Part I. of this series is available here.
Section 7: Financial provisions
In this case, there’s a difference and a similarity between DESCA and MCARD. The common point is that both models mention that the Coordinator should transfer the pre-financing to the partners “without undue delay”. However, DESCA also proposes another option: the pre-financing to be transferred in separate instalments. As a tip from our side, this option may help protecting the project from unexpected events, non-performing partners or other financial difficulties.
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CA section |
DESCA |
MCARD |
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7. Financial provisions |
Option 1: Funding of costs included in the Consortium Plan will be paid by the Coordinator to the Parties after receipt of payments from the Granting Authority in separate instalments as agreed below... Option 2: without undue delay (as in MCARD) |
The payment schedule, which contains the transfer of pre-financing and interim payments to Parties, will be handled according to the following: Funding of costs will be included in the Action Plan and will be paid to the Parties after receipt from the Funding Authority without undue delay |
Section 8 and 9: Results and access rights
Last but not least, two sections of high importance. In terms of jointly owned results, you will notice that DESCA has a couple of options that you can set up in your Consortium Agreement. One is allowing for use of results of other joint owners with an advance notice and fair and reasonable compensation to the other joint owners to exploit the result. The other option is similar to what MCARD proposes, which is the equal ownership of joint owners and the option to exploit the result without any consent or compensation to the joint owners.
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CA section |
DESCA |
MCARD |
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8. Results |
Option 1 Unless otherwise agreed: - each of the joint owners shall be entitled to use their jointly owned Results for non-commercial research and teaching activities on a royalty-free basis, and without requiring the prior consent of the other joint owner(s). - each of the joint owners shall be entitled to otherwise Exploit the jointly owned Results and to grant non-exclusive licenses to third parties (without any right to sub-license), if the other joint owners are given: (a) at least 45 calendar days advance notice; and (b) fair and reasonable compensation.
Option 2: as MCARD |
Joint ownership is detailed and please note: The other provisions of Article 16.4 with reference to Annex 5 of the Grant Agreement shall not apply. Instead, this Section 8.2 (which constitutes a “joint ownership agreement” for the purposes of Annex 5 of the Grant Agreement) shall apply. And Each joint owner shall have an equal, undivided ownership in and to a joint Result as well as in and to resulting Intellectual Property Rights in all countries, unless otherwise provided in this Section 8.2. And Each of the joint owners and their Affiliates shall be entitled to Exploit the jointly owned Result as they see fit, and shall be entitled to grant non-exclusive licences, without obtaining any consent from, paying compensation to, or otherwise accounting to any other joint owner(s) Check also 8.3 - transfer rules! |
In terms of access rights to results and background, there are a few differences, such as the option to include a negative background list in MCARD and defining more specifically what “fair and reasonable conditions” refer to in the MCARD.
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CA section |
DESCA |
MCARD |
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9. Access rights |
Positive list for Attachment 1
Access rights for implementation shall be granted on a royalty-free basis – unless otherwise agreed in Attachment 1.
Access Rights to Results Option 1: if Needed for Exploitation of a Party's own Results shall be granted on Fair and Reasonable conditions. Access rights to Results for internal research and for teaching activities shall be granted on a royalty-free basis. Option 2: if Needed for Exploitation of a Party's own Results shall be granted on a royalty-free basis.
Access rights to Background: Fair and reasonable conditions |
Positive or negative list for Attachment 1
Access rights for implementation - … granted, as of the date of the GA entering into force, on a royalty-free basis to and by all Parties, and shall either terminate automatically upon completion of the Action or upon termination of a Party’s participation
Access Rights to Results: Option 1: … are hereby requested and deemed granted on a royalty-free basis, to and by all Parties, as of the date of the Result arising, for the lifetime of the relevant Result. Option 2: for Internal Research and Teaching royalty-free; but other Access Rights to Results on Fair and Reasonable Conditions (more specific, detailed)
Access rights to Background: Fair and reasonable conditions (more specific) |
Of course, there are other differences as well, like MCARD handling standardisation or employees’ rights and DESCA not. But we wanted to highlight those that really show why an agreement is more suitable for a research project focusing on knowledge generation and an innovation project focusing on bringing research results to the market in the form of a service or product.
Keep in mind that all key research results shall be transformed into useful innovations. For that you need the support from the industry or the investors who want clear IPR arrangements, not long discussions on what is fair and reasonable. Even if not used frequently by the research community, a good understanding of MCARD articles will be very useful in Horizon Europe projects.
