Science Commons Material Transfer Agreement

Legal code for sc-ou agreement.

 
Science Commons Material Transfer Agreement
Open Use
Version 2.0 

1. Introduction

NOTICE: CREATIVE COMMONS CORPORATION IS NOT A LAW FIRM AND DOES NOT
PROVIDE LEGAL SERVICES. DISTRIBUTION OF THIS AGREEMENT DOES NOT CREATE
AN ATTORNEY-CLIENT RELATIONSHIP. CREATIVE COMMONS PROVIDES THIS
INFORMATION ON AN "AS-IS" BASIS. CREATIVE COMMONS MAKES NO WARRANTIES
REGARDING THE INFORMATION PROVIDED, AND DISCLAIMS LIABILITY FOR
DAMAGES RESULTING FROM ITS USE.

This Science Commons Material Transfer Agreement (the "Base MTA") and
the attached Supplemental Addendum (the "Supplemental Addendum" and,
together with the Base MTA, the "Agreement") is entered into between
the Provider and the Recipient (or the "Parties", as further
identified in the Supplemental Addendum), and governs the exchange and
use of the certain materials specified in this Agreement between the
Parties. 

This Agreement may be released in multiple versions.  Only the version
expressly referenced by the Parties shall apply, even if subsequent or
alternative versions are released by Science Commons.

2. Definitions

Capitalized terms used in this Agreement have the meaning defined
below. Plural and singular forms may be used interchangeably.

"Authorized Users" means i) an employee of the Recipient, and  ii) to
the extent expressly permitted by the Supplemental Addendum, a
contractor or agent performing services on behalf of the Recipient
that (A) has been notified of the Recipient's obligations under this
Agreement and (B) have binding obligations to the Recipient to use and
protect the Materials (including any Materials contained in any
Modifications) in accordance with this Agreement.

"Materials" means i) the tangible materials that are transferred
subject to this Agreement and ii) Unmodified Products. 

"Modification" means i) a material with novel properties resulting
from a change to the Materials, or ii) a combination of the Materials
with other materials.

"Original Materials Provider" means any entity or entities that
provided the Materials to the Provider, as identified in the
Supplemental Addendum.

"Provider" means the Party that provided the Materials.

"Recipient" means the Party that received the Materials.

"Unmodified Product" means: i) the progeny (if an organism, including
a virus) or subclone of the Materials, ii) a product expressed or
secreted by the Materials, or iii) a subunit, structure, or portion of
the Materials (including materials purified or extracted from the
Materials).

3. Authorized Uses and Use Limitations

The Recipient agrees to use the Materials only in accordance with the
following terms and conditions.  

a. Authorized Uses

The Provider authorizes the Recipient and the Authorized Users to i)
replicate the Materials and ii) use the Materials subject to the
limitations below. 

b. Use Limitations 

   i. The Recipient shall use, store and dispose of the Materials and
   any Modifications in compliance with all applicable laws, rules and
   regulations, including, but not limited to, all applicable export
   laws, rules, and regulations in connection with any use of the
   Materials and any Modifications.


   ii. The Recipient shall not permit anyone other than an Authorized
   User to be given access to the Materials (including any Materials
   contained in any Modifications). The Recipient agrees to promptly
   notify the Provider if it becomes aware of any loss or unauthorized
   use or transfer of the Materials (including any Materials contained
   in any Modifications).

c. Distribution 

The Recipient shall not distribute, transfer, or permit third parties
to access the Materials or any Modifications containing the Materials.
If a third party wishes to receive the Materials, the Recipient may
notify such third party that the Materials may be available from the
Provider.  

d. No Implied Licenses, Ownership of Tangible Materials and Patent Rights

Except for the rights expressly granted herein, the Recipient agrees
that no other rights or licenses, whether express or implied, are
granted to the Recipient under any patent, patent application,
copyright, trademark, or trade secret of the Provider or the Original
Materials Provider. As between the Parties, each retains all right,
title, and interest in works and inventions made by its personnel, and
nothing herein shall be construed to transfer ownership of any
invention, patent, patent application, copyright, or trade secret.
With respect to tangible materials, i) the Provider retains ownership
and title to the Materials (including any Materials contained in any
Modifications) and ii) the Recipient retains ownership and title to
the Modifications (except that the Provider retains ownership and
title to any Materials contained in any Modifications). The Recipient
is free to file patent application(s) claiming inventions made by, or
on behalf of, the Recipient through the use of the Materials, but
agrees not to file any patent application containing a composition of
matter claim on the original Materials or an Unmodified Product.

4. General Terms and Conditions

a. Term and Termination

   i. Unless otherwise specified in the Supplemental Addendum, the
   term of this Agreement shall commence on the date it is executed by
   both Parties and shall continue in effect until terminated in
   accordance with the terms hereof or by the mutual written agreement
   of the Parties.

   ii. This Agreement will automatically terminate (A) upon a material
   breach of any representation, warranty or covenant of this
   Agreement by the Recipient and such breach is not remedied within
   45 days of the receipt by the Recipient of notice of such breach
   from the Provider, or (B) if the Recipient becomes insolvent, files
   for bankruptcy, makes an assignment for the benefit of creditors,
   or fails to carry on business in the ordinary course. 

   iii. Upon any termination of this Agreement, the Recipient (A) will
   immediately discontinue its use of the Materials (including any
   Modifications that contain Materials) and (B) will, as directed by
   the Provider, return or dispose of the Materials (including any
   Modifications that contain Materials).

   iv. This Section 4 and each of Section 2, Section 3(b), Section
   3(c), Section 3(d) and the Supplemental Addendum shall survive any
   termination of this Agreement.

b. Acknowledgement of the Source of the Materials

The Recipient agrees to provide appropriate acknowledgement of the
source of the Material (i.e., the Provider and any Original Materials
Provider) in all publications resulting from any use of the
Materials. 

c. No Warranties

THE MATERIALS ARE PROVIDED "AS-IS" AND,TO THE MAXIMUM EXTENT PERMITTED
BY LAW, THE PROVIDER DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND
CONDITIONS, WHETHER IMPLIED, EXPRESS, OR STATUTORY, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE. THE PROVIDER MAKES NO WARRANTY THAT THE
MATERIALS DO NOT INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER
THIRD PARTY RIGHTS.

d. Assumption of Liability and Indemnification

Except to the extent prohibited by law (or, alternatively, to the
extent permitted by law), the Recipient assumes all liability for
damages to the extent due to or arising from the use, storage or
disposal of the Materials and any Modifications by the
Recipient. Neither the Provider nor the Original Materials Provider
will be liable to the Recipient for any loss, claim or demand made by
the Recipient, or made against the Recipient by any other party, to
the extent due to or arising from the use, storage or disposal of the
Material or any Modifications by the Recipient.

Except to the extent prohibited by law (or, alternatively, to the
extent permitted by law), the Recipient will defend and indemnify the
Provider and the Original Materials Provider (and their respective
directors, officers, employees, trustees, shareholders, members and
agents) against any loss, claim or demand (including attorneys' fees
and cost of defense and the enforcement of this provision) suffered by
the Provider and the Original Materials Provider, as the case may be,
to the extent due to or arising from i) a breach of this Agreement by
the Recipient or ii) the use, storage or disposal of the Material or
any Modifications by the Recipient.

e. Entire Agreement and Assignment

This Agreement shall constitute the entire agreement between the
Parties with respect to the subject matter herein, and supersedes all
prior or contemporaneous understandings, agreements, or
representations, whether written or oral. The Recipient may not assign
this Agreement without the prior written consent of the Provider.

f. Amendment and Waiver

This Agreement may only be amended by a written instrument executed by
each of the Parties.  No delay or failure by a Party to enforce any
provision of this Agreement shall be deemed to be a waiver of the
right to enforce this Agreement with respect to a separate or
continuing breach.  No waiver of any provision of this Agreement shall
be valid unless it is in writing and is executed by the Party against
whom such waiver is sought to be enforced. A waiver by either of the
Parties of any provision of this Agreement will not be construed to be
a waiver of any succeeding breach thereof or of any other provision of
this Agreement.

g. Notices

Any notice required or permitted to be given by this Agreement shall
be in writing and shall be delivered by personal delivery, US mail,
postage prepaid, return receipt requested, facsimile (provided the
sender has evidence of successful transmission) or next-day courier
service. Any notice so delivered shall be deemed to be given,
delivered and received, if delivered by personal delivery or if
delivered by US mail, on the day received as indicated by the postal
receipt and if delivered by facsimile or courier service, on the day
following dispatch. All such notices are to be given or made at the
address specified in the Supplemental Addendum (or to such other
address as may be designated by a notice given in accordance with the
provisions of this section).

h. Choice of Law

If a jurisdiction is specified in the Supplemental Addendum, then this
Agreement shall be governed by the domestic laws of such jurisdiction
without giving effect to any choice of law provision or rule, unless
the Recipient is prohibited by applicable law from so agreeing, in
which case this Agreement will be governed by such law as determined
by a court of competent jurisdiction.