Confidentiality and Material Transfer Agreement - Services Agreement Agricultural Field Trials

Services agreement

THIS SERVICES AGREEMENT (this “Agreement”) is made and effective as of __________   by and between __________ (“PROVIDER”), ____________ (“Customer”).

WHEREAS, Customer desires PROVIDER to perform seed research services for Customer in accordance with the terms and conditions of this Agreement.

NOW, THEREFORE, the parties agree as follows:

1.         Services.

(a)          General.  PROVIDER shall provide for Customer the agricultural seed pipeline management services and research services described on Exhibit A hereto (the “Services”) and for the fees described in Section 3.  The timing of planting shall be as directed by Customer but shall generally be subject to the availability of PROVIDER operational capacity, as determined by PROVIDER.  PROVIDER’s only responsibility is to provide the Services as described herein.  Customer shall bear the risks inherent in a growing crop including, without limitation, weather conditions, seed germination and viability, disease, pest control, weed control, uneven irrigation, fertility, mold, fungus, wildlife damage, and yield.

(b)          Additional Services.     PROVIDER shall provide additional Services, if any, described on Exhibit A for the fees described in Exhibit A, or as may be mutually agreed in writing.

(c)          Role of Customer.  Customer will provide the materials, management and information described on Exhibit B (“Customer Materials”).

2.         Limited Warranties and Indemnity.

(a)           PROVIDER represents and warrants that the services performed by PROVIDER will be performed (i) in a manner that conforms in all material respects to any specifications set forth in this Agreement, and (ii) in a commercially reasonable manner in accordance with accepted industry standards. 

3.         Fees; Payment.

(a)                Fees. 

In consideration for the performance of the Services described in Exhibit A, Customer shall pay to PROVIDER the fees described in Exhibit A.  

PROVIDER will issue monthly invoices for research rows planted the prior calendar month. At the end of each calendar year such invoiced price per row will be trued up to reflect the actual number of rows planted in the prior calendar year, and Customer will pay any additional amount per row or PROVIDER will refund any overpayment.  Where a fee is based on acres, total acres will be based on actual field measurements by PROVIDER personnel and include reasonable margins on field ends to facilitate operation of equipment. Any fee based on acres will be invoiced 50% at the time of planting, and 50% upon delivery of the production.  Where a fee is based on the volume of production of parent seed, such fee will be invoiced at the time such volume has been determined.  

(b)                Payment.  All invoices are due and payable 30 days from date of invoice. Any unpaid amounts shall accrue interest from the scheduled due date until the date that such amounts are fully paid to PROVIDER at the rate equal to the lesser of (i) the maximum rate permitted by applicable law or (ii) 1% per month.

(c)                Taxes.  Customer shall pay any taxes, duties, customs, assessments and other fees and charges (excluding any taxes on the income of PROVIDER) imposed by any governmental authority in connection with the Services.

4.         Limitation of Liability. 

Notwithstanding anything to the contrary in this agreement, (a) in no event shall customer be liable for any punitive, indirect, incidental, consequential or special damages, including loss of future revenue, income or profits.  in no event shall customer be liable for any amount in excess of the fees paid to provider by customer under this agreement with respect to the specific service giving rise to the applicable liability.

5.         Inspection.  Customer shall have the right to inspect fields upon reasonable notice to PROVIDER.

6.          Intellectual Property; Proprietary Information.

(a)        Any and all intellectual property rights related to the Customer Materials are and shall remain at all times the sole property of Customer (and/or its affiliates). 

(b)        All progeny created from Customer Materials are referred to herein as “Progeny”.  All Progeny will be the sole and absolute property of Customer. PROVIDER hereby agrees to assign and hereby assigns rights to Progeny to Customer and shall cause its affiliates, employees and representatives to assign all rights to Progeny to Customer.   In the event Customer decides to seek patent, or any other form of protection in relation to any Progeny, such efforts will be at Customer’s cost and expense except that PROVIDER will co-operate fully with Customer (at Customer’s expense) in the filing of any necessary applications and in any other actions taken by Customer in applying for, obtaining or maintaining patent or any other similar type of protection.

(c)        PROVIDER shall not, and shall cause its affiliates not to, file any patent applications or other intellectual property applications or registrations that disclose, describe or require the deposit of Customer Materials or any Progeny.

(d)        The parties’ Proprietary Information, as defined in Exhibit C hereto, is subject to the terms and provisions of Exhibit C.

8.         Term; Termination. 

(a)       Term.  This Agreement shall commence as of the date hereof and shall continue for a minimum of ____ (___) years (the “Initial Term”) and shall thereafter continue unless terminated as otherwise permitted herein (the entire term of this Agreement is referred to as the “Term”). 

(b)         Termination.  Either party may terminate this Agreement as follows:  (a) at either party’s convenience, provided the terminating party provides the other party not less than ____ (___) years advanced notice of such termination (which notice may not be given prior to 2021); (b) ninety (90) days after written notice of material breach of this Agreement by a party to the breaching party, but only if such material breach remains uncured at the end of such 90-day period (or such longer period as may be reasonably necessary to cure under the circumstances); and (c) immediately upon written notice from a party if the other party has become the subject of voluntary or involuntary bankruptcy, receivership, or insolvency proceedings. 

(c)       Non-Exclusive Rights; Return of Materials.  The expiration or termination of this Agreement shall not affect the respective rights and obligations of the parties that accrued prior to such expiration or termination.  In the event the effective date of termination occurs when Customer Materials are growing, the parties will continue to perform this Agreement with respect to such Customer Materials until such materials have been harvested and made available for return to Customer.   Following termination PROVIDER shall promptly make available for return to Customer all Customer Materials.

(d)       Survival.  Notwithstanding anything to the contrary in this Agreement, the provisions set forth in Sections 3, 4, 6, 8 and 9 shall survive the expiration or termination of this Agreement.

9.         Miscellaneous. 

(a)       Independent Contractor.  PROVIDER is an independent contractor and not an agent or an employee of Customer.  This Agreement does not create a joint venture or a partnership between PROVIDER and Customer. 

(b)       Notices.  The parties agree that unless applicable law requires a different method of giving notice, all notices, demands and requests required or permitted to be given hereunder shall be in writing and shall be deemed duly given if personally delivered or delivered by Federal Express or other overnight delivery service of recognized standing, addressed to the following:

(c)       Law Governing Agreement.  This Agreement shall be construed and interpreted according to the laws of _______, excluding any choice of law rules that may direct the application of the laws of another jurisdiction.

(d)       Force Majeure.   No party shall be liable for any failure to perform, or delay in performing, any obligations under this Agreement to the extent such failure or delay is due to fire, flood, earthquake, war (declared or undeclared), an occurrence commonly referred to as a terrorist attack and any armed hostilities associated therewith, embargo, legal prohibition, riot, insurrection or any other cause beyond the reasonable control of the party failing to perform or delaying the performance of such obligations.  Subject to using commercially reasonable efforts to resume full performance without avoidable delay, the party so failing, or delaying shall be entitled to a reasonable extension of time for the performance of such obligations.

(e)       Amendment.  PROVIDER and Customer may amend and supplement this Agreement only in such manner as may be agreed upon by them in writing.

(f)        Arbitration.      Any and all claims, controversies, or disputes arising out of or relating to this Agreement, or the breach thereof, shall be fully and finally resolved by arbitration in accordance with the Rules, Procedures, and Protocols for Arbitration of Disputes of Dispute Prevention & Resolution, Inc., then in effect. In the event arbitration is invoked, the Parties agree that one arbitrator shall be appointed to hear and resolve the case. The parties further agree that the award of the arbitrator is binding upon the parties and that judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. 

(g)       Entire Agreement.  This Agreement (including the exhibits attached hereto) supersedes all prior agreements and constitutes a complete and exclusive statement of the terms of the agreement, between the parties with respect to its subject matter.  There have been and are no covenants, representations or warranties between the parties with respect to the subject matter of this Agreement other than those set forth or provided for in this Agreement.

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed by their duly authorized representatives as of the day and year first set written above.

EXHIBIT A

Services and Prices

PROVIDER shall provide all equipment and labor necessary to perform the Services set forth in Customer Protocols and as listed below.  Customer may, but is not required to, review PROVIDER’s procedures, plans, schedules and other records concerning its obligations under this Agreement, inspect any facilities and interview key personnel relating to or involved with PROVIDER’s obligations under this Agreement (subject to reasonable notice to avoid disruption of operational activities).  PROVIDER is responsible for organizing the certification of seed processed at its site, following applicable regulatory requirements.

1. Parent Material & Customer Protocols. Customer shall provide PROVIDER with type and quantity of seed (Parent Material) to be planted on behalf of Customer.  Customer shall provide to PROVIDER, in writing, requirements and information sufficient for PROVIDER to determine operations to be performed on the Customer Material to satisfy Customer’s requirements and objectives (a “Protocol”).  Unless otherwise provided and mutually agreed in writing, PROVIDER shall perform required operations in accordance with PROVIDER’s operational practice.
   
   
2. Forecasting of Work. In consultation with PROVIDER, Customer will provide PROVIDER with a 12-month rolling projection of the volume of work for each Customer Protocol anticipated for planting in each month.  Given that PROVIDER must incur or otherwise commit to incur certain expenses to support a forecasted level of service, Customer projections for the 3 months immediately prior to scheduled planting are firm and shall obligate Customer to pay PROVIDER for work scheduled, irrespective of whether the work is ultimately executed to completion, in accordance with the following:
   1. Work cancelled between 30 days and 60 days prior to planting. 10% of standard price
   2. Work cancelled between 7 days and 30 days prior to planting. 20% of standard price
   3. Work cancelled within 7 days prior to planting. 30% of standard price. 
   4. Work cancelled after planting but prior to pollination. 40% of standard price
   5. Work cancelled after pollination begins. 80% of standard price

3. Land. PROVIDER shall be responsible for providing land and facilities required to grow Parent Material provided by Customer, provided that PROVIDER has agreed to provide services to Customer for the Parent Material in question.
   
   
4. Planting. PROVIDER shall use its best efforts to plant the Customer Material consisting of seeds in a manner and at the times in accordance with industry standard practices, Customer Protocols and plan requirements.
   
   
5. Isolation. PROVIDER shall maintain the isolation distances as specified in writing by Customer in the applicable Customer Protocols, provided such Protocols were provided to and agreed in writing by PROVIDER in advance of planting, and further provided that Customer Protocols are compatible with applicable regulatory requirements as determined by PROVIDER. At Customer request, PROVIDER will provide detailed field maps, which shall include the Customer planted material, adjacent fields, and the type of crops planted on the adjacent fields.
6. Cultivation and Chemicals. PROVIDER shall cultivate, fertilize, and apply insecticides, fungicides, and herbicides before, during, and after planting in accordance with industry standard agronomic practices. All use of chemicals (including commercial fertilizers, insecticides, and/or herbicides) shall be in accordance with label instructions.
7. Irrigation. PROVIDER shall irrigate the Planted Material based upon industry standard agronomic practices.
   
   
8. Tissue Sample Collection. If required by Customer Protocol, PROVIDER shall take samples of seedling leaf tissue, lyophilize samples and ship to a lab designated by Customer.
   
   
9. Pollination. PROVIDER shall perform any necessary hand pollination and related activities as required by Customer Protocols, in accordance with industry standard practice. Upon request of Customer, PROVIDER shall delay planting of the male or female Parent Material or cut or flame the male plants grown from Parent Material.
   
   
10. Inspection and Notice. PROVIDER shall make frequent and continuing inspections of the planted Customer Material and provide Customer with status updates upon request or agreed schedule (up to once per week in writing). If weeds, insects or any other condition or circumstance (including, but not limited to hail or other weather-related damage, varietal impurities, or fertility issues) are found that could affect the yield and/or quality of the seed.
    
    
11. Harvesting, Drying, Processing. Unless otherwise specified in writing by Customer, PROVIDER shall use industry standard agronomic practices in harvesting and drying the seed crop. PROVIDER shall either ship dried ears to Customer’s designated United States mainland sites, shell before shipment, or plant back into the next cycle.
    
    
12. Supplies. PROVIDER will provide, at its expense, all consumable supplies including seed packets, row stakes, row bands, lyophilizing tubes and racks, pollinating bags, shoot bags, cabbage bags and small hand-carried cardboard boxes.
13. Packaging. Customer shall provide, at Customer’s expense, totes, large shipping boxes, or shipping containers required for off-site shipment. At Customer’s request, PROVIDER will source such materials.
    
    
14. Storage and Delivery. PROVIDER will provide storage for seed produced hereunder in dry, secure and sound storage facility to adequately protect the quality and purity of the seed until delivery of such Seed to Customer. Customer will, at its expense, have the seed loaded at PROVIDER's facility. Customer is responsible for shipping FOB PROVIDER facility.
    
    
15. Items Not in Scope. Any items not specifically included in the list of services provided are out of scope and will be provided at Customer’s expense.  Examples include, but are not limited to, genetic testing, quality testing, transportation of Customer Material to conditioning site, conditioning, treatment, bagging, warehousing, and shipment of Customer Material to end destination.

Standard Pricing

1. Hand-Pollinated Nursery Rows. For Customer Material planted in discrete rows, for which Customer Protocols require controlled hand pollination, the following pricing shall apply. Units provided are in 13-foot row equivalents.
   
   

EXHIBIT B

Materials, Management and Instructions Provided by Customer

• Material (seed) to be planted
• Shipping or other off-site transportation arrangements
• Any other instructions either within scope of provided service, or at additional pre-negotiated cost

Exhibit C

to  Services Agreement

MUTUAL CONFIDENTIALITY

1. Background. In the course of the parties’ business relationship it is anticipated that each party will disclose or deliver to the other party and to the other party’s directors, officers, employees, agents or advisors (collectively, “Representatives”) certain of its confidential or proprietary information for the purposes of furthering such business relationship (the “Purpose”).  As used herein, the party disclosing Proprietary Information (as defined below) is referred to as the “Disclosing Party”; the party receiving such Proprietary Information is referred to as the “Recipient”.
2. Proprietary Information. The term “Proprietary Information” shall mean any and all confidential or proprietary information disclosed by a Disclosing Party, including, without limitation, that pertaining to the Disclosing Party’s technologies, products, finances, operations, and/or business.  The Disclosing Party shall make reasonable efforts to identify Proprietary Information provided in tangible form by use of a proprietary stamp or legend.  Notwithstanding the foregoing, information which is orally or visually disclosed to the Recipient by the Disclosing Party, or is disclosed in writing without a proprietary legend, shall constitute Proprietary Information if it would be apparent to a reasonable person, familiar with the Disclosing Party’s business and the industry in which it operates, that such information is of a confidential or proprietary nature the maintenance of which is important to the Disclosing Party.  In addition, the term “Proprietary Information” shall be deemed to include: (a) any notes, analyses, compilations, studies, interpretations, memoranda or other documents prepared by the Recipient or its Representatives which contain, in whole or in part, any Proprietary Information furnished to the Recipient or its Representatives pursuant hereto; and (b) the existence or status of, and any information concerning, the discussions between the parties concerning the possible establishment of a business relationship.
3. Scope of Agreement. These terms and provisions shall apply to all Proprietary Information disclosed by the parties during the Term of the Agreement.
4. Use and Disclosure of Proprietary Information. The Recipient and its Representatives shall use the Proprietary Information of the Disclosing Party only for the Purpose and such Proprietary Information shall not be used for any other purpose without the prior written consent of the Disclosing Party.  The Recipient shall not cause or permit reverse engineering of any Proprietary Information or decompilation or disassembly of any software programs which are part of the Proprietary Information.  The Recipient shall adopt and maintain programs and procedures which are reasonably calculated to protect the confidentiality of Proprietary Information and will promptly report to the Disclosing Party any actual or suspected violation of the terms hereof and will take all reasonable further steps requested by the Disclosing Party to prevent, control or remedy any such violation.  The Recipient and its Representatives shall hold in confidence, and shall not disclose any Proprietary Information of the Disclosing Party; provided, however, that (i) the Recipient may make any disclosure of such information to which the Disclosing Party gives its prior written consent; and (ii) any of the Proprietary Information may be disclosed by the Recipient to its Representatives who need to know such information in connection with the Purpose, and in each case who are bound by contractual obligations of confidentiality to the Recipient.  The Recipient shall be responsible for any breach hereof by any of its Representatives. 
5. Limitation on Obligations. The obligations of the Recipient specified in Section 4 shall not apply, and the Recipient shall have no further obligations, with respect to any Proprietary Information to the extent that such Proprietary Information:

(a)        is generally known to the public at the time of disclosure or becomes generally known without the Recipient or its Representatives violating the Agreement;

(b)        is in the Recipient’s possession at the time of disclosure;

(c)        becomes known to the Recipient through disclosure by sources other than the Disclosing Party without such sources violating any confidentiality obligations to the Disclosing Party; or

(d)        is independently developed by the Recipient without reference to or reliance upon the Disclosing Party's Proprietary Information.

6. Required Disclosures. In the event that the Recipient is required by a court of law or by a governmental, regulatory or administrative agency, body or tribunal to disclose any of the Proprietary Information, the Recipient shall give the Disclosing Party prompt notice of any such requirement and shall cooperate with any legally available efforts by the Disclosing Party to seek judicial protection to prevent or limit such disclosure. 
7. Ownership of Proprietary Information. The Recipient agrees that it shall not receive any right, title or interest in, or any license or right to use, the Disclosing Party's Proprietary Information or any intellectual property rights therein, by implication or otherwise.
8. Return of Proprietary Information. The Recipient shall, upon the written request of the Disclosing Party, (a) return, and cause Representatives to return, to the Disclosing Party all Proprietary Information received from the Disclosing Party and (b) destroy, and cause Representatives to destroy, any Proprietary Information prepared by the Recipient or its Representatives, and Proprietary Information which is in electronic form or cannot otherwise be returned to the Disclosing Party. Notwithstanding the foregoing, the Recipient shall not be required to delete or destroy any electronic back-up files that have been created solely by the automatic or routine archiving and back-up procedures of the Recipient or its Representatives, to the extent created and retained in a manner consistent with its or their standard archiving and back-up procedures.  In addition, the Recipient’s counsel shall be entitled to retain one copy of the Disclosing Party’s Proprietary Information solely for archival purposes.