MATERIAL TRANSFER AGREEMENT

Transcription

1 MATERIAL TRANSFER AGREEMENT WHEREAS, each of the PROVIDERS as defined below, has participated in and contributed to the creation of the ORIGINAL MATERIAL (defined below) and desires to facilitate subsequent research and development with a minimum of administrative burden, and each of the PROVIDERS has for this reason indicated its acceptance to the use of this Material Transfer Agreement, pursuant to a Letter Agreement attached hereto as Exhibit A. It is agreed as follows: I. Definitions 1. PROVIDER: The University of Miami located at 1600 NW 10 th Avenue, Miami, Florida 33136; The University of South Florida, Board of Trustees, a public body corporate, located at 4202 E. Fowler Ave., Tampa, FL 33620; The Regents of the University of California, located at Wilshire Blvd., Suite 1200, Los Angeles, CA 90024; and Department of Veterans Affairs Medical Center at San Francisco, located at 4150 Clement Street, San Francisco, CA PROVIDING SCIENTIST: Dr. Andrew Maudsley, Dr. Jeffry Alger, Dr. Larry Hall, Dr. Norbert Schuff, and Dr. Colin Studholme. 3. RECIPIENT: 4. RECIPIENT SCIENTIST: 5. ORIGINAL MATERIAL: This consists of software programs referred to under the project name MIDAS. Original Material includes those programs more specifically described in Exhibit A attached hereto. Original Material also includes updates to the software. 6. MODIFICATIONS: Programs created by RECIPIENT which contain/incorporate the ORIGINAL MATERIAL or are derivative of the ORIGINAL MATERIAL. 7. COMMERCIAL PURPOSES: the sale, lease, license, or other transfer of the ORIGINAL MATERIAL to any person or entity other than a not-for-profit organization. COMMERCIAL PURPOSES shall also include uses of the ORIGINAL MATERIAL or MODIFICATIONS by any organization, including RECIPIENT, to perform contract research, to produce or manufacture products for general sale or to conduct research activities that result in any sale, lease, license, or transfer of the ORIGINAL MATERIAL or MODIFICATIONS to a for-profit organization. 8. NONPROFIT ORGANIZATION(S): A university or other institution of higher education or an organization of the type described in section 501(c)(3) of the Internal Revenue Code and exempt from taxation under section 501(a) of the Internal Revenue Code or any nonprofit scientific or educational organization qualified under a state nonprofit organization statute. As used herein, the term also includes government agencies. Page 1 of 3

2 II. Terms and Conditions of this Agreement 9. The PROVIDER retains ownership in all rights in the ORIGINAL MATERIAL. The RECIPIENT shall use the ORIGINAL MATERIAL for research and investigational purposes only. The ORIGINAL MATERIAL is not for clinical use. The RECIPIENT must ensure that use of the ORIGINAL MATERIAL for human or animal investigational studies is carried out in accordance with approved protocols. 10. The RECIPIENT shall be free to make MODIFICATIONS and/or DERIVATIVE WORKS; however, RECIPIENT shall provide such MODIFICATION(S) or DERIVATIVE WORK(S) to PROVIDER with an agreement containing no more restrictions than included in this Agreement, and shall allow PROVIDER to distribute such MODIFICATIONS and/or DERIVATIVE WORKS to other sites. 11. The RECIPIENT and the RECIPIENT SCIENTIST agree that the ORIGINAL MATERIAL: a. is to be used solely for teaching, academic research purposes, and non-commercial use b. is to be used only at the RECIPIENT organization and only in the RECIPIENT SCIENTIST S laboratory under the direction of the RECIPIENT SCIENTIST or others working under his/her direct supervision; and c. will not be transferred to anyone else within the RECIPIENT organization or to any other third party without the prior written consent of the PROVIDER; and d. will not be used for clinical diagnostic purposes. 12. The RECIPIENT agrees to provide the PROVIDER data from normal subjects, suitable for processing using the ORIGINAL MATERIAL and MODIFICATIONS and that the PROVIDER may use and distribute to support the aims of the project. RECIPIENT further agrees to acquire all such data according to the MIDAS Policies and Procedures attached hereto and in accordance with RECIPIENT s IRB approval. 13. The RECIPIENT and the RECIPIENT SCIENTIST agree to refer to the PROVIDER any request for the ORIGINAL MATERIAL from anyone other than those persons working under the RECIPIENT SCIENTIST S direct supervision. 14. The RECIPIENT acknowledges that the ORIGINAL MATERIAL is or may be the subject of a patent application. Except as provided in this Agreement, no express or implied licenses or other rights are provided to the RECIPIENT under any patents, patent applications, trade secrets or other proprietary rights of the PROVIDER, including any altered forms of the ORIGINAL MATERIAL made by the PROVIDER. In particular, no express or implied licenses or other rights are provided to use the ORIGINAL MATERIAL, MODIFICATIONS, or any related patents of the PROVIDER for COMMERCIAL PURPOSES. 15. If the RECIPIENT desires to use or license the ORIGINAL MATERIAL or MODIFICATIONS for COMMERCIAL PURPOSES, the RECIPIENT agrees, in advance of such use, to negotiate in good faith with the PROVIDER to establish the terms of a commercial license. It is understood by the RECIPIENT that the PROVIDER shall have no obligation to grant such a license to the RECIPIENT and may grant exclusive or non-exclusive commercial licenses to others, or sell or assign all or part of the right in the ORIGINAL MATERIAL to any third party(ies), subject to any pre-existing rights held by others and obligations to the Federal Government. Page 2 of 3

3 16. Any ORIGINAL MATERIAL delivered pursuant to this Agreement is understood to be experimental in nature and may have unanticipated and/or deleterious properties. THE PROVIDER MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE USE OF THE ORIGINAL MATERIAL WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER PROPRIETARY RIGHTS. 17. It is understood by the RECIPIENT that PROVIDER can provide only limited support for the installation or use of the software by and telephone. 18. Except to the extent prohibited by law, the RECIPIENT assumes all liability and agrees to defend, indemnify, and hold harmless PROVIDER for damages that may arise from its use, storage, or disposal of the ORIGINAL MATERIAL, MODIFICATIONS or DERIVATIVE WORKS. The PROVIDER will not be liable to the RECIPIENT for any loss, claim, or demand made by the RECIPIENT, or made against the RECIPIENT by any other party, due to or arising from the use of the ORIGINAL MATERIAL, MODIFICATIONS or DERIVATIVE WORKS by the RECIPIENT. 19. The RECIPIENT SCIENTIST agrees to provide the appropriate acknowledgement of the PROVIDER and of the support from the National Institutes of Health of the ORIGINAL MATERIAL in all publications. 20. In the event that it is believed that improper use or acknowledgement of the ORIGINAL MATERIAL has taken place, the PROVIDER retains the right to terminate the Agreement. 21. The Agreement may be terminated by the PROVIDER or the RECIPIENT at any time by giving thirty (30) days written notice. Upon termination, the RECIPIENT will discontinue its use of the ORIGINAL MATERIAL and will, upon direction of the PROVIDER, return or destroy any ORIGINAL MATERIAL, MODIFICATIONS and DERIVATIVE WORKS. 22. Paragraphs 11, 12, 14, 15, 16, 17, 18 and 21 shall survive termination. 23. Reserved. 24. The ORIGINAL MATERIAL is provided at no cost, or with an optional transmittal fee solely to reimburse the PROVIDER for its preparation and distribution costs. PROVIDER: RECIPIENT: Title: Date: Title: Date: Page 3 of 3

4 EXHIBIT A January 18, 2006 Sirs and Madams: The following is to confirm the understanding among the undersigned research institutions (each an Institution and collectively the PROVIDER ) and the undersigned individuals (each a Provider Scientist and collectively the PROVIDER SCIENTIST ) concerning certain software programs referred to under the project name MIDAS. 1. Ownership. As among the parties, each Institution will own all rights and interest in and to its own software provided in connection with its contributions to MIDAS. 2. Availability of Software. (a) Each Institution hereby permits The University of Miami to act as distributor for the MIDAS software to members of the academic and research community only. Upon request, The University of Miami will provide copies of MIDAS Software to academic and non-profit research and educational Institutions in accordance with the terms of the Material Transfer Agreement attached hereto. The University of Miami will notify each of the principle investigators at the respective institutions on behalf of the institution on a yearly basis of all transfers of MIDAS software, or more frequently at the University of Miami s discretion. 3. No Warranty. Each Institution agrees to the best of its ability that to its knowledge as of the effective date of this Agreement, there exists no claim that its Software component provided to the MIDAS Software Project infringes upon the intellectual property rights of any party. Prior to delivery of the Software to future requestors in the academic and research community, The University of Miami will check the Software using a leading commercially available virus scanning software to detect any computer code designed to disrupt, disable, harm, or otherwise impede the operation of the Software or any computer system, device, or network (sometimes referred to as "viruses" or "worms") and will delete all viruses and worms detected prior to delivery of the Software. EXCEPT AS EXPRESSLY STATED IN THE PRECEDING SENTENCE, THE SOFTWARE, DATA AND SERVICES HEREUNDER ARE PROVIDED AS IS AND EACH INSTITUTION MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCES WILL ANY OF THE INSTITUTIONS BE LIABLE FOR ANY DAMAGES RELATING TO SUCH SOFTWARE, DATA OR SERVICES REGARDLESS OF THE CAUSE. WITHOUT LIMITING THE FOREGOING, EACH INSTITUTION EXPRESSLY DISCLAIMS ANY DUTY TO INDEMNIFY ANY INSTITUTION OR ANY OTHER PARTY AGAINST CLAIMS OF INFRINGEMENT.

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