Confidentiality and Material Transfer Agreement - Plant Breeding Bio-material

                          

Purpose

The Parties are interested in discussing a potential business relationship in the area of [please describe the subject of discussions] in which context the Partner is interested in testing certain Material (as defined in Annex I) of Company (the “Purpose”).

During these discussions, the Parties may provide each other with certain of their Confidential Information and Company will provide Partner with Material for use solely in furtherance of 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, reasonably should be understood to be of a confidential nature; and
3. this Agreement and the fact that the Parties are discussing or have discussed a possible business relationship.

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

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

“Affiliates” shall mean third parties controlling a Party, or which a Party controls, or which are under common control with a Party, 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 or other governing body.

Treatment of Confidential Information

2. Each Party agrees:
3. to receive, treat and keep the other Party’s Confidential Information in confidence;
4. to refrain from using the other Party’s Confidential Information other than for the Purpose;
5. to limit the disclosure of the other Party’s Confidential Information to employees or Affiliates who, having a need to know said Confidential Information for the Purpose, are obligated to maintain such information as confidential under written agreements with the Receiving Party that contains terms and restrictions similar to the terms and restrictions set forth in this Agreement;
6. to take all reasonably required steps to prevent unauthorized access to the Disclosing Party’s Confidential Information;
7. not to disclose such Disclosing Party’s 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 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, which such third party, to the Receiving Party’s best knowledge, was free to disclose to others without breach of any obligation of secrecy or violation of law; or
12. was independently developed by the Receiving Party without reference to, or use of, 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 (to the extent lawfully permitted) and its intent to make the disclosure in order to provide 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.
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 other purpose without the prior written consent of the Company;

(c)    must comply with any applicable laws and the Company’s instructions in relation to the importation, transportation, use, maintenance, storage, and 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 (or 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, in each case, 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, in each case, without the prior written consent of Company.

7. Intellectual Property Rights in Material and Results

(a)    The Company retains all ownership of the Material and all intellectual property rights in the Material and all derivatives and replications of the Material, including, but not limited to, any reverse-engineered derivatives and unmodified descendants therefrom and grants the Partner a limited, non-exclusive, non-transferable, non-sublicensable, revocable, non-commercial, royalty-free license to use, adapt, and exploit the Material for the Purpose solely to the extent required to conduct the Agreed Experiments during the term of this Agreement. Except to the extent expressly set forth in this clause 7(a), no other licenses shall be created under this Agreement by implication, estoppel or otherwise.

Option	Comment
(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 (the “Results”). The Results shall be considered Confidential Information of the Company and the Company shall be entitled to use the Results for all purposes. Partner shall not use for any purpose other than the Purpose or disclose the Results without the Company’s prior written consent, in each and every case. (c)     Any and all inventions, discoveries, know-how and data (including Results) that are related to the Material or their use, and any intellectual property rights therein, created, conceived or made by or on behalf of any Party or the Parties in the performance of the Agreed Experiments under this Agreement (collectively, “Inventions”) shall be owned by the Company. To the extent ownership of Inventions would otherwise vest in Partner by operation of law in a manner inconsistent with the foregoing, Partner agrees to assign, automatically upon conception assigns, and hereby assigns to the Company its entire right, title and interest in and to such Invention. Inventions are the Company’s Confidential Information. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be construed to restrict or limit the Company’s free use and disclosure of Inventions in its discretion.	Most favorable for Company.
(b)     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 (the “Results”). The Company shall be free to use the Confidential Information for all purposes. (c)   Any and all inventions, discoveries, know-how and data (including Results) that are related to the Material or their use, and any intellectual property rights therein, created, conceived or made by or on behalf of the Partner in the performance of the Agreed Experiments under this Agreement (collectively, “Inventions”) shall be jointly owned by the Partner and the Company and both Parties shall have an equal and undivided rights under such Inventions, included the right to sublicense.	More balanced, but divided IP could be an issue.
(b)     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 (the “Results”). The Company shall be free to use the Confidential Information for all purposes. (c)     Any and all inventions, discoveries, know-how and data (including Results) that are related to the Material or their use, and any intellectual property rights therein, created, conceived or made by or on behalf of the Partner in the performance of the Agreed Experiments under this Agreement (collectively, “Inventions”) shall be owned by the Partner. Partner hereby grants Company an irrevocable, cost-free, assignable, and sublicensable license to such Inventions.	That would be the minimum rights Company should ensure.

 

8. The Partner acknowledges and agrees that:

(a)      the Material is made available for investigational, non-commercial, research use only, in furtherance of the Purpose;

(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; in each case, without the prior written consent of the Company, which may be withheld in its discretion without penalty or liability to Partner;

(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 representation, warranty, or guaranty of any kind, including, but not limited to, any implied warranties of merchantability, fitness for any particular use or purpose, title, noninfringement, 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)      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 17) or upon the expiration of this Agreement, 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. The Company will not be liable to the Partner for any loss, claim, liability, damage (including, but not limited to, punitive, exemplary, incidental, consequential, special, lost profits, or indirect damages), or demand of any kind due to or arising from this Agreement or 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 the Company. In no event will the Company’s cumulative aggregate liability exceed the greater of amounts paid to Company hereunder, if any, and $100.

General Provisions

11. Upon written request of the Disclosing Party, the Receiving Party:
12. shall, as instructed by the Disclosing Party, 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
13. will destroy all work papers incorporating any Confidential Information.
14. The Parties shall not be liable for the completeness and accuracy of disclosed information.
15. 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.
16. 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.
17. 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.
18. The term of this Agreement shall commence on the Effective Date and unless terminated under clause 17, expire on the 12-month anniversary of the Effective Date unless extended by mutual written agreement of the Parties. Notwithstanding any termination or expiration of this Agreement, the obligations with respect to the Confidential Information hereunder 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.
19. Each Party may terminate this Agreement at any time with immediate effect by giving written notice to the other Party.
20. This Agreement is governed by the laws of ZZZZ (country of Company or neural country) without recourse to their conflict of laws principles. The exclusive place of jurisdiction shall be ZZZZ (country of Company or neural country).
21. Should any provision of this Agreement be or become invalid, its invalidity 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.]

Additional samples can be agreed to via email without formal written amendment to this Annex.

Agreed Experiments:

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

Additional experiments can be agreed to via email without formal written amendment to this Annex.