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1 Annex 1 Draft Contract AO 275.doc

OPEN CALL FOR TENDERS No 275

"Upgrade of communication system and related services"

European Court of Auditors

ANNEX 1

DRAFT CONTRACT

August 2014

ECA – Call for Tenders No 275 Annex 1 – Draft contract

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EUROPEAN COURT OF AUDITORS

FINANCE AND SUPPORT DIRECTORATE

SERVICE CONTRACT

"Upgrade of communication system and related services"

CONTRACT No – LOG 275

The European Court of Auditors (hereinafter referred to as "the Court"), represented for the purpose of signature of this contract by Zacharias Kolias, Director of Finance and Support, of the one part, and [official name in full] [official legal form] [statutory registration number] [official address in full] [VAT registration number] (hereinafter referred to as "the Contractor"1), [represented for the purpose of signature of this Contract by [surname/name and function]] of the other part,

1 In the case of a joint tender, the following statement must be added after the names of the parties: "The parties

identified above and hereinafter collectively referred to as "the Contractor" shall be jointly and severally liable vis-à-vis the Court for the performance of this Contract".


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HAVE AGREED UPON

General and specific terms and conditions and the following annexes:

Annex I Invitation to tender with annexes (Open Call for Tenders No AO 275 dated [date])

Annex II Contractor's Tender (No [complete] of [date])

which form an integral part of this contract: - The terms set out in the Special Conditions shall take precedence over those in the

other parts of the Contract. - The terms set out in the Specifications (Annex I) shall take precedence over those in

the Tender (Annex II). - The terms set out in the Contract shall take precedence over those in any purchase

orders.

Subject to the above, the several instruments making up this Contract are to be taken as mutually explanatory. Ambiguities or discrepancies within or between such parts shall be explained or rectified by a written instruction issued by the Court.


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I - SPECIFIC TERMS AND CONDITIONS

ARTICLE I.1 – SUBJECT I.1.1 The subject of this Contract is the provision of services to upgrade and maintain

the equipment in the Court of Auditors' K2.001 conference room and maintain the equipment in the Court of Auditors' K1.625 conference room as set out in the Specifications in Annex I.

The scope of the maintenance services (preventive and corrective) is defined and set out in the "Garantie Omnium" (comprehensive guarantee). Consequently, maintenance and repair shall cover all services, including labour, travel costs, material supplied, necessary updates and electronic components.

I.1.2 Once the Contract has entered into force, the Contractor shall provide the services

in accordance with all the provisions of the Contract.

ARTICLE I.2 – START AND DURATION I.2.1 The Contract shall enter into force on the date on which it is signed by the last

contracting party.

I.2.2 Under no circumstances may implementation commence before the date on which the Contract enters into force.

I.2.3 The Contract is concluded for a period of 96 months with effect from the date on which it enters into force. This contract period and all other periods specified in the Contract are calculated in calendar days unless otherwise indicated.

The upgrading work on the K2.001 conference room shall start from the date of entry into force of the Contract. The preventive maintenance of the K2.001 conference room shall start immediately after the installation work on the K2.001 conference room has been provisionally accepted, as stated in the Specifications (see Annex A paragraph 3.2.11).

Corrective maintenance of the K2.001 conference room shall start immediately after the guarantee period has expired, i.e. 24 months after the date of the announcement of provisional acceptance of the equipment in the K2.001 conference room.

Preventive and corrective maintenance of the K1.625 conference room shall start with effect from the date of entry into force of the Contract. With effect from the fifth year of the Contract, the preventive and corrective maintenance services for the K1.625 conference room shall become optional. They shall be implemented by means of specific contracts, hereinafter referred to as "purchase orders" (see Article I.4.7 of the Contract).


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ARTICLE I.3 – PRICES I.3.1 The fixed prices for services are shown in Annex II. These prices shall include all

costs and expenditure incurred by the Contractor to carry out the work.

I.3.2 The prices are expressed in euros. I.3.3 Revision of prices

The prices are fixed and shall not be subject to revision during the first year of the contract period.

At the beginning of the second year of the contract period and in each subsequent year, 80 % of each price may be revised upwards or downwards, where such revision is requested by one of the contracting parties by registered letter no later than three months before the anniversary of the date on which the Contract was signed. The Court shall purchase on the basis of the prices in force on the date on which the purchase orders are signed. Such prices shall not be subject to revision.

Revision shall be determined by the trend in the IPCUM harmonised consumer price index published for the first time by the Publications Office of the European Union in Eurostat's monthly Data in Focus publication, available at http://www.ec.europa.eu/eurostat/.

Revision shall be calculated in accordance with the following formula:

Ir Pr=Po (0,2+0,8 — )

Io

where:

Pr = revised price;

Po = price in the original tender;

Io = October 2014 index;

Ir = index for the month in which the letter requesting a price revision is received.

ARTICLE I.4 - PAYMENT ARRANGEMENTS AND PURCHASE ORDERS

I.4.1 Pre-financing

Not applicable.

I.4.2 Intermediate payment – upgrade of K2.001 conference room

Intermediate payment shall be made on the basis of the progress of the work.

For intermediate payment requests to be admissible, the Contractor must present:

• the progress report on the work concerned, in accordance with the provisions of paragraph 3.2.6.1 of Annex A to the Specifications;

• the statement of partial completion, signed by both parties to the Contract, in accordance with the provisions of paragraph 3.2.7.5 of Annex A to the Specifications, if appropriate;


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• invoices calculated on the basis of the amounts corresponding to the progress of the work for the period concerned;

provided that the report and statement referred to above have been approved by the Court.

If a payment request is not admissible, the Contractor shall have a period of fifteen (15) days in which to provide additional information or new documents.

An intermediate payment of an amount corresponding to the relevant invoice(s) must be made within thirty (30) days of the date on which the Court receives an admissible intermediate payment request.

The total amount of all intermediate payments by the Court may not exceed 70 % of the total cost of the upgrading work, as set out in the price schedule (Annex II).

I.4.3 Payment after signature of the provisional acceptance report – upgrade of K2.001 conference room

To be admissible, the payment request presented by the Contractor after signature of the provisional acceptance report for the work must be accompanied by:

• the provisional acceptance report for the upgrade work, signed by both contracting parties in accordance with paragraph 3.2.11 of Annex A to the Specifications;

• the relevant invoice(s);

provided that the above report has been approved by the Court.

If the request is not admissible, the Contractor shall have a period of fifteen (15) days in which to provide additional information or new documents.

An intermediate payment of an amount corresponding to the relevant invoice(s) must be made within thirty (30) days of the date on which the Court receives an admissible payment request.

This payment may not exceed 20 % of the total cost of the upgrading work, as set out in the price schedule (Annex II).

I.4.4 Payment of the balance – upgrading of K2.001 conference room

To be admissible, the Contractor’s request for payment of the balance must be accompanied by:

• the final acceptance report for the work, signed by both parties, in accordance with paragraph 3.2.13 of Annex A to the Specifications;

• the relevant invoice(s);

provided that the report has been approved by the Court.

If the claim is not admissible, the Contractor shall have a period of fifteen (15) days in which to provide additional information or new documents.

An amount corresponding to the relevant invoice(s) must be paid within thirty (30) days of the date on which the Court receives an admissible payment request. This payment may not exceed the total balance of the contract.


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I.4.5 Intermediate payment – maintenance of K2.001 and K1.625 conference rooms

At the end of each six-monthly period the Contractor must submit a six-monthly invoice to request intermediate payment for maintenance work on both conference rooms.

The invoice(s) for intermediate payment must contain a reference to the contract number. They must be accompanied by:

- worksheets validated by the Court covering the six-monthly period invoiced.

Payment shall be made by the Court within thirty (30) days of receipt of the invoice. The Contractor shall have ten (10) days in which to submit additional information should the Court so request.

I.4.6 Payment of the final balance – maintenance of K2.001 and K1.625 conference rooms

If requested to do so, the Contractor shall carry out the handover procedure as stipulated in Article I.10 of the draft contract. Payment of the balance shall be made after the successful hand-over, as certified by the Acceptance sheet. The Court will have fifteen (15) days from the successful hand-over to issue and sign the Acceptance sheet.

The invoice shall be admissible if accompanied by the Acceptance sheet signed by the Court. The invoice shall indicate the reference number of the Contract and the payment subject.

The Court shall have thirty (30) days from receipt to approve or reject the request and to pay the invoice. The Contractor shall have ten (10) days in which to submit additional information or corrections or a new report or documents if required by the Court.

I.4.7 Payment of optional services

Payments for optional services shall be made when the services have been completed. On completion of each optional service the Contractor shall submit an invoice for payment.

The amount shall be calculated on the basis of the fixed prices in the price schedule (Annex II) for these optional services, depending on the services provided, duly supported by worksheets.

The invoices for payment for optional services must indicate the relevant purchase order number.

Payment shall be made by the Court within thirty (30) days of receipt of the invoice. The Contractor shall have ten (10) days in which to submit additional information, corrections, a new report or other documents as requested by the Court.

I.4.8 Purchase orders for optional services

When the Court has sent a purchase order to the Contractor it should be returned, duly signed and dated, within two (2) working days of the date of despatch by the Court.

The period for completion of the work shall start on the date of signature of the purchase order, unless a different date is indicated and provided that the purchase order has first been signed by the Court.


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Article I.5 - INVOICING AND BANK ACCOUNT I.5.1 Invoices shall be sent to the following address:

European Court of Auditors Accounts Department

12, rue Alcide de Gasperi L-1615 LUXEMBOURG

I.5.2 Payments shall be made to the Contractor's bank account denominated in euro, and shall be identified2 as follows:

Name of bank: [to be completed] Full address of branch: [to be completed] Exact designation of account holder: [to be completed] Full account number including bank codes: [to be completed] [IBAN code3: [to be completed]]

ARTICLE I.6 - GENERAL ADMINISTRATIVE PROVISIONS All communications relating to the Contract shall be made in writing and shall bear the Contract number and purchase order numbers. Correspondence shall be sent to the following addresses:

Court: European Court of Auditors Directorate of Finance and Support 12, rue Alcide de Gasperi L-1615 Luxembourg Fax: 4398-46684 E-mail: [email protected] Contractor: Mr/Mrs/Ms [to be completed] [Position] [Company name] [Official address in full] Fax: [to be completed] E-mail: [to be completed]

ARTICLE I.7 – TERMINATION The Court of Auditors may terminate the Contract, of its own volition and without being required to pay compensation, by informing the Contractor with prior notice of twelve (12) months. The termination shall not be effective until all the services covered by a purchase order have been duly executed, where optional services have been ordered.

2 By means of a document issued or certified by the bank. 3 BIC or SWIFT code for countries with no system of IBAN codes.


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ARTICLE I.8 – CONTRACT CONCLUDED BEFORE EXPIRY OF THE STANDSTILL PERIOD If it is signed by both the Court and the Contractor before expiry of the compulsory standstill period defined in Article 118 of the Financial Regulation (Regulation (EU, Euratom) No 966/2012), this Contract shall be null and void.

ARTICLE I.9 – PENALTIES Without prejudice to the provisions of Article II.9, the penalties below may be applied by the Court in the event of non-compliance with the quality criteria and conditions for performance of the Contract set out in the Specifications (Annex I). They shall be deducted from the relevant invoices without prior notice.

SUBJECT ACTION REQUESTED

DEADLINES FINES FOR NON-COMPLIANCE

Upgrading of K2.001

Provision of the project schedule indicating deliverables

One week after signature of the contract

200 EUR per working day late

Upgrading of K2.001

Compliance with the schedule

The dates indicated in the schedule

1% of the total amount for the upgrading work after a delay of one week A further 1,5% of the total amount for the upgrading work after a delay of two weeks (2,5% since the start of the delay) A further 2% of the total amount for the upgrading work after a delay of three weeks (4,5% since the start of the delay) A further 2,5% of the total amount for the upgrading work after a delay of four weeks (7% since the start of the delay) If the work has still not been completed after anything more than four weeks, the penalty may be increased to 10% of the amount for the upgrading work

Preventive maintenance of K2.001 and K1.625

Compliance with the maintenance schedule

Twice per year 200 EUR per working day late


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Corrective maintenance of K2.001 and K1.625

Assistance guarantee

Maximum of 24 hours after notification by the Court

25 EUR per hour of delay up to the 48th hour of delay 50 EUR per hour of delay from the 49th hour of delay

Corrective maintenance of K2.001 and K1.625

Repair guarantee Maximum of 48 hours after notification by the Court

15 EUR per hour of delay up to the 60th hour of delay 30 EUR per hour of delay from the 61st hour of delay

Preventive and corrective maintenance of K2.001 and K1.625

Compliance with the quality criteria set out in the Specifications

250 EUR per fault plus the expenses arising from the fault

Technical assistance

The technician designated by the Contractor shall be reachable during working hours (8.30 to 16.30) Monday to Friday

The technician designated by the Contractor shall be reachable during working hours (8.30 to 16.30) Monday to Friday

100 EUR > 3x technician unavailable

Technical assistance

On-site presence of a technician following a call from the Court

Maximum of 1 hour after the call from the Court

50 EUR per hour late

Availability coefficient

Availability of all the facilities

Availability coefficient of 90% or more calculated over one year

250 EUR per percentage point below

ARTICLE I.10 – HANDOVER PROCEDURE AT THE END OF THE CONTRACT Upon the Court’s written request, a handover procedure shall start no later than three (3) months before the end of the Contract, for whatever reason that may occur. The handover procedure shall allow any potential future Contractor in charge of providing the maintenance services covered by this Contract to collect information related to the Contract, including information and documents provided by the Court to the Contractor and any other information and documents necessary for the correct and timely provision of maintenance services. The Contractor undertakes either to provide all such information and documents to a future Contractor as indicated by the Court or to return them to the Court, as requested by the Court, whilst continuing to provide the maintenance services until the end of the Contract. The handover procedure shall only concern data, information and documents which belong to the Court.


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The handover procedure shall be considered as part of the maintenance services and shall be provided by the Contractor at no additional cost to the Court. ARTICLE I.11 – SOURCE PROGRAMS The Contractor shall transfer to a safe place a copy of the latest version of the source and object code for all software included as a part of the contracted tasks, as well as all necessary components to ensure the proper functioning of such software, including but not limited to any application program interfaces, configuration files, schematics of software components, build instructions, procedural instructions, and other documentation (collectively, "the software"). The software shall also include all updates, improvements and enhancements thereof which have been developed from time to time by the Contractor and are necessary to support the contracted tasks internally for the benefit of the Court. The Contractor shall provide the Court with proof that the transfer has been made. The Contractor agrees that, if the Contractor files for bankruptcy, the Court shall be entitled to obtain the then-current software. In this event only, the Court shall have the right to contract, at its own expense, a third party independent of the Contractor to perform services relating to the backup and recovery of the contracted tasks and/or Court data. The Contractor agrees to reasonably cooperate with all third parties contracted by the Court for this purpose.


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II - GENERAL TERMS AND CONDITIONS OF SERVICE CONTRACTS

ARTICLE II.1. SCOPE

II.1.1. The General Conditions govern the contractual relationship between the European Court of Auditors (hereinafter "the Court of Auditors") and its suppliers (hereinafter "the Contractor").

II.1.2. The Contractor waives the right to assert its own general conditions of sale in relation to the Court of Auditors.

ARTICLE II.2. PERFORMANCE OF THE CONTRACT

II.2.1. The Contractor agrees to perform the services provided for in the Contract (hereinafter "the tasks") at the price and within the deadlines set therein. In addition to the performance of services according to the conditions set out in the Contract and its Annexes, which are an integral part of the Contract, the following obligations must be complied with.

II.2.2. The Contractor shall perform the Contract to the highest professional standards. The Contractor shall have sole responsibility for complying with any legal obligations incumbent on it, and in particular those resulting from employment, tax, social and environmental legislation.

II.2.3. The Contractor shall have sole responsibility for taking the necessary steps to obtain any permits or licences required for performance of the Contract under the laws and regulations in force at the place where the tasks assigned to it are to be executed.

II.2.4. The Contractor shall, on its own sole responsibility, assume all the risks to the environment which result from its obligations under this Contract, and shall ensure full compliance with the instructions given by the Court of Auditors, and the applicable legislation regarding the disposal of waste in the Grand Duchy of Luxembourg. The Contractor must also take the necessary measures to ensure that performance of the Contract does not cause the SuperDrecksKëscht fir Betriber® label awarded to the Court of Auditors to be withdrawn, and it must not impede the process of EMAS environmental certification which the Court is undertaking.

II.2.5. The Contractor shall be responsible for all specific measures to protect its staff in the course of performance of the Contract. The Contractor shall be responsible for the safety of its staff and take all necessary precautions to protect them from possible danger.


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II.2.6. Without prejudice to Article II.4, any reference made to the Contractor’s staff in the Contract shall relate exclusively to individuals involved in performance of the Contract. The Contractor must ensure that all individuals performing the Contract have the professional qualifications and experience required for the execution of the tasks assigned to them. The Contractor agrees to use only qualified, specialised and trustworthy staff who meet all the requirements of Luxembourg law.

II.2.7. The Contractor may neither represent the Court nor behave in any way that would give such an impression. The Contractor shall inform third parties that it does not belong to the European public service.

II.2.8. The Contractor shall have sole responsibility for the staff who perform the tasks assigned to it. The Contractor is bound to make provision for the following employment or service relationships with its staff:

• the staff performing the work assigned to the Contractor may not be given orders directly by the Court of Auditors;

• the Court of Auditors may not under any circumstances be considered to be the employer of the said staff, who shall undertake not to invoke in respect of the Court of Auditors any right arising from the contractual relationship between the Court and the Contractor.

II.2.9. In the event of any incident resulting from the action of a member of the Contractor's staff working on Court of Auditors' premises, or if the experience and/or expertise of a member of the Contractor's staff do not correspond to the profile required by the Contract, the Contractor shall replace that staff member without delay. The Court of Auditors shall have the right to request the replacement of any such person, stating its reasons for so doing. Replacement persons must have the necessary qualifications and be capable of performing the Contract under the same contractual conditions. The Contractor shall be responsible for any delay in the execution of the tasks assigned to it resulting from the replacement of staff in accordance with this Article.

II.2.10. The Contractor agrees to provide the Court of Auditors with any information it may request for the management of the Contract. Should any unforeseen event, action or omission directly or indirectly impede execution of the tasks, either in part or in full, the Contractor shall immediately, on its own initiative, record and report it to the Court of Auditors. The report shall include a description of the problem, stating the date on which it started and the remedial action taken by the Contractor to ensure full compliance with its obligations under the Contract. In such event the Contractor shall give priority to solving the problem rather than determining liability.

II.2.11. Should the Contractor fail to perform its obligations under the Contract in accordance with the provisions laid down therein, the Court of Auditors may –without prejudice to its right to terminate the Contract – reduce or recover payments in proportion to the scale of the failure. The Court of Auditors may also


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apply administrative and/or financial penalties in accordance with Article 109 of the Financial Regulation4 or, as provided for in Article II.9, damages.

ARTICLE II.3. LIABILITY

II.3.1. The Contractor shall bear all costs and risks involved in performing the tasks up to and including acceptance.

II.3.2. The Contractor agrees not to make any changes to the installations, or implement any requests other than those made by the representative of the managing department.

II.3.3. The Contractor agrees to take all necessary measures to avoid damage to persons, buildings or installations, not to impede the effective operation of the Court of Auditors' services, and to indicate, without delay, any problems which come to its attention and which could cause damage to any persons and/or property whatsoever.

II.3.4. The Contractor agrees to restore the work site to its original condition after the work has been completed.

II.3.5. The Court of Auditors shall not be liable for damage sustained by the Contractor in performance of the Contract except in the event of wilful misconduct or gross negligence on the part of the Court.

II.3.6. The Contractor shall be liable for any loss, damage or harm it may cause during performance of the Contract, including in the event of subcontracting under Article II.16. The Court of Auditors shall not be liable for any act or default on the part of the Contractor during performance of the Contract.

II.3.7. The Contractor shall provide compensation in the event of any action, claim or proceeding brought against the Court of Auditors by a third party as a result of damage caused by the Contractor during performance of the Contract.

II.3.8. In the event of any action brought by a third party against the Court of Auditors in connection with performance of the Contract, the Contractor shall assist the Court of Auditors. Expenditure incurred by the Contractor to this end may be borne by the Court of Auditors.

II.3.9. The Contractor shall take out the applicable statutory insurance against risks and damage relating to performance of the Contract. It shall take out the supplementary insurance that is usual in the sector in question. Copies of all insurance contracts shall be sent to the Court of Auditors on request.

ARTICLE II.4. CONFLICTS OF INTEREST

4 Regulation (EU, EURATOM) No 966/2012 of the European Parliament and of the Council of 25

October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002.


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II.4.1. The Contractor shall take all necessary measures to prevent any situation that could compromise the impartial and objective performance of the Contract. A conflict of interest could arise in particular as a result of economic interest, political or national affinity, family or emotional ties or any other connection or shared interest. Any conflict of interest which arises during performance of the Contract must be notified to the Court of Auditors in writing without delay. In the event of such conflict, the Contractor shall immediately take all necessary measures to end it.

II.4.2. The Court of Auditors reserves the right to verify that such measures are adequate and may, if necessary, require additional measures by a set deadline. The Contractor shall ensure that its staff, board and directors are not placed in a situation which could give rise to a conflict of interests. Without prejudice to the previous paragraph, the Contractor shall replace, immediately and without compensation from the Court, any member of its staff exposed to such a situation.

II.4.3. The Contractor shall abstain from any contact likely to compromise its independence.

II.4.4. The Contractor declares:

• that it has not made and will not make any offer of any type whatsoever from which an unfair advantage can be derived under the Contract;

• that it has not granted and will not grant, has not sought and will not seek,

has not attempted and will not attempt to obtain, and has not accepted and will not accept, any advantage, financial or in kind, to or from any party whatsoever, where such advantage constitutes an illegal practice or involves corruption, either directly or indirectly, inasmuch as it is an incentive or reward relating to performance of the Contract.

II.4.5. The Contractor shall pass on all the relevant obligations in writing to its staff, board, and directors as well as to third parties involved in the performance of the Contract. A copy of the instructions given and the undertakings made in this respect shall be sent to the Court on request.

ARTICLE II.5. PRICES

II.5.1. Prices shall be fixed and not subject to revision in relation to the prices shown in the Contract, unless otherwise indicated in the Specifications or in the specific conditions of the Contract.

II.5.2. The prices shall cover all the tasks to be performed under the Contract and include all costs and expenditure incurred by the Contractor in order to perform its tasks.

ARTICLE II.6. INVOICING AND PAYMENTS

II.6.1. The Contractor shall invoice the Court of Auditors within sixty (60) days of completion of a task referred to in the Contract, specific contract or purchase order.


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II.6.2. Every invoice must contain the following information:

• the number of the Contract (or specific contract, purchase order, etc.);

• a description of the services performed corresponding exactly to the Contract;

• the prices;

• the Contractor’s bank details, including its IBAN and BIC codes and VAT

number;

II.6.3. Invoices must be addressed to the Court of Auditors at the address shown in the Contract. All invoices must be accompanied by supporting documentation attesting to the acceptance of the tasks invoiced. Partial invoicing will not be accepted unless specifically provided for in the Contract. Tasks carried out prior to acceptance of the Contract may not be invoiced.

II.6.4. Without prejudice to its right to possible interest for late payment, the Contractor shall accept any financial constraints arising from the provisional twelfths system in the event that the general budget of the European Union has not been adopted at the start of the financial year, in accordance with Article 16 of Regulation (EU, Euratom) No 966/2012.

II.6.5. The Contractor must take the necessary measures for its systems to be compatible with electronic invoicing and ordering systems ("e-invoicing" and "e-ordering") which the Court of Auditors may decide to implement in the course of the Contract, without additional cost to the Court of Auditors. The Contractor agrees to use such systems at the request of the Court of Auditors.

II.6.6. Payments shall be made only if the Contractor has met all its obligations under the Contract on the date of submission of the invoice. The Contractor shall provide the Court of Auditors with all the necessary supporting documents to allow the Court of Auditors to check invoices.

II.6.7. Invoices shall be paid within thirty (30) calendar days from the date on which the Court of Auditors records a payment request, unless otherwise provided for in the Contract. Payments shall be deemed to have been made on the date on which the Court of Auditors' account has been debited.

II.6.8. The Court of Auditors may suspend this payment period by notifying the Contractor, at any time during the thirty-day period from the recording date of the payment request, that the request is not admissible, either because the amount is not due or because the necessary supporting documents have not been produced, or because it considers it necessary to carry out further verifications of the payment request.

II.6.9. The Court of Auditors shall send the Contractor reasoned notification of the suspension by registered letter with acknowledgment of receipt or equivalent.


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Suspension shall take effect from the date of sending of the letter. The remainder of the payment period shall begin to run once the suspension has been lifted.

II.6.10. If the suspension period is longer than two months, the Contractor may ask the authorising officer responsible to take a decision on whether to continue the suspension.

II.6.11. In the event of late payment, the Contractor shall be entitled to interest, provided the calculated amount of interest exceeds EUR 200. Should the interest not exceed EUR 200, the Contractor may claim late payment interest within two months of receiving the late payment. Interest shall be calculated at the rate applied by the European Central Bank to its most recent main refinancing operations ("the reference rate") plus eight (8) percentage points ("the margin"). The reference rate applicable shall be that in force on the first day of the month in which the payment is due. This rate is published in the C series of the Official Journal of the European Union. Interest shall be payable for the period from the calendar day following expiry of the time limit for payment up to and including the payment date. Suspension of payment by the Court of Auditors may not be deemed to constitute late payment.

II.6.12. The Court of Auditors may, after informing the Contractor and by way of offsetting, automatically deduct from each payment made to the Contractor any amount owed to it by the Contractor for whatever reason.

II.6.13. Payments shall be made by bank transfer to the bank account indicated on the Contractor's tender in the form of IBAN and BIC codes.

II.6.14. The Contract shall be denominated in euros and the payments shall be made in euros or in the local currency indicated in the Contract. Euro conversions to another currency shall be made at the daily euro exchange rate published in the Official Journal of the European Union and applicable on the date of issue of the payment order by the Court of Auditors.

II.6.15. Transfer charges shall be assigned as follows:

a) the costs of sending charged by the Court of Auditors' bank shall be borne by the Court of Auditors;

b) the costs of receipt charged by the Contractor's bank shall be borne by the Contractor;

c) the costs linked to additional transfers attributable to either of the parties shall be borne by that party.

ARTICLE II.7. RECOVERY

II.7.1. If total payments made exceed the amount actually due under the Contract, or if a recovery is justified in accordance with the terms of the Contract, the Contractor shall reimburse the appropriate amount in euros on receipt of the debit note, in the manner and within the time limits set by the Court of Auditors.


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II.7.2. In the event of failure to pay by the deadline specified in the request for reimbursement, the sum due shall incur interest at the rate indicated in Article II.6.11. The interest shall be payable from the calendar day following the due date until the calendar day on which the debt is repaid in full. Partial payments should first be charged to expenses and interest for late payment and then to the principal.

II.7.3. If payment is not made by the due date, after informing the Contractor of its intention in writing the Court of Auditors may proceed to recover the amounts due by way of offsetting or by any means offered by the law, including, where appropriate, by enforcement of any guarantee lodged in advance.

ARTICLE II.8. WARRANTY

II.8.1. Where the Court of Auditors finds that the services do not conform to this Contract, it shall notify the Contractor of the irregularity. Unless otherwise indicated in the Specifications, the Contractor shall rectify the services which do not conform to the Contract within the period indicated by the Court of Auditors in its notification of irregularity. In such case a new warranty period, as indicated in the Contract, shall apply from the date of such rectification.

II.8.2. The Contractor shall be solely responsible for all costs stemming from the application of this Article and shall reimburse the Court of Auditors for any costs incurred. If the tasks are not rectified satisfactorily, the Court of Auditors may refuse to accept the services.

II.8.3. The Court of Auditors reserves the right to seek damages in accordance with Article II.9 for the period between the date of the Court of Auditors' notification of irregularity and the date of rectification.

II.8.4. The supplies included in the work shall be guaranteed against all defects in manufacture or materials for two years from the date of acceptance, unless provision for a longer period is made in the Specifications.

II.8.5. The Contractor shall guarantee that any permits and licences required to carry out the work have been obtained.

II.8.6. The Contractor shall be required to replace at its own expense any item which has deteriorated or developed a fault while in normal use during the warranty period. The replacement must be made within a reasonable time to be specified by mutual agreement.

II.8.7. The Contractor shall be responsible for any conformity defect existing at the time of acceptance, even if such defect does not appear until a later date.

II.8.8. The Contractor shall also be responsible for any conformity defect which occurs after delivery and is ascribable to non-compliance with its obligations, including failure to provide a guarantee that, for a certain period, supplies used for normal purposes or for a specific purpose will preserve their qualities or characteristics as specified.


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II.8.9. If part of an item is replaced, the replacement part shall be guaranteed under the same terms and conditions for a further period of the same duration as that specified above.

II.8.10. If a defect is found to originate in a systematic design flaw, the Contractor must replace or modify all identical parts used in the other services that are part of the order and, if applicable, of previous orders, even though they may not have been the cause of any incident. In such case, the warranty period shall be extended as stated above. The Contractor guarantees, for a period specified in the Contract, that the tasks will comply with the specifications in the Contract.

ARTICLE II.9. DAMAGES

II.9.1. The Court of Auditors may require the Contractor to pay damages if it does not fulfil its contractual obligations or does not comply with the required quality standards with regard to the Contract.

II.9.2. If the Contractor does not fulfil its contractual obligations within the period set in the Contract, the Court of Auditors may require it to pay damages for every calendar day of delay, independently of the Contractor's actual or potential liability and the contracting authority's right to terminate the Contract or specific contract, on the basis of the following formula:

0,3 x (V/d) V = the value of the Contract, purchase order or specific contract d = the period assigned to performance of the tasks, defined in calendar days in the Contract, purchase order or specific contract

II.9.3. The daily rate for damages may be modified in the Contract if the subject of procurement so justifies.

II.9.4. Within fifteen (15) days of notification of the decision on the payment of damages, the Contractor may submit arguments against this decision by registered letter with acknowledgement of receipt or equivalent. In the absence of any reaction on its part, or of written withdrawal by the Court of Auditors within fifteen (15) days of the receipt of such arguments, the decision imposing the payment of damages shall be the subject of a recovery procedure by the Court of Auditors. Damages shall not be imposed where there is provision in the Contract for specific penalties for late completion. The Court of Auditors and the Contractor expressly acknowledge and agree that any sums payable under this Article are in the nature of damages and not penalties, and represent fair compensation for the losses that may be anticipated from such failure to perform obligations.

ARTICLE II.10. OWNERSHIP OF RESULTS – INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS

10.1. Definitions


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The following definitions apply to this Contract:

i) "Result" means any product expected to ensue from performance of the contract which is delivered and made the subject of final acceptance by the Court of Auditors;

ii) "Author" means any natural person who has contributed to producing a result, including the staff of the Court of Auditors or of a third party;

iii) "Pre-existing rights" means all intellectual and industrial property rights, including technologies, which existed before they were ordered by the Court of Auditors or the Contractor in performance of the contract, including property and user rights held by the Contractor, the author, the Court of Auditors or third parties.

10.2. Ownership of results

The ownership of results shall be wholly and irrevocably acquired by the Court of Auditors under this Contract, and specifically all rights linked to the results referred to in the Contract. The rights pertaining to results may include copyright and other intellectual or industrial property rights, together with all technological solutions, and the information included in such solutions, which are produced during performance of the Contract. The Court of Auditors may make use of them as indicated in the Contract. All rights shall pass to the Court of Auditors' ownership at the time of the delivery of results by the Contractor and their acceptance by the contracting authority. Such delivery and acceptance shall be deemed to constitute effective transfer of the Contractor's rights to the Court of Auditors.

Payment of the price indicated in the Contract shall be deemed to include all remuneration due to the Contractor as part of the acquisition of rights by the Court of Auditors, and particularly all uses to which the results can be put.

The acquisition of rights by the Court of Auditors under this Contract shall be valid worldwide.

The contracting authority may not make use of intermediate results, raw data or intermediate analyses sent by the Contractor without the Contractor's written agreement, unless the Contract explicitly states that the above elements form part of a separate result.

10.3. Licences for pre-existing rights

The Court of Auditors shall not acquire ownership of pre-existing rights.

The Contractor shall grant the Court of Auditors a royalty-free, non-exclusive and irrevocable licence for pre-existing rights. The Court of Auditors may exploit such rights for its own use, circulate them to the public or modify them, including those to be operated by third parties on its behalf. All pre-existing rights shall be the subject of licences granted to the Court of Auditors at the time of the delivery of results and their acceptance by the Court of Auditors.


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The granting of licences for pre-existing rights to the Court of Auditors under this Contract shall be valid worldwide and throughout the entire period of protection for intellectual property rights.

10.4. Modes of use

The Court of Auditors shall acquire ownership of all the results produced under this Contract which may be used for the following purposes:

a) disclosure following individual access requests, without right of use or reproduction, in accordance with the rules determined by the Court of Auditors with regard to public access to documents under Article 15(3) of the Treaty on the Functioning of the European Union;

b) storage of the original and copies in accordance with this Contract;

c) online archiving in compliance with the rules on document management applicable to the contracting authority.

10.5. Identification and proof of the granting of pre-existing rights and third-party rights

Upon delivery of the results, the Contractor shall guarantee that they are free of rights and claims on the part of authors and third parties, including pre-existing rights, for all proposed uses by the contracting authority. This provision does not affect the statutory rights of natural persons.

To this end, the Contractor shall draw up a list of all pre-existing rights, copyright and third-party rights to the results, or part-results, of this Contract. This list shall be produced by the date of delivery of the final results at the latest.

In those results, the Contractor shall clearly indicate any quotes from existing written works. References shall be complete and shall include, as applicable, the author's name, the title of the work, the date and place of publication, the date of creation, the internet address of publication, the number and volume and any other information which will make it easy to determine the origin of the text cited.

At the request of the Court of Auditors, the Contractor shall provide proof of ownership or rights of use for all the pre-existing and third-party rights listed, except where these rights are held by the Court of Auditors.

This proof may in particular concern rights to the following elements: parts of other documents, images, charts, tables, data, software, new technology, knowledge, etc. (on paper, electronically or by other means), IT development tools, routines, sub-routines and other programmes ("pre-existing technology"), designs, models, installations or works of art, sources, pre-existing documents or any other elements of external origin.

The proof shall comprise, as appropriate;

a) the name and version of software;


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b) identification in full of a work and its author, developer, creator, translator, data-entry clerk, graphic designer, publisher, proof-reader, photographer and producer;

c) a copy of the product usage licence or the agreement granting the rights in question to the Contractor, or a reference to that licence;

d) a copy of the agreement or an extract from the contract of work granting the rights in question to the Contractor when the component parts of the result were created by its staff;

e) the text of any disclaimer.

The production of proof shall not discharge the Contractor of its liability if it is revealed not to have the necessary rights, regardless of when or by whom this fact is revealed.

The Contractor shall also guarantee that it owns the rights or the powers necessary to transfer them and that it has made all payments in connection with the final results, or checked that they have been made, including royalties due to collective management companies.

10.6. Authors

By delivering the results, the Contractor shall confirm that they may be divulged and guarantee that the authors have agreed not to oppose use of their names when the results are presented to the public. The authors' names shall be disclosed upon request and as notified by the Contractor to the contracting authority.

The Contractor shall obtain the agreement of authors with regard to the granting of the rights in question and shall be willing to provide supporting documents on request.

10.7. People appearing in photographs or on film

If recognisable natural persons are shown in a result or their voice has been recorded, the Contractor shall produce, at the request of the contracting authority, a statement by those people (or their parents or legal guardians in the case of minors) authorising the planned use of their image or voice. These provisions do not apply to people whose permission is not required under the legislation of the country where the photographs were taken, films recorded or sound recordings made.

10.8. Contractor's copyright on pre-existing rights

If the Contractor holds pre-existing rights to parts of a result, a reference should be inserted to this effect when the result is used, by means of the following disclaimer: "© - year – European Court of Auditors. All rights reserved. Some parts have been conditionally licensed to the European Court of Auditors.".

10.9. Visibility of Court of Auditors funding and disclaimer

When the results are used, the Contractor shall declare that they were produced as part of a contract with the Court of Auditors and that the views expressed therein are exclusively


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those of the Contractor and do not represent the official views of the Court of Auditors. The Court of Auditors may grant exemption from this obligation in writing.

ARTICLE II.11. PATENTS, REGISTERED DESIGNS ("GEBRAUCHSMUSTER"), TRADEMARKS AND BRAND NAMES, INDUSTRIAL DESIGNS AND MODELS

II.11.1. If the performance of the Contract involves the use of patents, registered designs ("Gebrauchsmuster"), trademarks or brand names, or industrial designs or models belonging to third parties and this leads to litigation, the Contractor shall indemnify the Court of Auditors against any action for infringement which may be brought against it.

II.11.2. The Court of Auditors and the Contractor shall communicate to each other any information indicating that an industrial property right could impede performance of the Contract.

II.11.3. At the first indication of any action by a third party, in particular the lodging of a complaint, even after performance of the Contract, the party implicated shall notify the other party without delay, whereupon both parties shall act jointly and shall exchange all information and evidence which they may possess or obtain.

II.11.4. The fact that the products or services or any part thereof are covered by an industrial property right owned by the Contractor or in respect of which it possesses a licence shall not prevent the Court of Auditors from repairing them or having them repaired by whoever it may think fit, save where the Contractor itself possesses an industrial property right in respect of the repair process and, after having been consulted as a matter of priority, offers to effect the repairs within a reasonable time limit and at a reasonable price.

ARTICLE II.12. CONFIDENTIALITY AND USE, DISTRIBUTION AND PUBLICATION OF INFORMATION

II.12.1. Unless prior authorisation has been provided in writing by the Court of Auditors, the Contractor must maintain the confidentiality of the facts, information, knowledge, documents or other items which the Court of Auditors has indicated as confidential with regard to any unauthorised persons. The Contractor shall continue to be bound by this undertaking after completion of the tasks. This obligation shall continue to apply in respect of each such item of information until these items have been lawfully disclosed.

II.12.2. The Contractor shall require any agents, employees, partners, subcontractors and assignees it may have to maintain confidentiality.

II.12.3. The Contractor shall authorise the Court of Auditors to process, use, distribute and publish, for whatever purpose, by whatever means and on whatever medium, any data contained in or relating to the Contract, in particular the identity of the Contractor, the subject matter and duration of the Contract and the amount paid.

II.12.4. Unless otherwise provided for, the Court of Auditors shall not be required to distribute or publish documents or information supplied in performance of the


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Contract. If it decides not to publish the documents or information supplied, the Contractor may not distribute them or have them published elsewhere without prior written authorisation from the Court of Auditors

II.12.5. The Contractor undertakes, in respect of itself and its staff, not to make use of, for purposes other than performance of the contract, and not to disclose or publish to third parties any facts, information, knowledge, documents or other matters communicated to it or brought to its attention in connection with performance of the contract, or any results arising from its services, without the prior written authorisation of the Court of Auditors. These obligations shall continue to apply following performance of this contract.

II.12.6. Any distribution or publication of information relating to the Contract by the Contractor shall require prior written authorisation from the Court of Auditors. For the purposes of that authorisation the Court of Auditors may require the Contractor to make reference to the amount paid by the European Union, or may make the authorisation subject to other conditions. The information published or distributed shall in any case state that the opinions expressed are those of the Contractor alone and do not represent the official position of the Court of Auditors.

ARTICLE II.13. PUBLICITY

II.13.1. The Contractor shall not be authorised to make it known, by way of publicity, that it is a contractor for the Court. In accordance with this provision, the publishing of articles, whether for specialist periodicals or the daily press, drafted with a view to a publicity presentation, shall not be authorised.

II.13.2. All other articles, publications or illustrations which are not specifically publicity-orientated, but where the Contractor is mentioned in connection with the activity that is the object of this Contract, must be submitted to the Court for its prior written authorisation.

II.13.3. Under no circumstances may the Contractor use photographs of the exterior or interior of the Court of Auditors' buildings the Court's logo or official stamp or any abbreviation of the latter, whether within the context of its work or otherwise, without the prior written agreement of the Court of Auditors. Any such authorisation may be subject to specific conditions and limited to a fixed period.

II.13.4. All posters or advertisements in the Court of Auditors' premises shall be prohibited, except where the Court has specifically given prior written authorisation.

ARTICLE II.14. TAXATION

II.14.1. The Contractor shall have sole responsibility for compliance with the tax laws which apply to it. Failure to comply shall render the invoices submitted invalid.

II.14.2. The Contractor recognises that the Court of Auditors is, as a rule, exempt from all taxes and duties, including value-added tax (VAT), pursuant to the provisions of


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Articles 3 and 4 of the Protocol on the Privileges and Immunities of the European Union and the relevant legislation in the Member States.

II.14.3. The Contractor shall accordingly complete the necessary formalities with the relevant authorities to ensure that the goods and services required for performance of the Contract are exempt from taxes and duties, including VAT.

II.14.4. Invoices presented by the Contractor shall indicate its place of taxation for VAT purposes and shall specify separately the amounts not including VAT and the amounts including VAT.

ARTICLE II.15. FORCE MAJEURE

II.15.1. Force majeure shall mean any unforeseeable and exceptional situation or event beyond the control of the contracting parties which prevents either of them from performing any of their obligations under the Contract, was not due to error or negligence on their part or on the part of a subcontractor, and could not have been avoided by the exercise of due diligence. Defects in equipment or material or delays in making it available, labour disputes, strikes or financial problems cannot be invoked as force majeure unless they stem directly from an established case of force majeure.

II.15.2. Without prejudice to Article II.2.10, if either of the contracting parties is faced with force majeure, it shall notify the other party without delay by registered letter with acknowledgement of receipt or equivalent, stating the nature, likely duration and foreseeable effects.

II.15.3. Either of the contracting parties may suspend performance of the Contract, purchase order, specific contract or any part thereof if a case of force majeure makes such performance impossible or excessively difficult. It shall inform the other party about the suspension without delay, giving all the necessary reasons and details and the envisaged date for resuming performance of the Contract, purchase order or specific contract.

II.15.4. As soon as the conditions for resuming performance have been met, the party which requested the suspension shall immediately inform the other, unless the Court of Auditors has already terminated the Contract or specific contract.

II.15.5. Neither contracting party shall be held in default or breach of its contractual obligations if it has been prevented from performing them by force majeure. Where the Contractor is unable to meet its contractual obligations owing to force majeure, it shall have the right to remuneration only for tasks actually executed.

II.15.6. The contracting parties shall take all necessary measures to minimise damage.

ARTICLE II.16. SUBCONTRACTING AND ASSIGNMENT TO THIRD PARTIES

II.16.1. The Contractor shall not, without the prior and express written authorisation of the Court of Auditors, assign the rights and obligations arising out of the Contract in whole or in part, or subcontract any part of it, or cause it to be performed in fact by third parties.


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II.16.2. In the absence of the authorisation referred to in paragraph II.16.1 or in the event

of failure to observe the terms thereof, assignment by the Contractor shall not be enforceable against the Court and shall have no effect on it.

II.16.3. Even where the Court of Auditors authorises the Contractor to subcontract all or part of the tasks to third parties, the Contractor shall nonetheless remain solely responsible towards the Court of Auditors for the fulfilment of the obligations under the Contract.

II.16.4. Save where the Court of Auditors expressly authorises an exception, the Contractor shall be required to include in any contracts signed with third parties assigning all of part of the Contract provisions enabling the Court of Auditors to enjoy the same rights and guarantees in relation to third parties as in relation to the Contractor itself.

ARTICLE II.17. TERMINATION

II.17.1. The Court of Auditors may terminate this Contract in the following circumstances:

a) if the Contractor is bankrupt or is being wound up, is having its affairs administered by the courts, has entered into an arrangement with creditors, has suspended business activities, or is in any analogous situation arising from a similar procedure provided for in national legislation or regulations;

b) if the Contractor has not fulfilled obligations relating to the payment of social security contributions or the payment of taxes in accordance with the legal provisions of the country in which it is established, the country whose law is applicable to the Contract or the country where the Contract is to be performed;

c) if the Contractor or the persons having powers of representation, decision-making or control over it have been convicted of an offence concerning their professional conduct by a judgment with the force of res judicata delivered by a relevant authority in a Member State;

d) if the Contractor or the persons having powers of representation, decision-making or control over it have been found guilty of grave professional misconduct proven by any means;

e) if the Contractor or the persons having powers of representation, decision-making or control over it have been the subject of a judgment with the force of res judicata for fraud, corruption, involvement in a criminal organisation, money laundering or any other illegal activity, where such activity is detrimental to the Union’s financial interests;

f) if the Court of Auditors has evidence that the Contractor or any person with the power to represent it, take decisions on its behalf or exercise control over it is guilty of material errors, irregularities or fraud in the award procedure or the performance of the Contract;

g) if the Contractor is in breach of its obligations under Articles II.2.2, II.2.3 and II.4;


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h) if the Contractor is guilty of misrepresentation in supplying the information required by the Court of Auditors as a condition of participation in the procurement, or fails to supply this information;

i) if a change in the Contractor’s legal, financial, technical, organisational or audit situation could have a significant effect on the performance of the Contract or call into question the decision awarding the Contract;

j) if performance of the tasks has not actually started within the delivery or performance period specified in the Contract, specific contract or purchase order and if the new date proposed, if any, is considered unacceptable by the Court of Auditors;

k) if the Contractor cannot, through its own fault, obtain a permit or authorisation required for the performance of the Contract or if, through the Contractor's fault, the Court of Auditors has its SuperDrecksKëscht fir Betriber® label withdrawn or EMAS certification refused;

l) if the Contractor, after receiving formal notice in writing to comply, specifying the nature of the alleged failure, and after being given the opportunity to remedy the failure within a reasonable period following receipt of the formal notice, remains in serious breach of its material contractual obligations.

II.17.2. In the event of force majeure, notified in accordance with Article II.15, either contracting party may terminate the Contract if performance thereof cannot be ensured for a period corresponding to at least one-fifth of the period laid down in the Contract, specific contract or purchase order, if resuming performance is impossible or if a modification to the Contract might call into question the decision awarding the Contract or result in unequal treatment of tenderers;

II.17.3. Prior to any termination, the Contractor will be entitled to submit its observations;

II.17.4. Termination shall take effect on the date on which a registered letter with acknowledgment of receipt terminating the Contract is received, or on any other date indicated in the letter of termination.

II.17.5. Consequences of termination

II.17.5.1. In the event of the Court of Auditors terminating the Contract in accordance with this Article, and without prejudice to the other provisions of the Contract, the Contractor shall waive any claim for consequential damages, including loss of anticipated profits due to the non-completion of tasks. On receipt of the letter terminating the Contract, the Contractor shall take all appropriate measures to minimise costs, prevent damage, and cancel or reduce its commitments. It shall draw up the documents required for the tasks executed up to the date on which termination takes effect, within a period not exceeding sixty (60) days from that date.

II.17.5.2. Without prejudice to any administrative and financial penalties imposed by

the Court of Auditors in accordance with Article 109 of the Financial


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Regulation5, the Court of Auditors may claim compensation for any damage suffered and recover any sums paid to the Contractor under the Contract

II.17.5.3. Following termination, the Court of Auditors may commission any other

contractor to complete the tasks. The Court of Auditors shall be entitled to claim from the Contractor reimbursement of all additional costs incurred by the completion of the said tasks, without prejudice to any other rights or guarantees specified in the Contract as being in the Court of Auditors' favour.

ARTICLE II.18. MATERIAL ERRORS, IRREGULARITIES AND FRAUD

II.18.1. If, after the Contract has been awarded, the procurement procedure or performance of the Contract is found to be subject to material errors, irregularities or fraud, the Court of Auditors may suspend performance of the Contract or, if necessary, terminate it.

II.18.2. If such errors, irregularities or fraud are attributable to the Contractor, the Court of Auditors may refuse to make payments, may recover amounts already paid and may terminate all the contracts concluded with the Contractor, in proportion to the seriousness of the errors, irregularities or fraud, without prejudice to the application of possible financial and administrative penalties imposed by the Court of Auditors in accordance with Article 109 of the Financial Regulation6.

II.18.3. Contracts may be suspended in order to verify whether presumed material errors, irregularities or fraud have actually occurred. If they are not confirmed, the performance of the contract shall recommence after this verification.

II.18.4. Any breach of a contractual or regulatory provision arising from an act or omission which is, or would be, detrimental to the European Union budget shall constitute a material error or irregularity.

ARTICLE II.19. CHECKS AND AUDITS

II.19.1. The Court of Auditors and the European Anti-Fraud Office may have checks or audits carried out on the performance of the Contract, either directly by their own staff or by any outside body authorised to do so on their behalf.

II.19.2. Such checks and audits may be undertaken during the performance of the Contract or in the course of the five-year period following the date of payment of the balance.


October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ L 298, 26.10.2012).

6 Regulation (EU, EURATOM) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ L 298, 26.10.2012).


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II.19.3. The audit procedure shall be deemed to be initiated on the date of receipt of the relevant letter sent by the contracting authority. Audits shall be carried out on a confidential basis.

II.19.4. The Contractor shall store all original documents on any appropriate medium, including digitised originals if authorised by national law and under the conditions laid down therein, for a period of five years from the date of payment of the balance.

II.19.5. The Contractor shall allow the Court of Auditors' staff and outside personnel authorised by the Court of Auditors the appropriate right of access to sites and premises where the Contract is performed and to all the information, including information in electronic format, needed in order to conduct such checks and audits. The Contractor shall ensure that the information is readily available at the time of a check or audit and, if so requested, that information is handed over in an appropriate form.

II.19.6. By virtue of Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996 concerning the on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities' financial interests against fraud and other irregularities, and Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999, OLAF may also carry out on-the-spot checks and inspections in accordance with the procedures laid down by Union law for protection of the financial interests of the Union against fraud and other irregularities. Where appropriate, the findings may lead to recovery by the Court of Auditors.

ARTICLE II.20. AMENDMENTS

II.20.1. Any amendments to the Contract shall be the subject of a written agreement concluded by the contracting parties. Oral agreements shall not be binding on the contracting parties.

II.20.2. Amendments may not have the purpose or the effect of making changes to the Contract which might call into question the decision awarding the Contract or result in unequal treatment of tenderers.

II.20.3. In the context of a framework contract, the Court of Auditors may ask the Contractor to supplement its tender in writing. Any such supplements may not have the effect of substantially amending the initial tender.

ARTICLE II.21. DATA PROTECTION

II.21.1. Any personal data included in or relating to the Contract, including data used in its performance, shall be processed pursuant to Regulation (EC) No 45/2001 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, and solely for the purposes of the performance, management and follow-up of the


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Contract by the Court of Auditors, without prejudice to possible transmission to the bodies charged with a monitoring or inspection task in conformity with European Union law.

II.21.2. The Contractor shall have the right of access to its personal data and the right to rectify any such data. Should the Contractor have any queries concerning its personal data, it shall address them to the Court of Auditors. The Contractor shall have right of recourse at any time to the European Data Protection Supervisor.

II.21.3. Where this Contract involves the processing of personal data by the Contractor, the Contractor may act only on the instructions of the data controller, in particular as regards the purposes of processing, the categories of data that may be processed, the recipients of the data and the means by which persons concerned may exercise their rights.

II.21.4. These data are confidential within the meaning of Regulation (EC) No 45/2001 of the European Parliament and the Council on the protection of individuals with regard to the processing of personal data by Community institutions and bodies and on the free movement of such data. The Contractor shall restrict staff access to the data to what is strictly necessary for the performance, management and monitoring of the Contract.

II.21.5. The Contractor undertakes to adopt the appropriate technical and organisational security measures with regard to the risks inherent in the processing and nature of the personal data concerned, in order to:

a) prevent any unauthorised person from gaining access to the computer systems on which the personal data is processed, in particular to:

• prevent any unauthorised reading, copying, alteration or removal of storage media;

• prevent any unauthorised memory inputs as well as any unauthorised disclosure, alteration or erasure of stored personal data;

• prevent unauthorised persons from using data-processing systems by means of data transmission facilities;

b) ensure that the authorised users of a data-processing system can access only the personal data to which their access right refers;

c) record which personal data have been communicated, at what times and to whom;

d) ensure that personal data being processed on behalf of third parties can be processed only in the manner prescribed by the contracting institution or body;

e) ensure that, during the communication of personal data and the transport of storage media, the data cannot be read, copied or erased without authorisation;

f) design its organisational structure in such a way that it meets data protection requirements.


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ARTICLE II.22. APPLICABLE LAW AND SETTLEMENT OF DISPUTES

II.22.1. Unless otherwise expressly stated, the Contract shall be governed by European Union law as set out in the Financial Regulation and its rules of application7, supplemented, if necessary, by Luxembourg law.

II.22.2. Any dispute between the Court of Auditors and the Contractor resulting from the interpretation or application of the Contract which cannot be settled amicably shall, unless otherwise stipulated in the Contract, be brought before the General Court of the European Union in accordance with the conditions laid down in Article 272 of the Treaty on the Functioning of the European Union.

ARTICLE II.23. MEANS OF COMMUNICATION

II.23.1. Any communication relating to the Contract or to the performance thereof shall be made in writing and shall bear the Contract number. A communication shall be deemed to have been made when it has been received by the addressee, unless otherwise provided for in this Contract.

II.23.2. Electronic communications shall be deemed to have been received by the parties on the day of sending, provided they are sent to the addressees listed in the Contract. Without prejudice to the foregoing, if the sending party receives a message of non-delivery to or absence of the addressee, it shall make every effort to ensure the actual receipt of such communication by the other party.

II.23.3. Electronic communications shall be confirmed by an original signed paper version of the communication if requested by one of the parties, provided that this request is submitted without undue delay. The sender shall then send the original signed paper version without undue delay.

II.23.4. Mail sent using the postal service shall be deemed to have been received by the contracting authority on the date on which it is registered by the relevant department referred to in the Contract.

II.23.5. All formal notifications shall be made by registered mail with acknowledgement of receipt or equivalent, or by equivalent electronic means.


October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ L 298, 26.10.2012), and Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ L 362, 31.12.2012).


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SIGNATURES

For the Contractor,

[company name / surname / name / function]

signature[s]: _______________________

For the Court,

[surname / name / function]

signature[s]: _____________________

Done at [place], [date] Done at [place], [date]

in duplicate in English

1 annex 1 draft contract ao 275 ao275... · costs and expenditure incurred by the contractor to...

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