APPENDIX C to the NCE NETWORK AGREEMENT
PDF Version
Confidential Information and Material Transfer Agreement
BETWEEN:
<University Name>, a
corporation continued under the __________
Act of __________, and having offices at ______________,
Attention: Industry Liaison Office, Telephone: (____)
________________, Fax: (____) ____________
("________")
AND:
<COMPANY>, a corporation
having its head office at ______________________,
Attention: Name & Title, Telephone: (____)
_____________, Fax: (_____) _______________
("__________")
AND:
« Network », Attention:
Name, Telephone: (____) _____________, Fax:
(____) _______________
AND:
«Network Investigator», Attention: Telephone:
( ) _____________, Fax: (____) _____________
WHEREAS:
A. Each party (hereinafter referred to in its role as a provider of information
as the "Disclosing Party") to this Agreement has information
concerning a certain subject which is its confidential and proprietary
property; and
B. Each party (hereinafter referred to in its role as recipient of information
from the Disclosing Party as the "Receiving Party") to this
Agreement wishes the Disclosing Party to disclose its information to it
and the Disclosing Party is willing to disclose its information to the
Receiving Party provided that the Receiving Party maintains the confidentiality
of all such materials and information and uses same only for the purposes
as hereinafter provided.
NOW THEREFORE IN CONSIDERATION of the premises and
of the mutual covenants herein set forth, the parties hereto have covenanted
and agreed as follows:
1. Confidential Information and permitted exceptions
In this Agreement, "Information" shall mean any and all knowledge,
know how, information, and/or techniques disclosed by the Provider to
the Recipient relating to the Materials hereinafter defined or related
to the project entitled
" ________________________________________________________ ________________________________________________________”
including, without limiting the generality of the foregoing, all research,
data, specifications, plans, drawings, prototypes, models, documents,
recordings, instructions, manuals, papers or other materials of any nature
whatsoever, whether written or otherwise, relating to same, as well as
the existence of this Agreement and its terms and conditions. In order
to constitute "Information" for the purposes of this Agreement,
the Disclosing Party must clearly identify it in writing as being confidential,
or if the disclosure takes place orally or in some other non tangible
form, the Disclosing party must summarize it in writing within 15 days
of making the disclosure.
This Agreement does not apply to Information that:
- is made subject to an order by judicial or administrative process
requiring the Recipient to disclose any or all of the Information, provided
however that the Recipient shall promptly notify the Provider and allow
the Provider reasonable time to oppose such process before disclosing
any of the Information;
- is published or becomes available to the general public other than
through a breach of this Agreement;
- is obtained by the Recipient from a third party with a valid right
to disclose it, provided that said third party is not under a confidentiality
obligation to the Provider;
- is independently developed by employees, agents or consultants of
the Recipient who had no knowledge of or access to the Provider's Information
as evidenced by the Recipient's business records; or
- was possessed by the Recipient prior to receipt from the Provider,
other than through prior disclosure by the Provider, as evidenced by
the Recipient's business records.
2. Definition of Materials
In this Agreement, "Materials" shall mean any and all cell
lines, vectors, plasmids, clones, micro organisms, antibodies, antigens,
biologies, test plates, reagents, chemicals, compounds, physical samples,
models, and specimens delivered by the Provider to the Recipient, as well
as any and all progeny and derivatives thereof. Without limiting the generality
of the foregoing, Materials shall include the following:
- ______________________________________(description & quantity
& concentration)
- ______________________________________
3. Provider retains ownership of Information and Materials
This agreement and the resulting transfer of Information and Material
constitutes a bailment and grants the Recipient a license to use the Material
owned by Provider as provided herein. The parties hereby acknowledge and
agree that the Provider owns any and all rights, title and interest in
and to the Information and Materials.
4. Permitted use by Recipient of Information and Materials
The Recipient shall not, without the Provider's prior written consent,
use the Information or the Materials, directly or indirectly, for any
purpose other than for the following experiments:
- ____________________________________________________; and
- ___________________________________
Without limiting the generality of the foregoing, the Recipient shall
not commercially use, manufacture, or sell the Information or the Materials
or any device or means incorporating any of the Information or the Materials,
and shall not use any of the Information or the Materials as the basis
for the design or creation of any device or means.
5. Restrictions on use of Information and Materials
Notwithstanding anything else in this Agreement, the Recipient shall
not apply, directly or indirectly, any of the Information or the Materials
to any human use without appropriate Institutional Approvals.
Without limiting the generality of the foregoing, the Recipient shall
not utilise any of the Information or the Materials for any human research,
treatment, or diagnosis, but the Recipient may conduct pre clinical evaluation
of the Information and the Materials.
6. Disclosure requires prior written consent
The Recipient shall keep and use all of the Information and the Materials
in strictest confidence and shall not, without the Provider's prior written
consent, disclose any part of the Information or provide any part of the
Materials to any person, firm, corporation, or other entity regardless
of any affiliation or relationship with the Recipient.
7. Any disclosure to be under equivalent or greater obligation of confidentiality
The Recipient agrees that it has and shall maintain an appropriate internal
program limiting the Internal distribution of the Information and the
Materials to those of its officers, servants, or agents who require said
Information and Materials so that the Recipient may use them for the purpose
set forth in Article 4. Notwithstanding Article 6, the
Recipient may disclose the Information but may not provide the Materials
to third party consultants but such disclosure of Information shall only
be permitted to the extent that said third party consultants require access
to the Information in order to enable the Recipient to carry out the purpose
set forth in Article 4. The Recipient covenants and agrees that
before making any Materials or Information available to said officers,
servants, agents, or third party consultants, it shall ensure they are
under written obligations of confidentiality which are equivalent to or
greater than those set forth in this Agreement.
8. No license or other agreement created by this Agreement
The Recipient acknowledges and agrees that any and all disclosures of
Information and provisions of Materials pursuant to this Agreement are
on a non exclusive basis and that the Provider is free to make similar
or other disclosures to third parties. Nothing in this Agreement shall
create, or be construed to create; a license to the Recipient except as
set forth in Article 4 or any obligation on either party to enter
into a license or other agreement with respect to the Information or the
Materials. Furthermore, nothing contained herein shall be deemed or construed
to create between the parties an agency relationship, partnership or joint
venture. Neither party shall be liable for any act, omission, representation,
obligation or debt of the other party, even if informed of such act, omission,
representation, obligation or debt.
9. No warranty given by Disclosing Party
The Disclosing Party makes no representations or warranties, either express
or implied, with respect to the merchantability or fitness for a particular
purpose of its Information. The Disclosing Party shall in no event be
liable for any loss of profits, be they direct, consequential, incidental,
or special or other similar or like damages arising from any defect, error
or failure to perform with respect to its Information, even if the Disclosing
Party has been advised of the possibility of such damages.
10. Recipient holds harmless and will defend Provider against claims
from its use
The Recipient hereby indemnifies, holds harmless and defends the Provider,
its Board of Governors, directors, officers, employees, faculty, students,
and agents against any and all claims (including all legal fees and disbursements
incurred in association therewith) arising from or out of the receipt
or use of the Information or the Materials by the Recipient including,
without limiting the generality of the foregoing, any damages or losses,
consequential or otherwise, arising from or out of the receipt or use
of the Information or the Materials by the Recipient, howsoever the same
may arise. The Recipient shall procure and maintain public liability insurance
in reasonable amounts with a reputable and secure insurance carrier. In
the event that the Recipient is prohibited by law from granting the indemnity
contemplated herein, in addition to the public liability insurance contemplated
hereunder, the Recipient shall also carry insurance in an amount of no
less than $1,000,000 which shall provide coverage to the Provider, its
Board of Governors, directors, officers, employees, faculty, students,
and agents against any and all claims (including all legal fees and disbursements
incurred in association therewith) arising from or out of the receipt
or use of the Information or the Materials by the Recipient including,
without limiting the generality of the foregoing, any damages or losses,
consequential or otherwise, arising from or out of the receipt or use
of the Information or the Materials by the Recipient, howsoever the same
may arise.
11. No assignment of rights
The Recipient shall not assign, transfer, mortgage, charge or otherwise
dispose of any or all of the rights, duties or obligations granted to
it under this Agreement without the prior written consent of the Provider.
12. Term of this Agreement
This Agreement shall take effect on the earlier date of or the date first
written above or the date that Information or Materials is transferred
under this Agreement regardless of the date of execution, and shall remain
in full force and effect for a period of three (3) years after this Agreement
comes into force unless earlier terminated by any party with 60 days written
notice, or unless earlier terminated by mutual written agreement executed
by all parties. Notwithstanding any early termination of this Agreement,
the obligations created in this Agreement shall survive and continue to
be binding upon the Recipient, its successors and assigns for _______________
(__) years from the date first above written. Forthwith upon the
termination of this Agreement, the Recipient shall cease to use the Information
or the Materials in any manner whatsoever and, upon written request by
the Provider, the Recipient shall deliver up to the Provider all of the
Information and Materials in its possession or control, together with
a certificate certifying that no copies or progeny or derivatives, as
the case may be, have been made or retained or that one copy of the Information
and one set of the Materials have been retained for the sole purpose of
ensuring compliance with the ongoing obligations created in this Agreement.
13. Applicable law
This Agreement shall be governed by and construed in accordance with
the laws of the « Province of the Participating
Institution » and the laws of Canada in force therein without
regard to its conflict of law rules.
14. Arbitration in case of disagreement
In the event of any dispute arising between the parties concerning this
Agreement, its enforceability or the interpretation thereof, the same
shall be finally resolved by the provisions of Article 9 of the « network »
Network Agreement.
15. Notices
All notices or other documents that either of the parties hereto are
required or may desire to deliver to the other party hereto may be delivered
only by personal delivery, by courier, by telecopy, or by registered or
certified mail, all postage and other charges prepaid, at the address
for such party set forth above or at such other address as that party
may hereinafter designate in writing to the other.
16. This Agreement comprises entire understanding between parties
This Agreement sets forth the entire understanding between the parties
and no modifications hereof shall be binding unless executed in writing
by the parties hereto.
IN WITNESS WHEREOF the parties hereto have hereunto executed this Agreement
on the dates set forth below but effective as of the date first above
written.
Signed for and on behalf of « UNIVERSITY »
by its duly authorized officer:
Signed: __________________________
Name: __________________________
Title: __________________________
Date: __________________________
Signed for and on behalf of « COMPANY »
by its duly authorized officer:
Signed: __________________________
Name: __________________________
Title: __________________________
Date: __________________________
Signed for and on behalf of « NETWORK »
by its duly authorized officer:
Signed: __________________________
Name: __________________________
Title: __________________________
Date: __________________________
Read & Approved by « Network Investigator
», « University
»
Signed: __________________________
Name: __________________________
Title: __________________________
Date: __________________________
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