2. Material and Technology Data Transfer

2.1 CAMBIA shall employ best efforts to ensure that all Licensed Materials in relation to Licensed Patents are made accessible under the terms of this Agreement to BiOS LICENSEE. CAMBIA agrees to notify BiOS LICENSEE within thirty (30) days after new Licensed Material becomes available to CAMBIA. CAMBIA shall employ reasonable efforts to provide with such notification a detailed description of the Licensed Material, including but not limited to its properties and use. Only in case BiOS LICENSEE requests in writing provision of said new Licensed Material, CAMBIA shall provide BiOS LICENSEE said requested new Licensed Material within thirty (30) days or as soon as practicable after receiving from BiOS LICENSEE said written request and any import/export documentation and fees necessary. New Licensed Material provided by CAMBIA to BiOS LICENSEE shall be listed in Annex A or on CAMBIA's Protected Commons Website (BioForge), while Annex B or CAMBIA's Protected Commons Website (BioForge) is to be amended in case additional BiOS Licensed Material is provided.

2.2 Within thirty (30) days of informing CAMBIA of any Improvement, or within thirty (30) days of request by CAMBIA, BiOS LICENSEE will at BiOS LICENSEE’s cost provide reasonable quantities of Improvement Material to CAMBIA or its designee. “Reasonable” in this context means at least a sufficient quantity to enable CAMBIA to practice the Improvement, to propagate the material for providing other members of the BIOS initiative, and to establish a long-term backup. CAMBIA is entitled to provide other BiOS Licensees with the Improvement Material. No license additional to the license grant specified in the BiOS License Agreement is implied or conferred to BiOS Licensees for use of the Improvement Material.

2.3 BiOS LICENSEE will report to CAMBIA all Technology Data generated by or on behalf of BiOS LICENSEE, comprehensively in writing in the shortest possible time, at the latest within fourteen (14) days of submission of any in-house or other written report.

In case CAMBIA or any other BiOS Licensee receiving Technology Data generated by BiOS LICENSEE desires to discuss said Technology Data with BiOS LICENSEE, BiOS LICENSEE shall provide that experts shall be available upon reasonable notice and for a reasonable time for such discussion via telephone or other electronic means. The first contact for such discussion about Technology Data between different BiOS Licensees shall be made via CAMBIA. CAMBIA may decide in its sole discretion to participate in such discussions.

2.4 Likewise CAMBIA shall provide all Technology Data generated by or on behalf of CAMBIA and shall require that the other BiOS Licensees provide all Technology Data generated by or on behalf of said other BiOS Licensees, and shall require that in case BiOS LICENSEE desires to discuss said Technology Data provided by another BiOS Licensee with said other BiOS Licensee, experts from said other BiOS Licensee shall be available upon reasonable notice and for a reasonable time for such discussion via telephone or other electronic means,

2.5 CAMBIA shall require that Information disclosed by BiOS LICENSEE under this Article 3 which is marked “CONFIDENTIAL” or Material marked or identified in writing as “PROPRIETARY MATERIAL” shall be held by BiOS Licensees in confidence, and shall not be disclosed or released to any Non-BiOS Third Party without the prior written consent of BiOS LICENSEE, except where said Information or Material:

2.5.1 is disclosed in a printed publication available to the public, is described in an issued patent anywhere in the world, is otherwise in the public domain at the time of disclosure, or becomes publicly known through no breach of this Agreement by CAMBIA;
2.5.2 becomes known to any BiOS Licensee or Affiliate through disclosure by sources other than BiOS LICENSEE having the right to disclose such information;
2.5.3 is disclosed by any BiOS Licensee or Affiliate pursuant to the requirements of a governmental agency or any law requiring disclosure thereof, provided that BiOS LICENSEE is given prior written notice of any such disclosure and an opportunity to seek an order to prohibit such disclosure;
2.5.4 is approved for release or disclosure by written authorization of BiOS LICENSEE;
2.5.5 can be established by reasonable written or electronic evidence to have been in the possession of any BiOS Licensee or Affiliate prior to the time of disclosure by BiOS LICENSEE; or
2.5.6 is or was developed by or for any BiOS Licensee or Affiliate independently from any information obtained from BiOS LICENSEE as proven by reasonable written or electronic evidence.

2.6 All PARTIES hereunder shall neither use any material marked “PROPRIETARY MATERIAL“ provided by the other PARTY for the benefit of a Non-BiOS Third Party nor make it accessible to a Non-BiOS Third Party without prior written approval of the providing PARTY. The material will not be used in research that is subject to any consulting or licensing obligation to any Non-BiOS Third Party, nor in commercial or non-commercial work on behalf of any Non-BiOS Third Party, regardless of whether or not such an obligation presently exists or previously existed or may be entered into in the future, without the express prior written permission of the providing PARTY.

2.7 All PARTIES shall employ reasonable efforts to ensure that the use, preparation, storage, handling, transport and/or disposition of provided Material will be conducted in strict accordance with all international, federal, state and/or local laws, statutes, regulations, guidelines, policies, permits, authorizations, industry standards, and/or agreements. In cases where CAMBIA provides Improvement Material to other BiOS Licensees, CAMBIA shall require by appropriate written agreement that these other BiOS Licensees agree to compliance guidelines not less restrictive than agreed upon hereunder.

2.8 THE MATERIALS PROVIDED HEREUNDER ARE BEING SUPPLIED WITH NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO THE IDENTITY, PURITY, OR ACTIVITY OF A PARTICULAR SAMPLE, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES OF NON-INFRINGEMENT OF ANY THIRD PARTY PATENT.

Each PARTY hereunder will bear all risk to said PARTY and to others resulting from said PARTY’s own negligence or wrongful act or omission during or after the term of this Agreement, its own breach of this Agreement, or its own use, commercialization, or sublicensing of Materials or any product made through use of or incorporating any Materials.

Each PARTY hereunder will hold, for all claims, suits, losses, liabilities, damages, costs, fees, and expenses resulting from said PARTY’s said negligence or wrongful act or omission during or after the term of this Agreement, breach of this Agreement, or use, commercialization, or sublicensing of IP & Technology or Improvements or any product made thereby, the other PARTY harmless, and will also hold harmless any parties from which said other PARTY obtained the IP & Technology or Improvement or Technology Data. Neither the providing PARTY nor its employees or agents shall be liable to the receiving PARTY or its employees or agents for any loss resulting from the receiving PARTY’s receipt or use of the material.

2.9 The PARTIES hereunder acknowledge that title to any tangible Material provided under this Agreement is owned by the providing PARTY and said ownership is not transferred to the other PARTY (or any other BiOS Licensee) under this Agreement. The receiving PARTY will not sell, donate, abandon, or otherwise transfer the Materials to any third party, except as permitted under this Article 2. Notwithstanding the foregoing, while this Agreement and the associated License Agreement are in force, nothing herein shall restrict BiOS LICENSEE to commercialize, transfer, or otherwise exploit any BiOS LICENSEE Product made from or by using any such tangible material.

2.10 The Services provide BiOS LICENSEE with the right to send a representative to an annual meeting of all BiOS Licensees, and to obtain user permissions for employees of BiOS LICENSEE to access CAMBIA's Protected Commons website (BioForge).

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