Confidentiality and Material Transfer Agreement - Plant Breeding Anti-Contamination

Purpose

The Parties are interested to discuss a potential business relationship in the area of [please describe subject of discussion] in which context the Partner is interested to test certain Materials (as defined in Annex I) of Company (the “Purpose”).

During these discussions the Parties may provide each other with certain Confidential Information and Company will provide Partner with certain Material pertaining to the Purpose.

Now, therefore, the Parties agree as follows:

1. “Confidential Information“ shall mean
2. information disclosed for the Purpose by the Disclosing Party regarding its technologies, scientific and technical results, production processes, know how, personnel, business relationships, financial data or products (i) clearly labelled as confidential by the Disclosing Party at the time of disclosure or (ii) which by virtue of its character or the circumstances or manner of its disclosure is evidently of a confidential nature; and
3. this Agreement and the fact that the Parties are discussing or have discussed a possible business relationship.

Internal Note: If there is a contamination risk through confidential information Company receives from the other party please specify such kind of information and exclude it from being confidential / shared, e.g.:

[The Parties agree that they will – at this stage – only exchange general information about intended product profiles and intended process performances but will not exchange any specific structural or process related information including specific genetic modifications, strains, enzymes, and fermentation strategies incl. USP/DSP processing, unless explicitly agreed by both parties in writing. Any such information which is disclosed without the prior written consent of the other Party shall not be considered Confidential Information hereunder.]

"Disclosing Party" shall mean the Party that discloses Confidential Information to the other Party to this Agreement.

"Receiving Party" shall mean the Party that receives Confidential Information from the other Party to this Agreement.

“Affiliates” shall mean companies controlling either party, or which either Party controls, or which are under common control whereby control means the holding of at least fifty percent of the voting share capital or other ownership interest entitled to vote for the election of directors.

Treatment of Confidential Information

2. The Parties agree:
3. to receive, treat and keep Confidential Information in confidence;
4. to refrain from using it otherwise than for the Purpose;
5. to limit the disclosure of Confidential Information to employees, students within its organization, professional advisors, directors, or Affiliates who, having a need to know said Confidential Information for the Purpose, will be obligated to maintain such information confidential;
6. to take all reasonably required steps to prevent unauthorized access to Confidential Information;
7. not to disclose such Confidential Information to any other person, organization or entity without the prior written consent of the Disclosing Party.
8. The obligations under this Agreement shall not apply to any Confidential Information or portion thereof disclosed by the Disclosing Party for which the Receiving Party is able to prove that this information:
9. was in the public domain at the time of disclosure, or that after disclosure this information became part of the public domain through no fault of the Receiving Party; or
10. was already in the Receiving Party’s possession at the time of disclosure hereunder; or
11. has been rightfully received from a third party by the Receiving Party, and which, to the Receiving Party’s best knowledge, the aforesaid third party was free to disclose to others without breach of any obligation of secrecy; or
12. was independently developed by the Receiving Party without reference to the Confidential Information disclosed to the Receiving Party.

Notwithstanding the obligations set forth in Sections 2 and 3 above, either Party may disclose Confidential Information to the extent necessary to comply with legal requirements or enforceable court or administrative orders, provided that the Receiving Party first provides the Disclosing Party with notice of such requirements and its intent to make the disclosure to give the Disclosing Party a reasonable opportunity to obtain a suitable protective order.

4. This Agreement and the fact that the Parties are discussing or have discussed a possible business relationship may be disclosed by the Company to potential purchasers or investors and their advisors for the purpose of assessing an acquisition or additional financing, such investors and advisors being obligated to maintain such information confidential.
5. The Parties agree that any media releases, public announcements or disclosures by either Party relating to the Purpose will have to be closely coordinated with and approved in advance in writing by the other Party.

Treatment of Material

6. The Partner:

(a)    may only use the Material for the Purpose to conduct the Agreed Experiments (as defined in Annex I);

(b)   must not use the Material or any products containing any part of the Material or resulting from the use of the Material, for any commercial purpose without the prior written consent of the Company;

(c)    must comply with any applicable laws in relation to the importation, transportation, use, maintenance or disposal of the Material;

(d)   must keep the Material secure and protected from unauthorized access, misuse, damage, destruction, unauthorized disclosure or modification, or theft and must immediately report to the Company if it suspects the Material has been dealt with contrary to this clause;

(e)    must not distribute or release the Material (nor any derivatives or modifications based on the Material) to any person other than the employees of the Partner, and must make sure that no one is allowed to take or send the Material to any location other than a location under the control of the Partner without prior written permission from the Company; and

(f)    must not alter, reverse engineer, decompile, disassemble or otherwise modify all or any portion of the Material, nor analyze or attempt to determine the chemical composition of the Material, nor furnish the Material to a third party for chemical analysis or any other use, without the prior written consent of Company.

7. Intellectual Property Rights in Material and Results

(a)    The Company retains all ownership and intellectual property rights in the Material and derivatives of the Material and grants the Partner a non-exclusive, royalty-free license to use, adapt, and exploit the Material for the Purpose to conduct the Agreed Experiments;

(b)   In consideration of the Company supplying the Material to the Partner, the Partner will, as soon as practicable, inform the Company in writing of any and all findings and research results produced by or on behalf of the Partner related to the use of the Material (“Results”). The Results shall be considered Confidential Information of the Company and the Company shall be entitled to use Results for all purposes.

8. The Partner acknowledges and agrees that:

(a)      the Material is made available for investigational use only;

(b)      it will not obtain or attempt to obtain any patent protection in relation to: i.) any part of the Material (or any modification or use of any part of the Material); or ii.) any materials that could not have been made but for having access to the Material, without the prior written consent of the Company;

(c)      this transfer of the Material does not constitute a public disclosure;

(d)      the Material is experimental in nature and may have hazardous properties and is provided to the Partner without any warranty of merchantability or fitness for any particular purpose, or any other warranty, express or implied. The Partner agrees not to conduct any human or animal studies with the Material. To the extent permitted by any applicable laws, the Company excludes any and all warranties in relation to the Material; and

(e)      the Company makes no representation or warranty that the Material or the use of any of the Material will not infringe any third party’s intellectual property rights.   

9. Immediately upon the request of the Company (including after termination of this agreement in accordance with clause 18) or at agreement end, the Partner must follow the Company’s instructions in relation to destroying or returning the Material of the Company.
10. Except to the extent prohibited by law, the Partner assumes all liability for damages which may arise from its use, storage or disposal of the Material. Company will not be liable to the Partner for any loss, claim or demand made by the Partner, or made against the Partner by any other party, due to or arising from the use of the Material by the Partner, except to the extent permitted by law when caused by the gross negligence or willful misconduct of Company.
11. [Optional: Nothing in this Agreement prohibits the Partner from developing, or having developed, products or services that, without violation of this Agreement, compete with the Company’s products or services. The Partner may not be presumed to have violated this Agreement solely because it uses, makes, has made, or offers products or services which compete with the Company’s products or services.]

General Provisions

12. Upon written request of the Disclosing Party, the Receiving Party
13. Shall, at the Receiving Party’s sole discretion, destroy or return to the Disclosing Party all Confidential Information received from the Disclosing Party under this Agreement in written or other tangible form, including all copies thereof; and
14. will destroy all work papers incorporating any Confidential Information.

This obligation does not apply if the relevant measure would conflict with preservation duties under applicable law, written rules of professional ethics or bona fide internal compliance procedures, or if Confidential Information has to be expunged from customary automated IT backup storage systems, provided that such Confidential Information is not retrieved from such backup storage system.

13. The Parties shall not be liable for the completeness and accuracy of disclosed information.
14. Under this Agreement, the Parties shall grant each other no rights regarding any Confidential Information other than the right to review the Confidential Information for the Purpose.
15. This Agreement shall not be assigned by either Party to any third party without the prior written consent of the other Party, which shall not be unreasonably withheld. No assignment shall relieve a Party of its obligations under this Agreement with respect to Confidential Information disclosed to that Party prior to the agreed assignment.
16. The Agreement contains the entire agreement between the Parties concerning the subject matter of this Agreement. Any modification of this Agreement must be in writing. The same applies to the renunciation of this written form requirement.
17. This Agreement shall commence on the Effective Date and – unless terminated under clause 17 – expire after xx  months unless extended my mutual written understanding of the Parties. The obligations with respect to the Confidential Information shall continue for a period of five (5) years from the expiration or termination of this Agreement. Termination of this Agreement does not affect any accrued rights or remedies the Company may have.
18. Each Party may terminate this Agreement at any time with immediate effect by giving written notice to the Partner.
19. This Agreement is governed by the laws of _______ without recourse to their conflict of laws principles. The exclusive place of jurisdiction shall be _______.
20. Should any provision of this Agreement be or become invalid, this shall not affect the validity of the remaining provisions.

Annex I

Material

The Material provided by Company to the Partner include:

[Please use internal codes to describe samples, do not use public accession numbers or other names which may enable identification of the material. Ensure that the provided materials are non-viable.  If the Material is biospecimen (living organism), additional provisions need to be entered to the agreement such as Policy to Store and Access Samples Stored Offsite]

Agreed Experiments:

Please define which experiments the Partner shall be entitled to do with the Material.