DRAFT CONTRACT
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Contract No: SC048/2023 |
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FIMS PO No: ……………… |
Between the Council of Europe
represented by William Massolin, the Head of Council of Europe Programme Office in Ankara, acting on behalf of the Secretary General of the Council of Europe, hereinafter referred to as “the Council”
And …..
hereinafter referred to as “the Provider”, represented by XX, <function>,
And the Turkish Constitutional Court represented by XX, <function>, hereinafter referred to as “the Recipient”
Article 1 – Object of the contract
1.1 The Provider undertakes, on the conditions and in the manner laid down by common agreement hereafter excluding any accessory verbal agreement, to provide to the Recipient the list of Deliverables as described in the Business and Technical Requirements (Appendix I) to the present contract.
1.2 This contract is made up of the following documents, its Appendices forming an integral part of the contract, in order of precedence:
- The present contract document;
- The Terms of Reference and the Business and Technical Requirements as reproduced in Appendix I to the present contract;
- The details of the tender submitted to the Council by the Provider, as reproduced in Appendix II to the present contract;
- The Model Act of Acceptance, as reproduced in Appendix III to the present contract;
- The Declaration of Agreement, as reproduced in Appendix IV to the present contract;
- Rule 481 of 27 February 1976 (available at https://rm.coe.int/1680781d20) laying down the arbitration procedure for disputes between the Council and private persons concerning goods provided, services rendered or purchases of immovable property on behalf of the Council.
1.3 Any general purchasing terms and conditions of the Provider shall never prevail over these legal conditions. Any provision proffered by the Provider in its documents (general conditions or correspondence) conflicting with the clauses of these legal conditions shall be deemed void, except for any clauses which may be more favourable to the Council.
1.4 These documents constitute the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
1.5 For the purposes of this Contract:
a) “Contract” shall refer to the documents described in 1.2, above;
b) “Council” shall mean the Council of Europe;
c) “Deliverables” shall mean the services or goods as described in the Terms of reference and in the Business and Technical Requirements;
d) “Provider” or “Service Provider” shall mean the legal or physical person or consortium of legal and/or natural person/s selected by the Council for the provision of the Deliverables;
e) “Recipient” shall mean the Turkish Constitutional Court (TCC);
f) “Parties” shall mean the Council, the Provider and the Recipient;
g) “Coordinator” shall mean the legal person that acts as the Consortium’s coordinator in accordance with Article 17;
h) "Source code" means the computer programmes making up the Application in the form of a sequence of instructions written in a programming language.
i) “Acceptance” is the decision by which, after verification, the Council and the Recipient acknowledge that these deliverables comply with the provisions of the contract. The acceptance decision constitutes formal acknowledgement that a deliverable has been accepted and constitutes the start of the period covered by a guarantee;
j) “Software” refers to the body of programmes, procedures and rules related to the operation of data processing and the accompanying documentation. The simple term software used in this document refers equally to standard and specific software;
k) “Standard software” is software designed by the Provider or a third party to be supplied to several users to perform the same function;
l) “Specific software” is software specially designed by the Provider to provide a solution tailored to the Council of Europe’s particular requirements. It may be an original piece of work created from scratch or one that is adapted, with the aid of specific developments, from existing forms of standard or specific software;
m) An “application” is the body of software necessary to perform a particular task.
1.6 Each party acknowledges that in entering into this contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this contract.
1.7 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this contract.
1.8 Nothing in this clause shall limit or exclude any liability for fraud.
1.9 The Council accepts no responsibility for damage or injury of any kind sustained by the staff or property of the Provider or by third parties, arising out of this contract or in relation to the manufacture, supply, installation or use of the equipment referred to in this contract. It shall not be liable for damage caused by any negligence or other action of its employees and agents, or any third party.
1.10 Upon transfer of the contract in accordance with Article 12, the Service Provider agrees to the transfer of all future claims, rights, benefits and interest, in particular all warranties express and implied, as well as any outstanding obligations, to the transferee. The Service Provider agrees to release the Council entirely from any future liability arising under the contract.
1.11 The Recipient agrees to the exclusion and indemnification of all liability on behalf of the Council for performance of the contract as to the future, except for payment of the final balance as defined in Article 10.1.
Article 2 – Duration
The contract is concluded until complete execution of the obligations of the parties and takes effect as from the date of its signature by the last of the parties. Award of the contract under the procedure is subject to the prior obtention by the project of a budget amendment that will allow for the funding of the said contract. The Deliverables shall be executed in accordance with the timeframe indicated in the Terms of reference or in the Business and Technical Requirements or, by default, in the tender submitted by the Provider.
Article 3 – Obligations of the Provider
3.1 General obligations
3.1.1 The Provider bears sole responsibility for all the decisions made and the human, technical, logistic and material resources used in the context of the Contract in order to provide the Deliverables, with due respect for the needs and constraints of the Council and of the Recipient, as contractually defined.
3.1.2 The Provider recognises that it is subject to a general obligation to provide advice, including, but not limited to, an obligation to provide any relevant information or recommendations to the Council and the Recipient. In this context, the Provider shall supply to the Council and the Recipient all the advice, warnings and recommendations necessary particularly in terms of quality of Deliverables, security and compliance with professional standards. The Provider also undertakes to inform the Council and the Recipient as soon as it becomes aware, during the execution of the Contract, of any initiatives and/or adopted laws and regulations, policies, strategies or action plans or any other development related to the object of the Contract.
3.1.3 The Provider undertakes to allocate sufficient human resources to ensure the smooth execution of the Contract. The Provider agrees that the Project Manager and all other persons allocated to the Contract shall not be replaced before the completion of obligations of the Provider without notice to the Council and the Recipient, unless:
- the individual to be replaced is prevented by ill-health from carrying out his duties in connection with the agreement for a significant period;
- or the individual resigns from employment with the Provider;
- or the contract of employment of the individual is terminated;
- or the Council makes a reasonable written request to the Provider to replace the individual because he has performed unsatisfactorily or has caused a breach of any of the Provider's obligations under this contract howsoever arising.
If any such person is replaced, the Provider shall consult with the Council and the Recipient about the identity of a suitable replacement.
3.2 Place and date of delivery of the deliverables
3.2.1 The places of delivery shall be those defined in the Business and Technical Requirements as reproduced in Appendix I to the present contract.
3.2.2 Delivery shall be completed within the period defined in the Terms of Reference and Business and Technical Requirements. Penalties for non-compliance with the delivery deadlines may apply if so indicated in the Business and Technical Requirements as reproduced in Appendix I to the present contract.
3.2.3 When relevant, precise dates and times for delivery (to each location) shall be agreed between the Provider, the Council and the Recipient following signature of this contract and at least 2 (two) weeks prior to the first delivery.
3.3 Special delivery conditions and acceptance procedures
3.3.1. The Provider understands and agrees that delivery shall be performed subject to the following conditions and procedures.
3.3.2. The Parties understand that the persons designated for the reception of the deliverables are the following:
i. The Council declares that the responsible persons for the reception of the deliverables are:
- XX, title;
ii.The Recipient declares that the responsible persons for the reception of the deliverables are:
- XX, title
3.3.3. Upon supply of the deliverables, and prior to acceptance of delivery, the Council and the Recipient shall have the right to inspect the deliverables and to carry out any verifications to either accept or reject them, in all or in part, for non-conformity with the specifications agreed under the contract.
3.3.4. Upon supply of the deliverables, the Provider shall provide an Act of Acceptance for the deliverables, using the Model reproduced in Appendix III to the present contract, to the Council and to the Recipient for signature. Each Act of Acceptance must be signed in three copies – one for the Council, one for the Service Provider, one for the Recipient. Signature of the Act of Acceptance shall have effect as from the date of signature by the last of the parties.
3.3.5. The Council’s right to reject any deliverables shall not be in any way limited or waived by the inspection of the deliverables, or by the signature of an Act of Acceptance by the Recipient or any person other than a delegated representative of the Council.
3.3.6. Persons designated by the Council under Article 3.3.2 i. above shall have power to sign the Act of Acceptance and to transfer the contract and title in the deliverables to the Recipient. Persons designated by the Recipient under Article 3.3.2 ii. above shall have power to sign the act of acceptance on behalf of the Recipient.
3.3.7. In the event that one of the persons designated by the Recipient under Article 3.2.2 ii. above refuses to sign the Act of acceptance, the Recipient shall inform the Provider and the Council in writing about the reasons of this refusal. Should the Council consider that the reasons presented by the Recipient are sufficient to conclude to a breach by the Provider of the conditions laid down in this contract, the Council may also refuse to sign the act of acceptance. The Council shall pay only the amount corresponding to the deliverables actually delivered and services actually provided at the time of breach of the contract and shall be entitled to reimbursement of any sums already paid for deliverables not delivered or services not provided, including the deposit mentioned if one had been paid.
3.3.8. Without prejudice to the provisions of Article 3.3.3 and 3.3.7, the Council shall sign, simultaneously with the Recipient, the three copies of the Act of acceptance in acceptance of the deliverables received from the Provider within a reasonable time following full deliverables delivery. Upon signature by the Council of Europe, the final balance shall become due within the time limit set down in Article 10. By its signature the Council shall transfer title in the deliverables immediately to the Recipient. Furthermore, all rights, title, interest and benefit, and all obligations under the current contract shall be immediately transferred to the Recipient.
3.3.9. The Council shall retain any rights, duties and claims already accrued under the contract, in particular the right to enforce delivery, refuse payment, or claim reimbursement of any sums advanced in the event of non-delivery of any part of the deliverables or other non-performance of any part of the contract at any time prior to the transfer of title. The Council shall also remain liable for payment of the final balance as defined in Article 10.1.
3.3.10. Without prejudice to the provisions of Article 3.3.3 and 3.3.7, the Recipient shall sign, simultaneously with the Council, the three copies of the Act of acceptance of the deliverables received from the Provider on the day of the delivery. Any refusal to sign the act of acceptance shall be provided in writing and duly justified. By its signature of the act of acceptance, the Recipient confirms and agrees that the deliverables delivered conform to the description and standard defined in the Business and Technical requirements.
3.3.11. By signing the act of acceptance, the Recipient accepts the transfer of the deliverables and of the current contract and all attached rights and obligations from the Council to the Recipient. The Recipient declares being fully informed of the scope and nature of the rights and obligations transferred by the Council. The Recipient commits in addition to use the deliverables transferred for the sole purposes intended under the EU-CoE Joint Project on “Supporting the Effective Implementation of Turkish Constitutional Court Judgments in the Field of Fundamental Rights”.
3.3.12. Upon signature of the act of acceptance, the Recipient releases the Council from its future obligations and waives any claim against the Council upon the basis of this contract and any other agreement or understanding as to content or quality in respect of the deliverables delivered. This shall in no way be interpreted as waiving the responsibility of the Provider, who shall remain liable to the Council of Europe and any transferee or assignee, including the Recipient, for breach of contract or other civil liability.
3.3.13. The Recipient shall indemnify the Council against all liabilities, costs, expenses, damages and losses that the Council suffers or incurs under or in connection with the Contract after the signature of the act of acceptance, except to the extent that such losses, damages or costs arise as a result of the Council’s failure to perform or satisfy its obligations under the Contract before that date.
3.3.14. The Council shall take such action as the Recipient may reasonably request to avoid, dispute, compromise or defend any claim, action or proceedings brought under or in connection with the Contract after signature of the act of acceptance.
3.3.15. The Provider expressly consents to the transfer to the Recipient, and agrees to the novation of this contract and all rights, benefit, interest and obligations arising therefrom, without prejudice to the enduring rights of the Council of Europe, as detailed in this Article.
3.4 Warranty
3.4.1 The Provider warrants that the services and equipment comply with the standards and technical requirements recorded in the Business and Technical requirements as reproduced in Appendix I. The Provider further warrants that the services and equipment comply with the standards and technical requirements established in the beneficiary country as well as the regulatory documents and State standards.
3.4.2 The Provider warrants that the deliverables have no defects and that they have been produced to the required standard.
3.4.3 The Provider undertakes to replace or repair any defective part in the deliverables free of charge in accordance with the requirements laid down in Appendix I. The warranty period, as indicated in Appendix I to the present contract, is equal to 2 years and to be calculated from the date of signing of the act of acceptance of the deliverables by the last party.
3.4.4 Where defects are discovered after the warranty period that ought reasonably to have been discovered or prevented by the Provider at the time of delivery, and without prejudice to the rights and remedies of the Council for breach of this contract, the deliverables shall be treated as under warranty.
3.4.5 If during the warranty period the Recipient discover defects of the deliverables which were not identified at the transfer of the deliverables, the Recipient shall take all necessary measures to prevent further deterioration of the deliverables and send an appropriate written notification about these defects to the Provider.
3.4.6 The Provider guarantees the correction of defects free of charge within 15 (fifteen) calendar days from the receipt of the Recipient’s notification during the warranty period.
3.4.7 The correction of defects under warranty can be made by way of replacement or repair of the deliverables.
3.4.8 The Provider shall repair the abovementioned defects and any damage caused by the defect in the deliverables under warranty at its own expense.
3.4.9 After the expiry of the deliverables warranty period, the Provider and the Recipient may by mutual consent conclude a post-warranty service agreement for all or some of the deliverables on a one-off or continuing basis.
3.4.10 When applicable, the Provider shall guarantee the compliance of standard software with the specifications in the contractual documents. Accordingly, during the guarantee period, the Provider shall correct, free of charge, any operational malfunctioning of the software, having regard to the contract specifications. When the malfunctioning occurs on standard software not produced by the Provider, the latter shall apply the provisions of the guarantee provided by the publisher of the standard software, of which the Council of Europe shall be advised in advance. The correction shall be carried out free of charge. Pursuant to this Article, the Council of Europe shall draw up a written report of these defects, including all the necessary information for the Provider to identify them. The report must be submitted to the Provider as soon as the Council of Europe becomes aware of the defect.
3.4.11 Free software shall be used in its existing form. The Provider will not be held responsible for any damage caused by the use, by the Council, of free software of which the Provider is not the publisher.
3.4.12 All disputes concerning the warranties for the deliverables shall be determined in accordance with Article 19.
3.5 Definition of results
3.5.1 For the purposes of this Contract:
b. “Know-how” is a body of non-patented, tried and tested practical information that is:
iii. identified, which means described in a sufficiently detailed fashion to establish that it meets the conditions described in sub-paragraphs 1 and 2 above.
3.6 Rules governing prior knowledge
3.6.1 Conclusion of the contract does not entail transfer of intellectual property rights or rights of any other nature relating to prior knowledge. The Council of Europe, the Provider and the third parties designated in the contract shall continue to hold the intellectual property rights or rights of any other nature relating to prior knowledge, with regard to those aspects that concern each of them.
3.6.2 If the Provider incorporates prior knowledge into the results or uses prior knowledge that is under licence but freely available, or if prior knowledge, while not incorporated into the results, is strictly necessary for the implementation of the results, the Provider shall grant the Council of Europe and third parties designated in the contract the non-exclusive right to use the results, permanently or temporarily, in whole or in part, and by any means and in any form, for requirements arising from the purpose of the contract. This right includes the right to reproduce, copy, download, display, store, execute or perform the prior knowledge in order to use the results.
3.6.3 The concession of rights to prior knowledge is included in the contract price. The rights are granted for the same period as the rights to use the results.
3.6.4 The rights of modification, adaptation and translation shall be exercised, if appropriate, pursuant to the conditions laid down in the Specific contractual documents.
3.6.5 While the contract is being performed, the Provider may not, without the prior agreement of the Council and of the Recipient, use or incorporate prior knowledge necessary to meet the purpose of the contract that is likely to limit the exercise of the rights pertaining to the results or make it more costly.
3.7 Intellectual property rights
3.7.1 The Provider shall exclusively assign to the Council of Europe all the rights and titles of any nature in the contract relating to the results, thus enabling the Council of Europe to use them freely, including their commercial exploitation, for the purposes specified in the Specific contractual documents.
3.7.2 The contractual documents may provide for the Council of Europe, as beneficiary of the assignment, to assign back, on a non-exclusive basis, certain usage rights to the Provider.
3.7.3 The aforementioned rights are assigned irrevocably to the Council of Europe throughout the entire world and for the entire period of intellectual property rights protection.
3.7.4 The Provider shall retain sole responsibility for its employees and third parties operating on its behalf.
3.7.5 The amount of the fee payable by the Provider for uses, particularly commercial uses, that the partial assignment or non-exclusive concession might authorise it implement, shall be specified in the specific contract conditions.
3.7.6 Results protected by a literary and artistic property right
3.7.6.1 The Provider cedes irrevocably and exclusively to the Council throughout the entire world and for the entire period of copyright protection, all rights on the Deliverable(s) produced as a result of the execution of the present contract. Such rights shall include in particular the right to use, reproduce, represent, publish, adapt, translate and distribute – or to have used, reproduced, represented, published, adapted, translated and distributed - in any country, in any language, in any form and on any kind of support, including on a CD-ROM or the Internet, the said Deliverables, or any part thereof.
3.7.6.2 This assignment of rights shall cover the results once they are known, from their delivery, subject to acceptance of the deliverables.
3.7.6.3 The Council reserves the right to exercise the above-mentioned rights for any purpose falling within its activities.
3.7.6.4 The Provider guarantees that use by the Council of the Deliverable(s) produced as a result of the execution of the present contract will not infringe the rights of third parties. However, should the Council incur liability as the result of any such infringement; the Provider will compensate it in full for any damage it may suffer in consequence.
3.7.6.5 Notwithstanding the provision in Article 3.7.6.1 above, the Council may, on prior application by the Provider, authorise the Provider to use the Deliverable(s) referred to above. When giving the Provider such authority, the Council will inform the Provider of any conditions to which such use may be subject.
3.7.6.6 If the Deliverable(s) result(s) in the provision of a training session, and provided the training materials are not the property of the Council, the Provider shall grant the participants in the training a non-exclusive licence for the entire world and for the entire period of protection by the applicable intellectual property rights law for their own professional use of those training materials.
3.7.6.7 The right of reproduction shall include, if necessary, the right to reproduce the results, with no restriction on numbers, in whole or in part, as they stand or modified, by any processes and by any medium, including ones that were unforeseeable or unknown when the contract was signed, for the purposes of their use, in particular their commercial use, subject to remuneration to be agreed for forms of further use that were unknown on the day the contract was signed.
3.7.6.8 The right of performance and distribution shall include, if necessary, the right to communicate with the public and make the results available to the public, in whole or in part, as they stand or modified, by any medium, method or process, including ones that were unforeseeable or unknown when the contract was signed, for the purposes of their use, in particular their commercial use, subject to remuneration to be agreed for forms of further use that were unknown on the day the contract was signed.
3.7.6.9 The source codes and the documentation necessary to give effect to the rights relating to the results shall be delivered on a usable medium, at the same time as the object code. The source codes shall be confidential.
3.7.7 Results protected by an industrial property right
3.7.7.1 The Provider shall inform the Council of Europe of any result that has been identified as likely to be protected by an industrial property title.
3.7.7.2 The Provider shall authorise the Council of Europe to lodge any application or industrial property title to protect the results, on behalf of and at the expense of the Council of Europe. The Provider shall take all reasonable steps to assist the Council of Europe to lodge such industrial property titles. To that end, it shall transmit to the Council of Europe the necessary information and authorisations to secure the industrial property rights relating to the results.
3.7.7.3 If titles have been lodged, the Provider shall assign to the Council of Europe (i) full ownership of the industrial property titles and applications for titles relating to the results that it has lodged, (ii) any Union priority right attached to the industrial property titles and to applications for titles, (iii) the right to bring an action for any cases of forgery, unfair competition or plagiarism, before or after the signing of the contract.
3.7.8 Results relating to other forms of protection
3.7.8.1 The Provider shall assign to the Council of Europe, exclusively, finally and irrevocably, the right to use the results covered by its know-how and trade secrets.
3.7.8.2 The Provider shall assign to the Council of Europe the right to use any databases that might be included in the results.
3.7.8.3 The Provider shall assign exclusively to the Council of Europe the domain names that it has registered, if any.
3.7.9 Common provisions
3.7.9.1 In general, the Provider may not rely on its intellectual property rights or titles or any other rights for the purpose of using the results.
3.7.9.2 In the event of termination of the contract for whatever reason, the Council of Europe shall continue to be the assignee for all the usage rights pertaining to the results.
3.7.9.3 The Provider may publish the results, subject to the Council of Europe’s prior agreement. Any restrictions on the right to publish the results shall not prevent the publication of general information on the existence of the contract and the nature of the results. The publication must state that the results have been financed by the Council of Europe.
3.7.9.4 For a period of two years, the Provider shall be required to provide, at the request of the Council of Europe, any essential assistance needed for the use of the results.
3.7.9.5 In particular, the Provider shall:
3.7.9.6 The contractual documents shall specify the technical and financial arrangements governing the provision of this assistance.
3.7.10 Guarantees of rights
3.7.10.1 The Provider shall guarantee that the Council of Europe has full and unrestricted enjoyment of the intellectual property rights and rights of any nature relating to the results assigned to it under the terms of the contract.
3.7.10.2 The Provider shall guarantee that:
3.7.10.3 Under these circumstances, and in the absence of any fault directly attributable to the Council of Europe, the Provider shall meet the cost of any damages that the Council of Europe is required to pay on grounds of forgery, unfair competition or plagiarism, following the use of the results and of prior knowledge pursuant to Articles 3.6 and 3.7, once the judgment handed down becomes operative.
3.7.10.4 The Provider shall not be liable for any allegations concerning:
3.7.11 Provider’s rights
3.7.11.1 The Provider shall undertake, from the date of assignment of the rights, not to grant any licence pertaining to, or to use or exploit in any way, the assigned rights.
3.7.11.2 The Provider shall retain its own rights, including usage rights, concerning the prior knowledge incorporated into the results, in accordance with the provisions of Article 3.6. The Provider may use the results, including their use for commercial purposes, subject to the prior and written agreement of the Council of Europe, and to the conditions provided for in the Specific contractual documents.
3.8 Other obligations related to the equipment and services to be delivered
3.8.1 The Provider bears sole responsibility for all the decisions made and the human, technical, logistic and material resources used in the context of the Contract in order to supply the deliverables and services, with due respect for the Council’s and the Recipient’s needs and constraints, as contractually defined.
3.8.2 The Provider shall supply to the Council and the Recipient all the warnings and recommendations necessary particularly in terms of quality of services, security and compliance with professional standards. The Provider undertakes in particular to inform the Council and the Recipient as soon as it becomes aware, during the execution of the contract, of any difficulty that might affect the proper execution of the contract.
3.9 Liability
3.9.1 The Provider shall be bound by an obligation of result with regards to compliance with contractual time-limits and the conformity of the Deliverables to the Specifications and the normally expected standards of execution.
3.9.2 The Provider shall bear full liability for the consequences of its failings, errors or omissions, as well as the failings, errors or omissions of its agents or sub-contractors, and be responsible for taking action against the agent(s) or sub-contractor(s) concerned to enforce their liability.
3.9.3 In particular, the Provider shall take full responsibility vis-à-vis the Council for any loss of earnings, increased overheads, disruption to schedules and breaches of data and information systems that might be caused to the Council by failings, errors, omissions or negligence on the part of the Provider or their agents or sub-contractors.
3.9.4 The Provider shall take full responsibility for the obligations attached to its capacity of employer.
3.10 Insurance
3.10.1 The Provider shall take out insurance guaranteeing its liability with regard to the Council of Europe and third parties suffering accidents or damage caused by the supply of deliverables.
3.10.2 It must demonstrate, within a period of fifteen days from notification of the contract and before any commencement of its activities, that it has taken out such insurance, by means of a certificate setting out the extent of the guaranteed liability. At any time during the performance of the contract, the Provider must be able to produce this certificate, at the Council of Europe’s request, within fifteen days of receipt of the request.
Article 4 – Loyalty and confidentiality
4.1 In the performance of the present contract, the Provider will not seek or accept instructions from any government or any authority external to the Council or the Recipient. The Provider undertakes to comply with the Council’s directives for the completion of the work, to observe absolute discretion regarding all service matters and to refrain from any word or act that may be construed as committing the Council.
4.2 The Provider shall observe the utmost discretion in all matters concerning the contract, and particularly any service matters or data that have been or are to be recorded that come to the Provider’s attention in the performance of the contract. Unless obliged to do so under the terms of the contract, or expressly authorised to do so by the Secretary General of the Council, the Provider shall refrain at all times from communicating to any person, legal entity, government or authority external to the Council or the Recipient any information which has not been made public and which has come to the Provider’s notice as a result of dealings with the Council or the Recipient. Nor shall the Provider seek to gain private benefit from such information. Neither the expiry of the contract nor its termination by the Council or the Recipient shall lift these obligations. Any violation of this undertaking by the Service Provider shall constitute a grave breach of its obligations, incur its liability and entitle the Council of Europe to seek compensation for the damage caused.
Article 5 – Protection of the workforce and working conditions
5.1 The Provider’s obligations are those provided for in the laws and regulations governing protection of the workforce and working conditions in force when the contract is performed, in the country where the workforce is employed.
5.2 The Provider shall undertake all necessary measures to arrange for health and social insurance of its staff during the entire period of the performance of work under the contract. The Provider acknowledges and accepts in this regard that the Council or the Recipient shall not assume any responsibility for any health and social risks concerning illness, maternity or accident which might occur during the performance of work under the contract.
5.3 The Provider shall inform its sub-contractors that the obligations listed in this article are applicable to them and is responsible for compliance with them.
Article 6 – Disclosure of the terms of the contract
6.2 Whenever appropriate, specific confidentiality measures shall be taken by the Council to preserve the vital interests of the Provider.
Article 7 – Use of the Council of Europe’s name
The Provider and the Recipient shall not use the Council’s name, flag or logo without prior authorisation of the Council.
Article 8 - Fiscal obligations of the Provider
The Provider undertakes to observe any applicable law and rule and to comply with its fiscal obligations in:
- submitting an invoice to the Council in conformity with the applicable legislation;
- declaring all fees received from the Council for tax purposes as required in its country of fiscal residence.
Article 9 - Other obligations of the Provider
9.1 In the performance of the present contract, the Provider undertakes to comply with the applicable principles, rules and values of the Council.
9.2 The Council’s Staff Regulations and the rules concerning temporary staff members shall not apply to the Provider or its staff.
9.3 Nothing in this contract may be construed as conferring on the Provider or its staff the capacity of a Council of Europe staff member or employee.
Article 10 – Fees, expenses and mode of payment
10.1 Fees
10.1.1 In return for the fulfilment by the Provider of its obligations under the contract, the Council undertakes to pay the Provider the fees as indicated in their quote, in Euros.
- 20% of total price upon submission and acceptance of the Project Management Plan
- 20% of total price upon submission and acceptance of Software Requirements Specification
- 30% of total price upon provision and acceptance of Software Design Description (initial version), Software Design Description (final version), Installed Software including Source and Executable Codes and Development Tools, Training Plan, Software Test Procedures
- 30% of total price upon provision of Training Materials, Delivery of Trainings, Provision of User Manuals, Submission and acceptance of Penetration Test Report and Revised Source/Executable Codes, retrained AI algorithms and Documents.
These prices are final and not subject to review.
10.2 VAT
10.2.1 Should the Provider not be subject to VAT, the amount invoiced shall be net fixed amount. Should the Provider be subject to VAT, the amount shall be invoiced as indicated in Articles 10.2.2 to 10.2.4.
10.2.2. Should the deliverables be taxable in France, the amount invoiced shall be VAT inclusive. For services physically carried out in France, providers who do not have a French VAT number must register with the French Fiscal Authorities: Directorate for non-resident tax / [email protected] / 10, rue du Centre / 93465 Noisy-le-Grand Cedex / + 33 (0)1 57 33 85 00; or, depending on the provider, Providers without a French VAT number are required to register for VAT purposes at the VAT One Stop Shop (VAT OSS) of their choice. The invoice shall indicate the total amount without taxes, the rate and the amount of the VAT and the total amount ‘including all taxes’. The invoice shall also stipulate the following statement: “French VAT collected by the Provider and paid to the One-Stop shop in [Address/Country] under the OSS identification number [No. XX]”.
10.2.3. Should the deliverables be taxable in another EU country, and unless otherwise agreed between the Parties, the Council will provide the Provider with an exemption certificate prior to the signature of the contract. The exemption certificate sent by the Council of Europe should be retained by the Provider and presented to the relevant tax authorities to justify tax-free invoicing. In accordance with Article 2 b) of Council Directive 2001/115/EC, the following should be stated in the invoice: “Intra-Community sale/service to an exempted organisation: Articles 143 and 151 of Council Directive 2006/112/EC” and should indicate the final total amount excluding VAT. In case the CoE will not be in a position to provide the said certificate, the Council will pay the invoice with VAT included.
10.2.4. Should the deliverables be taxable in a non-EU country, the amount invoiced will not include VAT if the local (national) legislation allows for it, or if the Council of Europe enjoys tax exemption through other means in the country concerned. Otherwise, it shall include VAT.
10.3 Invoicing and payment
10.3.1 Upon acceptance of the deliverable[s] by the Council, the Provider shall submit an invoice or a request for payment in triplicate and in the currency specified in in the Business and Technical Requirements (Appendix I), in conformity with the applicable legislation.
10.3.2 Before accepting the Deliverable(s), the Council reserves the right to ask the Provider to submit any other document or information that may serve the purpose of establishing that the Contract has been duly executed.
10.3.3 The payment for the Deliverables to be paid by the Council shall be made within 60 calendar days of submission of the invoice described in Article 10.3.1, subject to the submission of the Deliverable(s) described in the Terms of reference and its/their acceptance by the Council.
Article 11 - Breach of contract
11.1 In the event that:
a) the Provider does not satisfy the conditions laid down in this contract or those resulting from any modifications duly accepted in writing by both parties, in accordance with the provisions of Article 12.1 below; or
b) the Deliverables provided as referred to under Article 1.1 do not reach a satisfactory level; or
c) the Provider is in any of the situations listed in Article 16.2;
the Council may consider there to have been a breach of contract and may consequently refuse to pay to the Provider the amounts referred to in Article 10 above.
11.2 In the cases described in paragraph 11.1 above, the Council reserves further, at any moment and further to prior notification to the Provider, the right to terminate the contract. In case of termination, the Council shall pay only the amount corresponding to the equipment or the services actually and satisfactorily provided at the time of termination of the contract and shall request reimbursement of the sums already paid for equipment or services not provided.
11.3 The outstanding sums due to be reimbursed shall be paid to the Council’s bank account within 60 calendar days from the notification in writing by the Council to the Provider regarding the outstanding sums to be paid.
11.4 In the event of the Provider being unable to provide the equipment or services detailed in the contract, the Provider shall endeavour provide the same within the shortest delay and at no extra cost to the Council. The Provider shall cover any costs incurred by the Council and the Recipient due to delay, mistake or other obstacle to delivery caused by its actions or inaction.
Article 12 – Modifications, transfer and sub-contracting
12.1 Modifications
12.1.1 The provisions of this contract cannot be modified without the written agreement of all the parties. This agreement may take the form of an exchange of emails provided it is done using the contact details specified in Article 14.
12.1.2 Any modification shall not affect elements of the contract which may distort the initial conditions of the tendering procedure or give rise to unequal treatment between the tenderers.
12.2 Transfer
12.2.1 The Provider may not transfer the contract, in full or in part, for money or free of charge, without the Council's prior authorisation in writing.
12.2.2 The parties agree that the Council may transfer this contract in full or in part, to the Recipient. Title of the deliverables may be transferred to the Recipient at any time by the Council. The Council may also assign the benefit of this contract to the Recipient.
12.2.3 Upon transfer or assignment of the contract all title, rights, benefit and interest, as well as obligations not expressly retained by the Council, shall be transferred fully and immediately to the Recipient.
12.2.4 The Provider shall remain bound by all of the terms of this contract, including any express or implied warranty, vis-à-vis the Recipient and any subsequent parties to whom the contract is transferred where consent has been granted by the Provider.
12.3 Sub-contracting
12.3.1 The Parties hereby agree that the Provider may in no circumstances sub-contract the performance of all or some of the services covered by it to a third party without the prior written agreement of the Council and of the Recipient. The elements of the contract to be sub-contracted and the identity of the subcontractors shall be notified to the Council. The Council shall within 15 (fifteen) calendar days of the notification, notify the Provider of its decision, stating reasons should it withhold such authorisation.
12.3.2 In the event of the Provider using the services, with the prior written agreement of the Council and of the Recipient, of one or more sub-contractors, it is expressly agreed that:
12.3.3 Sub-contractors shall satisfy the exclusion and eligibility criteria applicable for the award of the contract. The Provider shall request sub-contractors to sign a declaration stating compliance with the exclusion criteria reproduced in Appendix IV.
12.3.4 The Council shall have no contractual relations with the sub-contractors. The Provider shall remain liable to the Council for the performance of all obligations under the contract whether or not they have been sub-contracted to other agents.
12.3.5 The Provider shall inform the Council promptly of any delay, failure to perform or other breach of contract which occurs or which is likely to occur due to the action of any sub-contractor.
Article 13 - Case of force majeure
13.1 In the event of a force majeure, the parties shall be released from the application of this contract without any financial compensation. Force majeure is defined as including the following: major weather problems, earthquake, strikes affecting air travel, attacks, a state of war, health risks or other serious events that would require the Council or the Provider to cancel the contract.
13.2 In the event of such circumstances each party shall be required to notify the other party accordingly in writing, within a period of 7 (seven) calendar days.
Article 14 - Communication between the parties
14.1 The Contact point within the Council of Europe is:
Person / Function / Department
Address
Telephone
Fax
14.2 The Provider can be reached through:
Person / Function / Department
Address
Telephone
Fax
14.3 The Recipient can be reached through:
Person / Function / Department
Address
Telephone
Fax
14.4 Any communication is deemed to have been made when it is received by the receiving party, unless the Agreement refers to the date when the communication was sent.
14.5 Electronic communication is deemed to have been received by the receiving party on the day of successful dispatch of that communication, provided that it is sent to the addressees listed in Articles 14.1, 14.2 or 14.3 above. Dispatch shall be deemed unsuccessful if the sending party receives a message of non-delivery. In this case, the sending party shall immediately send again such communication to any of the other addresses listed in Articles 14.1, 14.2 or 14.3 above. In case of unsuccessful dispatch, the sending party shall not be held in breach of its obligation to send such communication within a specified deadline, provided the communication is dispatched by another means of communication without further delay.
14.6 Mail sent to the Council using the postal services is considered to have been received by the Council on the date on which it is registered by the department identified in Article 14.1 above.
14.7 Formal notifications made by registered mail with return receipt or equivalent, or by equivalent electronic means, shall be considered to have been received by the receiving party on the date of receipt indicated on the return receipt or equivalent.
Article 15 –Acceptance
The provision of equipment and services referred to in this contract shall be the subject of a written acceptance procedure, as defined in Article 3.3 above. If acceptance is refused, the Council shall inform the Provider accordingly, giving reasons, and reserves the right to set new modalities for the provision of the equipment and services. If acceptance is refused again, the Council may terminate the contract in whole or in part without previous notice and without paying any financial compensation.
Article 16 – Changes in the Service Provider’s situation or standing
16.1 The Provider shall inform the Council without delay of any changes in his address or legal domicile.
16.2 The Provider shall also inform the Council without delay:
i. if they are involved in a merger, takeover or change of ownership or there is a change in their legal status;
ii. where the Provider is a consortium or similar entity, if there is a change in membership or partnership.
iii. if they are sentenced by final judgment on one or more of the following charges: participation in a criminal organisation, corruption, fraud, money laundering, terrorist financing, terrorist offences or offences linked to terrorist activities, child labour or trafficking in human beings;
iv. if they are in a situation of bankruptcy, liquidation, termination of activity, insolvency or arrangement with creditors or any like situation arising from a procedure of the same kind, or are not subject to a procedure of the same kind;
v. if they have received a judgment with res judicata force, finding an offence that affects their professional integrity or serious professional misconduct;
vi. If they do not comply with their obligations as regards payment of social security contributions, taxes and dues, according to the statutory provisions of their country of legal domicile;
vii. If they are or are likely to be in a situation of conflict of interests;
viii. if they are or if their owner(s) or executive officer(s), in the case of legal persons, are included in the lists of persons or entities subject to restrictive measures applied by the European Union (available at www.sanctionsmap.eu).
17.1 This provision only applies insofar as the Contract is concluded with a Consortium of providers.
17.2 The members of the Consortium have full responsibility for carrying out and complying with the terms of the contract. The members of the Consortium are jointly and severally liable. If a member of the Consortium fails to implement its part of the contract, the other members become responsible for the carrying out of the Deliverables, unless the Council expressly relieves them of this obligation.
17.3 In case of breach of contract, where applicable, the Council will claim back the amounts paid but that were not due under the contract. The coordinator of the consortium is fully liable for repaying the debts of the consortium; even if it has not been the final recipient of those amounts.
17.4 The internal roles and responsibilities of the members of the Consortium are divided as follows:
17.4.1 The members of the Consortium must designate a coordinator.
17.4.2 Each member of the Consortium must:
i. inform the coordinator immediately of any events or circumstances likely to affect significantly or delay the performance of the contract, change in legal status or technical, organisational or ownership situation, circumstances affecting the award of the contract or compliance with the requirements of the contract, and if it is in any of the situations listed in article 16.2;
ii. submit to the coordinator in good time:
- any other documents or information required by the Council under the contract, unless the contract requires the members of the Consortium to submit this information directly;
- any information requested by the coordinator in order to verify the state of performance of the Deliverables under the contract, the proper implementation of the contract and compliance with the other obligations under the contract.
iii. give the other members of the Consortium access to any pre-existing industrial and intellectual property rights needed for the performance of the contract and compliance with the obligations under the Agreement.
17.4.3 The coordinator must:
i. monitor that the Deliverables are carried out timely and properly, in accordance with the terms of the contract;
ii. act as the intermediary for all communications between the Consortium and the Council (in particular, providing the Council with the information described in Article 17.4.2(ii) immediately), unless agreed otherwise by the Parties;
iii. request and review any documents or information required by the Council and verify their completeness and correctness before passing them on to the Council;
iv. before starting performance of the contract, submit this list of pre-existing rights (Article 17.4.2(iii)) to the Council.
v. submit the Deliverables to the Council in accordance with the timing and terms of the contract and sign the Act of Acceptance in accordance with the acceptance procedure laid down in Article 3.3;
vi. Payments of the fees shall be made by the Council to the coordinator. Payments to the coordinator shall discharge the Council from its payment obligation. The coordinator must ensure that the distribution of the payments between the members of the Consortium are made without unjustified delay and in accordance with the Consortium’s internal arrangements.
The coordinator may not subcontract the above-mentioned tasks.
17.5 The members of the Consortium must have internal arrangements regarding their operation and co-ordination to ensure that the action is implemented properly. These internal arrangements must be set out in a written ‘consortium agreement’ between the beneficiaries, which may cover:
- internal organisation of the consortium;
- distribution of the Council payment(s);
- additional rules on rights and obligations related to pre-existing rights and results (including intellectual and industrial property rights), specifying the owner and persons that have a right of use;
- settlement of internal disputes;
- liability, indemnification and confidentiality arrangements between the Providers.
The consortium agreement must not contain any provision contrary to the contract.
17.6 Each member of the Consortium shall sign the Declaration of Agreement (as reproduced in Appendix IV to the present contract).
Article 18 – Data Protection
18.1 Without prejudice to the other provisions of this contract, the Parties undertake, in the execution of this contract, to comply at all times with the legislation applicable to each of them concerning the processing of personal data.
18.2 Where the Provider, pursuant to its obligations under this contract, processes personal data on behalf of the Council, it shall:
Article 19 - Disputes
19.1 In accordance with the provisions of Article 21 of the General Agreement on Privileges and Immunities of the Council of Europe, all disputes between the Council and the Provider as regards the application of this contract shall be submitted, if a mutual agreement cannot be reached between the parties, to arbitration as laid down in Rule No. 481 of the Secretary General.
19.2 The Arbitration Board shall be composed of two arbitrators each selected by one of the parties, and of a presiding arbitrator, appointed by the other two arbitrators; in the event of no presiding arbitrator being appointed under the above conditions within a period of six months, the President of the Tribunal de Grande Instance of Strasbourg shall make the appointment.
19.3 Alternatively, the parties may submit the dispute for decision to a single arbitrator selected by them by common agreement or, failing such agreement, by the President of the Tribunal de Grande Instance of Strasbourg.
19.4 The Board referred to in paragraph 2 of this Article or, where appropriate, the arbitrator referred to in paragraph 3 of this Article, shall determine the procedure to be followed.
19.5 If the parties do not agree upon the law applicable the Board or, where appropriate, the arbitrator shall decide ex aequo et bono having regard to the general principles of law and to commercial usage.
19.6 The arbitral decision shall be binding upon the parties and there shall be no appeal from it.
19.7 In the case of transfer of the contract, the Recipient and the Provider are free to decide that all or any disputes between the Recipient and the Provider as regards the application of this contract shall be governed by the jurisdiction of the country of their choice. Failing agreement on an alternative jurisdiction, it shall be presumed that the jurisdiction and applicable law shall be that of Türkiye.
Article 20 - Addresses and bank details of the parties
20.1 The Provider:
Address:
Bank details:
20.2 The Council:
Bank address: F-67075 Strasbourg Cedex, France
Bank name: Société Générale Strasbourg
Code IBAN: FR76 30003 02360 001500 1718672
SWIFT Code: SOGEFRPP
Article 21 – Date, place and signatures of the parties
Done in three copies, in [place], on [date]
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APPENDIX I
Business and Technical Requirements
APPENDIX II
Tender submitted by the Provider
APPENDIX III
MODEL ACT OF ACCEPTANCE FOR IT SERVICES DELIVERED PURSUANT TO CONTRACT REF: SC048/2023 BETWEEN THE COUNCIL OF EUROPE (the Council) AND THE CONSTITUTIONAL COURT OF TÜRKİYE (the Recipient) AND XXX (the Provider or Supplier)
This Act of Acceptance is drafted and signed pursuant to the terms of the contract ref: SC048/2023, dated [DATE] (“the contract”). The terms and conditions laid down by that contract shall govern the interpretation and effect of this Act of Acceptance, and those terms and conditions shall take precedence over any terms contained herein. Signature of this document shall in no way be considered to waive, alter or otherwise affect the terms of the original contract, or the rights and obligations of the parties thereto, except insofar as this document is a record of the performance of that contract.
The signatories hereby declare the following, subject to the signature of this document by all parties, and having effect as from the signature of the last of the parties to do so:
- That the deliverables described below have been delivered in accordance to the conditions laid down in the Contract;
- That the signatories have had sufficient opportunity to inspect the deliverables described below;
- That the deliverables conform to the standards and requirements described in the Business and Technical Requirements of the Tender 2023AO74 (Appendix I), subject to any comments made in this form;
- That the Council of Europe or its representative accepts delivery of the deliverables described;
- That the Recipient or its representative accepts delivery of the deliverables described;
- That risk concerning the deliverables hereby passes from the Supplier to the Council, which assigns the benefit of the contract and the related risk directly to the Recipient;
- That the Council shall be liable to pay the balance of the contract pursuant to Article 10.1, subject to any reduction provided for in the terms of the contract;
- That ownership of the deliverables shall be transferred upon payment of the balance;
- That – if applicable - the supplier shall remain liable to provide, deliver and install any goods remaining to be delivered as described in Appendix I of the contract and indicated in the relevant box below;
- That any warranties and other terms of the contract deemed to run from the time of delivery shall, for those deliverables described below and actually delivered to the address indicated, commence as from midnight on the date of signature of the last of the parties;
- That the terms and conditions of the contract remain valid between all of the parties to the contract;
- In particular, that the acceptance of the deliverables described shall not be considered to waive or exclude liability under the terms of any warranty, express or implied, and that the Provider shall remain liable to perform under the warranty or to pay damages for breach of any of the terms of Article 3.4 of the contract.
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APPENDIX IV
DECLARATION OF AGREEMENT
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I, the undersigned, acting on my own behalf or as a representative of the Provider indicated below, hereby:
- Declare having the authority to represent the Provider;
- Declare that the information provided to the Council under this procedure is complete, correct and truthful.
- Acknowledge, in signing this document, that I have been notified that if any of the statements made or information provided prove to be false, the Council reserves the right to exclude the tender concerned from the procedure or to terminate any existing contractual relations related to the latter;
- Express consent to any audit or verification that the Council may initiate by any means on the information provided under this procedure;
- Declare that neither I or the Provider I represent is in any of the situations listed in the exclusion criteria as reproduced in the Tender File;
- Declare that neither I, nor the Provider I represent, are in a situation of a conflict of interests or a potential conflict of interest in relation to this procedure. I have been notified and understand that a conflict of interests may arise, in particular, from economic interests, political or national affinities, emotional or family ties or any other type of shared relationship or interest;
- declare that I am not a retired Council of Europe staff member or a Council of Europe staff member having benefitted from an early departure scheme;
- declare that, in the previous three years, neither I, nor the Provider I represent, has failed to fulfil the contractual obligations in the performance of a contract concluded with the Council of Europe leading to a total or partial refusal of payment and/or termination of the contract by the Council of Europe;
- Undertake to update the Council with significant information changes within a reasonable time. Significant information changes include, but are not limited to change of legal status, ownership, name and address, loss of licence of registration, filing bankruptcy, suspension or debarment by any national or local governmental agency or assimilated, inclusion in the lists of persons or entities subject to restrictive measures applied by the European Union (available at www.sanctionsmap.eu);
- Accept without any derogation all the terms of the Legal Conditions as reproduced in the Contract and understand that its signature shall constitute signature of the contract with the Council subject to the selection of the tender by the Council and the signature of this Contract by a representative of the Council.
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