EUREKA
THE TOOLBOX
Checklist for the Preparation and Execution of a EUREKA Project
TABLE OF CONTENTS
OBJECTIVES OF THE CHECKLIST 3
Managerial tool for the company manager 3
A linking driver 3
Limitations of the checklist 4
PROJECT PREPARATION AND EXECUTION 4
The preparation of a EUREKA project 4
The content of the project 4
The legal aspects of the collaboration 5
The execution of the project 5
CHECKLIST FOR THE SETTING UP OF AN R&D AGREEMENT 6
Warnings 6
Preamble and definitions 6
Project contents 7
Legal aspects of the collaboration 8
ACKNOWLEDGEMENT 11
OBJECTIVES OF THE CHECKLIST
Managerial tool for the company manager
The object of the EUREKA Initiative are research-based cooperation projects in an international setting. Entities (companies, research institutes, etc.) from at least two EUREKA Members may set up a project.
A cooperation presupposes a Cooperation Agreement spelling out among other things the objective, the contribution of each partner, plans for the exploitation of results, the business plan, confidentiality and ownership, etc. Such an agreement may be simple or quite complex depending upon the structure of the partnership and the necessary cooperation during development, production, industrialisation and commercialisation. A cooperation agreement is not necessarily static because it may be the subject of adaptations during the course of the project.
The checklist for the preparation and execution of a EUKEKA project is above all a managerial tool to assist the company manager to structure the negotiations with his prospective partner(s). It covers all major aspects of a cooperation agreement and gives a list of action points and questions to take into account before, during and after the setting up of the project.
The checklist gives principal rules and puts stress on the most important difficulties which might be met by EUREKA partners in the drawing up of the collaboration.
A linking driver
A fundamental characteristic of EUREKA is its 'bottom-up' character whereby partners have the total freedom to define and run their project. They are themselves fully responsible for the development of their EUREKA project.
Although the EUREKA initiative mainly acts according to 'bottom-up' principles, one of the tasks of the Initiative is nevertheless to help companies, research institutes, etc. gain access to appropriate information for their EUREKA projects. To this end, several EUREKA booklets have been set up, leading to a rich library covering different important topics of the project execution. In this perspective this checklist is a linking driver in the chain of information on actions which ought to be performed in the context of a EUREKA project and it is the backbone of EUREKA project generation and project execution. !n this booklet references will be made to existing EUREKA brochures which may be of some help.
Limitations of the checklist
The checklist highlights issues... it does not supply solutions. Professional advice remains necessary. The managers should be able to exert overall control over the process, but legal advice in particular should be involved at an early stage.
The checklist cannot cover all possibilities and contributions arising from:
- the number and nature of project participants;
- inconsistencies in the applicable legal system.
PROJECT PREPARATION AND EXECUTION
Partners are recommended to draw up a partnership agreement in order not to encounter difficulties in the application and execution of the EUREKA project. Following the EUREKA principles, the use of a cooperation agreement is not a legal requirement to attain EUREKA status.
The preparation of a EUREKA project
The preparation of the EUREKA project should lead to a document which contains all information which makes it possible for the partners to conduct the project under the best circumstances. This means that an agreement is reached amongst the project partners on the most essential aspects of the project. It generally covers two aspects:
- the contents of the project: what the project is about, who will do what, etc,
- the legal aspects of the collaboration:
confidentiality, liability, ownership, etc.
Project contents and legal aspects will together form the cooperation agreement.
In essence there is little difference between the preparation of a EUREKA project and the preparation of any other cross-border industrial RTD projects like those of the Framework programme of the European Commission. Although it is ultimately up to the project partners to decide how they make their preparations, this chapter may provide helpful assistance in the setting up of a project. Quality is of prime importance for success, and this quality will depend heavily upon its preparation.
The content of the project
Projects start with an idea: the identification of a possible market niche, the supposed solution to a specific problem, the validation of innovative fundamental research, etc.
Before going any further, this idea should be tested for its feasibility:
- Is this idea sufficiently new and have no patents been taken out which may be in conflict with the intended developments? (See also 'Guidelines for the Protection of Technological Information' booklet)?
- Is the basic technology sound and are the risks sufficiently limited?
- Can the project be executed within a reasonable timescale and with an acceptable budget?
-Would the envisaged market be sufficiently large to enable an economic activity at the end of the RTD phase?
Once sufficient assurance has been gained the idea may be detailed further. This would include:
• a realistic business plan: the preparation phase should end with the establishment of a business plan (see 'Guide for the Smaller Enterprise' booklet) comprising all information concerning:
- the potential markets
- competition
- the products to be developed
- the legal structure
- funds needed
- exploitation details;
• the detailed formulation of the objectives of the project;
• the working out of the work programme and identification of the expertise needed;
• the partner search: it might arise that not ail partners will be available at the initial phase and according to the expertise needed new partners may have to be identified;
• task distribution among the partners;
• an adapted management structure in order to have responsibilities assigned, a good communication flow, and structures available for decision making and resolving problems in the event of conflicts;
• a work plan with milestones and review points;
• a realistic budget;
• an exploitation strategy: how will the results of the project be industrialised and commercialised?
• what will be the task of each partner?
(For all these points see also 'Key Factors for Success' booklet).
The legal aspects of the collaboration
During the initial phase of the preparation of a EUREKA project a letter of intent and a confidentiality agreement are generally written. The letter of intent expresses the willingness of the partners to collaborate on a specific project, while the confidentiality agreement assures the partners of a protected exchange of information.
By the end of the preparation phase it is usual to establish a legal agreement among the partners which spells out those aspects of the collaboration which have not already been dealt with in the project contents. It may contain information on:
- disclosure and right to use know-how;
- protection of results, confidentiality and publications;
- ownership of results;
- sanctions;
- clauses on duration, renewal, termination, etc.;
- clauses on governing law, language, etc.
Partners may also decide from the start or during the EUREKA project to create a legal form of collaboration. Such a legal form may regulate some or all of the aspects which have been discussed under this heading. For further information please refer to the legal aspects of cooperation' booklet.
The execution of the project
During the execution of the project it wit! be necessary to:
• adapt and refine information gathered during the preparation phase, like:
- market potential and competition
- exploitation plans
- the business plan
- the collaboration agreement
• work on new items, like:
- the protection of results
- environ mental issues
- supportive measures, standardisation and normalisation aspects
• financing the exploitation
For some of these aspects EUREKA has developed the following brochures which may help the project partners achieve a successful outcome to their project:
- A Practical Guide to R&D in Europe;
- Cross-Border Innovation (Managing Cooperative Ventures in industrial R&D);
- Guide for the Smaller Enterprise;
- Guide for Legal Forms of Cooperation;
- Information Guide on Environmental issues;
- Guidelines for the Protection of Technological Information;
-Guide to Standardisation for Companies Involved in EUREKA Projects;
- Key Factors for Success.
CHECKLIST FOR THE SETTING UP OF AN R&D AGREEMENT
Warnings
Checklist for the setting up of an R&D agreement:
- Cooperation agreements take a long time to plan and negotiate: take the time and get the right people.
- Negotiations should be based on a sound and clear strategy.
- For all partners advantages must outweigh disadvantages.
- The agreement needs to deal as comprehensively with things going wrong as it does with things going right.
- The international setting with its complex legal environment may lead to additional difficulties in enforcing the rights of the weaker party.
- For the endeavour to succeed, all partners must live up to the agreement.
- Even the best of contracts is not a complete guarantee against the consequences of a power imbalance between the participants.
- The agreement is just a prerequisite - not the project. Success depends on motivation, commitment, perseverance and mutual goodwill.
Preamble and definitions
• Participating parties
• Preamble
• Key terminology
Participating parties
1. Identification of all participating parties to the agreement and their representative
- Legal name, legal form, nationality, registered-office or principal place of business, identification of the duly authorised officers.
- Are the parties part of a group of companies? Will other companies in a group be involved?
- Will other people or entities be involved or participate in the project as outsiders or subcontractors? Will they be bound by or benefit from certain provisions of the agreement? Will they co-sign the agreement?
Preamble
2. Drawing up of the preamble: explanation of the objectives, purpose and reasons for the project
- Give a short description of the project and the technological position, legal status and business situation of the parties in the whereas clauses; the EUREKA context of the project should be mentioned; spell out the desire and willingness of the parties to cooperate; refer to any other existing or relevant arrangements.
Key Terminology
3. Identification with a legal advisor of the key terminology to be defined and used in a particular sense throughout the agreement
- Try to be as accurate as possible in the definitions in order to avoid ambiguities, misinterpretations, and inconsistency between particular provisions, to prevent future disputes; the definitions should take into account possible different meanings of the same word in different languages or legal systems:
- objectives
-work programme, methodologies used and allocation of tasks
- planning, milestones, benchmarks
-management structure
- budget
Project contents
OBJECTIVES
• Work programme, methodologies used and allocation of tasks
• Planning, milstones, benchmarks
• Management structure
• Budget
Objectives
4. Description of the project and its purpose in general terms and references to technical and financial annexes for details
- Try to define what the participants want to achieve (the solutions to specific problems they are looking for). Be as accurate and concrete as possible.
Work programme, methodologies used and allocation of tasks
5. Methods, technical requirements and standards applicable to the research work to be performed by each participant as well as its nature
6. Contribution of each participant: personnel, facilities, equipment, materials, funding
Planning, milestones, benchmarks
7. Provide a timetable for the achievement of te project
- Is the timetable binding or just indicative? What will happen in case of failure by a participant to comply with the timetable or benchmarks?
8. Provide benchmarks
- Use the benchmarks for review and control procedures to verify the work done and the progress achieved by participants and subcontractors.
- Provide for efficient consultation procedures and communication channels.
Management structure
9. An adequate project management structure
- Is the project management in the hands of a project leader or is it shared by all or some participants (board)? What is the task, the authority and the responsibility of this board? How and when does it meet? How are decisions being made (majority or unanimity)? Are decisions formally to be approved by all participants? How are representatives appointed? Are outside experts admitted?
- In the event of a project leader being appointed, define the tasks allocated to him with respect to the overall management of the group and the scope of his powers to represent the other participants.
- For a long term or important project, it is useful to form separate legal, financial, administrative or scientific committees. !t is important to define their tasks and powers.
10. Disclosure of existing or background technology between the parties or from third parties is required in order to allow participants to perform their contribution
- When and how will the disclosure of this background information take place?
11. How and to what extent will each participant have to disclose newly developed know-how during the project to other participants and how will they report and communicate to each other the progress and the results of the work performed.
- Regular meetings?
- Written reports?
12. Employees work in common
- Indicate under which conditions employees of one or more participants have to materially work together, if participant employees do not work in common, how will the technical and scientific work be coordinated?
- The working procedure has to be described precisely.
Budget
13. A spending or expenditure plan specifying the total estimated cost and a budget specifying per year and per item the expenses to be incurred by each participant during the project period.
Legal aspects of the collaboration
• Disclosure and right to use know-how
• Confidentiality and publications
• Cooperation agreement
• Funding of the project
• Protection and ownership of results
Disclosure and right to use know-how