MATERIAL TRANSFER AGREEMENT FOR NON-HUMAN MATERIAL
This AGREEMENT is made 2013 (“Commencement Date”)
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) (“Recipient Institution”)
IT IS HEREBY AGREED:
1. DEFINITIONS AND INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
“Commercial Use” means the sale, lease or other transfer of the Material to a for-profit organisation, Commercial Use shall also include uses of the Material by any organisation, including Recipient Institution to perform contract research, to screen compound libraries, to produce or manufacture products for general sale, lease, licence, or transfer of the Material to a for-profit organisation. However, industrially sponsored academic research shall not be considered Commercial Use, unless any of the above conditions of this definition are met;
“Derivatives” means all products or materials derived directly or indirectly from the Material in the course of the Programme of Research;
“Information” means all information (in whatever form) relating to the Material which may be disclosed to the Recipient Institution by or on behalf of Newcastle;
“Material” means the Sample(s) as further specified in Schedule 1 and any Derivatives of the same;
“Programme of Research” means the research project further specified in Schedule 2;
“Providing Scientist” means ;
“Recipient Scientist” means ;
“Sample” means the sample(s) as further detailed in Schedule 1;
“Term” means the period of five (5) years from the Commencement Date.
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 Material is provided; or
2.2.2 a series or continuing series of Material is provided, (the frequency of supply of Material in such instance to be agreed between Newcastle and Recipient Institution);
2.3 The term may be extended with the written agreement of Newcastle. Permission to extend the term of this Agreement must be sought by the Recipient Institution no later than three (3) months before the expiry of the Term.
3. USE OF MATERIAL
3.1 Each Sample and any Information accompanying such Sample will be used exclusively for carrying out the Programme of Research. The Material and Information will be used only by the Recipient Scientist and by those under the Recipient Scientist’s direct supervision in the Recipient Institution’s laboratories under suitable containment conditions and in compliance with all applicable statutes and regulations. THE MATERIAL MAY NOT BE USED IN HUMAN SUBJECTS OR FOR CLINICAL OR DIAGNOSTIC PURPOSES.
3.2 The Recipient Institution will not transfer the Material or Information to any third party, or permit its use within the Recipient Institution other than by the Recipient Scientist’s research group, without (in each case) prior written consent from Newcastle.
3.3 This Agreement does not restrict Newcastle’s right to distribute the Material to other commercial or non-commercial entities.
3.4 The Material are provided without cost but Recipient Institution shall reimburse Newcastle for shipping and other related costs that may be incurred by Newcastle when preparing and dispatching the Material to Recipient Institution.
4. WARRANTIES AND LIABILITY
4.1 The Recipient Institution understands that the Material 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 Material will not infringe any intellectual property or other rights of third parties.
4.2 Except to the extent prohibited by law, the Recipient Institution assumes all liability for damages which may arise from its receipt, use, storage or disposal of the Material. Newcastle will not be liable to the Recipient Institution for any loss, claim or demand made by the Recipient Institution, or made against the Recipient Institution by any other party, due to or arising from the use of the Material by the Recipient Institution, 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 Institution 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 Institution 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. Recipient Institution shall comply with any such deletion request. Failure of Newcastle to request a delay in disclosure within thirty (30) days shall constitute permission to publish or disclose as submitted. Newcastle will be acknowledged in all such publications or other public disclosures by co-authorship or acknowledgement, whichever is appropriate.
6. CONFIDENTIALITY
6.1 The Recipient Institution 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 Institution by Newcastle pursuant to this Agreement. The Recipient Institution shall only disclose the confidential information to those employees or individuals working within the Recipient Institution which require such information in order to carry out the Programme of Research, if the Recipient Institution first informs each of those employees or individuals working within the Recipient Institution of the confidential nature of the information and of the obligations of the Recipient Institution in respect of the information and ensures such persons comply with the confidentiality and non-disclosure obligations contained in this Agreement.
6.2 The Institution shall keep the confidential information referred to in Clause 6.1 at the Recipient Institution’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 either party agrees in writing is not confidential; and
6.3.3 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 and Information remain the property of Newcastle, and no right or licence is granted with respect to the Material, or the Information except as expressly provided in this Agreement. In the event that the Recipient Institution wishes to make Commercial Use of the Material or Information it agrees to negotiate in good faith with Newcastle or its representative 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 Institution which can be given at any time; or
8.1.2 if Recipient Institution is in material breach of any of the terms of this Agreement and, where the breach is capable of remedy, the Recipient Institution 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 Institution agrees to destroy (or return at Newcastle’s request) all unused Material, and Information and Recipient Institution 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 Institution.
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 delivered to the address detailed above. A copy of each notice under this Agreement shall also be sent to the Research & Enterprise Services, Newcastle University, Research Beehive, Old Library Building, Newcastle Upon Tyne, NE1 7RU, United Kingdom and marked for the attention of the IP & Commercialisation Manager.
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 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.
9.8 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.
9.9 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
MATERIAL
SCHEDULE 2
PROGRAMME OF RESEARCH
8