The following is a DRAFT for comment and discussion only. No license, warranty or liability is created or implied with any use of this draft or any portion of it.
THIS LICENSE AGREEMENT is effective as and from _________, 200X (the " Effective Date")
BETWEEN:
BiOS LICENSEE
- and -
BiOS LICENSOR
(Hereinafter together the "PARTIES", or individually the "PARTY")
The following is a DRAFT for comment and discussion only. No license, warranty or liability is created or implied with any use of this draft or any portion of it.
THIS LICENSE AGREEMENT is effective as and from _________, 200X (the " Effective Date")
BETWEEN:
BiOS LICENSEE
- and -
BiOS LICENSOR
(Hereinafter together the "PARTIES", or individually the "PARTY")
Whereas, CAMBIA’s “Biological Innovation for Open Society” (BIOS) Initiative is intended to extend the metaphor and concepts of Open Source to biotechnology and other forms of innovation in biology; and
Whereas, it is the intent of the PARTIES that this Agreement promote and conform to CAMBIA’s BIOS Initiative; and
Whereas, it is the goal of the BIOS Initiative to ensure common access to the tools of innovation, to promote the development and improvement of these tools, and to make such developments and improvements freely accessible to both academic and commercial parties under substantially similar conditions; and
Whereas, CAMBIA owns or is the licensee of certain Genetic Resources Indexing Technologies and associated patents, patent applications, knowhow, data, materials, and business, technical, economical and manufacturing information (the “IP & Technology”); and
Whereas, BiOS LICENSEE desires and CAMBIA is willing to grant to BiOS LICENSEE the right to use IP & Technology; and
Whereas, the PARTIES contemplate that BiOS Licensees of the BIOS Initiative, through evaluation and use of the IP & Technology, may develop improvements, knowledge, data, and/or materials relevant to the general utility of the IP & Technology (“Improvements” and “Technology Data”) which should be made available to all BiOS Licensees; and
Whereas, the PARTIES agree that it is not the intent of this Agreement to restrict any BiOS Licensee from commercializing a product or service, but to preserve the rights of all BiOS Licensees to use said IP & Technology and improvements, knowledge, data, and/or materials relevant to the general utility of the IP & Technology;
therefore, the PARTIES agree as follows:
1.1 In this Agreement the singular includes the plural and vice versa and any gender includes any other gender and the neuter.
1.3 “BiOS Licensee” means any party subscribing to a BiOS License Agreement other than BiOS LICENSEE and its Affiliates.
unless
In addition, BiOS LICENSEE may designate at its sole discretion any other proprietary technology of BiOS LICENSEE, which BiOS LICENSEE contemplates to be suitable in the field of plant molecular biology and is willing to share with other BiOS Licensees under the conditions of this Agreement, to become an Improvement.
1.6 "Improvement Patent” means any patent or plant variety protection application claiming an Improvement including - without limitation - all foreign counterpart thereof, all patent applications that claims priority thereof, all divisionals, continuations (in whole or part) thereof, all patent rights that grants on any of the preceding, and all reexamination or reissue patents of any of the preceding. Improvement Patents shall be listed in Annex C, or on CAMBIA’s Protected Commons website (BioForge), which list may be expanded in the case additional Improvement Patents are to be licensed, such expansion requiring written approval by CAMBIA.
1.8 “Licensed Material” includes “CAMBIA Material” and “BiOS Licensed Material” transferred from CAMBIA to BiOS LICENSEE under the associated BiOS Technology Support Services Subscription Agreement.
“CAMBIA Material” means material, including without limitation biological material, necessary to practice the invention described in CAMBIA Patents.
“BiOS Licensed Material” means material, including without limitation biological material, made available to CAMBIA under a BiOS License Agreement with the right to provide to BiOS LICENSEE, including, without limitation, all material necessary to practice BiOS Licensed Patents.
1.9 “Licensed Patents” include “CAMBIA Patents” and “BiOS Licensed Patents”.
“CAMBIA Patent” means patents and patent applications and plant variety rights listed in Annex A or on CAMBIA’s Protected Commons website (BioForge), including - without limitation - all foreign counterparts thereof, all patent applications that claims priority thereof, all divisionals, continuations (in whole or part) thereof, all patent rights that grants on any of the preceding, and all reexamination or reissue patents of any of the preceding.
“BiOS Licensed Patents” means patents and patent applications and plant variety rights made available to CAMBIA under a BiOS License Agreement with the right to sublicense to BiOS LICENSEE, including any patents and patent applications listed in Annex B, or on CAMBIA’s Protected Commons website (BioForge), including - without limitation - all foreign counterparts thereof, all patent applications that claims priority thereof, all divisionals, continuations (in whole or part) thereof, all patent rights that grants on any of the preceding, and all reexamination or reissue patents of any of the preceding.
Annex A and Annex B and the listings on CAMBIA’s Protected Commons website (BioForge) may be expanded in the case additional IP rights become accessible to CAMBIA and are listed in the relevant BiOS Licensed Patent Inventory, such expansion requiring written approval by BiOS LICENSEE.
"Licensed Service" means any service performed directly by BiOS LICENSEE that
1.11 "Improvement Material" means material, including without limitation biological material, made available to CAMBIA under a BiOS License Agreement with the right to provide to BiOS Licensees, including without limitation, all material necessary to practice Improvement Patents.
Technology Data shall include copies of the respective parts of all applications by BiOS LICENSEE for regulatory approval, from which BiOS LICENSEE is entitled to redact information which is not relevant for the general use of the IP & Technology or Improvement and refers only to a BiOS LICENSEE Product or Service.
Notwithstanding the foregoing, BiOS LICENSEE may designate at its sole discretion any proprietary data of BiOS LICENSEE, which BiOS LICENSEE is willing to share with other BiOS Licensees of the BiOS Initiative under the conditions hereunder, to become “Technology Data”.
2.1 CAMBIA hereby grants to BiOS LICENSEE under Licensed Patents a worldwide, non-exclusive, royalty-free right and license to make and use the IP & Technology for the purpose of developing, making, using, and commercializing BiOS Licensed Products and Services without obligation to CAMBIA. The license is not sublicensable.
2.2 BiOS LICENSEE acknowledges that CAMBIA is free to license the IP & Technology and to provide any Improvement Material received under the associated BiOS Technology Support Services Subscription Agreement to other BiOS Licensees under the terms of a BiOS License Agreement.
If BiOS LICENSEE grants or has granted any express or implied sublicenses to any third party notwithstanding Article 2.1, BiOS LICENSEE shall exert best efforts to prohibit the assertion of any IP rights under the IP & Technology, Improvements and Technology Data against CAMBIA or any BiOS Licensee by any such third party, said prohibition to survive the termination of any express or implied sublicense for any reason. Such assertion by a third party having received an express or implied sublicense from BiOS LICENSEE is grounds for revocation of this BiOS license grant under Article 6.2.
2.3 BiOS LICENSEE is entitled to freely cooperate with any other BiOS Licensees. CAMBIA shall provide BiOS LICENSEE regularly an updated list of BiOS Licensees or shall alternatively publish such list on its publicly accessible internet webpage. CAMBIA is entitled to use BiOS LICENSEE’s name for this purpose. Subject to Article 7.9, while this Agreement is in force, both CAMBIA and BiOS LICENSEE may acknowledge the existence of this Agreement in communications with or other disclosures to third parties.
2.4 Except for the limited rights granted in this Agreement, no right or license, either expressed or implied, under any intellectual property right including but not limited to patents, trade secret or know-how is granted hereunder by one PARTY to the other.
3.1 In partial consideration for the rights granted to BiOS
LICENSEE, BiOS LICENSEE grants to CAMBIA, a worldwide, non-exclusive,
royalty-free, fully-paid license, with the right to sublicense to other BiOS
Licensees, under the Improvement
Patents, for use which is within the scope of the
Licensed Patents, and a worldwide,
non-exclusive, royalty-free, fully-paid license, with the right to sublicense to
other BiOS Licensees, to any Improvements
not protected under the Improvement
Patents, any Technology Data and any
Improvement Material provided by
BiOS LICENSEE to CAMBIA and necessary to practice
Improvements.
Any other BiOS Licensee to which CAMBIA has granted sublicenses under this
section, shall have a right for further sublicenses within the scope of the
license granted herein limited to
3.1.1 grant sublicenses to third parties (including Affiliates of said BiOS Licensee) to conduct research and/or development activities (including field trials) for said BiOS Licensee, provided that the product and/or other results (including all intellectual property rights) resulting from said sublicense are owned exclusively by said BiOS Licensee, said sublicenses to terminate when such activities cease or such ownership terminates, and
3.1.2 grant sublicenses to third parties (including
Affiliates of said BiOS Licensee) for the sole
purpose of commercializing said BiOS
Licensed Products that embody the
IP & Technology or are generated
by use of the IP & Technology,
said sublicenses to terminate when said commercialization ceases.
Other than stipulated under this article 3.1, no further right to sublicense is
granted hereunder.
BiOS LICENSEE may not assert against CAMBIA or any other BiOS Licensee any
Improvement Patent for any use within
the limited license granted hereunder. Such assertion is grounds for revocation
of this license under Article 6.2.
3.2 BiOS LICENSEE will report to CAMBIA any Improvement, including a copy of any filed Improvement Patent or submitted publication or Technology Data, and (if applicable) additional information including but not limited to a full description of any compositions, methods, materials, protocols, or data (including statistical significance and repeatability if available) in sufficient detail to readily practice such Improvement, and will provide to CAMBIA any Improvement Material necessary to practice such Improvement, in sufficient quantities that CAMBIA is able to use the Improvement Material, create a backup for storage, and propagate it for provision to other BiOS Licensees.
3.3 By March 31 of each year, BiOS LICENSEE will provide CAMBIA with an annual report including a list of any Improvement Patents that were published or issued during the preceding twelve months, including all serial numbers and filing dates, together with copies of all such applications and issued patents.
3.4 In the event that BiOS LICENSEE has pre-existing obligations to third parties, which obligations would conflict with BiOS LICENSEE's obligations as defined in this Agreement, BiOS LICENSEE shall not make any use of the IP & Technology that would invoke such conflicting obligations, unless a waiver of said conflicting obligations is obtained by BiOS LICENSEE from said third party. BiOS LICENSEE will report to CAMBIA any encumbrance or obligation to any third party associated with any Improvement. BiOS LICENSEE may not enter into any new third party arrangement (such as a Materials Transfer Agreement or Sponsored Research Agreement) where the terms of such arrangement would conflict with BiOS LICENSEE's obligations under this Agreement. BiOS LICENSEE's obligations under this Agreement will in no way be waived, modified, negated, or otherwise diminished due to BiOS LICENSEE's contractual obligations to third parties. In the event that BiOS LICENSEE enters into an agreement the terms of which would conflict with BiOS LICENSEE's obligations under this Agreement, the terms of this Agreement will prevail.
All transfer of Licensed Material and Improvement Material in relation to the IP & Technology or any Improvement hereunder is regulated by the associated BiOS Technology Support Services Subscription Agreement.
5.1 The PARTIES acknowledge that the IP & Technology and Improvements are experimental in nature and may have hazardous properties. The PARTIES make no representations and extend no warranties of any kind, either expressed or implied. There are no expressed or implied warranties of merchantability or fitness for a particular purpose. The PARTIES do not warrant that the IP & Technology or Improvements do not infringe any patent, copyright, trademark, or other proprietary right.
5.2 Each PARTY to this Agreement will bear all risk to itself and to others resulting from its own gross 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 IP & Technology or Improvements or Technology Data or any product made thereby.
Each PARTY hereunder will hold, for all claims, suits, losses, liabilities, damages, costs, fees, and expenses resulting from its gross 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.
5.3 CAMBIA shall ensure by appropriate written agreement with other BiOS Licensees receiving any Improvement and/or related material, that said BiOS Licensee agrees to the same risk-bearing and hold-harmless obligations for said BiOS Licensees’ use of said Improvement and related material with regard to BiOS LICENSEE as accepted by CAMBIA under Article 5.1 and 5.2 above.
6.1 BiOS LICENSEE may terminate this Agreement at any time by providing written notice of termination ("Notice of Termination") to CAMBIA.
Within sixty (60) days of such termination, BiOS LICENSEE will submit a report describing and providing any previously unreported Improvements, Improvement Patents, Improvement Material and Technology Data made prior to the date of termination.
Within sixty (60) days of termination BiOS LICENSEE will destroy all Licensed Materials and Confidential Information except for Licensed Materials that have been incorporated into BiOS Licensed Products on hand that were made prior to termination. BiOS LICENSEE will provide CAMBIA with written notice that such Licensed Materials and Confidential Information have been destroyed.
CAMBIA has the right to inform other BiOS Licensees of said termination and of the contents of said written notices.
6.2 If any PARTY hereunder (the “Violating Party”) should violate or fail to perform any term or obligation of this Agreement, or an associated Agreement under Article 4, then the other PARTY may give written notice of such default ("Notice of Default") to said Violating Party. If said Violating Party should fail to repair such default within sixty (60) days
said other PARTY will have the right to immediately terminate the BiOS License Agreement, by providing a written notice of termination ("Notice of Termination") to the Violating Party. Upon such termination, the Violating Party will destroy all Licensed Material received from the other PARTY and all material which was made by using such Licensed Material or which incorporates such Licensed Material. The Violating Party will ensure that any third parties to whom said Violating Party granted an express or implied sublicense under Article 2.2 will take the same action. The Violating Party will provide the other PARTY with written notice that such Licensed Materials have been destroyed.
Failure of any BiOS Licensee to comply with its obligations (including but not limited to share certain IP & Technology) shall not be construed as a violation by CAMBIA or failure to perform of CAMBIA.
CAMBIA shall immediately terminate the BiOS License and all associated agreements granted of a BiOS Licensee, for whom a final arbitration under Article 7.6 found a violation of said BiOS Licensees obligations which BiOS Licensee refused to repair within sixty (60) days following said arbitration decision.
6.3 Upon termination of this agreement all rights and obligations of BiOS LICENSEE and CAMBIA shall cease except
7.1 No PARTY hereunder is under any obligation to prosecute, maintain, or enforce Licensed Patents or Improvement Patents or any other intellectual property right against any third party.
However, should CAMBIA or BiOS LICENSEE determine or suspect that any third party not party to a BiOS License Agreement is infringing any Licensed Patent or misappropriating Licensed Material, and should BiOS LICENSEE desire that CAMBIA should assert its rights under any Licensed Patent or any other intellectual property right, and should CAMBIA at its sole discretion decide to assert said rights, BiOS LICENSEE agrees to reimburse CAMBIA its entire expenses in enforcing said rights.
7.2 CAMBIA shall exert reasonable efforts to ensure that all BiOS Licensees under the BiOS License for Genetic Resources Indexing Technologies are entitled and bound to substantially the same rights and obligations as agreed hereunder.
7.3 This Agreement may not be modified, changed, or discharged, in whole or in part, except by an agreement in writing signed by both PARTIES. No waiver of any term or condition of this Agreement shall be deemed to be or shall constitute a waiver with respect to any other terms or conditions of this Agreement, whether or not similar. Each such waiver shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver.
7.4 This Agreement will be binding upon and inure to the benefit of the PARTIES hereto and their respective successors and assignees.
BiOS LICENSEE, without the prior approval of CAMBIA, may assign all, but no less than all, its rights and delegate all, but no less than all, its duties under this Agreement, including all rights and obligations under any corresponding BiOS Technology Support Services Subscription Agreement or Materials Transfer Agreement, and all rights to Improvements including without limitation any Improvement Patent to a third party, if BiOS LICENSEE delivers to CAMBIA written notice of the assignment within thirty (30) days of said assignment's execution.
Other than regulated under this section this Agreement may not be assigned or transferred to a third party in whole or in part, without the prior written consent of CAMBIA, which consent may not be unreasonably or arbitrarily withheld.
Assignments under this Article 7.4 will not be effective unless and until BiOS LICENSEE's assignee and CAMBIA execute an instrument of legal assignment.
7.5 CAMBIA may publish revised and/or new versions of the BiOS License for Genetic Resources Indexing Technologies from time to time. Such new versions will be similar in spirit to the present version, but may differ in detail to address new or newly identified issues. Each version will be given a distinguishing version number. Upon written request to CAMBIA, BiOS LICENSEE may opt to be bound by the terms and conditions of a later version published by CAMBIA. CAMBIA may also publish versions of the BiOS License for Genetic Resources Indexing Technologies in other languages. Where there is any conflict between the present version and such translations or any controversy between the PARTIES respecting the interpretation or application of the terms of this Agreement, the latest English language version of the Agreement shall be controlling.
7.6 The PARTIES agree to attempt to mediate any dispute relating to this Agreement or the negotiation hereof or entry hereunto or any contract or agreement entered in pursuant hereto or the fulfillment and performance by the PARTIES of their respective duties and obligations under this Agreement, including any dispute under Article 6.2, and further agree that any dispute that cannot be resolved by mediation shall be settled by binding arbitration, with construction under Australian law, in accordance with the UNCITRAL Arbitration Rules in force at the time of the dispute.
7.7 All notices, requests, consents and other communications hereunder shall be in writing and shall be addressed to the receiving PARTY's address set forth above or to such other address as a PARTY may designate by notice hereunder, and shall be either sent by an internationally recognized private courier service providing confirmations of receipt, or sent by registered or certified mail.
7.8 Should any part of this Agreement be declared invalid or unenforceable by any Court of competent jurisdiction for any reason, such declaration of judgment shall not affect the validity of the rest of the Agreement and any associated Agreements, which shall remain in full force and effect to the fullest extent provided by law.
7.9 “CAMBIA”, “BiOS License” and “The BIOS Initiative” are trademarks owned by CAMBIA. CAMBIA may from time to time require that these trademarks are used in association with the IP & Technology. CAMBIA has permission to use the trademarks "Diversity Arrays" and DArT without limitation. Except for these trademarks, neither PARTY may use any trademarks of the other without express written permission.
7.10 The relationship of the PARTIES hereto is that of independent contractors. The PARTIES hereto are not deemed to be agents, partners or joint venturers of the other PARTY or of other BiOS Licensees for any purpose as a result of this Agreement or the transactions contemplated thereby.
7.11 This License replaces any earlier license for the use of the IP & Technology.
IN WITNESS WHEREOF the PARTIES have duly executed this Agreement this _____________ day of __________________
_________________________________ Name of BiOS LICENSEE's Representative
_________________________________ Title of BiOS LICENSEE's Representative
_________________________________ Name of BiOS LICENSOR's Representative
_________________________________ Title of BiOS LICENSOR's Representative
|
Technology |
Patent Number(s) |
Priority Date |
Assignee/Owner |
|---|---|---|---|
|
Diversity Arrays Technology |
US Patent 6,173,258 and corresponding PCT applications, conversions, divisionals, continuations and continuations-in-part, corresponding nationals applications in Australia, Canada, the USA and the EPO, and corresponding issued patents. |
21 November 2000 |
CAMBIA |
|
. |
|||
|
. |
This Annex A may be expanded; applicable changes will be executed with dated signatures below.
________________________________ Name of BiOS LICENSEE's Representative
________________________________ Title of BiOS LICENSEE's Representative
________________________________ Date
________________________________ Name of BiOS LICENSOR's Representative
________________________________ Title of BiOS LICENSOR's Representative
________________________________ Date
|
Technology |
Patent Number(s) |
Priority Date |
Assignee/Owner |
|---|---|---|---|
|
. |
|||
|
. |
|||
|
. |
This Annex B may be expanded; applicable changes will be executed with dated signatures below.
________________________________ Name of BiOS LICENSEE's Representative
________________________________ Title of BiOS LICENSEE's Representative
________________________________ Date
________________________________ Name of BiOS LICENSOR's Representative
________________________________ Title of BiOS LICENSOR's Representative
________________________________ Date
|
Technology |
Patent Number(s) |
Priority Date |
Assignee/Owner |
|---|---|---|---|
|
. |
|||
|
. |
|||
|
. |
This Annex C may be expanded; applicable changes will be executed with dated signatures below.
________________________________ Name of BiOS LICENSEE's Representative
________________________________ Title of BiOS LICENSEE's Representative
________________________________ Date
________________________________ Name of BiOS LICENSOR's Representative
________________________________ Title of BiOS LICENSOR's Representative
________________________________ Date
The following is a DRAFT for comment and discussion only. No license, warranty or liability is created or implied with any use of this draft or any portion of it.
THIS LICENSE AGREEMENT is effective as and from _________, 200X (the " Effective Date")
BETWEEN:
BiOS LICENSEE
- and -
BiOS LICENSOR
(Hereinafter together the "PARTIES", or individually the "PARTY")
Whereas, CAMBIA’s “Biological Innovation for Open Society” (BIOS) Initiative is intended to extend the metaphor and concepts of Open Source to biotechnology and other forms of innovation in biology; and
Whereas, it is the intent of the PARTIES that this Agreement promote and conform to CAMBIA’s BIOS Initiative; and
Whereas, it is the goal of the BIOS Initiative to ensure common access to the tools of innovation, to promote the development and improvement of these tools, and to make such developments and improvements freely accessible to both academic and commercial parties under substantially similar conditions; and
Whereas, CAMBIA owns or is the licensee of certain Genetic Resources Indexing Technologies and associated patents, patent applications, knowhow, data, materials, and business, technical, economical and manufacturing information (the “IP & Technology”); and
Whereas, BiOS LICENSEE desires and CAMBIA is willing to grant to BiOS LICENSEE the right to use IP & Technology; and
Whereas, the PARTIES contemplate that BiOS Licensees of the BIOS Initiative, through evaluation and use of the IP & Technology, may develop improvements, knowledge, data, and/or materials relevant to the general utility of the IP & Technology (“Improvements” and “Technology Data”) which should be made available to all BiOS Licensees; and
Whereas, the PARTIES agree that it is not the intent of this Agreement to restrict any BiOS Licensee from commercializing a product or service, but to preserve the rights of all BiOS Licensees to use said IP & Technology and improvements, knowledge, data, and/or materials relevant to the general utility of the IP & Technology;
therefore, the PARTIES agree as follows:
1.1 In this Agreement the singular includes the plural and vice versa and any gender includes any other gender and the neuter.
1.3 “BiOS Licensee” means any party subscribing to a BiOS License Agreement other than BiOS LICENSEE and its Affiliates.
unless
In addition, BiOS LICENSEE may designate at its sole discretion any other proprietary technology of BiOS LICENSEE, which BiOS LICENSEE contemplates to be suitable in the field of plant molecular biology and is willing to share with other BiOS Licensees under the conditions of this Agreement, to become an Improvement.
1.6 "Improvement Patent” means any patent or plant variety protection application claiming an Improvement including - without limitation - all foreign counterpart thereof, all patent applications that claims priority thereof, all divisionals, continuations (in whole or part) thereof, all patent rights that grants on any of the preceding, and all reexamination or reissue patents of any of the preceding. Improvement Patents shall be listed in Annex C, or on CAMBIA’s Protected Commons website (BioForge), which list may be expanded in the case additional Improvement Patents are to be licensed, such expansion requiring written approval by CAMBIA.
1.8 “Licensed Material” includes “CAMBIA Material” and “BiOS Licensed Material” transferred from CAMBIA to BiOS LICENSEE under the associated BiOS Technology Support Services Subscription Agreement.
“CAMBIA Material” means material, including without limitation biological material, necessary to practice the invention described in CAMBIA Patents.
“BiOS Licensed Material” means material, including without limitation biological material, made available to CAMBIA under a BiOS License Agreement with the right to provide to BiOS LICENSEE, including, without limitation, all material necessary to practice BiOS Licensed Patents.
1.9 “Licensed Patents” include “CAMBIA Patents” and “BiOS Licensed Patents”.
“CAMBIA Patent” means patents and patent applications and plant variety rights listed in Annex A or on CAMBIA’s Protected Commons website (BioForge), including - without limitation - all foreign counterparts thereof, all patent applications that claims priority thereof, all divisionals, continuations (in whole or part) thereof, all patent rights that grants on any of the preceding, and all reexamination or reissue patents of any of the preceding.
“BiOS Licensed Patents” means patents and patent applications and plant variety rights made available to CAMBIA under a BiOS License Agreement with the right to sublicense to BiOS LICENSEE, including any patents and patent applications listed in Annex B, or on CAMBIA’s Protected Commons website (BioForge), including - without limitation - all foreign counterparts thereof, all patent applications that claims priority thereof, all divisionals, continuations (in whole or part) thereof, all patent rights that grants on any of the preceding, and all reexamination or reissue patents of any of the preceding.
Annex A and Annex B and the listings on CAMBIA’s Protected Commons website (BioForge) may be expanded in the case additional IP rights become accessible to CAMBIA and are listed in the relevant BiOS Licensed Patent Inventory, such expansion requiring written approval by BiOS LICENSEE.
"Licensed Service" means any service performed directly by BiOS LICENSEE that
1.11 "Improvement Material" means material, including without limitation biological material, made available to CAMBIA under a BiOS License Agreement with the right to provide to BiOS Licensees, including without limitation, all material necessary to practice Improvement Patents.
Technology Data shall include copies of the respective parts of all applications by BiOS LICENSEE for regulatory approval, from which BiOS LICENSEE is entitled to redact information which is not relevant for the general use of the IP & Technology or Improvement and refers only to a BiOS LICENSEE Product or Service.
Notwithstanding the foregoing, BiOS LICENSEE may designate at its sole discretion any proprietary data of BiOS LICENSEE, which BiOS LICENSEE is willing to share with other BiOS Licensees of the BiOS Initiative under the conditions hereunder, to become “Technology Data”.
2.1 CAMBIA hereby grants to BiOS LICENSEE under Licensed Patents a worldwide, non-exclusive, royalty-free right and license to make and use the IP & Technology for the purpose of developing, making, using, and commercializing BiOS Licensed Products and Services without obligation to CAMBIA. The license is not sublicensable.
2.2 BiOS LICENSEE acknowledges that CAMBIA is free to license the IP & Technology and to provide any Improvement Material received under the associated BiOS Technology Support Services Subscription Agreement to other BiOS Licensees under the terms of a BiOS License Agreement.
If BiOS LICENSEE grants or has granted any express or implied sublicenses to any third party notwithstanding Article 2.1, BiOS LICENSEE shall exert best efforts to prohibit the assertion of any IP rights under the IP & Technology, Improvements and Technology Data against CAMBIA or any BiOS Licensee by any such third party, said prohibition to survive the termination of any express or implied sublicense for any reason. Such assertion by a third party having received an express or implied sublicense from BiOS LICENSEE is grounds for revocation of this BiOS license grant under Article 6.2.
2.3 BiOS LICENSEE is entitled to freely cooperate with any other BiOS Licensees. CAMBIA shall provide BiOS LICENSEE regularly an updated list of BiOS Licensees or shall alternatively publish such list on its publicly accessible internet webpage. CAMBIA is entitled to use BiOS LICENSEE’s name for this purpose. Subject to Article 7.9, while this Agreement is in force, both CAMBIA and BiOS LICENSEE may acknowledge the existence of this Agreement in communications with or other disclosures to third parties.
2.4 Except for the limited rights granted in this Agreement, no right or license, either expressed or implied, under any intellectual property right including but not limited to patents, trade secret or know-how is granted hereunder by one PARTY to the other.
3.1 In partial consideration for the rights granted to BiOS
LICENSEE, BiOS LICENSEE grants to CAMBIA, a worldwide, non-exclusive,
royalty-free, fully-paid license, with the right to sublicense to other BiOS
Licensees, under the Improvement
Patents, for use which is within the scope of the
Licensed Patents, and a worldwide,
non-exclusive, royalty-free, fully-paid license, with the right to sublicense to
other BiOS Licensees, to any Improvements
not protected under the Improvement
Patents, any Technology Data and any
Improvement Material provided by
BiOS LICENSEE to CAMBIA and necessary to practice
Improvements.
Any other BiOS Licensee to which CAMBIA has granted sublicenses under this
section, shall have a right for further sublicenses within the scope of the
license granted herein limited to
3.1.1 grant sublicenses to third parties (including Affiliates of said BiOS Licensee) to conduct research and/or development activities (including field trials) for said BiOS Licensee, provided that the product and/or other results (including all intellectual property rights) resulting from said sublicense are owned exclusively by said BiOS Licensee, said sublicenses to terminate when such activities cease or such ownership terminates, and
3.1.2 grant sublicenses to third parties (including
Affiliates of said BiOS Licensee) for the sole
purpose of commercializing said BiOS
Licensed Products that embody the
IP & Technology or are generated
by use of the IP & Technology,
said sublicenses to terminate when said commercialization ceases.
Other than stipulated under this article 3.1, no further right to sublicense is
granted hereunder.
BiOS LICENSEE may not assert against CAMBIA or any other BiOS Licensee any
Improvement Patent for any use within
the limited license granted hereunder. Such assertion is grounds for revocation
of this license under Article 6.2.
3.2 BiOS LICENSEE will report to CAMBIA any Improvement, including a copy of any filed Improvement Patent or submitted publication or Technology Data, and (if applicable) additional information including but not limited to a full description of any compositions, methods, materials, protocols, or data (including statistical significance and repeatability if available) in sufficient detail to readily practice such Improvement, and will provide to CAMBIA any Improvement Material necessary to practice such Improvement, in sufficient quantities that CAMBIA is able to use the Improvement Material, create a backup for storage, and propagate it for provision to other BiOS Licensees.
3.3 By March 31 of each year, BiOS LICENSEE will provide CAMBIA with an annual report including a list of any Improvement Patents that were published or issued during the preceding twelve months, including all serial numbers and filing dates, together with copies of all such applications and issued patents.
3.4 In the event that BiOS LICENSEE has pre-existing obligations to third parties, which obligations would conflict with BiOS LICENSEE's obligations as defined in this Agreement, BiOS LICENSEE shall not make any use of the IP & Technology that would invoke such conflicting obligations, unless a waiver of said conflicting obligations is obtained by BiOS LICENSEE from said third party. BiOS LICENSEE will report to CAMBIA any encumbrance or obligation to any third party associated with any Improvement. BiOS LICENSEE may not enter into any new third party arrangement (such as a Materials Transfer Agreement or Sponsored Research Agreement) where the terms of such arrangement would conflict with BiOS LICENSEE's obligations under this Agreement. BiOS LICENSEE's obligations under this Agreement will in no way be waived, modified, negated, or otherwise diminished due to BiOS LICENSEE's contractual obligations to third parties. In the event that BiOS LICENSEE enters into an agreement the terms of which would conflict with BiOS LICENSEE's obligations under this Agreement, the terms of this Agreement will prevail.
All transfer of Licensed Material and Improvement Material in relation to the IP & Technology or any Improvement hereunder is regulated by the associated BiOS Technology Support Services Subscription Agreement.
5.1 The PARTIES acknowledge that the IP & Technology and Improvements are experimental in nature and may have hazardous properties. The PARTIES make no representations and extend no warranties of any kind, either expressed or implied. There are no expressed or implied warranties of merchantability or fitness for a particular purpose. The PARTIES do not warrant that the IP & Technology or Improvements do not infringe any patent, copyright, trademark, or other proprietary right.
5.2 Each PARTY to this Agreement will bear all risk to itself and to others resulting from its own gross 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 IP & Technology or Improvements or Technology Data or any product made thereby.
Each PARTY hereunder will hold, for all claims, suits, losses, liabilities, damages, costs, fees, and expenses resulting from its gross 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.
5.3 CAMBIA shall ensure by appropriate written agreement with other BiOS Licensees receiving any Improvement and/or related material, that said BiOS Licensee agrees to the same risk-bearing and hold-harmless obligations for said BiOS Licensees’ use of said Improvement and related material with regard to BiOS LICENSEE as accepted by CAMBIA under Article 5.1 and 5.2 above.
6.1 BiOS LICENSEE may terminate this Agreement at any time by providing written notice of termination ("Notice of Termination") to CAMBIA.
Within sixty (60) days of such termination, BiOS LICENSEE will submit a report describing and providing any previously unreported Improvements, Improvement Patents, Improvement Material and Technology Data made prior to the date of termination.
Within sixty (60) days of termination BiOS LICENSEE will destroy all Licensed Materials and Confidential Information except for Licensed Materials that have been incorporated into BiOS Licensed Products on hand that were made prior to termination. BiOS LICENSEE will provide CAMBIA with written notice that such Licensed Materials and Confidential Information have been destroyed.
CAMBIA has the right to inform other BiOS Licensees of said termination and of the contents of said written notices.
6.2 If any PARTY hereunder (the “Violating Party”) should violate or fail to perform any term or obligation of this Agreement, or an associated Agreement under Article 4, then the other PARTY may give written notice of such default ("Notice of Default") to said Violating Party. If said Violating Party should fail to repair such default within sixty (60) days
said other PARTY will have the right to immediately terminate the BiOS License Agreement, by providing a written notice of termination ("Notice of Termination") to the Violating Party. Upon such termination, the Violating Party will destroy all Licensed Material received from the other PARTY and all material which was made by using such Licensed Material or which incorporates such Licensed Material. The Violating Party will ensure that any third parties to whom said Violating Party granted an express or implied sublicense under Article 2.2 will take the same action. The Violating Party will provide the other PARTY with written notice that such Licensed Materials have been destroyed.
Failure of any BiOS Licensee to comply with its obligations (including but not limited to share certain IP & Technology) shall not be construed as a violation by CAMBIA or failure to perform of CAMBIA.
CAMBIA shall immediately terminate the BiOS License and all associated agreements granted of a BiOS Licensee, for whom a final arbitration under Article 7.6 found a violation of said BiOS Licensees obligations which BiOS Licensee refused to repair within sixty (60) days following said arbitration decision.
6.3 Upon termination of this agreement all rights and obligations of BiOS LICENSEE and CAMBIA shall cease except
7.1 No PARTY hereunder is under any obligation to prosecute, maintain, or enforce Licensed Patents or Improvement Patents or any other intellectual property right against any third party.
However, should CAMBIA or BiOS LICENSEE determine or suspect that any third party not party to a BiOS License Agreement is infringing any Licensed Patent or misappropriating Licensed Material, and should BiOS LICENSEE desire that CAMBIA should assert its rights under any Licensed Patent or any other intellectual property right, and should CAMBIA at its sole discretion decide to assert said rights, BiOS LICENSEE agrees to reimburse CAMBIA its entire expenses in enforcing said rights.
7.2 CAMBIA shall exert reasonable efforts to ensure that all BiOS Licensees under the BiOS License for Genetic Resources Indexing Technologies are entitled and bound to substantially the same rights and obligations as agreed hereunder.
7.3 This Agreement may not be modified, changed, or discharged, in whole or in part, except by an agreement in writing signed by both PARTIES. No waiver of any term or condition of this Agreement shall be deemed to be or shall constitute a waiver with respect to any other terms or conditions of this Agreement, whether or not similar. Each such waiver shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver.
7.4 This Agreement will be binding upon and inure to the benefit of the PARTIES hereto and their respective successors and assignees.
BiOS LICENSEE, without the prior approval of CAMBIA, may assign all, but no less than all, its rights and delegate all, but no less than all, its duties under this Agreement, including all rights and obligations under any corresponding BiOS Technology Support Services Subscription Agreement or Materials Transfer Agreement, and all rights to Improvements including without limitation any Improvement Patent to a third party, if BiOS LICENSEE delivers to CAMBIA written notice of the assignment within thirty (30) days of said assignment's execution.
Other than regulated under this section this Agreement may not be assigned or transferred to a third party in whole or in part, without the prior written consent of CAMBIA, which consent may not be unreasonably or arbitrarily withheld.
Assignments under this Article 7.4 will not be effective unless and until BiOS LICENSEE's assignee and CAMBIA execute an instrument of legal assignment.
7.5 CAMBIA may publish revised and/or new versions of the BiOS License for Genetic Resources Indexing Technologies from time to time. Such new versions will be similar in spirit to the present version, but may differ in detail to address new or newly identified issues. Each version will be given a distinguishing version number. Upon written request to CAMBIA, BiOS LICENSEE may opt to be bound by the terms and conditions of a later version published by CAMBIA. CAMBIA may also publish versions of the BiOS License for Genetic Resources Indexing Technologies in other languages. Where there is any conflict between the present version and such translations or any controversy between the PARTIES respecting the interpretation or application of the terms of this Agreement, the latest English language version of the Agreement shall be controlling.
7.6 The PARTIES agree to attempt to mediate any dispute relating to this Agreement or the negotiation hereof or entry hereunto or any contract or agreement entered in pursuant hereto or the fulfillment and performance by the PARTIES of their respective duties and obligations under this Agreement, including any dispute under Article 6.2, and further agree that any dispute that cannot be resolved by mediation shall be settled by binding arbitration, with construction under Australian law, in accordance with the UNCITRAL Arbitration Rules in force at the time of the dispute.
7.7 All notices, requests, consents and other communications hereunder shall be in writing and shall be addressed to the receiving PARTY's address set forth above or to such other address as a PARTY may designate by notice hereunder, and shall be either sent by an internationally recognized private courier service providing confirmations of receipt, or sent by registered or certified mail.
7.8 Should any part of this Agreement be declared invalid or unenforceable by any Court of competent jurisdiction for any reason, such declaration of judgment shall not affect the validity of the rest of the Agreement and any associated Agreements, which shall remain in full force and effect to the fullest extent provided by law.
7.9 “CAMBIA”, “BiOS License” and “The BIOS Initiative” are trademarks owned by CAMBIA. CAMBIA may from time to time require that these trademarks are used in association with the IP & Technology. CAMBIA has permission to use the trademarks "Diversity Arrays" and DArT without limitation. Except for these trademarks, neither PARTY may use any trademarks of the other without express written permission.
7.10 The relationship of the PARTIES hereto is that of independent contractors. The PARTIES hereto are not deemed to be agents, partners or joint venturers of the other PARTY or of other BiOS Licensees for any purpose as a result of this Agreement or the transactions contemplated thereby.
7.11 This License replaces any earlier license for the use of the IP & Technology.
IN WITNESS WHEREOF the PARTIES have duly executed this Agreement this _____________ day of __________________
_________________________________ Name of BiOS LICENSEE's Representative
_________________________________ Title of BiOS LICENSEE's Representative
_________________________________ Name of BiOS LICENSOR's Representative
_________________________________ Title of BiOS LICENSOR's Representative
|
Technology |
Patent Number(s) |
Priority Date |
Assignee/Owner |
|---|---|---|---|
|
Diversity Arrays Technology |
US Patent 6,173,258 and corresponding PCT applications, conversions, divisionals, continuations and continuations-in-part, corresponding nationals applications in Australia, Canada, the USA and the EPO, and corresponding issued patents. |
21 November 2000 |
CAMBIA |
|
. |
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. |
This Annex A may be expanded; applicable changes will be executed with dated signatures below.
________________________________ Name of BiOS LICENSEE's Representative
________________________________ Title of BiOS LICENSEE's Representative
________________________________ Date
________________________________ Name of BiOS LICENSOR's Representative
________________________________ Title of BiOS LICENSOR's Representative
________________________________ Date
|
Technology |
Patent Number(s) |
Priority Date |
Assignee/Owner |
|---|---|---|---|
|
. |
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|
. |
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. |
This Annex B may be expanded; applicable changes will be executed with dated signatures below.
________________________________ Name of BiOS LICENSEE's Representative
________________________________ Title of BiOS LICENSEE's Representative
________________________________ Date
________________________________ Name of BiOS LICENSOR's Representative
________________________________ Title of BiOS LICENSOR's Representative
________________________________ Date
|
Technology |
Patent Number(s) |
Priority Date |
Assignee/Owner |
|---|---|---|---|
|
. |
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|
. |
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. |
This Annex C may be expanded; applicable changes will be executed with dated signatures below.
________________________________ Name of BiOS LICENSEE's Representative
________________________________ Title of BiOS LICENSEE's Representative
________________________________ Date
________________________________ Name of BiOS LICENSOR's Representative
________________________________ Title of BiOS LICENSOR's Representative
________________________________ Date
This BiOS Technology Support Agreement (the "Agreement ") is effective as and from the _______, 200X (the "Effective Date").
BETWEEN:
BiOS LICENSEE
- and -
BiOS LICENSOR
(Hereinafter together the "PARTIES", or individually the "PARTY")
This BiOS Technology Support Agreement (the "Agreement ") is effective as and from the _______, 200X (the "Effective Date").
BETWEEN:
BiOS LICENSEE
- and -
BiOS LICENSOR
(Hereinafter together the "PARTIES", or individually the "PARTY")
Whereas, for the purpose of fostering innovations in
Agriculture the BiOS initiative of CAMBIA strives to bring together various
parties as BiOS Licensees to jointly provide and develop a portfolio of
inventions and improvements in the field of enabling technologies readily
accessible to any party in interest under the general conditions of the BiOS
License AGREEMENT; and
Whereas, CAMBIA owns or is the licensee of certain Technologies and
associated patents, patent applications, knowhow, data, materials, and business,
technical, economical and manufacturing information (the “IP & Technology”);
and
Whereas, CAMBIA and BiOS LICENSEE have entered as of the Effective Date
into a BiOS License Agreement with respect to certain license rights; and
Whereas, the BiOS License AGREEMENT contemplates sharing
with and licensing to BiOS LICENSEE of Improvements including Materials and
Technology Data developed by other BiOS Licensees, and sharing with and
licensing to other BiOS Licensees of Improvements including Materials and
Technology Data developed by BiOS LICENSEE and any sublicensees; and
Whereas, to provide for the costs of services in furtherance of the
BIOS Initiative and to facilitate BiOS LICENSEE’S implementation and use of
technologies licensed under the BiOS License Agreement (the “Services”) and to
provide a discussion forum and framework for developing new innovations within
the BIOS Initiative (the “BiOS Enabling Technologies Protected Commons” or
“BioForge”),
therefore, BiOS LICENSEE and CAMBIA hereby agree as follows:
Capitalized terms have the same meaning as defined under the BiOS License Agreements if not explicitly defined otherwise hereunder.
1.1 “Non-BiOS Third Party” means any person or entity not party to a BiOS License Agreement.
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).
3.1 In consideration of the Licensed Material provided and other services granted hereunder BiOS LICENSEE agrees to pay to CAMBIA a Technology Support Services Subscription Fee based on the number of employees in the fields of plant biotechnology and plant breeding (including all personnel worldwide in research and technical development, and associated administration, business development, regulatory and public affairs and marketing) of BiOS LICENSEE, and its Affiliates within thirty (30) days after the Effective Date of this Agreement and of each subsequent anniversary of the Effective Date (unless terminated in writing prior to said date according to the provisions of Article 4.1) in the amount shown in Annex D.
3.2 The PARTIES understand that for academic, not-for-profit organizations no subscription fees are due.
3.3 BiOS LICENSEE is entitled to withhold any taxes from any payments made hereunder only if required by law or governmental regulation notified to CAMBIA and translated into English in advance of such payments, unless and until CAMBIA provides a legally binding ruling from the relevant authority granting BiOS LICENSEE the approval for a reduced withholding or for an exemption. CAMBIA shall ensure full cooperation in order to enable BiOS LICENSEE to fulfill such withholding obligations as notified by BiOS LICENSEE prior to the onset of such obligations, and BiOS LICENSEE shall ensure full and prompt cooperation with CAMBIA’s efforts to provide such a ruling where applicable. The remittance of such withholding by BiOS LICENSEE to the respective governmental authority while such a ruling is pending does not withdraw BiOS LICENSEE from its according payment obligation under this Agreement, to be made promptly upon provision of said ruling. Notwithstanding this provision, BiOS LICENSEE shall strictly adhere to the conditions and rates applicable under the law, practice or policy of the relevant authority.
Other than regulated above, all aforementioned amounts due to CAMBIA shall be understood without any applicable Value Added Tax (VAT) or any similar tax, and shall be made without deduction of any bank or transfer or currency exchange charges. Any such taxes or fees on any payments made hereunder shall be paid by BiOS LICENSEE. Said taxes or fees paid to a government or bank may not be considered as meeting BiOS LICENSEE’s corresponding payment obligation to CAMBIA.
3.4 CAMBIA shall have the right to publish the names of BiOS LICENSEES that have paid the annual fees, but not the amount of paid fees.
4.1 After a duration of three (3) years following the Execution Date hereof, this Agreement may be terminated independently from the BiOS License Agreement. This Agreement shall be terminated automatically when said BiOS License Agreement is terminated.
4.2 Upon termination of this Agreement all rights and obligations of BiOS LICENSEE and CAMBIA shall cease except as otherwise provided in the BiOS License Agreement. For avoidance of doubt, in case the BiOS License Agreement is not terminated with this Agreement, only rights and obligations of this Agreement shall cease, except as otherwise provided in the BiOS License Agreement, but the rights and obligations of the BiOS License Agreement shall survive.
As part of the BiOS License Agreement CAMBIA will offer BiOS LICENSEE from time to time new IP & Technology and related Licensed Material. As a subscriber to the BiOS License Agreement, BiOS LICENSEE is entitled to a license to the IP & Technology. As a subscriber to this BiOS Technology Support Services Subscription Agreement, BiOS LICENSEE is entitled to receive Licensed Material as permitted by applicable laws and regulations and following payment of costs under Articles 2 and 3.
Upon termination of this BiOS Technology Support Services Subscription Agreement, BiOS LICENSEEs rights to receive any Licensed Material shall cease as regulated under Article 4 hereof. BiOS LICENSEE is not entitled to any Licensed Material corresponding to licensed IP & Technology offered and accepted during a time when BiOS LICENSEE was not a subscriber to this BiOS Technology Support Services Subscription Agreement.
However, if BiOS LICENSEE decides to subscribe again and re-enter a BiOS Technology Support Services Subscription Agreement after receiving an offer for additional IP & Technology and associated Licensed Material from CAMBIA, and prior to accepting such license pays the agreed Subscription Fee, BiOS LICENSEE is entitled to said new Licensed Material and any subsequent material becoming available during the term of the renewed BiOS Technology Support Services Subscription Agreement. The terms of the renewed BiOS Technology Support Services Subscription Agreement shall be substantially similar to those of this Agreement.
From time to time BiOS LICENSEE may have interest in exploring solutions to certain problems in its field of business. In such case BiOS LICENSEE shall send a written project proposal to CAMBIA. To the extent that such project proposal is consistent with the terms and intent of the BIOS License, which consistency shall be determined by CAMBIA in its sole discretion, CAMBIA shall use its best efforts to
CAMBIA, BiOS LICENSEE and potential other interested BiOS Licensees shall then have the option to enter into good-faith negotiations for such project that may involve other BiOS LICENSEE contributions (monetary or in-kind) to support innovation within CAMBIA's Protected Commons (BioForge). The PARTIES agree that all outcomes of such project will be treated as Licensed Patents and shall be readily accessible under the same terms as this Agreement and the associated BiOS License Agreement among the BiOS Licensees.
7.1 The freightage including Value Added Taxes (- VAT -) for required delivery services of any Material hereunder will be due and payable by BiOS LICENSEE. Any further duties, VAT, import-turnover taxes or similar taxes and duties which are incurred by the import or haulage of any Material should be borne by BiOS LICENSEE.
BiOS LICENSEE shall be responsible to obtain all governmental, custom or other approvals or certificates necessary for importation or transport of any Material to be delivered hereunder and pay all associated costs therefore. Each PARTY shall assist the other, using reasonable effort, by providing existing technical information required to achieve or obtain such approval or certificates.
7.2 This Agreement may only be assigned or transferred in combination with and under the regulations of the associated BiOS License Agreement.
7.3 This Agreement may not be modified, changed, or discharged, in whole or in part, except by an agreement in writing signed by both PARTIES. No waiver of any term or condition of this Agreement shall be deemed to be or constitute a waiver with respect to any other terms or conditions of this Agreement, whether or not similar. Each such waiver shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver.
7.4 CAMBIA shall employ reasonable efforts to require that all Licensees of the BIOS Initiative are entitled and bound to substantially the same rights and obligations as agreed hereunder.
7.5 The PARTIES agree to attempt to mediate any dispute relating to this Agreement or the negotiation hereof or entry hereunto or any contract or agreement entered in pursuant hereto or the fulfillment and performance by the PARTIES of their respective duties and obligations under this Agreement, including any dispute under the corresponding License Agreement, and further agree that any dispute that cannot be resolved by mediation shall be settled by binding arbitration, with construction under Australian law, in accordance with the UNCITRAL Arbitration Rules in force at the time of the dispute.
7.6 All notices, requests, consents and other communications hereunder shall be in writing, shall be addressed to the receiving PARTY’s address set forth above or to such other address as a PARTY may designate by notice hereunder, and shall be either sent by an internationally recognized private courier service providing confirmations of receipt, or by registered or certified mail.
In the case of conflict between the terms and conditions of this Agreement and the License Agreement, the License Agreement shall prevail.
CAMBIA may publish revised and/or new versions of the BiOS Technology Support Subscription Agreement for IP and Technology under the associated License Agreement from time to time. Such new versions will be similar in spirit to the present version, but may differ in detail to address new problems or concerns. Each version will be given a distinguishing version number. With written notice to CAMBIA, BiOS LICENSEE may opt to be bound by the terms and conditions of a later version published by CAMBIA. CAMBIA may also publish versions of the BiOS Technology Support Subscription Agreement for IP and Technology under the associated License Agreement in other languages and showing other currencies. Where there is any conflict between the present version and such translations or any controversy between the parties respecting the interpretation or application of the terms of this Agreement, the latest English language version of the Agreement published by CAMBIA and showing US dollar amounts shall be controlling.
7.7 Should any part of this Agreement be declared invalid or unenforceable by any Court of competent jurisdiction for any reason, such declaration of judgment shall not affect the validity of the rest of the Agreement and any associated Agreements, which shall remain in full force and effect to the fullest extent provided by law.
7.8 The relationship of the PARTIES hereto is that of independent contractors. The PARTIES hereto are not deemed to be agents, partners or joint venturers of the other PARTY or of other BiOS Licensees for any purpose as a result of this Agreement or the transactions contemplated thereby.
IN WITNESS WHEREOF the PARTIES have duly executed this Agreement this _____________ day of __________________
_________________________________ Name of BiOS LICENSEE's Representative
_________________________________ Title of BiOS LICENSEE's Representative
_________________________________ Name of BiOS LICENSOR's Representative
_________________________________ Title of BiOS LICENSOR's Representative
| Material (Description) |
Corresponding Licensed Patent (If Any) |
Owner |
|---|---|---|
|
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||
|
. |
||
|
. |
||
|
. |
This Annex A may be expanded; applicable changes will be executed with dated signatures below.
________________________________ Name of BiOS LICENSEE's Representative
________________________________ Title of BiOS LICENSEE's Representative
________________________________ Date
________________________________ Name of BiOS LICENSOR's Representative
________________________________ Title of BiOS LICENSOR's Representative
________________________________ Date
|
Material (Description) |
Corresponding License Patent (If Any) |
Owner |
|---|---|---|
|
. |
||
|
. |
||
|
. |
This Annex B may be expanded; applicable changes will be executed with dated signatures below.
________________________________ Name of BiOS LICENSEE's Representative
________________________________ Title of BiOS LICENSEE's Representative
________________________________ Date
________________________________ Name of BiOS LICENSOR's Representative
________________________________ Title of BiOS LICENSOR's Representative
________________________________ Date
|
Material (Description) |
Corresponding License Patent (If Any) |
Owner |
|---|---|---|
|
. |
||
|
. |
||
|
. |
This Annex C may be expanded; applicable changes will be executed with dated signatures below.
________________________________ Name of BiOS LICENSEE's Representative
________________________________ Title of BiOS LICENSEE's Representative
________________________________ Date
________________________________ Name of BiOS LICENSOR's Representative
________________________________ Title of BiOS LICENSOR's Representative
________________________________ Date
As of the date of execution, the following annual fees in support of technology support subscription services are in effect for for-profit companies based in OECD countries, calculated from the total number of employees worldwide in the fields of plant biotechnology and plant breeding (including all personnel in research and technical development, and associated administration, business development, regulatory and public affairs and marketing) of BiOS LICENSEE, and its Affiliates.
US$ 150,000 for large commercial entities having more than 500 of such employees,
US$ 50,000 for medium commercial entities having 50 to 500 of such employees, or
US$ 10,000 for small commercial entities having less than 5-49 of such employees.
For-profit companies based in non-OECD countries will be encouraged to provide support for technology support subscription services in the form of in-kind contributions. CAMBIA may publish revised and/or new versions of the BiOS Technology Support Subscription fee table for IP and Technology under the associated License Agreement from time to time on its website. Such new versions will be similar in spirit to the present version, but may be altered once yearly, in March, to account for reasonable currency fluctuations and inflation. With written notice to CAMBIA, BiOS LICENSEE may opt to be bound by the terms and conditions of a later version published by CAMBIA. CAMBIA may also publish versions of the BiOS Technology Support Subscription fee table for IP and Technology under the associated License Agreement in other languages and showing other currencies. Where there is any conflict between the present version and such translations or any controversy between the parties respecting the interpretation or application of the terms of this Agreement, the latest English language version of the Agreement published by CAMBIA and showing US dollar amounts shall be controlling.
________________________________ Name of BiOS LICENSEE's Representative
________________________________ Title of BiOS LICENSEE's Representative
________________________________ Name of BiOS LICENSOR's Representative
________________________________ Title of BiOS LICENSOR's Representative
This BiOS Technology Support Agreement (the "Agreement ") is effective as and from the _______, 200X (the "Effective Date").
BETWEEN:
BiOS LICENSEE
- and -
BiOS LICENSOR
(Hereinafter together the "PARTIES", or individually the "PARTY")
Whereas, for the purpose of fostering innovations in
Agriculture the BiOS initiative of CAMBIA strives to bring together various
parties as BiOS Licensees to jointly provide and develop a portfolio of
inventions and improvements in the field of enabling technologies readily
accessible to any party in interest under the general conditions of the BiOS
License AGREEMENT; and
Whereas, CAMBIA owns or is the licensee of certain Technologies and
associated patents, patent applications, knowhow, data, materials, and business,
technical, economical and manufacturing information (the “IP & Technology”);
and
Whereas, CAMBIA and BiOS LICENSEE have entered as of the Effective Date
into a BiOS License Agreement with respect to certain license rights; and
Whereas, the BiOS License AGREEMENT contemplates sharing
with and licensing to BiOS LICENSEE of Improvements including Materials and
Technology Data developed by other BiOS Licensees, and sharing with and
licensing to other BiOS Licensees of Improvements including Materials and
Technology Data developed by BiOS LICENSEE and any sublicensees; and
Whereas, to provide for the costs of services in furtherance of the
BIOS Initiative and to facilitate BiOS LICENSEE’S implementation and use of
technologies licensed under the BiOS License Agreement (the “Services”) and to
provide a discussion forum and framework for developing new innovations within
the BIOS Initiative (the “BiOS Enabling Technologies Protected Commons” or
“BioForge”),
therefore, BiOS LICENSEE and CAMBIA hereby agree as follows:
Capitalized terms have the same meaning as defined under the BiOS License Agreements if not explicitly defined otherwise hereunder.
1.1 “Non-BiOS Third Party” means any person or entity not party to a BiOS License Agreement.
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).
3.1 In consideration of the Licensed Material provided and other services granted hereunder BiOS LICENSEE agrees to pay to CAMBIA a Technology Support Services Subscription Fee based on the number of employees in the fields of plant biotechnology and plant breeding (including all personnel worldwide in research and technical development, and associated administration, business development, regulatory and public affairs and marketing) of BiOS LICENSEE, and its Affiliates within thirty (30) days after the Effective Date of this Agreement and of each subsequent anniversary of the Effective Date (unless terminated in writing prior to said date according to the provisions of Article 4.1) in the amount shown in Annex D.
3.2 The PARTIES understand that for academic, not-for-profit organizations no subscription fees are due.
3.3 BiOS LICENSEE is entitled to withhold any taxes from any payments made hereunder only if required by law or governmental regulation notified to CAMBIA and translated into English in advance of such payments, unless and until CAMBIA provides a legally binding ruling from the relevant authority granting BiOS LICENSEE the approval for a reduced withholding or for an exemption. CAMBIA shall ensure full cooperation in order to enable BiOS LICENSEE to fulfill such withholding obligations as notified by BiOS LICENSEE prior to the onset of such obligations, and BiOS LICENSEE shall ensure full and prompt cooperation with CAMBIA’s efforts to provide such a ruling where applicable. The remittance of such withholding by BiOS LICENSEE to the respective governmental authority while such a ruling is pending does not withdraw BiOS LICENSEE from its according payment obligation under this Agreement, to be made promptly upon provision of said ruling. Notwithstanding this provision, BiOS LICENSEE shall strictly adhere to the conditions and rates applicable under the law, practice or policy of the relevant authority.
Other than regulated above, all aforementioned amounts due to CAMBIA shall be understood without any applicable Value Added Tax (VAT) or any similar tax, and shall be made without deduction of any bank or transfer or currency exchange charges. Any such taxes or fees on any payments made hereunder shall be paid by BiOS LICENSEE. Said taxes or fees paid to a government or bank may not be considered as meeting BiOS LICENSEE’s corresponding payment obligation to CAMBIA.
3.4 CAMBIA shall have the right to publish the names of BiOS LICENSEES that have paid the annual fees, but not the amount of paid fees.
4.1 After a duration of three (3) years following the Execution Date hereof, this Agreement may be terminated independently from the BiOS License Agreement. This Agreement shall be terminated automatically when said BiOS License Agreement is terminated.
4.2 Upon termination of this Agreement all rights and obligations of BiOS LICENSEE and CAMBIA shall cease except as otherwise provided in the BiOS License Agreement. For avoidance of doubt, in case the BiOS License Agreement is not terminated with this Agreement, only rights and obligations of this Agreement shall cease, except as otherwise provided in the BiOS License Agreement, but the rights and obligations of the BiOS License Agreement shall survive.
As part of the BiOS License Agreement CAMBIA will offer BiOS LICENSEE from time to time new IP & Technology and related Licensed Material. As a subscriber to the BiOS License Agreement, BiOS LICENSEE is entitled to a license to the IP & Technology. As a subscriber to this BiOS Technology Support Services Subscription Agreement, BiOS LICENSEE is entitled to receive Licensed Material as permitted by applicable laws and regulations and following payment of costs under Articles 2 and 3.
Upon termination of this BiOS Technology Support Services Subscription Agreement, BiOS LICENSEEs rights to receive any Licensed Material shall cease as regulated under Article 4 hereof. BiOS LICENSEE is not entitled to any Licensed Material corresponding to licensed IP & Technology offered and accepted during a time when BiOS LICENSEE was not a subscriber to this BiOS Technology Support Services Subscription Agreement.
However, if BiOS LICENSEE decides to subscribe again and re-enter a BiOS Technology Support Services Subscription Agreement after receiving an offer for additional IP & Technology and associated Licensed Material from CAMBIA, and prior to accepting such license pays the agreed Subscription Fee, BiOS LICENSEE is entitled to said new Licensed Material and any subsequent material becoming available during the term of the renewed BiOS Technology Support Services Subscription Agreement. The terms of the renewed BiOS Technology Support Services Subscription Agreement shall be substantially similar to those of this Agreement.
From time to time BiOS LICENSEE may have interest in exploring solutions to certain problems in its field of business. In such case BiOS LICENSEE shall send a written project proposal to CAMBIA. To the extent that such project proposal is consistent with the terms and intent of the BIOS License, which consistency shall be determined by CAMBIA in its sole discretion, CAMBIA shall use its best efforts to
CAMBIA, BiOS LICENSEE and potential other interested BiOS Licensees shall then have the option to enter into good-faith negotiations for such project that may involve other BiOS LICENSEE contributions (monetary or in-kind) to support innovation within CAMBIA's Protected Commons (BioForge). The PARTIES agree that all outcomes of such project will be treated as Licensed Patents and shall be readily accessible under the same terms as this Agreement and the associated BiOS License Agreement among the BiOS Licensees.
7.1 The freightage including Value Added Taxes (- VAT -) for required delivery services of any Material hereunder will be due and payable by BiOS LICENSEE. Any further duties, VAT, import-turnover taxes or similar taxes and duties which are incurred by the import or haulage of any Material should be borne by BiOS LICENSEE.
BiOS LICENSEE shall be responsible to obtain all governmental, custom or other approvals or certificates necessary for importation or transport of any Material to be delivered hereunder and pay all associated costs therefore. Each PARTY shall assist the other, using reasonable effort, by providing existing technical information required to achieve or obtain such approval or certificates.
7.2 This Agreement may only be assigned or transferred in combination with and under the regulations of the associated BiOS License Agreement.
7.3 This Agreement may not be modified, changed, or discharged, in whole or in part, except by an agreement in writing signed by both PARTIES. No waiver of any term or condition of this Agreement shall be deemed to be or constitute a waiver with respect to any other terms or conditions of this Agreement, whether or not similar. Each such waiver shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver.
7.4 CAMBIA shall employ reasonable efforts to require that all Licensees of the BIOS Initiative are entitled and bound to substantially the same rights and obligations as agreed hereunder.
7.5 The PARTIES agree to attempt to mediate any dispute relating to this Agreement or the negotiation hereof or entry hereunto or any contract or agreement entered in pursuant hereto or the fulfillment and performance by the PARTIES of their respective duties and obligations under this Agreement, including any dispute under the corresponding License Agreement, and further agree that any dispute that cannot be resolved by mediation shall be settled by binding arbitration, with construction under Australian law, in accordance with the UNCITRAL Arbitration Rules in force at the time of the dispute.
7.6 All notices, requests, consents and other communications hereunder shall be in writing, shall be addressed to the receiving PARTY’s address set forth above or to such other address as a PARTY may designate by notice hereunder, and shall be either sent by an internationally recognized private courier service providing confirmations of receipt, or by registered or certified mail.
In the case of conflict between the terms and conditions of this Agreement and the License Agreement, the License Agreement shall prevail.
CAMBIA may publish revised and/or new versions of the BiOS Technology Support Subscription Agreement for IP and Technology under the associated License Agreement from time to time. Such new versions will be similar in spirit to the present version, but may differ in detail to address new problems or concerns. Each version will be given a distinguishing version number. With written notice to CAMBIA, BiOS LICENSEE may opt to be bound by the terms and conditions of a later version published by CAMBIA. CAMBIA may also publish versions of the BiOS Technology Support Subscription Agreement for IP and Technology under the associated License Agreement in other languages and showing other currencies. Where there is any conflict between the present version and such translations or any controversy between the parties respecting the interpretation or application of the terms of this Agreement, the latest English language version of the Agreement published by CAMBIA and showing US dollar amounts shall be controlling.
7.7 Should any part of this Agreement be declared invalid or unenforceable by any Court of competent jurisdiction for any reason, such declaration of judgment shall not affect the validity of the rest of the Agreement and any associated Agreements, which shall remain in full force and effect to the fullest extent provided by law.
7.8 The relationship of the PARTIES hereto is that of independent contractors. The PARTIES hereto are not deemed to be agents, partners or joint venturers of the other PARTY or of other BiOS Licensees for any purpose as a result of this Agreement or the transactions contemplated thereby.
IN WITNESS WHEREOF the PARTIES have duly executed this Agreement this _____________ day of __________________
_________________________________ Name of BiOS LICENSEE's Representative
_________________________________ Title of BiOS LICENSEE's Representative
_________________________________ Name of BiOS LICENSOR's Representative
_________________________________ Title of BiOS LICENSOR's Representative
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This Annex A may be expanded; applicable changes will be executed with dated signatures below.
________________________________ Name of BiOS LICENSEE's Representative
________________________________ Title of BiOS LICENSEE's Representative
________________________________ Date
________________________________ Name of BiOS LICENSOR's Representative
________________________________ Title of BiOS LICENSOR's Representative
________________________________ Date
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This Annex B may be expanded; applicable changes will be executed with dated signatures below.
________________________________ Name of BiOS LICENSEE's Representative
________________________________ Title of BiOS LICENSEE's Representative
________________________________ Date
________________________________ Name of BiOS LICENSOR's Representative
________________________________ Title of BiOS LICENSOR's Representative
________________________________ Date
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This Annex C may be expanded; applicable changes will be executed with dated signatures below.
________________________________ Name of BiOS LICENSEE's Representative
________________________________ Title of BiOS LICENSEE's Representative
________________________________ Date
________________________________ Name of BiOS LICENSOR's Representative
________________________________ Title of BiOS LICENSOR's Representative
________________________________ Date
As of the date of execution, the following annual fees in support of technology support subscription services are in effect for for-profit companies based in OECD countries, calculated from the total number of employees worldwide in the fields of plant biotechnology and plant breeding (including all personnel in research and technical development, and associated administration, business development, regulatory and public affairs and marketing) of BiOS LICENSEE, and its Affiliates.
US$ 150,000 for large commercial entities having more than 500 of such employees,
US$ 50,000 for medium commercial entities having 50 to 500 of such employees, or
US$ 10,000 for small commercial entities having less than 5-49 of such employees.
For-profit companies based in non-OECD countries will be encouraged to provide support for technology support subscription services in the form of in-kind contributions. CAMBIA may publish revised and/or new versions of the BiOS Technology Support Subscription fee table for IP and Technology under the associated License Agreement from time to time on its website. Such new versions will be similar in spirit to the present version, but may be altered once yearly, in March, to account for reasonable currency fluctuations and inflation. With written notice to CAMBIA, BiOS LICENSEE may opt to be bound by the terms and conditions of a later version published by CAMBIA. CAMBIA may also publish versions of the BiOS Technology Support Subscription fee table for IP and Technology under the associated License Agreement in other languages and showing other currencies. Where there is any conflict between the present version and such translations or any controversy between the parties respecting the interpretation or application of the terms of this Agreement, the latest English language version of the Agreement published by CAMBIA and showing US dollar amounts shall be controlling.
________________________________ Name of BiOS LICENSEE's Representative
________________________________ Title of BiOS LICENSEE's Representative
________________________________ Name of BiOS LICENSOR's Representative
________________________________ Title of BiOS LICENSOR's Representative
The information contained in this page was believed to be correct at the time it was collated. New patents and patent applications, altered status of patents, and case law may have resulted in changes in the landscape. CAMBIA makes no warranty that it is correct or up to date at this time and accepts no liability for any use that might be made of it. Corrections or updates to the information are welcome, please send an email to info@bios.net.