These terms and conditions for collaborative use of an experimental computer software system, pertaining to the partly Business Finland funded R2B project titled Design.AI, are effective and binding when User (as defined below) confirms by email its acceptance of these terms and conditions to Aalto (as defined below) and further provided that Aalto (as defined above) approves such confirmation and verifies the same by email to User. These terms and conditions shall form a binding agreement between User (as defined below) and Aalto (as defined below) for collaborative use of experimental computer software system.
DEFINITIONS
Capitalized terms used in this Agreement (as defined below) have the meanings respectively ascribed to them in the body of this Agreement (as defined below) or in the following definitions:
“Aalto” means Aalto University Foundation sr, acting as Aalto University, with offices located at Otakaari 1, 02150 Espoo, Finland.
“Aalto Background IP” means Technology and/or Patent Rights Controlled by Aalto as of the Effective Date or thereafter come to be Controlled by Aalto independently of this Agreement. As between the Parties, the System and the Aalto Materials shall be deemed Aalto Background IP.
“Aalto Materials” means all materials whether tangible or intangible described in Exhibit 1 and transferred by Aalto to User for use solely in the performance of this Agreement.
“Agreement” means these terms and conditions for collaborative use of an experimental computer software system between the User and Aalto.
“Background IP” means User Background IP, Aalto Background IP or both depending on the context.
“Collaborative Use” means the live use of the System with the User Design Information by User in its day-to-day activities, and observation of such use by Aalto, for the purposes of proof-of concept testing, validation, user case study, error-finding and further development or modification of the System by Aalto.
“Confidential Information” has the meaning set forth in Article 2.1
“Control” means (i) as to any Technology or Patent Rights of a Party, such Technology or Patent Rights Party has the right, whether through ownership or a valid license grant, to use and utilize or offer for the same; and (ii) as to any company or other legal entity, the direct or indirect ownership of more than fifty percent (50%) of the voting stock, shares or equity in such company or other legal entity or the ability to directly or indirectly control the management or business of such company or other legal entity.
“Discloser” has the meaning set forth in Article 2.1.
“Effective Date” means the date when Aalto verifies by email its approval of the User’s acceptance of the provisions of this Agreement.
“Improvement” means any modification, extension, refinement or further development to the Technology irrespective of how or by whom such modification, extension, refinement or further development comes into being.
“Parties” means Aalto and User.
“Party” means Aalto or User.
“Patent Rights” means the rights and interests in and to any patent applications and issued patents, whether domestic or foreign, including all continuations, continuations-in-part, divisionals, registrations, confirmations, revalidations and renewals, and letters of patent granted thereon, and all reissues, re-examination and extensions thereof and any patent restoration or extension period granted by a governmental authority.
“Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
“Publication” has the meaning set forth in Article 6.1. “Recipient” has the meaning set forth in Article 2.1.
“Representative” means (i) an employee or director of Aalto; or (ii) an employee or director of a legal entity Controlling, Controlled or under the same Control as Aalto.
“Results” means (i) all findings, observations, reports and other information generated howsoever in the System or otherwise in connection with the Collaborative Use, excluding in any case the User Design Information; (ii) all Improvements to the System; and/or iii) all Improvements to the Aalto Materials.
“Summary Presentation” has the meaning set forth in Article 6.1.
“Services” means various ancillary services such as user management and guideline implementation that may be provided by or on behalf of Aalto to User from time to time during the Term in connection with the Collaborative Use.
“System” means the proprietary and experimental computer software system for design assistance (including without limitation all updates, upgrades and modifications thereto) of Aalto in a proof-of-concept phase, as further described in Exhibit 1, and pertaining to the partly Business Finland funded R2B project titled Design.AI.
“Technology” means any discoveries, inventions, ideas, solutions, materials, know-how, techniques, methods, processes, data or other technical information, databases, algorithms, software, or trade secrets, whether or not patentable, including without limitation any methods of use, methods of production, and formulations.
“Term” has the meaning set forth in Article 8.1.
“Third Party” means any entity or person other than Aalto, User or Aalto’s Representatives.
“User” means the natural person who engages in the collaborative use of the System as set forth in this Agreement.
“User Background IP” means Technology and Patent Rights Controlled by User as of the Effective Date or thereafter come to be Controlled by User independently of this Agreement.
“User Design Information” means (i) designs, plans and other proprietary information of User, or a Third Party from which User has acquired adequate rights, uploaded or otherwise transferred to the System by User in connection with the Collaborative Use; and/or (ii) any new versions of such designs, plans and other proprietary information resulting from the computer generated or human aided modification, altering, supplementation, enriching or other information processing carried out within the System in connection with the Collaborative Use.
1. COLLABORATIVE USE
1.1 Collaborative Use. Subject to the terms and conditions of this Agreement, each Party shall take reasonable efforts on its part to carry out the Collaborative Use to the extent possible during the Term. User may use the System, in periods of time and volumes convenient to User, for the purposes of this Agreement and subject to the license grant issued in Article 1.4. Description of the scope of the Collaborative Use is set out in Exhibit 1.
1.2 Pre-requisites for Collaborative Use. Pre-requisites for the Collaborative Use are set out in Exhibit 1.
1.3 Aalto Materials and Services. Subject to availability, Aalto may provide from time to time during the Term the Aalto Materials and/or the Services to User in connection with the Collaborative Use so as to facilitate the performance of this Agreement by User.
1.4 Aalto’s License to User. Aalto provides User with one (1) user license to the System and Aalto Materials the conditions of which are further described below in this Article 1.4. The user license granted herein is strictly personal and allowed for User’s personal use only. User shall be restricted from passing on passwords or other credentials related to the System to any Third Party. User shall ascertain that no unauthorized use of the System occurs under the user license granted to User. Aalto grants User the non-transferable, non- assignable (whether by operation of law or otherwise), non-sublicensable, royalty free, fully paid, non-exclusive and fixed term license to the System and Aalto Materials solely to the extent necessary and for the purposes of the Collaborative Use until the end of the Term.
1.5 User’s License to Aalto. User provides Aalto with the non-transferable, non-assignable (whether by operation of law or otherwise), non-sublicensable, royalty free, fully paid, non- exclusive and fixed term license to collect, record, organize, store, modify, alter, supplement, enrich or in other ways process the User Design Information for the purposes of the Collaborative Use until the end of the Term.
1.6 Features and Capabilities of the System. Aalto shall be entitled at will, without any prior notification, to set limits or restrictions upon operation or functionalities of the System, add new capabilities or features to the System, or disable or change available features and capabilities of the System.
1.7 Suspension. User shall be entitled to suspend its participation in the Collaborative Use or part thereof whenever at will upon written notification to Aalto. User shall not be obliged to resume its participation in the Collaborative Use or part thereof under suspension until User, at its sole discretion, notifies Aalto of its intention to resume the same. Aalto shall be entitled to suspend the Collaborative Use and Services or part thereof, whenever at will upon written notification to User. Aalto will notify User in writing when Aalto, at its sole discretion, decides to lift the suspension imposed by Aalto. In addition, Aalto may suspend this Agreement with immediate effect in case Aalto entertains a reasonable suspicion of User’s breach of its obligations under Articles 1.4 or 1.10. As soon as reasonably practicable, Aalto will provide to User in writing the description of Aalto’s reasonable suspicion of the User’s breach.
1.8 Malware. While being engaged in the Collaborative Use or otherwise transferring data in connection with this Agreement User shall take all reasonable precautions and ensure all appropriate technical and organizational safeguards against cybersecurity threats and malware such as spyware, ransomware, viruses and trojan horses that may alter, damage, delete or otherwise interfere with User’s data, software, information infrastructure or operations, or conduct surreptitious surveillance of User’s activities.
1.9 No Reverse Engineering. User shall not decompile, modify, attempt to discover the source code, reverse engineer or create derivative works of the System, Aalto Materials or other Confidential Information of Aalto.
1.10 Liability for User Design Information. User undertakes that the User Design Information does not at any time, while being stored and/or processed in the System, contain any (i) unauthorized, illegal, obscene or profane materials or information; or (ii) Personal Data. User shall have an ongoing obligation to ascertain the foregoing during the Term and, upon request, confirm the same to Aalto in writing. User shall be exclusively liable for all breaches of any third-party rights or applicable laws arising from the User Design Information being, contrary to this Agreement, unauthorized, illegal, obscene or profane, or containing Personal Data.
2. CONFIDENTIAL INFORMATION
2.1 Definition. “Confidential Information” of a Party means all confidential and proprietary information made available by or on behalf of that Party (the “Discloser”) to the other Party (the “Recipient”) in connection with this Agreement and either is in writing and clearly marked as “confidential” or would be understood by a reasonable person to be confidential due to legends or other markings, the circumstances of disclosure, or the nature of the information itself. Notwithstanding the foregoing sentence, (a) the User Design Information shall be deemed User’s Confidential Information; and (b) the System and the Aalto Materials shall be deemed Aalto’s Confidential Information.
2.2 Non-Disclosure; Limited Use; Duty of Care. A Recipient shall hold all Confidential Information of Discloser in confidence and shall not publish, disclose, or use such Confidential Information for any purpose not expressly permitted under this Agreement without the prior written consent of the Discloser. In case Aalto is Recipient, Aalto may disclose the Confidential Information of Discloser only to Aalto’s Representatives. Recipient shall protect Discloser’s Confidential Information from unauthorized use, access, or disclosure in the same manner that Recipient protects its own confidential and proprietary information of a similar nature or importance but in no event with less than reasonable care. Aalto will be liable for any breach of the obligations under this Article 2 by any of its Representatives.
2.3 Exclusions. Recipient’s obligations of confidentiality under Article 2.2 will not apply to information provided hereunder by the Discloser if such information: (a) is already known to Recipient without an existing obligation of confidentiality owed to the Discloser at the time of disclosure, as evidenced by contemporaneous written records or by proof of actual use thereof; (b) was disclosed to Recipient by a Third Party who had an apparent bona fide right to make such disclosure without breaching any confidentiality obligations to Discloser, as evidenced by Recipient’s contemporaneous written records; (c) is, or through no act or failure to act by Recipient in breach of this Agreement has become, publicly known or generally available to the public; or (d) was independently developed by or for Recipient without use of or reference to Discloser’s Confidential Information, as evidenced by Recipient’s contemporaneous written records.
2.4 Required Disclosures. In the event Recipient is required to disclose Confidential Information to comply with any law, regulation or valid court order or order of competent authorities, Recipient may disclose such Confidential Information: (a) solely to the extent necessary for such compliance; (b) only if Recipient gives Discloser, to the extent practicable and permitted by applicable law, reasonable prior written notice of the required disclosure; and (c) reasonably cooperates with Discloser, at Discloser’s sole expense, in its efforts to contest or otherwise limit the scope of the disclosure. Confidential Information disclosed pursuant to such a requirement will remain otherwise subject to the confidentiality and other provisions of this Agreement.
2.5 Obligation to Return or Destroy Confidential Information. Upon the written request of Discloser and subject to any continuing rights granted in Article 3, Recipient shall promptly return to Discloser or destroy (and certify to Discloser in writing, within 30 days after the request, the destruction of) the original and all copies of Discloser’s Confidential Information. Notwithstanding the foregoing, the obligation to return or destroy Confidential Information does not apply to (a) Confidential Information that is maintained on routine computer system backup storage devices as long as such Confidential Information is not used, disclosed, or otherwise recovered from such backup devices, or (b) a single record copy of Confidential Information that is kept solely for the purpose of ascertaining and monitoring Recipient’s continuing rights and obligations under this Agreement.
2.6 Duration of Obligation. The obligations under this Article 2 will continue in effect for five (5) years after the expiration or termination of this Agreement except that obligations with respect to Confidential Information that Discloser has expressly identified in writing as a trade secret will continue until such Confidential Information is no longer eligible for trade secret protection under applicable law.
2.7 Equitable Relief. The Parties acknowledge and agree that damages alone may not be an adequate remedy for any breach or violation of this Article 2 and that, in addition to any other remedies to which the Discloser may be entitled, the Discloser will be entitled to seek in any court of competent jurisdiction injunctive relief, including specific performance, with respect to the Recipient’s breach or threatened breach of such obligations.
3. INTELLECTUAL PROPERTY
3.1 Ownership of Background IP. Each Party acknowledges that the other Party, or its Third Party licensors, retains all rights, title, and interest in and to its Background IP and that this Agreement shall not have any effect on the ownership of Background IP.
3.2 Licenses to Background IP. Except as expressly provided in this Agreement, neither Party grants to the other Party any other licenses or rights in or to its Background IP.
3.3 Ownership of Results. Aalto will solely and exclusively own all rights, title and interest in and to the Results.
3.4 Ownership of User Design Information. User, or its Third Party Licensors, will solely and exclusively own all rights, title and interest in and to the User Design Information.
3.5 Further Assurances. User shall cooperate with Aalto to effect the intent of this Article 3, including without limitation by executing documents, as necessary, to assist with the preparation and filing of Patent Rights claiming any Results arising under this Agreement and to assist in any action, suit, or proceeding against a Third Party seeking damages or equitable or other relief for any infringement by a Third Party of any Patent Rights relating to the Results.
3.6 No Implied Licenses. Except as expressly provided under this Agreement, nothing contained in this Agreement grants to a Party, by implication or otherwise, any rights, by license or otherwise, to any of the other Party’s Confidential Information or Technology.
4. REMUNERATION AND RESPONSIBILITY FOR COSTS AND EXPENSES
4.1 No Remuneration Paid. User shall not be obliged to remunerate Aalto for the licenses granted to User for the System or for provision of the Services to User by Aalto. The rights of each Party granted under this Agreement are full and adequate consideration for entering into and performing this Agreement.
4.2 Responsibility for Costs and Expenses. Each Party shall exclusively carry its own costs and expenses arising from or caused by the Collaborative Use, or its failure to duly perform this Agreement, and under no circumstances shall the respective Party be entitled to claim such costs and expenses from the other Party.
5. SEPARATE AGREEMENT
5.1 No Separate Agreements. Neither Party has any obligation to enter into any future agreement or other arrangement with the other Party with regard to the subject matter of this Agreement or otherwise.
6. PUBLICATION RIGHTS
6.1 Publication Rights. Subject to the provisions of this Article 6, Aalto may seek to publish the Results or part thereof in any peer-reviewed journals, treatises or trade publications (each a “Publication”) or to disclose portions of the Results in an abstract, oral presentation, or other public disclosure, including without limitation during the proceedings of a scientific meeting or seminar, (a “Summary Presentation”). Any Publication or Summary Presentation that includes Confidential Information of User will be subject to the consent of User in accordance with Article 6.2. Authorship of and copyright to any Publication or Summary Presentation shall belong to the authors of such Publications or Summary Presentations.
6.2 Pre-Publication Review. If Aalto proposes a Publication or Summary Presentation that includes Confidential Information of User Aalto is obliged to provide a written copy of the final and complete contents of the proposed Publication, or the final and complete contents of the proposed Summary Presentation, to User at least thirty (30) days prior to any disclosure or submission for publication of a Publication and at least ten (10) days prior to any disclosure to a Third Party or submission of the Summary Presentation in order to allow User an opportunity to protect its own Confidential Information that may be encompassed by the proposed Publication or Summary Presentation. Upon written notification by User describing any Confidential Information of User actually contained in the proposed Publication or Summary Presentation, Aalto shall delete from the proposed disclosure any such Confidential Information identified for deletion. Once published pursuant to the provisions of this Article 6, the subject matter and substance disclosed in any Publication or Summary Presentation may be republished in in any reasonable form by Aalto without User’s approval.
7. REPRESENTATIONS; DISCLAIMER; LIMITATION OF LIABILITY
7.1 Representations. Each Party represents and warrants that: (a) it is permitted to enter into this Agreement; (b) no agreement made between it and any Third Party conflicts with its performance of this Agreement; and (c) all work conducted by it under this Agreement will comply with all applicable government laws, regulations and guidelines. Each Party further certifies that no outside funds, software or materials used by it in connection with the Collaborative Use will result in obligations that conflict with the terms of this Agreement.
7.2 Disclaimer. User acknowledges that the System is experimental in nature and that User’s use of the System, receipt of the Services or reliance to the User Design Information or other deliverables produced through the use of the System occurs exclusively at User’s own risk and responsibility. User remains exclusively responsible for the quality, integrity, reliability and appropriateness of the User Design Information for all purposes to which User uses or may use the User Design Information during or after the Term. Operation of the System may not be uninterrupted or free from malfunctions, and the User Design Information or other deliverables produced through the use of the System may not be accurate, correct, complete or free from other defects or shortcomings. During the Term and subject to its sole discretion, Aalto may take measures with the intention to rectify the afore-mentioned defects or shortcomings but under no circumstance is Aalto obliged to make good such defects or shortcomings. The System, the Aalto Materials and the Services are made available or provided “as is” and “as available”. Aalto makes no representations and gives no warranties of any kind, whether express or implied, with respect to the System, the Aalto Materials and the Services. Aalto expressly excludes any implied warranties of merchantability, fitness for a particular purpose or use, or non-infringement of any patent or any proprietary right or other right of any Third Party. User acknowledges that the System has not been certified for commercial or industrial use. User further acknowledges that Aalto is not a professional or seasoned provider of services in the fields of information technology, data processing or data management.
7.3 Aalto’s Limitation of Liability. Aalto shall not be liable to User for any special, consequential, indirect, punitive or incidental damage or damage for loss of revenue, lost data, lost profits, loss of goodwill, lost business opportunity, governmental or regulatory fines or costs, or any other incidental damages arising out of or in connection with this Agreement, whether or not based upon breach of warranty, breach of contract, negligence, strict liability, or any other legal theory, whether or not such damage is foreseeable, and even if a limited remedy provided in this Agreement fails of its essential purpose. The total aggregate liability of Aalto towards User shall be limited to 20.000 euro for any and all breaches and damage under or in relation to this Agreement. The above limitation and exclusion of liability shall not apply to the extent the loss or damage was caused willfully or in gross negligence.
7.4 No Liability on User in Performance of Collaborative Use. Provided that User duly complies with Articles 1.9, 2, 3 and 8.4, User shall not be liable towards Aalto for any loss or damage sustained by Aalto under or in relation to this Agreement if such loss or damage is connected with or arises from this Agreement. The above limitation and exclusion of liability shall not apply to the extent the loss or damage was caused willfully or in gross negligence.
8. TERM AND TERMINATION
8.1 Term. This Agreement will commence on the Effective Date and will automatically terminate on 20 April 2023 unless terminated earlier in accordance with the provisions of this Article 8 (the “Term”).
8.2 Termination for Convenience. Either Party may terminate this Agreement whenever for convenience upon seven (7) days’ prior written notice to the other Party.
8.3 Material Breach. This Agreement may be terminated by a Party with immediate effect for a material breach of this Agreement by the other Party upon written notice to the other Party. The notice shall include a detailed statement describing the material breach. In addition, Aalto may terminate this Agreement with immediate effect in case Aalto entertains a reasonable suspicion of User’s breach of its obligations under Articles 1.4 or 1.10. As soon as reasonably practicable, Aalto will provide to User in writing the description of Aalto’s reasonable suspicion of the User’s breach.
8.4 Effect of Termination or Expiration. Upon the expiration or termination of this Agreement, Aalto is entitled to revoke the user license with immediate effect and User shall immediately cease using the System, each Party shall immediately cease using the other Party’s Confidential Information, and each Party shall comply with the provisions of Article 2.5.
9. MISCELLANEOUS
9.1 Compliance with Laws. Each Party shall be responsible for its compliance with all applicable laws and regulations including but not limited to legislation on the protection of personal data, and legislation on the export control of dual-use items.
9.2 Language. This Agreement has been prepared jointly by the Parties and no rule of strict construction will be applied against either Party.
9.3 Assignment. A Party may not assign or transfer this Agreement or any of its rights or duties under this Agreement without the prior written consent of the other Party. Any purported assignment that does not comply with this Article 9.2 is void.
9.4 Independence of Parties. No agency or partnership relationship is created by this Agreement. It is expressly agreed that the relationship created by this Agreement between the Parties is one of independent contractors, and neither Party has the power or authority to bind or obligate the other Party except as expressly set forth in this Agreement.
9.5 Notices. All notices, requests and consents hereunder will be in writing and deemed given on the date received as evidenced by proof of receipt, if delivered by: (a) hand; (b) certified mail, return receipt requested; (c) overnight courier of national reputation; or (d) facsimile or electronic mail.
9.6 Publicity. Neither Party shall use the trademarks, service marks, logos, trade names or other proprietary designations of the other Party except as otherwise expressly stated in this Agreement or as permitted in writing by an authorized representative of the owning Party. A Party may identify in a list or description of its collaborators the name of the other Party as set forth in the preamble to this Agreement.
9.7 Integration. This Agreement constitutes the entire agreement between the Parties concerning the subject matter thereof and supersedes all prior or contemporaneous oral or written understandings with respect thereto. Any Exhibits to this Agreement form part of this Agreement and will have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Exhibits. In the event of any conflict or inconsistency between any provisions in the body of this Agreement and the terms of any Exhibit, the body of this Agreement will take precedence.
9.8 Modifications; Waiver. No amendment or modification of this Agreement will be valid or binding upon the Parties unless made in writing and signed by authorized representatives of each Party. Any failure or delay of a Party to enforce any rights under this Agreement will not be construed as a waiver of such rights nor will a waiver by a Party in one or more instances constitute a continuing waiver or a waiver in other instances.
9.9 Severability. If any provision of this Agreement is for any reason found to be invalid or unenforceable, all other provisions of this Agreement will nevertheless remain valid and enforceable. In lieu of the invalid or unenforceable provision, the Parties shall substitute or add as part of this Agreement a provision that most closely approximates the business and economic objectives intended by the invalid or unenforceable provision.
9.10 Survival. The terms of Article 2 (Confidential Information), Article 3 (Intellectual Property), Article 4 (Remuneration and Responsibility for Costs and Expenses), Article 6 (Publication Rights), Article 7 (Representations; Disclaimer; Limitation of Liability), Article 8 (Term and Termination), Article 9.11 (Governing Law and Disputes) will survive the expiration or termination of this Agreement for any reason.
9.11 Headings. The descriptive headings of the articles of this Agreement are inserted for convenience only and are intended to have no force or effect in construing or interpreting any of the provisions of this Agreement.
9.12 Exhibits. The Exhibit 1 – Service Description is an integral part of this Agreement and it is incorporated herein by reference. In case of any discrepancy between the text of this main contract document and the Exhibit 1 the text of this main contract document shall prevail.
9.13 Governing Law and Disputes. This Agreement is governed by the laws of Finland without giving effect to its choice of law principles. In the event of a controversy or claim arising out of or relating to this Agreement or the breach, validity, or termination of this Agreement, the Parties shall first negotiate in good faith to try to resolve the dispute, controversy or claim. If the dispute, controversy or claim cannot be resolved by the Parties, any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The number of arbitrators shall be one, the seat of arbitration shall be Helsinki and the language of arbitration shall be English.
9.14 Execution; Counterparts. The execution and delivery of this Agreement by email delivery of a portable document format (“pdf”) will constitute valid execution and delivery of this Agreement. This Agreement may be executed in counterparts, each of which constitutes an original and all of which together constitute one and the same legal instrument.