I got the final draft for the frame contract between ecobytes and get active ready. It is quite stiff to be honest, and also quite long (12 pages), as it is a direct derivate of the initial contract, that Get Active has with PNO for the overall project managment.
would you (and anyone interested) have time for a call early next week.
I would like to have a call, and go through it step by step.
There is lots of stuff in there, that might be really strange in the beginning, but is basically a “better save than sorry” from my side, as also PNO put that stiff regulations on Get Active. Reading the contract from PNO I was quite buffled, but by asking and getting answers to my requests, understood, that it is a safety precaution on their side, as the overall CHEST budget is quite big for them.
It is a piece of paper, that gives a clear frame, if stuff turns weary.
what to keep in mind, to keep stuff beautiful.
And as always, nothing is eaten as hot as it is cooked.
@gandhiano the name of the current file “final” is maybe a little bit misleading. I am happy to make adjustments, and still keep the character of the document.
a note to tha ammount.
In the contract is written 30.000€ with a first installment of 10.000 to be paid right after we agree on the contract. In my understanding, the 30.000€ is of the original financial concept and needs to be reworked. We can put in the contract, that we will revisit these numbers with the 2nd installment, and in the coming week I want to start revisiting the original financial plan for chest and make a new online-draft, to be discussed in a public call.
In general I believe we have to find ways to write more cooperative contracts, not service-based contracts. There is enough people in the TransforMap community that can help us with that.
That said, below you find my comments and redlines.
2.2 should be specific on what the contractor requests: Services and Materials should be safeguarded, but Ecobytes should not be directed on how to manage the work and directions (in other words, we have autonomy to decide on how to perform the services, while you have a say over the resulting outcome, which in turn should comply with what we establish in the CHEST contract)
Subclauses are ok and formulations are clear.
3.1, 3.2 and 3.3 are too extreme and non-specific, allowing for any random decision from the contractor or even the CHEST consortium. These should only be applied to a quality control on the Services and Materials.
The formulation on 3.1 “… a full refund for the rejected Services shall be paid promptly by the Subcontractor”, is not acceptable. We cannot after a year of development refund all the money we used to pay people and infrastructure. If such a clause must really exist, then it should be limited to the period since the last quality check. Quality checks can be done on each iteration, between the sprints: if at the end of the sprint the Services and Materials are not satisfactory, then Get Active and Ecobytes should negotiate on a sum to be refunded. This only relates to the last sprint time frame (the usual 2-6 weeks)
A preamble with a more precise definition of quality (of the Services and Materials) and explaining how/when quality checks are made should be added for further clarity.
3.4 has a quite good formulation, which in my opinion would actually be sufficient to fully safeguard the contractor.
3.4.1 “any defective Services, workmanship, quality or materials” should be replaced with “any defective Services or insufficient quality of any Materials produced by the subcontractor as part of the client’s agreement”
3.4.3 "any direct or indirect breach or negligent performance or failure or delay in performance of this Agreement by the Subcontract or or the Subcontractor’s staff or representatives. "
Do I understand that this means that if we are hacked, we need to pay you? We can’t accept that. Read e.g. the terms of iCloud:
"Apple does not represent or guarantee that the service will be free from loss, corruption, attack, viruses, interference, hacking, or other security intrusions"
It would be a lie to guarantee otherwise. Furthermore, Ecobytes follows a community-supported model, therefore such unavoidable risks have necessarily to be taken by the consortium and the contractor. s/Apple/Ecobytes on the string above and you get the formulation I propose as replacement that clause (can be added in other appropriate section).
4.1 has a small typo (at on)
4.2.2 the verification of the achievement shall be a process open to the community - and I believe where necessary relying on it for legitimation and dispute resolution.
4.3 “within a reasonable period” should be specific, e.g. 30 days, otherwise great
4.6 hard, but ok, as it’s part of external constraints
5, 6 ok
7 ok, except 7.8.5 which should reflect the argument I exposed for article 3
8 is generally ok, except for 8.4, which should read instead:
“The Subcontractor acknowledges that GET ACTIVE may terminate (unexpected termination) this Agreement at any time, as a result of a termination of the contract between the Client and GET ACTIVE for any reason”
9.4 “alleging that the use or possession of any Materials provided or made available by the Subcontractor infringes any IPR belonging to a third party” is putting too much burden on Ecobytes. In my understanding it means making Ecobytes responsible for EVERY single POI and their metadata, any single piece of data that someone added to TransforMap.
Can you provide some clarity on this? Do we have an IPR expert around?
10 to 16 has nothing to comment
17.2 is problematic, the liability for non-accomplishment (in the view of the client) should be shared by Ecobytes and Get Active. I agree in involving Ecobytes in dealing with any disputes with the client and related costs, but it should be a joint effort.
17.3 so, you have the 30 days here, please put also on 4.3
Thanks for your effort and lets talk tomorrow (at 12 AM?)
Hello @gandhiano I will integrate most of your input and am very thankful for it.
About some aspects, it would be best to personally have a conversation. As I mentioned earlier, some of the stuff is really harsh, as I am basically passing forward the conditions set by the chest consortium. I will share the changes in detail asap.
the Subcontractor has
autonomy on how to perform the service. The service needs to comply with the
required output, established in the CHEST contract between GET ACTIVE and PNO from
the 17th September 2015, as well as with the first Social Impact
Plan, delivered to PNO for the first instalment on 27th September
2015. Changes of how to deliver the service, that is otherwise than stated in
these documents, need to be reported and re-defined for the Social Impact Plan
that is required for the second instalment. Informed consent of GET ACITVE is
required for substantial changes in direction of the project. The Subcontractor
will comply with all of the Client’s directions (direct, or forwarded by GET
ACTIVE), requests, instructions and requirements in relation to the performance
of the Services and this Agreement;
I feel really sorry for the extreme parts, and at the same time feel responsible for my organization to integrate Ecobytes in a way with similar burdens as enacted on Get Active. Basically, in the initial contract, that is the case:
From my side it is an urgent topic to clarify with PNO the frame we need to work in order to comply with all possibilities imposed on CHEST by the Horizon 2020 Framework it is based in. https://discourse.transformap.co/t/questions-for-chest/178/6 I initially took the formulation straight from the CHEST contract, and now changed it in a way, that it takes power from Get Active, but keeps the binding directions from PNO as well as some rights to Get Active.
3.1 is changed, 3.2 is inserted, 3.3 is inserted former 3.3 (to invalidate …) is deleted.
to allow the Client to reject, the Services (in whole or in part, regardless of whether some of the rejected Services comply with this Agreement) on the basis that further payment is not forwarded, full and/or partial refund for the rejected Services shall be paid within 30 days by the Subcontractor.
to reject, the Services (in whole or in part, regardless of whether some of the rejected Services comply with this Agreement) on the basis that further payment is not forwarded, to the Subcontractor until joint resolution is found.
GET ACTIVE in it´s role will put effort in preventing such scenario, and if, to reduce any possible financial pressure as best possible.
deleted: former 3.3. “to invalidate this Agreement (in whole or in part);”
about 3.1. (I simply cannot limit that, as there are no limits to the right of PNO.)
Just to understand, in no way does Ecobytes need to pay me / Get Active. If some payment should go that direction (in the worst case possible, we all hopefully feel very far from at the current state), that goes straight back to the Client, that both of us, Get Active directly, and Ecobytes via the Sub-Contract to Get Active are responsible to.
About the “being hacked”, you need to prevent that as best possible, make backups, document the achievements and developments in a way, that the required prototype-status can be delivered to the Client. It is as if I would contract for delivering a document and my laptop get´s stolen. I need to saveguard, that my personal loss would not compromise the whole project, and or need to deliver something meaningful, if it is lost.
4.1 4.2.1 typos corrected, thank you
the payment of Fees is subject to the achievement of certain Milestones by the Subcontractor, where the verification of such achievement shall be public or at the discretion of GET ACTIVE and the Subcontractor as far as they deem fit.
4.3. 30 days done
7.8.5 changed to just apply if ordered directly by the client:
if demanded by the Client,
new formulation: to issue a recovery order regarding all or part of the payments made to the Subcontractor and to apply any applicable sanction.
8.4. changed as you suggested
[quote=“gandhiano, post:7, topic:685”]
9.4 “alleging that the use or possession of any Materials provided or made available by the Subcontractor infringes any IPR belonging to a third party” is putting too much burden on Ecobytes. In my understanding it means making Ecobytes responsible for EVERY single POI and their metadata, any single piece of data that someone added to TransforMap.Can you provide some clarity on this? Do we have an IPR expert around? [/quote]
Needs to be debated. It is a direct derivate from the initial contract.
You, Ecobytes, me, Get Active, PNO, anyone involved, Chest in general has the interest to have the project successful, so no-one will start to poke around. And/but we need to find strategies, how to deal with IPR. On your side, I see especially IPR for the software and tools you work or contruct with.
IPR for POIs can be handled as joint effort e.g.
I agree with you and changed to the following:
The Subcontractor in a joint effort with GET ACTIVE shall… …Provided that GET ACTIVE gives to the
Subcontractor written permission, whereupon the Subcontractor shall be empowered to have sole authority to manage and settle such dispute. Of that written permission is not provided nor requested, GET ACTIVE and ECOBYTES shall deal with any disputes in a joint effort.
We are mentioned officially as a CHEST winning project now. I strongly believe the dissemination activities for the 13th were caused by this, as they may want to link to our project and back.
Now the question is:
Is the project run by Get Active? Then the logos only need to be put on their website, as the programme only feeds into TransforMap.
If it’s a joint effort of Get Active, Ecobytes and the TransforMap community, then Ecobytes should IMHO also be mentioned on
I actually thought about it and would strongly agree on having
Ecobytes mentioned in all the communications
have a clear understanding, that it is a partnership
state the partnership also in the subcontract
have the transformap community mentioned and the logo displayed.
We can ask CHEST, as Ecobytes is also mentioned as partner in the application, that should work. That does not affect the subcontract, as Get Active as the lead partner needs to hold the liabities, but gives more clarity to the public and ourselves.
The same is for the community, for which it might be a little bit more difficult, as is no formal body, but I can imagine they agree on publishing the logo.
sry for not reading through, and checking the link. Already really tired. need to sleep