MATERIAL TRANSFER AGREEMENT FOR MICE AND MOUSE MODELS
This AGREEMENT is made 2011
BETWEEN:
(1) UNIVERSITY OF NEWCASTLE UPON TYNE a charitable organisation established under the Universities of Durham and Newcastle upon Tyne Act 1963, a statute of England, whose address for service is King’s Gate, Newcastle upon Tyne, NE1 7RU, United Kingdom ("Newcastle"); and
(2) [name of requesting Institution and address] (“Recipient”).
IT IS HEREBY AGREED:
1. DEFINITIONS AND INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
“Commencement Date” means the date of this Agreement as noted above;
“Commercial Use” means the sale, lease or other transfer of the Material or Modifications to a for-profit organisation. Commercial Use shall also include uses of same by any organisation, including Recipient to perform contract research, to screen compound libraries, to produce or manufacture products for general sale, lease, licence, or transfer of the Material or Modifications, to a for-profit organisation. However, industry sponsored academic research shall not be considered Commercial Use, unless any of the above conditions of this definition are met;
“Modifications” means all products or materials derived directly or indirectly from the Material in the course of carrying out the Project (or out with the Project in breach of this Agreement), including any crossbred progeny;
“Information” means all information (in whatever form) relating to the Sample disclosed to the Recipient by or on behalf of Newcastle;
“Material” means the Sample and any Unmodified Derivatives of the same;
“Project” means the research project further specified in Schedule 2;
“Providing Scientist” means [Newcastle PI’s name and position];
“Recipient Scientist” means [name of requesting PI including position];
“Sample” means the mice or mouse models as further detailed in Schedule 1;
“Term” means the period of five (5) years from the Commencement Date or the earlier completion of the Project;
“Unmodified Derivatives” means substances created by the Recipient which constitute an unmodified functional subunit or product expressed by the Sample. Some examples include: purebred progeny of the Sample, subclones of unmodified cell lines, purified or fractionated subsets, proteins expressed by DNA/RNA, or monoclonal antibodies secreted by a hybridoma cell line;
1.2 Any reference to a statute or statutory provision refers to such statute or statutory provision as it may exist in English law and includes all statutory instruments, orders, directions and notices made pursuant to it whether made before or after the date of this Agreement.
2. DURATION
2.1 This Agreement shall commence on the Commencement Date and will (subject to earlier termination pursuant to Clause 8 or extension pursuant to Clause 2.3) continue in force for the Term.
2.2 All Material and Information provided by Newcastle from the Commencement Date shall be subject to the terms and conditions of this Agreement, whether:
2.2.1 one batch of Sample is provided; or
2.2.2 a series or continuing series of Sample is provided, (the frequency of supply of Sample to be agreed between Newcastle and Recipient);
2.3 The Term may be extended with the written agreement of both parties. Permission to extend must be sought by the Recipient no later than three (3) months before the expiry of the Term.
3. USE OF MATERIAL
3.1 The Material, Modifications and Information will be used exclusively for carrying out the Project only by the Recipient Scientist and by those under the Recipient Scientist’s direct supervision in the Recipient’s laboratories under suitable containment conditions and in compliance with all applicable statutes and regulations. THE MATERIAL AND MODIFICATIONS MAY NOT BE USED IN HUMAN SUBJECTS OR FOR CLINICAL OR DIAGNOSTIC PURPOSE.
3.2 Notwithstanding any other provision of this Agreement including the right to use the Material for carrying out the stated Project the Material, Modifications, Information and any results of the Project may not under any circumstances be used to pursue investigations into the heart or cardiovascular system, even as incidental findings from their other studies without Newcastle’s permission.
3.3 The Recipient will not transfer the Material, Modifications or Information to any third party, or permit their use within the Recipient other than by the Recipient Scientist’s research group for carrying out the Project, without (in each case) prior written consent from Newcastle.
3.4 This Agreement does not in any way restrict Newcastle’s right to distribute the Material and Information to other commercial or non-commercial entities.
3.5 The Material and Information are provided without cost but Recipient shall reimburse Newcastle for shipping and other related costs that may be incurred by Newcastle when preparing and dispatching the Material and Information to Recipient.
4. WARRANTIES AND LIABILITY
4.1 The Recipient understands that the Sample is experimental in nature, and may have hazardous properties. Newcastle makes no representations and gives no warranties express or implied in relation to it; for example, no warranties are given about quality or fitness for a particular purpose; or that the use of the Sample will not infringe any intellectual property or other rights of third parties.
4.2 Except to the extent prohibited by applicable law, the Recipient assumes all liability for damages which may arise from its receipt, use, storage or disposal of the Material, Modifications and Information. Newcastle will not be liable to the Recipient for any loss, claim or demand made by the Recipient, or made against the Recipient by any other party, due to or arising from the use of the Material, Modifications or Information by the Recipient, except to the extent the law otherwise requires.
4.3 The liability of either party for any breach of this Agreement, or arising in any other way out of the subject matter of this Agreement, will not extend to loss of business or profit, or to any indirect or consequential damages or losses.
5. REPORTS AND PUBLICATIONS
5.1 The Recipient shall provide the Providing Scientist with regular reports in English on the progress of work undertaken on the Material and any subsequent findings and must abide by the conditions set from time to time by Newcastle for the frequency of progress reports (every twelve months unless otherwise specified). Newcastle shall be entitled to use and copy the reports for its own academic research.
5.2 The Recipient shall provide Newcastle with copies of any proposed publications or public presentation making reference to the use of the Material no less than thirty (30) days prior to the submission date for publication or date of presentation. Newcastle shall have the right to request the removal of any proprietary or confidential information from such proposed disclosure in the thirty (30) days after receipt of such material. Newcastle will be acknowledged as the provider of the Material in all publications or other public disclosures reporting the results of the Project and the Providing Scientist shall be named as an author on the first research paper concerning the results of the Project.
6. CONFIDENTIALITY
6.1 The Recipient shall keep confidential (and not disclose, transfer or permit the disclosure or transfer of) any confidential information relating to the Material (which includes, for the avoidance of doubt, the Material and Information themselves) disclosed to the Recipient by Newcastle pursuant to this Agreement. The Recipient shall only disclose the confidential information to those employees or individuals working within the Recipient which require such information in order to carry out the Project, if the Recipient first informs each of those employees or individuals working within the Recipient of the confidential nature of the information and of the obligations of the Recipient in respect of the information and ensures such persons comply with the confidentiality and non-disclosure obligations contained in this Agreement.
6.2 The Recipient shall keep the confidential information referred to in Clause 6.1 at the Recipient’s premises in a secure environment, protected against theft, damage, loss, misuse or unauthorised access.
6.3 The provisions of Clause 6.1 shall not apply to:
6.3.1 any information which is or later becomes, generally available to the public other than as a direct or indirect result of the information being disclosed in breach of this Agreement;
6.3.2 any information which was known to the Recipient prior to its communication with Newcastle as evidenced by competent written records;
6.3.3 any information which becomes known to the Recipient by the action of another person not in breach of any obligation of confidentiality owed to Newcastle subject to the terms under which it is disclosed;
6.3.4 any information which can be shown by competent written evidence to have been developed by any of the Recipient’s employees who have not had any use or knowledge of, the information imparted by Newcastle; or
6.3.5 any information which is required to be disclosed by law, an order of any court of competent jurisdiction or any competent judicial, governmental or regulatory body but only to the extent of such required disclosure.
7. OWNERSHIP
7.1 The Material (including the [name of gene] gene characterised in the Sample contained in any Modifications) and Information remain the property of Newcastle, and no right or licence is granted with respect to any of them except as expressly provided in this Agreement. In the event that the Recipient wishes to make Commercial Use of the Material, Modifications or Information it agrees to negotiate in good faith with Newcastle for the grant of an appropriate licence or the conclusion of a revenue sharing agreement, if justified. Newcastle will have no obligation to grant a licence.
8. TERM AND TERMINATION
8.1 Newcastle may terminate this Agreement:
8.1.1 on three month’s written notice to the Recipient which can be given at any time; or
8.1.2 if Recipient is in material breach of any of the terms of this Agreement and, where the breach is capable of remedy, the Recipient has failed to remedy the same within one month of service of a written notice from Newcastle specifying the breach and requiring it to be remedied.
8.2 Upon expiry of the Term or earlier termination under Clause 8.1, Recipient agrees to destroy (or return at Newcastle’s request) all unused Material, and Modifications and Information. Recipient shall provide Newcastle with written certification of their destruction, unless permission to retain Material and Information is specifically provided in writing by Newcastle to the Recipient.
8.3 The expiry or termination of this Agreement howsoever arising is without prejudice to the rights, duties and liabilities of either party accrued prior to termination.
8.4 The provisions in this Agreement which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
9. GENERAL
9.1 No party may at any time assign, transfer, charge or deal in any other manner with this Agreement or any of its rights under it.
9.2 This Agreement constitutes the entire understanding between the parties in relation to its subject matter and supersedes all prior representations, communications, negotiations and understandings concerning the subject matter of this Agreement. No party has relied on any warranty or representation except as expressly set out in this Agreement.
9.3 All notices under this Agreement must be in writing and sent to the address detailed above for the attention of the Director, Business Development Directorate. A copy of each notice under this Agreement shall also be sent to the Research and Enterprise Services, University of Newcastle Upon Tyne, Mezzanine Floor, Research Beehive, the Old Library, Newcastle upon Tyne, NE1 7RU, United Kingdom and marked for the attention of the Head of IP & Legal Services.
9.4 The parties shall not make any announcement or comment upon or otherwise provide any information to any third party (other than its legal advisors) concerning this Agreement (including its existence and terms) without the prior written consent of the other party.
9.5 No person who is not a party to this Agreement is entitled to enforce any of its terms, whether under the Contracts (Rights or Third Parties) Act 1999 or otherwise.
9.6 Neither party shall be liable for loss, damage or delay, nor be deemed to be in default due to it not complying with its obligations as a result of an Act of God, fire, strike, labour difficulties, riots, embargoes, delays or shortages in transportation or any other causes beyond such party’s reasonable control.
9.7 If any provision or part of this Agreement shall be construed or operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude the further exercise of such right or remedy.
9.8 No failure or delay on the part of either party to exercise any right or remedy under this Agreement shall be construed or operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude the further exercise of such right or remedy.
9.9 This Agreement may be executed in counterparts each of which when executed and delivered is an original but such counterparts shall be deemed to constitute one and the same instrument. The Parties agree that signatures exchanged by facsimile or other electronic means are effective for all purposes hereunder to the same extent as original signatures.
9.10 This Agreement shall be governed by and construed in all respects in accordance with English Law regardless of the place of execution or place of performance and the parties hereby submit to the exclusive jurisdiction of the English Courts PROVIDED THAT Newcastle at their entire discretion may seek to enforce the provisions of this Agreement in the courts of any territory of its choosing.
AGREED by the parties through their authorised representatives:
For and on behalf of the For and on behalf of [ ]
University of Newcastle
Signature Signature
Name Name
Title Title
Date Date
SCHEDULE 1
SAMPLES
SCHEDULE 2
PROJECT
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