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BiOS Materials Transfer Agreement 1.0 (Detailed) [2006] PubRL 1 (1 January 2006)
BiOS Materials Transfer Agreement
Version: 1.0 (Detailed)
Copyright: CAMBIA
URL: http://www.bios.net/daisy/bios/3004.html
Type: Science
Country: Australia
Licence text
This Agreement is BiOS™-compatible
THIS AGREEMENT is effective as and from _________________ (“Effective
Date”)
BETWEEN:
CAMBIA, a non-profit corporation organized under the laws of the Commonwealth
of Australia in the Australian Capital Territory and
having a principal place of
business at Clunies Ross Street opposite Dickson Road, Black Mountain, Canberra,
ACT 2601, Australia
(“PROVIDER”).
- and -
_____________________________, organized under the laws of
______________________________and having a principal place of business
at
______________________________ (“RECIPIENT”)
BACKGROUND
- CAMBIA’s
“Biological Innovation for Open Society” (BIOS) Initiative is
intended to extend the metaphor and concepts
of Open Source to biotechnology and
other forms of innovation in biology; and
- it
is the intent of the parties that this Agreement promote and conform to
CAMBIA’s BIOS Initiative; and
- it
is the goal of the BIOS Initiative to ensure common access to the tools of
innovation, to promote the development and improvement
of these tools, and to
make such developments and improvements freely accessible to both academic and
commercial parties under substantially
similar conditions; and
- PROVIDER
has generated propagules, and vectors containing DNA transformed into propagules
(“Proprietary Material”) that
RECIPIENT wishes to use for research
and commercial purposes; and
- the
parties contemplate that Recipient and other BiOS Licensees, through evaluation
and use of the Proprietary Material, may develop
improvements, knowledge, data,
and/or materials relevant to the general utility of the Proprietary Material
which should be made
available to PROVIDER and all BiOS Licensees; and
- the
parties agree that it is not the intent of this Agreement to restrict any
RECIPIENT from commercializing a BiOS Licensed Product,
but to preserve the
rights of PROVIDER and all BiOS Licensees to use said Proprietary Material and
improvements, knowledge, data,
and/or materials relevant to the general utility
of the Proprietary Material;
NOW, THEREFORE, in consideration of the
covenants and obligations set forth in this Agreement, RECIPIENT and PROVIDER
(together the
“Parties” or individually the “Party”)
agree as follows:
1. Bailment of PROPRIETARY MATERIAL
- a.
Whether so marked or not, the term ” Proprietary Material” as used
herein shall include propagules including
vegetative propagules or fruit and any
part or derivative thereof, including, without limitation: plants, seed, cells,
tissues, organs,
fluids, etc. which contain or incorporate the Proprietary
Material and are derived from the organism that provided the original propagules
or cultures therefrom.
- b.
RECIPIENT shall not release any of the Proprietary Material released to it by
PROVIDER to any third party, other than
a party that has agreed to the same
Bailment Terms, without the prior written consent of PROVIDER.
- c. RECIPIENT
shall use Proprietary Material only for the Purpose, in accordance with federal,
state, and local laws and any relevant
institutional policies, and shall not
exploit such Proprietary Material for any other purpose without the prior
written consent of
PROVIDER.
- d. PROVIDER
warrants that all available data, and, subject to applicable law, any other
associated descriptive information, is
being made available with the Proprietary
Material and may be posted on the BioForge website where it may be accessed by
those who
have agreed to the Terms of Access. RECIPIENT shall immediately
provide written reports of any results of evaluation, sequencing,
or analysis to
PROVIDER and for posting on the BioForge website, and shall not prevent any
disclosure by PROVIDER or any students
or employees of PROVIDER or RECIPIENT of
any such results under terms of confidentiality to other parties that have
agreed to the
same Bailment Terms, or BiOS-compliant Terms of Access to
influenza information. PROVIDER or any party that has agreed
to the
same Terms may use this information to monitor compliance with the Terms.
- e.
Within thirty (30) days of termination of this MATERIAL TRANSFER AGREEMENT under
Article 4.b hereof, RECIPIENT shall
destroy all Proprietary Material, and all
material comprising Proprietary Material or parts thereof or derived from
Proprietary Material.
RECIPIENT shall provide PROVIDER within thirty (30) days
of compliance with the requirements of this Article 1.f with written notice
of
such compliance.
2. Limitation of Obligations of Confidentiality
RECIPIENT’s obligations as specified in Article
1.e. above shall not apply to any Confidential Information which:
- is disclosed in
a printed publication available to the public, is described in an issued patent
anywhere in the world, is otherwise
in the public domain at the time of
disclosure, or becomes publicly known through no breach of this Agreement by
RECIPIENT or its
Affiliate;
- becomes known to
RECIPIENT or its Affiliate through disclosure by sources having the right to
disclose such information, other than
PROVIDER;
- is disclosed by
RECIPIENT or its Affiliate pursuant to the requirements of a governmental agency
or any law requiring disclosure thereof,
provided that PROVIDER is given prior
written notice of any such disclosure and an opportunity to seek an order to
prohibit such
disclosure;
- is approved for
release or disclosure by written authorization of PROVIDER;
- RECIPIENT can
establish by reasonable written evidence, was in the possession of RECIPIENT or
its Affiliate prior to the time of disclosure
to RECIPIENT by PROVIDER and which
did not result directly or indirectly from information obtained from PROVIDER
(if such evidence
is presented by RECIPIENT, such evidence as well as any
additional information related thereto that may be presented by RECIPIENT
shall
be held in confidence by PROVIDER); or
- is or was
developed by or for RECIPIENT or its Affiliate independently from any
information obtained from PROVIDER as proven by reasonable
written evidence(if
such evidence is presented by RECIPIENT, such evidence as well as any additional
information related thereto
that may be presented by RECIPIENT shall be held in
confidence by PROVIDER).
- Information
disclosed under this Agreement shall not be deemed to be within the foregoing
exceptions of this Article 2 merely because
such information is embraced by more
general information in the public domain or in possession of RECIPIENT or its
Affiliate. In
addition, any combination of features shall not be deemed to be in
the possession of RECIPIENT or its Affiliate, unless the combination
itself and
its principle of operation are in the public domain or in the possession of
RECIPIENT or its Affiliate.
3. Non-Assertion, and Access and Benefit Sharing
- RECIPIENT
may not assert against PROVIDER or any third party agreeing to the same terms of
this Bailment Agreement any intellectual
property owned, acquired or controlled
by RECIPIENT which would restrict the practice of the Technology. Such
assertion is
grounds for immediate termination of this MATERIAL TRANSFER
AGREEMENT and immediate revocation of any license granted under the
Agreements.
- In the case that
RECIPIENT commercialises a product that is a research tool derived from the
Proprietary Material, a sequence or chemical
marker derived from the Proprietary
Material, or a new drug target or vaccine derived from the Proprietary Material,
and where such
product is not available without restriction to PROVIDER and all
others that have agreed to the same Bailment Terms, the RECIPENT
shall make
available a fixed percentage of the worldwide sales of commercialized products
to the PROVIDER and to GISAID. Where
such product is available without
cost or restriction to PROVIDER and provided only with cost recovery to all
others that have agreed
to the same Bailment Terms, RECIPIENT is under no such
obligation.
4. Non-Assertion, and Access and Benefit Sharing
This agreement shall terminate by
- mutual written
agreement of the Parties or
- immediately upon
any violation of Articles 3.
In case of a termination under 4.b, the
obligations of Article 1 subject to the limitations of Article 2, and Articles 3
and 5, shall
remain binding notwithstanding said
termination.
5. Miscellaneous Terms and Conditions
- Except
for the limited right granted in Article 1.d of this MATERIAL TRANSFER
AGREEMENT, PROVIDER retains full ownership of any Proprietary
Material disclosed
or released to RECIPIENT. Access by PROVIDER or by any party to the same
Bailment Terms must be granted
expeditiously and free of charge except for
minimal cost recovery such as postage, handling and storage.
- This MATERIAL
TRANSFER AGREEMENT may not be modified, changed, or discharged, in whole or in
part, except by an agreement in writing
signed by both Parties. Any waiver of
any term or condition of this MATERIAL TRANSFER AND NON-DISCLOSURE AGREEMENT
shall not be deemed
to be nor shall constitute a waiver with respect to any
other terms or conditions of this Agreement, whether or not similar.
Each
such waiver shall be effective only in the specific instance and for the purpose
for which it was given, and shall not constitute
a continuing waiver.
- This MATERIAL
TRANSFER AGREEMENT will be binding upon and inure to the benefit of the Parties
hereto and their respective successors
and assignees. This MATERIAL TRANSFER
AGREEMENT is exclusive to the Parties and may not be assigned or transferred by
RECIPIENT in
whole or in part without the prior written consent of the PROVIDER,
provided that, upon prior written notice to PROVIDER, RECIPIENT
may assign this
Agreement and its rights hereunder to an Affiliate of RECIPIENT.
- This MATERIAL
TRANSFER AGREEMENT shall not be construed as representing any commitment by
either Party to enter into any business
cooperation or other type of
agreement.
- This Agreement
shall be construed and interpreted in accordance with the laws of
______________________________.
- THE INFORMATION
AND MATERIALS PROVIDED HEREUNDER ARE BEING SUPPLIED WITH NO WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, WARRANTIES AS TO THE IDENTITY,
PURITY, OR ACTIVITY OF A PARTICULAR SPECIMEN, WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR
PURPOSE, OR WARRANTIES OF NON-INFRINGEMENT OF ANY THIRD
PARTY PATENT. Neither PROVIDER nor its employees or agents shall be liable
to
the RECIPIENT or its employees or agents for any loss resulting from the
RECIPIENT’s receipt, use, storage or disposal of
the Technology or any
information or material supplied hereunder. RECIPIENT will bear all risk to
itself and to others resulting
from its use of the Technology or its own
negligence or wrongful act or omission, and will hold, for all claims, suits,
losses, liabilities,
damages, costs, fees, and expenses resulting from its use,
gross negligence or wrongful act or omission during or after the term
of this
MATERIAL TRANSFER AGREEMENT, PROVIDER and any others that have agreed to these
Bailment Terms harmless.
- Should any part
of this MATERIAL TRANSFER AGREEMENT be declared invalid by any Court of
competent jurisdiction for any reason, such
declaration of judgment shall not
affect the validity of the rest of the MATERIAL TRANSFER AGREEMENT, which shall
remain in full
force and effect to the fullest extent provided by law.
- “Affiliate”
shall mean any business entity, controlling, controlled by or under common
control with RECIPIENT. For this
purpose, control means the possession of the
power to direct or cause the direction of the management and the policies of an
entity,
whether through ownership directly or indirectly of at least fifty
percent (50%) of the stock entitled to vote, and for non-stock
organizations,
the right to receive at least fifty percent (50%) of the benefits or profits by
contract or otherwise.
- All notices,
requests, consents and other communications hereunder shall be in writing, shall
be addressed to the RECIPIENT’s
address set forth above or to such other
address as a party may designate by notice hereunder, and shall be either sent
by an internationally
recognized private courier service providing confirmations
of receipt, or sent by registered or certified mail.
- The parties
agree to attempt in good faith to resolve any dispute relating to this MATERIAL
TRANSFER AGREEMENT or the negotiation
hereof or entry hereunto or any contract
or agreement entered in pursuant hereto or the fulfillment and performance by
the parties
of their respective duties and obligations hereunder, amicably, by
negotiation. For any dispute not resolved by negotiation,
the parties
agree to choose a third party mediator to mediate any dispute and further agree
that any dispute that cannot be resolved
by mediation shall be settled by
binding arbitration in accordance with the UNCITRAL Arbitration Rules in force
at the time of the
dispute.
- This MATERIAL
TRANSFER AGREEMENT does not convey a right to use of the names or marks
associated with PROVIDER or its Affiliates without
the written permission of
PROVIDER. However, PROVIDER may require that PROVIDER’s name and the
words “subject to
BiOS License” must be associated with the
Proprietary Material at all times. The RECIPIENT agrees to acknowledge PROVIDER
in
any publications reporting use of the Proprietary Material.
IN
WITNESS WHEREOF the PARTIES have duly executed this MATERIAL TRANSFER AGREEMENT
this _____________, 2006.
RECIPIENT.
PROVIDER
________________________________
______________________________
Signature Signature
________________________________
______________________________
Name Name
________________________________
______________________________
Title Title
________________________________
______________________________
Date Date
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