PRODUCT TESTING AND CONFIDENTIALITY AGREEMENT
Based upon our discussions, we understand that your company,
_______________________, located at ___________________________________________
(hereinafter “COMPANY”) is interested in working together with the University of Delaware,
located at 210 Hullihen Hall, Newark, Delaware 19716 (hereinafter "University") to evaluate
University’s proprietary _____technology/material______. We are pleased that you are willing
to carry out the Evaluation Program, and to provide assistance in the evaluation of the resulting
data (hereinafter "Results").
To enhance the likelihood of success of the Evaluation Program, the parties propose to
provide certain data as well as business information (hereinafter "Information"). The University
will provide samples of __________________ (hereinafter "Material") to be tested by
COMPANY. To protect the use of this valuable Information, Results and Material, we suggest
an Agreement on the following terms:
1.
To accomplish the objectives of our Agreement, COMPANY shall be responsible
for the specific items outlined as follows: The Material provided hereunder shall be tested only
for use in applications relating to ___________________________ (hereinafter “Evaluation
Program”). COMPANY shall communicate and provide to University all Results obtained from
the Evaluation Program herein and assist University in the evaluation of the Results.
2.
Information and Results which have been provided or developed under this
Agreement, which have been designated or labeled as confidential shall be maintained
confidential and not used by COMPANY except to carry out the Evaluation Program for five (5)
years from the date of acceptance of this Agreement. Notwithstanding the above, there are two
circumstances in which Results may be disclosed. Results from the Evaluation Program may be
used by either party for their internal business including sharing with research partners under
existing confidentiality provisions. In addition, the Results may be disclosed in a summarized
form for use in support of commercial activities. The parties agree to mutually review such
summaries prior to release by either party. The obligation of confidentiality and nonuse shall not
apply to information which:
is or becomes known to the public through no fault of the receiving party;
is already known to the receiving party prior to its receipt from the disclosing
party as shown by the written records of the receiving party;
(c) becomes known to the receiving party by disclosure from a third party who
has a lawful right to disclose the information; or
(d) is independently developed by or for the receiving party independently of
Confidential Information received from the disclosing party under this
Agreement as shown by its written records.
(a)
(b)
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3.
In the use of the Material, UNIVERSITY MAKES NO WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER
EXPRESS OR IMPLIED WARRANTY. Neither party shall be liable for special, consequential,
or indirect damages whether or not caused by or resulting from the negligence of such party.
4.
It is understood that COMPANY is an independent contractor and not an
employee or agent of University.
5.
For the purpose of protecting University’s and COMPANY’s interests in the
commercialization of Material, if, as a result of your service hereunder, you conceive, make or
develop any inventions, the rights to the inventions shall be as follows:
(a)
(b)
(c)
COMPANY shall: (i) give notice of any inventions to University; (ii) assign to
University all of COMPANY’s rights therein; and (iii) execute any necessary
papers and otherwise reasonably cooperate with University in the securing of
patents on such inventions.
University shall make available to COMPANY any inventions and patents
resulting from inventions that may result from the Evaluation Program for use in
COMPANY’s own business under a non-exclusive, non-transferable license,
without the right to sublicense, on reasonable terms and conditions to be
negotiated in good faith.
COMPANY understands that University shall continue to operate its internal,
independent efforts to develop new related technology while respecting its
obligations of confidentiality for COMPANY Information. Such new related
technology is not subject to the instant Agreement or any of its terms and
conditions.
6.
The Material provided by Barrday, or any substance derived directly or indirectly
from such Material, shall be the property of Barrday. COMPANY shall use such Material only
as provided under this Agreement, and shall not give, transfer or sell Material to any third party
without written authorization by University. COMPANY shall not grant or cause to be placed
any lien or claim against the Material. At the completion of the Evaluation Program,
COMPANY shall return any remaining Material to the University.
7.
This Agreement shall terminate on the first anniversary of its acceptance date as
noted below, unless extended through the mutual consent of both parties evidenced in writing, or
unless terminated earlier as hereinafter provided.
8.
The relationship between University and COMPANY as described herein may be
terminated by either party upon thirty (30) days' prior written notice, but such termination shall
not relieve the parties of any obligation with respect to Information and Results disclosed prior to
termination or modify the ownership rights in Material described in Paragraph 6.
9.
This Agreement shall be construed in accordance with the laws of the State of
Delaware, provided that all questions concerning the construction or effect of patent applications
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and patents shall be decided in accordance with the laws of the country in which the particular
patent application concerned has been filed or granted.
10.
With the exception of the licenses granted in Paragraph 5, the parties agree that no
rights or licenses are granted, either expressly or impliedly, under any patents, patent
applications, or trademarks. It is further understood that any license hereunder to COMPANY
does not grant any rights to COMPANY to use or to acquire University Material.
11.
This Agreement contains the entire understanding of the parties and shall be
amended only in writing agreed to by both parties.
If these terms are satisfactory, please indicate your acceptance by signing and returning to
us one copy of this letter.
Very truly yours,
University of Delaware
By
Title
Date
ACCEPTED:
COMPANY
By
Title
Date