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BiOS MATERIAL TRANSFER AGREEMENT
Version 1.0

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

1. 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
2. it is the intent of the parties that this Agreement promote and conform to CAMBIA’s BIOS Initiative;  and
3. 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
4. PROVIDER has generated propagules, and vectors containing DNA transformed into propagules (“Proprietary Material”) that RECIPIENT wishes to use for research and commercial purposes;  and
5. 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
6. 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