution of the order and which could conflict with the use agreed upon according to clause 5. The contracting parties will decide by mutual agreement in which way these industrial property rights will be taken into account in the further execution of the order.

6.2 RSA FG is liable for the violation of industrial property rights of third parties under the conditions of clause 5. 7.2 and 8.4 sentence 1, if it has violated its duty to inform. Apart from that, liability is excluded, except in the case of item 8.

Liability

7.1 The RSA FG is responsible for the application of scientific diligence and the compliance with the generally accepted rules of technology, but not for the actual achievement of the research and development objective.

7.2 The liability of the RSA FG, its legal representatives and vicarious agents for breach of duty and tort is limited to intent and gross negligence. In case of violation of essential contractual obligations, the RSA FG, its legal representatives and vicarious agents are also liable for slight negligence. In any case, the liability is limited to the foreseeable damage typical for the contract.

7.3 If RSA FG does not perform the service incumbent upon it, does not perform it when due or does not perform it as owed, the customer may only claim damages instead of performance, if he has unsuccessfully set a reasonable deadline for performance to RSA FG with the declaration that he will refuse acceptance of the service after the deadline has expired.

Special regulation for contractual research and development work

8.1 As far as RSA FG owes the production or delivery of an object corresponding to the state of the art as a result of research and development on the basis of an explicit promise, the respective regulations of the law on contracts for work and services shall only be applied in case of defects according to the following paragraphs.

8.2 If the research and development result achieved by RSA FG turns out to be defective, Fraunhofer-Gesellschaft shall first be given the opportunity to remedy the defect – depending on the type of research and development result, the defect and other circumstances, even several times – by way of subsequent performance, at its option by repair or replacement.

8.3 If RSA FG refuses the supplementary performance or if the supplementary performance fails or is unacceptable for the customer, the customer may, at his choice, either withdraw from the contract or demand a reduction of the owed remuneration (abatement) or compensation.  The right of withdrawal can only be exercised in the case of a significant defect. It expires if the client does not declare the withdrawal at the latest 14 days after receipt of the notification of the refusal or failure of the supplementary performance or at the latest 14 days after the point in time at which the client becomes aware of the unreasonableness of the supplementary performance. RSA FG shall only be liable for damages under the further conditions of item 7.2 and – if RSA FG has rejected the supplementary performance – also of item 7.3.

8.4 In case of a defect of title due to the violation of industrial property rights of third parties, RSA FG shall only be liable if these rights exist in the Republic of Austria, if the customer uses the research and development result according to the contract and if the third party makes a justified claim to this extent and if the customer informs RSA FG about the claims asserted by the third party

8.5 The customer has to examine the research and development result delivered by RSA FG without delay and to give notice of defects without delay. Claims due to recognizable defects are only valid if they are reported to RSA FG within a period of 14 days from delivery.

8.6 Claims due to defects become time-barred according to clause 9.

Limitation of actions

9.1 The claims of the client for breach of duty and for tort are subject to a limitation period of 12 months. This does not apply if laws prescribe longer periods or if RSA FG is liable for intent or gross negligence.

9.2 If the acceptance of the research and development result is provided for, the limitation of claims due to defects according to clause 9.1 starts with the acceptance, otherwise with the handover.

9.3 Negotiations between the contracting parties concerning claims or the circumstances substantiating the claim shall suspend the limitation period. The inhibiting effect ends if one contracting party does not comply with the request of the other contracting party to continue the negotiations within 4 weeks.

Retention of title

10.1 The customer shall receive ownership of the research and development result as well as the rights of ownership specified in clause 10.1. 5.2, 5.3, 5.4 and 5.6 only after full payment of the agreed remuneration. Property of RSA FG and rights of use may neither be pledged nor transferred by way of security.

10.2 In the event that the ownership of RSA FG of the research and development result expires due to combination, mixing or processing, it is already now agreed upon that the ownership of the uniform object created in this case shall be transferred to RSA FG proportionally (invoice value) until complete payment of the agreed remuneration.

10.3 In case of resale of the research and development result, the customer assigns all rights from the resale to RSA FG with effect in rem until complete payment of the agreed remuneration.

Secrecy

11.1 The contracting parties shall not make information of a technical or business nature that has been mutually communicated and declared to be confidential accessible to third parties during the term and for a period of five years after the completion of the order. This shall not apply to information which was known or generally accessible to the other contracting party or to the public before the notification or which became known or generally accessible to the public after the notification without the cooperation or fault of the other contracting party or which corresponds to information which was disclosed or made accessible to the other contracting party by an authorised third party or which was independently developed by an employee of the other contracting party who had no knowledge of the notified information.

11.2 Third parties in the sense of this regulation are not subcontractors of RSA FG, who are entrusted by RSA FG with partial services within the scope of the order and who were obliged to secrecy.

Publication, advertising

12.1 After prior consultation with the RSA FG, the Principal shall be entitled to publish the research and development result, naming the author and the Research Studio involved.  The coordination shall be made with due regard to the fact that e.g. dissertations, diploma theses or applications for property rights are not affected. For advertising purposes, the Customer may use the name of the RSA FG or its Research Studio only with its express consent.

12.2 Publications of the RSA FG, which concern the purpose of use, will be coordinated with the customer in due time, as far as the customer has received exclusive rights according to clause 5.3.

Termination

13.1 Both contracting parties are entitled to terminate the contract with one month’s notice to the end of the calendar month if no significant progress has been made after a considerable processing period. No notice of ordinary termination can be given before the expiry of six months from the start of the contract. Apart from this, there is no right of ordinary termination.

13.2 Each contracting party is entitled to terminate the contract extraordinarily for good cause.

13.3 After effective termination, RSA FG will hand over the research and development result achieved by the end of the period of notice to the customer within four weeks. The customer is obliged to reimburse RSA FG for the costs incurred until the end of the period of notice. Personnel costs will be reimbursed according to time spent. In case the termination is based on a fault of one of the contractual partners, claims for damages remain unaffected.

Miscellaneous

14.1 Collateral agreements, amendments and supplements must be made in writing.

14.2 The place of performance for services of RSA FG is the place of business of

14.3 The law of the Republic of Austria shall apply.

14.4 Should individual or several provisions be or become invalid in whole or in part, the validity of the remaining provisions shall not be affected. The same applies in the event of a loophole in the regulations.