MATERIAL TRANSFER AGREEMENT (INCOMING)
THIS AGREEMENT made in duplicate this
day of
, 20
.
BETWEEN:
(hereinafter referred to as the “Provider”),
OF THE FIRST PART,
- and THE UNIVERSITY OF MANITOBA
(hereinafter referred to as the "Recipient"),
OF THE SECOND PART.
WHEREAS this Material Transfer Agreement sets out the understanding of the parties with respect
to the provision of Original Material by the Provider to the Recipient, who wishes to use the Original
Material for the Purpose, subject to the terms and conditions of this Material Transfer Agreement.
NOW THEREFORE in consideration of the premises and the mutual covenants, terms, conditions
and agreements contained herein, and other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1.
Definitions. In this Agreement:
(a)
(b)
(c)
(d)
(e)
“Effective Date”
“End Date”
“Material” means Original Material, Progeny and Unmodified Derivatives, but not
New Intellectual Property;.
“Modifications” means substances and other materials created by Recipient that
contain or incorporate the Material;
“New Intellectual Property” includes (i) Modifications (but not the Material that is
contained or incorporated therein), (ii) other substances and materials created by
Recipient through the use of the Material or Modifications, but that are not Progeny,
Unmodified Derivatives or Modifications (i.e. do not contain the Original Material,
Progeny or Unmodified Derivatives), (iii) any new use of the Material, Modifications,
or the substances and materials described in (ii) herein, created by Recipient, and (iv)
any new or improved process, method, or technique conceived or developed by
Recipient through the use of the Material, Modifications, or the substances and
materials described in (ii) herein;
1
(f)
(g)
(h)
(i)
(j)
(k)
“Original Material” means the materials described in Schedule “A”, attached
hereto;
“Period of Use” means the period commencing on the Effective Date and ending on
the End Date;
“Progeny” means an unmodified descendant from the Material, such as virus from
virus, cell from cell, or organism from organism;
“Provider Information” means the information described in section 2;
“Purpose” means the purpose described in Schedule “A”;
“Unmodified Derivatives” means substances and other materials created by the
Recipient which constitute an unmodified functional subunit or product expressed by
the Original Material, including subclones of unmodified cell lines, purified or
fractionated subsets of the Original Material, proteins expressed by DNA/RNA
supplied by the Provider, or monoclonal antibodies secreted by a hybridoma cell line.
2.
Supply and License. Provider will deliver to Recipient the Original Material and any
information related to the Material which Provider considers appropriate, which may include
but not be limited to, information on its use, durability, handling, storage, disposal,
manufacturing, reproduction and shipping (the “Provider Information”). Subject to the
terms and conditions of this Agreement, the Provider hereby grants Recipient a nonexclusive, royalty-free license to make and use the Material and Provider Information for the
Purpose, during the Period of Use unless terminated earlier in accordance with the terms of
this Agreement or unless extended by written mutual agreement of the parties.
3.
Cost of Delivery. Upon receipt of an invoice from the Provider, Recipient will pay or
reimburse Provider the amount (if any) set out in Schedule “A” for costs incurred by Provider
in packaging, shipping and otherwise delivering the Original Material to Recipient.
4.
Technical Representatives. The individual authorized by a party to provide and/or receive
the Original Material and Provider Information on its behalf is set out in Schedule “A’ unless
another individual is subsequently designated by that party in a written notice to the other
party.
5.
Use. Recipient will use the Material and Provider Information for the Purpose only and in
compliance with all applicable federal, provincial and local laws, rules, guidelines and
regulations. Unless with the prior written approval of the Provider (whose approval may be
withheld at its sole discretion) or unless expressly permitted by the terms of a separate
written agreement entered into between the parties, Recipient agrees that the Material and
Provider Information:
(a)
(b)
(c)
(d)
Are made available for investigational use only;
Will not be used in humans or in contact with any cells or other materials to be
infused into humans, whether in clinical trials or whether for therapeutic,
preventative, diagnostic or any other purposes;
Will be used only at the Recipient organization;
Must always be handled carefully by trained persons who follow all safety guidelines
2
(e)
and protocols when working with the Material and under laboratory conditions which
afford adequate biohazard containment; and
Will not be sold, leased, licensed or otherwise exploited for profit and will not be
used in research that is subject to consulting or licensing obligations to another
institution, corporation, business entity or organization.
6.
Recipient’s Personnel. The Recipient agrees not to transfer or disclose the Material and the
Provider Information to any third party without the prior written consent of the Provider and
will limit provision and disclosure of the Material and Provider Information to those
directors, officers, employees, agents, consultants and students of Recipient who need to
know or need to use the Material or Provider Information in order to carry out the Purpose.
The Recipient must advise any person utilizing the Material and/or Provider Information that
use of the Material and Provider Information is subject to the terms and conditions of this
Agreement.
7.
Reporting. The Recipient will inform the Provider, in confidence, of results of the research
related to the Material and Provider Information by personal written communication or by
providing the Provider with a draft manuscript describing the results of such research. The
Provider shall be free to use such data and information for internal research and academic
purposes and for non-commercial purposes that may include third party, sponsored research
activities.
8
Publication. The Recipient shall have the right to publish relevant experimental results
related to the Purpose provided that 30 days prior to submission for publication, the
Recipient will provide the proposed publication to the Provider for its review and comment.
The Provider shall complete its review within 30 days of receipt of the proposed publication.
The Provider may delete from the proposed publication any confidential information
belonging to the Provider. If the Provider determines that any patent action is required to
protect its intellectual property rights, upon notice to the Recipient, the Recipient shall delay
publication for an additional period not to exceed 60 days. At the end of the (i) 30 day review
period and (ii) 60 day delay period, if exercised by the Provider, the Recipient shall be free to
submit the proposed publication for publication with the confidential information of the
Provider, if any, deleted as requested by the Provider. If publication results from research
using the Materials, the Recipient agrees to acknowledge the Provider and
as
scientifically appropriate.
9.
Ownership. The Recipient shall have no rights to the Material or Provider Information other
than as provided in this Agreement. Provider retains ownership of the Material and the
Provider Information, including any Material contained or incorporated in the Modifications.
Recipient will own the New Intellectual Property (but not Material contained or incorporated
in the Modifications).
10.
Notification, Patent Applications and Use of New Intellectual Property. Recipient will
promptly notify Provider in writing of any New Intellectual Property and will be free to use
and exploit the New Intellectual Property (but not to assign or otherwise transfer the
3
Modifications except with the written approval of Provider or as permitted under this
Agreement). Recipient may file patent applications(s) claiming New Intellectual Property,
but will give Provider at least thirty (30) days written notice prior to filing such patent
application(s). Recipient hereby grants Provider a non-exclusive, non-transferable,
perpetual, worldwide, royalty-free license to use the New Intellectual Property for internal
research and teaching purposes only.
11.
Termination. Either party may terminate this Agreement upon thirty (30) days written notice
to the other party. If the Recipient materially breaches the Agreement, Provider may
terminate this Agreement immediately upon written notice from Provider to Recipient.
12.
Warranty.
THE PROVIDER PROVIDES THE MATERIAL AND PROVIDER
INFORMATION TO RECIPIENT “AS IS”. THE MATERIAL IS EXPERIMENTAL IN
NATURE. THE PROVIDER MAKES NO WARRANTIES, REPRESENTATIONS OR
UNDERTAKINGS, EXPRESS OR IMPLIED WITH RESPECT TO THE MATERIAL
AND/OR PROVIDER INFORMATION INCLUDING, WITHOUT LIMITATION, THE
UTILITY, EFFICACY, NON-TOXICITY, SAFETY OR APPROPRIATENESS FOR A
PARTICULAR PURPOSE OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED.
THE PROVIDER HAS NOT CONDUCTED A PATENT SEARCH OF THE MATERIAL.
THE PROVIDER MAKES NO REPRESENTATION OR WARRANTY THAT THE USE
OF THE MATERIAL WILL NOT INFRINGE ANY PATENT OR OTHER
PROPRIETARY RIGHT AND ACCEPTS NO LIABILITY IF THE MATERIAL
INFRINGE ANY PATENT OR OTHER PROPRIETARY RIGHT.
13.
Liability. The Recipient assumes any and all liability and in no event shall the Provider be
liable for any use by the Recipient of the Material or any loss, claim, damage or liability, of
whatsoever kind or nature, which may arise from or in connection with the Agreement or the
use, handling or storage of the Material by the Recipient. The Recipient indemnifies and
holds harmless the Provider, its directors, officers, employees, students and agents from any
loss, claim, damage or liability whatsoever that may arise from the use, disposition, handling
or storage of the Material by the Recipient or on the Recipient’s behalf.
14.
Cessation and Survival. Upon expiration or earlier termination of the Period of Use,
Recipient will cease use of the Material and Provider Information, and will, at the request of
the Provider, return all unused Material. The Recipient shall inform the Provider
immediately upon ceasing to use the Material, whether at the request of the Provider or the
option of the Recipient. Notwithstanding the foregoing, the Recipient will continue to be
bound by the obligations of the Recipient under the terms of this Agreement.
15.
Assignment. This Agreement is not assignable, whether by operation of law or otherwise,
without the prior written consent of the Provider.
16.
Governing Law. This Agreement shall be interpreted and governed by the laws of the
Province of Manitoba. Any action taken relating to this Agreement shall be commenced in
the Court of Queen’s Bench (Winnipeg Centre) in Manitoba.
4
17.
Headings. All headings used in this Agreement are purely for convenience and shall not
affect the interpretation of this Agreement.
18.
Entire Agreement. This Agreement sets forth the entire understanding between the parties
with respect to the subject matter herein and cannot be changed or amended except by
written agreement executed by the parties.
19.
Severability. In the event that any provision of the Agreement determined to be invalid or
unenforceable by a court of competent jurisdiction in any jurisdiction, the remainder of the
Agreement will remain in full force and effect without said provision in said jurisdiction and
such determination will not affect the validity or enforceability of such provision or the
Agreement in any other jurisdiction. The parties will in good faith negotiate a substitute
clause for any provision declared invalid or unenforceable, which will most nearly
approximate the intent of the parties in entering into this Agreement.
20.
Notice. Notice to the Provider, when required under this Agreement should be sent to
,
Attention:
. Notice to the Recipient, when required under this Agreement, should be
sent to the Office of Research Services, 540 Machray Hall, Winnipeg, MB R3T 2N2,
Attention:, Director.
[The balance of this page is intentionally left blank.]
5
21.
Counterparts. This Agreement may be executed in any number of counterparts and by
different parties in separate counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute one and the same agreement.
Delivery by facsimile or by electronic transmission in portable document format (PDF) of an
executed counterpart of this Agreement is as effective as delivery of an originally executed
counterpart of this Agreement.
IN WITNESS WHEREOF, the duly authorized officer of the parties have executed this Agreement
to be effective as of the Effective Date.
THE UNIVERSITY OF MANITOBA
______________________________
Name:
Title:
______________________________
Name: Barbara Crutchley
Title: Director, Office of Research Services
______________________________
Date
_______________________________
Date
Read and Understood:
PROVIDER INSTITUTION’S
SCIENTIST
RECIPIENT INSTITUTION’S SCIENTIST
Name:________________________
Name:________________________________
Title: _________________________
Title:_________________________________
Date:___________________________
Date:_________________________________
S:\Legal\LEGAL OFFICE\Precedents\Website Documents\Signing Policy\MTA_Template_Incoming - Jun 13 14 (Tab thru protected).doc
6
SCHEDULE “A”
1. Description
2. Quantity
3. Purpose
The Material and Provider Information are provided for the following purpose:
4. Cost of Delivery
$
in Canadian dollars payable by Recipient to Provider upon receipt by Recipient of
the Material or at such other time as the parties may agree in writing.
5. Technical Representatives
The authorized technical representative:
(a) of Provider is
(b) of Recipient is:
7