South Dakota State University
Technology Transfer Office
MATERIAL TRANSFER AGREEMENT (Testing Only)
This Material Transfer Agreement (the “Agreement”) is made this _____ day of ________________ (the
“Effective Date”) by and between South Dakota State University, a public land grant university with its principal
place of business at Box 2201, SAD 130, Brookings, South Dakota 57007-0291, (“SDSU”); and the ______, doing
business __________________ (“Recipient”) (collectively the “Parties” or individually the “Party”).
WHEREAS, Recipient requests to receive certain Plant Material (defined below) made by SDSU; and
WHEREAS, SDSU is South Dakota’s designated Land-Grant University established under South Dakota
Codified Laws Ch. 13-58; and
WHEREAS, the mission of SDSU defined by South Dakota Board of Regents Policy is to serve through
teaching, research and extension activities; and
WHEREAS, SDSU has determined that entering into this Agreement to provide the Plant Material and
explore a mutually beneficial relationship between the Parties could promote knowledge-based economy in South
Dakota; thus, it is in the public’s best interest and is consistent with SDSU’s missions and goals.
NOW THEREFORE, in consideration of the above, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the Parties hereby agree
as follows:
TERMS AND CONDITIONS
1.
This Agreement is effective as of last date of signature (“Effective Date”). The plant materials
described below (“Plant Material”) were produced from biological material developed at SDSU and are the property
of SDSU. SDSU retains ownership of the Plant Material and these rights are not waived with the distribution of the
Plant Material. The undersigned (“Recipient”) desires conduct testing related of the Plant Material.
2.
The Recipient will not propagate Plant Materials or utilize any Plant Material or plants created by
propagation of Plant Materials as a parent or recurrent parent in any form of breeding modification and will not
distribute the Plant Material, including any progeny, plant parts, vegetative cuttings, propagules or derivatives
thereof, without SDSU’s written consent. The Recipient shall refer any request for the Plant Material to SDSU.
3.
The Plant Material will be used for agronomic evaluation purposes only and not for any
commercial purposes or for any breeding program or selection of properties for breeding.
4.
Any Plant Material delivered pursuant to this Agreement is understood to be experimental in
nature. SDSU MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND,
EITHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. RECIPIENT assumes all liability for claims for damages against it by third
parties which may arise from the use, storage or disposal of the Plant Material.
5.
No product based upon the Plant Material, derivative thereof or their use shall be commercialized
without express permission from SDSU which may include a requirement for licensing from SDSU. SDSU reserves
the right to patent or protect any materials or traits released directly without interference from Recipient. Recipient
agrees to consult SDSU regarding patenting or protecting any materials derived from the Plant Material. It is
understood that no right to a license for commercial production or marketing of Plant Material, including any
progeny or derivatives thereof, is given or implied by this Agreement.
6.
The Recipient agrees to provide appropriate acknowledgement of the source of the Plant Material
in all publications resulting from the use of the Plant Material. This agreement shall not be interpreted to prevent or
delay publication of research findings by the Recipient or SDSU.
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South Dakota State University
Technology Transfer Office
7.
Each Party to this agreement shall be solely responsible for any and all actions, suits, damages,
liability or other proceedings brought against it as a result of the negligence, misconduct, error or omission of any of
its officers, agents or employees. No party is obligated to indemnify another party or to hold another party harmless
from costs or expenses incurred as a result of such claims; and each shall continue to enjoy all rights, claims and
defenses available to it under law.
8.
The Recipient agrees to use the Plant Material in compliance with all applicable statutes and
regulations. Each party shall comply with all compliance with applicable laws and regulations governing the
exports and re-exports of technical data or commodities made under this Agreement. Recipient will not use the
Plant Material involving biotechnology-derived plants that may be received and/or transformed pursuant to this
Agreement, in compliance with USDA-APHIS’s 7CFR, Part 340 Regulations Governing Plant Biotechnology.
9.
Either of the Parties may terminate their participation in this Agreement, with or without cause, on
thirty (30) days written notice. Termination of the Agreement for any reason shall not excuse any Party from the
performance of any obligation outstanding on the date of termination. Upon termination of the Agreement for any
reason, all Plant Material in possession of the Recipient received from SDSU shall be destroyed by Recipient, unless
otherwise agreed to under a separate Agreement. In such cases, the Recipient shall confirm in writing that such
destruction of Plant Material has been completed.
10.
Paragraphs 1, 4, and 7 of this Agreement shall survive termination. In the event of termination,
any Plant Material exchanged and remaining in possession of a Recipient will be destroyed.
11.
The Plant Material is provided at no cost, or with an optional transmittal fee solely to reimburse
SDSU for its preparation and distribution costs.
12.
If any provision or covenant of this Agreement should be held by a court of competent jurisdiction
to be invalid, illegal, or unenforceable, either in whole or in part, the validity, legality or enforceability of the
remaining provisions or covenants of this Agreement shall be unaffected.
13.
Recipient may not assign, transfer, or sublicense any rights under this Agreement, unless in
writing and signed on behalf of all the Parties.
14.
This Agreement shall remain in effect for one year from the Effective Date.
15.
The Parties acknowledge that legislative action may require that curtailment or termination of
some or all of SDSU’s research and educational programs. The Parties acknowledge further that SDSU is obligated
to respond to such legislative action and may determine that it is necessary to curtail or terminate those programs.
SDSU has no obligation to the other Party to perform any research or educational program and nothing in the
foregoing or otherwise in this Agreement will be interpreted to create any obligation on SDSU to perform research
or educational programs. The Parties also agree that termination or failure to perform terms and conditions of this
Agreement in response to legislative action will not be deemed a breach of this Agreement.
16.
This Agreement embodies the entire understanding of the parties and shall supersede all previous
communication, either verbal or written, between the parties relating to this Agreement. This Agreement may be
amended only by the mutual written agreement of the Parties.
17.
The parties may sign this Agreement in one or more counterparts, each of which constitutes an
original and all of which together constitute the Agreement. Facsimile signatures shall constitute original signatures
for all purposes.
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South Dakota State University
Technology Transfer Office
IN WITNESS whereof, the Parties hereto have duly executed this agreement by affixing respective
signatures of their authorized representative below as of the day and year there noted.
South Dakota State University “SDSU”
“Recipient”
By:
Name:
Title:
Date:
By:
Name:
Title:
Date:
William Aylor
Asst. VP, OTTC
Acknowledgement by SDSU scientist
Acknowledgement by Recipient Scientist
By:
Name:
By:
Name:
Acknowledgement by Director of Agriculture
Experiment Station
By:
Name:
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South Dakota State University
Technology Transfer Office
Appendix A
Plant Material
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