15 June 2022
Whereas:
Therefore::
The following terms shall be given the following meaning for the purposes of this Agreement:
1.1 "PULSATE" or the "PULSATE Project" or the "Project" shall refer to the EU funded Horizon 2020 project as governed by Grant Agreement no.: 951998.
1.2 "PULSATE Partners" or the "Partners" shall refer to all legal entities who are signatories of the PULSATE Grant Agreement no.: 951998, including any linked entities mentioned in that Grant Agreement.
1.3 "PULSATE Platform" or the "Platform" shall refer to the website and the surrounding services (whether online or offline) as established as a part of the PULSATE Project.
1.4 "PULSATE Network" or the "Network" refers to the legal entities (PULSATE Partners and others) who have acceded to this Agreement as set out herein, provided that their accession has not been terminated, cancelled or suspended for any reason.
This Agreement establishes a legal framework that allows the creation, management and exploitation of the PULSATE Network and the PULSATE Platform in a legally stable and predictable manner.
This Agreement is an accession agreement. As such, eligible parties that meet the conditions of the Agreement may apply to join the Agreement. Upon accession under the terms of this Agreement, they become legally bound by its terms until their accession is terminated, cancelled or suspended as set out herein.
This Agreement is principally intended to remain legally valid for the duration of the PULSATE Project, in accordance with the terms of the Grant Agreement no.: 951998. Notwithstanding this principle, the PULSATE Network may decide to extend the validity of the Agreement, or to provide an alternative legal framework, under the terms set out herein.
This Agreement aims to establish the PULSATE Network on a purely contractual basis, open to new participants, favouring efficiency and effectiveness in its execution.
The PULSATE Network will support and promote the PULSATE Platform, in particular by:
While the PULSATE Network strives for sustainability and continuity of both the PULSATE Network and the PULSATE Platform, it is stressed that:
Accession to the Agreement shall only be legally possible after this Agreement is approved by the PULSATE Partners, with unanimous approval of the Steering Committee of the PULSATE Project (it being understood that any abstentions from voting will not be considered a vote against approval, and that unanimity is therefore assessed only on the basis of votes lawfully cast against or in favour of the Agreement). For the avoidance of doubt, it is affirmed that such approval votes will not be considered to create an obligation to submit an accession request, nor will they be considered as an expression of the intent to submit an accession request.
After this approval, the Agreement is established, and any parties who are eligible to become Members of the PULSATE Network (as set out in the following article) may thereafter submit an application to join the PULSATE Network by sending a completed and signed Accession Application to the Steering Committee of the PULSATE Project.
After an application is accepted, the entity identified in the Accession Application (and no other, thus also excluding any mother, sister or daughter company of that entity) shall be considered a PULSATE Network Member and may refer to itself as such. It will thereafter be entitled to all rights and privileges accorded to the relevant Membership category, as set out in or in accordance with this Agreement.
Membership of the PULSATE Network has an indefinite duration and is free of charge.
The Steering Committee may choose to remove PULSATE Network Members at any time if they do not respect the rules of the Agreement, no longer meet the eligibility requirements, cease to exist, go into bankruptcy or receivership, legally change form (for whatever reason), or otherwise violate any legal terms in this Agreement, or pertaining to the Network or Platform.
Any PULSATE Network Member may terminate its Membership of the PULSATE Network at will and at any time, by submitting a written notice (including via e-mail) to the Steering Committee, indicating its intention to terminate its Membership and clearly stating the entity to which the termination pertains. The Steering Committee shall accept and confirm the termination at its earliest reasonable opportunity. The right to terminate Membership of the PULSATE Network is however not available to Network Members who are also PULSATE Partners; in order to terminate their Membership, the PULSATE Project must end, or they must first lose their status as PULSATE Partners in a lawful manner.
Any form of Membership requires demonstrable, current and substantial business activities or competences in the field of activities targeted specifically by the PULSATE Project (i.e. in relation to laser-based advanced and additive manufacturing). Membership is only available to legal entities (such as companies, organisations, public administrations and institutions), not to individual persons (irrespective of whether they are consumers or business professionals). Legal entities must be able to provide a VAT number, enterprise number, or fiscal / tax number during the application process.
Documentary evidence of compliance with these requirements may be requested by the Steering Committee during the application process or at any time thereafter in case of reasonable doubt; refusal or inability to provide such documentary evidence is grounds for termination or suspension of PULSATE Network Membership.
There shall be two categories of PULSATE Network Members: Members and Sellers.
Any direct and targeted communications (i.e. those which are designed not to be accessible to parties other than those specifically identified and engaged in the communications) shall be automatically presumed to be confidential by virtue of this Agreement, and as highly business sensitive (an 'NDA-bydefault' principle).
This implies that it shall be a breach of this Agreement to share the contents (or parts thereof) with other parties without the explicit consent of the source(s) of the communications. A violation of this duty may lead to suspension or termination of Membership, notwithstanding any legal claims that the participants in the communication may have as a result of the breach of confidentiality.
For the avoidance of doubt, this confidentiality presumption shall not apply to any communications that are published on any part of the Platform that is inherently open for all PULSATE Network Members, or for a specific PULSATE Network Member category.
PULSATE Network Members who are Sellers have the right (and obligation, as set out above) to offer their services or products on the Network's online marketplace.
For the avoidance of doubt: an offering of services or products on the Network's online marketplace signals only an openness to engage in business negotiations towards other PULSATE Network Members. Such an offering as such shall not:
In relation to any product or service offerings on the Network's online marketplace, the Seller that offers them will be permitted to define any applicable rules and policies pertaining to those offerings (including rules pertaining to the use of their physical infrastructure). These terms may be communicated as a part of the offering in the Network's online marketplace, or at any time thereafter. The terms, upon their acceptance, must be adhered to at all times by other parties.
The Network's online marketplace may be used by the PULSATE Steering Committee as an enabler and intermediary that can connect potential business partners, and that can intermediate in establishing partnerships and/or agreements. The PULSATE Steering Committee may thus analyse (or enable/permit third parties to analyse) any products and services offered via the Network's online marketplace, and proactively introduce Members to create new opportunities. Notwithstanding this role, final legal responsibility for any such opportunities always remains with the individual Members who choose to conclude an agreement or not.
No PULSATE Network Member may act in a way that violates this Agreement, or which directly or indirectly aims to facilitate a violation or circumvention of this Agreement. This includes e.g. acts of identity abuse (where one Member assumes the identity of another, with or without the consent of that other Member; or allows its credentials to the Platform or to the Network's online marketplace to be used by another), or acts of confidentiality abuse (where a Member allows confidential information, including any business opportunity, to be accessed or used by a party that is not entitled to it). Such acts constitute a breach of this Agreement, and each harmed Member shall be entitled to obtain compensation for such a breach, in addition to the right of the Steering Committee to immediately terminate or suspend the Membership of the PULSATE Network. This right to obtain compensation shall also be extended to the Steering Committee of the PULSATE Project.
All Members of the PULSATE Network, and the Steering Committee of the PULSATE Project, only assume a best-efforts obligation in relation to their respective tasks as set out in Article 3. There is no obligation of result, nor any assurances (explicit or implied) of any PULSATE Network Member's adherence to the eligibility criteria in this Agreement, nor in relation to the reliability of any PULSATE Network Member or any PULSATE Network initiative, nor in relation to the reliability or usability of any services or products offered via the Network's online marketplace.
The Members of the PULSATE Network, or the Steering Committee of the PULSATE Project, do not provide legal assurances in relation to the identities or competences of PULSATE Network Members, nor do they ensure, vouch for or safeguard the legal compliance or fitness for purpose of any online marketplace offerings.
Any legal commitments that result from offerings published via the Network's online marketplace are entirely and exclusively a matter between the parties who have chosen voluntarily to engage in that legal commitment, thus excluding any other PULSATE Network Member and the Steering Committee of the PULSATE Project, except if they explicitly agreed otherwise in writing.
No liability of any kind, or under any legal theory, is accepted by any PULSATE Partner beyond what would already be covered by the Grant Agreement.
This Agreement may be amended at any time, subject to prior approval by a majority of the PULSATE Project Steering Committee. Any such amendments become legally binding for all PULSATE Network Members within one month of the communication of all amendments to them. During that one month period, new applicants to the Network will be required to accept the new version of the Agreement, and their applications cannot be accepted until the one month period expires.
Any PULSATE Network Members who disagree with any communicated changes to the Network Agreement may choose to terminate their Membership in response, through a simple message in writing (including via e-mail) sent to the Steering Committee.
For the avoidance of doubt, proposals for amendment of the Agreement may relate to any aspect of the Agreement, including the Tasks of the PULSATE Network, the categories of Membership and the relevant rights and obligations, and the introduction of any Membership fees for the Network (for any or all categories of Membership).
The governance of the PULSATE Network and the PULSATE Platform shall be the responsibility of the PULSATE Steering Committee, for as long as the PULSATE Project is ongoing. Governance duties shall specifically include:
Ownership of any intellectual property rights related to the PULSATE Platform (or any components thereof) belong to the PULSATE Partner that created it, in accordance with the terms of the Grant Agreement no.: 951998. This Agreement does not confer any right to other parties to create, modify or own any parts of the Platform, or to claim any intellectual property rights in relation to any such parts.
PULSATE Network Members shall have a license to use those intellectual property rights in the Platform only insofar as this is strictly necessary to use the parts of the Platform made available to them in accordance with the terms of this Agreement. This license terminates automatically at the termination of the PULSATE Project, or when their Membership terminates (whichever occurs the soonest).
With respect to any intellectual property rights held by the PULSATE Network Members, these shall remain with the relevant PULSATE Network Members. No such intellectual property rights are transferred or licensed to other PULSATE Network Members merely as a result of their Membership.
If this Agreement and the PULSATE Project both terminate, any intellectual property rights related to the PULSATE Platform will be allocated and exploited as required by the Grant Agreement no.: 951998, except where explicitly agreed otherwise in accordance with the terms of the Grant Agreement no.: 951998.
This Agreement enters into force and becomes legally valid when there are at least 5 (five) PULSATE Network Members, as indicated by the acceptance of an application by the Steering Committee in accordance with the terms of Article 4. More specifically, it enters into force and becomes legally valid at the date on which the Steering Committee sends out the fifth acceptance confirmation. The Steering Committee shall immediately inform all PULSATE Network Members in writing at that time that the Agreement has entered into force and that it has become legally valid.
This Agreement shall remain into force and remain legally valid as long as there are at least 5 (five) PULSATE Network Members. If the number of Members drops below that number at any time, the Steering Committee shall immediately inform all PULSATE Network Members in writing at that time that the Agreement is suspended, until an adequate number of Members is achieved.
For the avoidance of doubt, it is not required that this Agreement remains the final legal framework applicable to the Network or Platform.
No later than one year before the end date of the PULSATE Project, the Steering Committee of the PULSATE Project will seek feedback among PULSATE Network Members at that time in relation to their interest, commitment and requirements for sustainability. On the basis of this feedback, the Steering Committee will, in cooperation with the PULSATE Partners, either elaborate one or more continuity proposals, or decide to terminate the Network and Platform upon the termination of the PULSATE Project.
The continuity proposal(s) (if any) should be approved by a majority of the PULSATE Project Steering Committee, and by unanimous approval of all PULSATE Partners whose intellectual property rights would be affected by the continuity proposal(s), at the latest 3 months prior to the end date of the PULSATE Project.
If no continuity proposal(s) can be approved, the PULSATE Network will terminate at the termination date of the PULSATE Project, and the PULSATE Platform shall be taken offline as soon as reasonably practicable thereafter.
If at least one continuity proposal(s) is approved, the proposal(s) will be disseminated to the PULSATE Network Members who are Members at the time of approval, along with a concise explanation of their new rights and obligations under the proposal(s). PULSATE Network Members will be invited to express their commitment to join the newly proposed structure under the proposed terms.
If less than 5 PULSATE Network Members commit to any proposal, the PULSATE Network will terminate at the termination date of the PULSATE Project, and the PULSATE Platform shall be taken offline as soon as reasonably practicable thereafter. If at least 5 PULSATE Network Members commit to any proposal, then the proposal with the highest approval among PULSATE Network Members shall become the new legal framework, and all PULSATE Network Members shall be invited to join that new legal framework. Only the project governed by that new legal framework shall be permitted to use the PULSATE name, and the relevant URL.
The Membership of PULSATE Network Members that decide not to join that new legal framework, or that take no action, shall be terminated automatically at the termination date of the PULSATE Project, or at the date of entry into force of the new legal framework (whichever date is soonest).
For PULSATE Network Members who are also PULSATE Partners, the Grant Agreement no.: 951998 and Consortium Agreement shall take precedence over the Network Agreement in case situations where there are clear and manifest contradictions between them that cannot by reconciled by good faith interpretation.
This Agreement shall be governed by the laws of Belgium.
Any and all disputes arising out of or in connection with the interpretation, performance or non-performance of this Agreement between PULSATE Network Member(s) shall be settled wherever possible by good faith negotiations between the PULSATE Network Member(s) to whom the dispute pertains.
However, if no resolution of the dispute can be reached by negotiation, the dispute will be submitted to the Steering Committee of the PULSATE Project for mediation. If this mediation is also deemed unsuccessful, or if the Steering Committee of the PULSATE Project faces a conflict of interest that reasonably impedes effective and fair mediation, such dispute shall be finally settled by the competent courts of Brussels.
Where a dispute arises out of or in connection with the interpretation, performance or non-performance of this Agreement between (a) PULSATE Network Member(s) and the Steering Committee of the PULSATE Project, such dispute shall be finally settled by the competent courts of Brussels.
For the avoidance of doubt, this Article shall apply only to disputes that are subject to the present Agreement and not to the Grant Agreement no.: 951998. In disputes that are subject to both the present Agreement and the Grant Agreement no.: 951998, the terms of the Grant Agreement no.: 951998 shall prevail.
