1. Definitions
1.1 In this Agreement the singular includes the plural and vice versa and any gender includes any other gender and the neuter.
1.2 "Affiliate" means any corporation, firm, limited liability company, partnership or other entity that directly or indirectly controls or is controlled by or is under common control with a PARTY. As used in this Section, control means ownership, directly or through one or more Affiliates, of fifty percent (50%) or more of the shares of stock entitled to vote for the election of directors, in the case of a corporation, or fifty percent (50%) or more of the equity interests in the case of any other type of legal entity, or status as a general partner in any partnership, or any other arrangement whereby a party controls or has the right to control the Board of Directors or equivalent governing body of a corporation or other entity, or if such level of ownership or control is prohibited in any country, any entity owned or controlled by or owning or controlling at the maximum control or ownership right permitted in the country where such entity exists.
1.3 "Agriculture" means research, development and commercialisation of plants, terrestrial animals, products derived from plants or terrestrial animals, or micro-organisms, which are used for food, feed, fiber, or ornamental purposes.
1.4 “BiOS Licensed Product” means any tangible or intangible asset of BiOS LICENSEE (including without limitation any material or method, but excluding Improvements), that is
- generated through use by or for BiOS LICENSEE of the IP & Technology, and
- which is intended for commercialization, and
- which has at least one function or property that makes it substantially distinct in function from the IP & Technology which it contains or from which it was derived.
1.5 “BiOS Licensee” means any party subscribing to a BiOS License Agreement other than BiOS LICENSEE and its Affiliates.
1.6 “Improvement” means any improvement to the IP & Technology made or discovered by or for BiOS LICENSEE or any party to which BiOS LICENSEE has granted a sublicense, comprising – without limitation - methods, compositions, know-how, statistically significant or repeatable observations, or protocols, which
- is a Plant Enabling Technology improving or increasing the effectiveness, efficiency, applicability, or value of the IP & Technology from which it is derived, or
- but for the terms of this License Agreement cannot be used without infringing a valid claim in an unexpired Licensed Patent,
unless
- developed without any use of the IP & Technology, or
- existing as of the Effective Date of this Agreement or any specifically related Materials Transfer and Non-Disclosure Agreement, whichever is earlier, or
- not relevant to the general use of the IP & Technology as a Plant Enabling Technology and relevant or applicable solely for production or use of a BiOS Licensed Product, or
- consisting entirely of a confidential formula, pattern, process device, information, or compilation of information that is actively maintained as a proprietary trade secret for use in BiOS LICENSEE’s business by obligation of confidentiality and by other reasonable efforts of BiOS LICENSEE such as would be defined as suppression or concealment imposing a statutory bar against patenting by the United States Patent Office.
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.
1.7 “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 “IP & Technology” means Licensed Patents, Licensed Materials, Technology Data, Improvements, Improvement Patents and Improvement Materials licensed or sublicensed or provided to BiOS LICENSEE under the terms of this Agreement.
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.
1.10 “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.
1.11 "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.
1.12 “Plant Enabling Technology” means any technology, material or method which is suitable in the process of generating a transgenic plant but which as such is not intended to change the agronomic characteristics of said plant. Plant Enabling Technologies may include but are not limited to plant transformation and selection methods, gene expression tools (e.g. promoters or enhancers, methods for gene suppression, vector systems), methods for homologous recombination, etc.
- would be considered relevant in the regulatory approval of products made through the use of the IP & Technology or Improvement, and that
- is credible, substantial, specific, and validated to an extent which BiOS LICENSEE applies for in-house reports.
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 which refers only to a BiOS Licensed Product.
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”.
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