EXPRESS LICENSE AGREEMENT FOR BIOLOGICAL MATERIALS
PLEASE CAREFULLY READ THE FOLLOWING AGREEMENT. BY CLICKING ON THE “I ACCEPT” BUTTON, YOU INDICATE YOUR ACCEPTANCE OF ITS TERMS AND CONDITIONS AND AGREE TO BE BOUND AS SET FORTH HEREIN. YOU REPRESENT AND WARRANT THAT YOU HAVE THE REQUISITE AUTHORITY AND LEGAL CAPACITY TO BIND YOUR INSTITUTION TO THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CLICK THE BUTTON.
This Express License Agreement for Biological Materials (“Agreement”) is made by and between the UNIVERSITY OF TENNESSEE RESEARCH FOUNDATION, a non-profit corporation organized and existing under the laws of the State of Tennessee and having a place of business at 600 Henley Street, UT Conference Center Suite 211, Knoxville, Tennessee 37996 (“UTRF”), and you and your institution (“Licensee”). It constitutes a legally binding agreement and governs Licensee’s use of the Biological Material (as defined below).
- “Biological Material” shall mean the material as listed on the official distribution website that is developed and produced by Dr. Chunlei Su, College of Arts and Sciences (Department of Microbiology) at UT (defined below), and owned or controlled by UTRF. Biological Material shall also include progeny, isolates, and unmodified derivatives or any substance created through the use thereof. Biological Material shall not include (a) modifications, or (b) other substances created by the Licensee through the use of the Biological Material which are not isolates, progeny, or unmodified derivatives.
- “Information” shall mean any associated know-how, data, or other information transferred with the Biological Material or otherwise supplied by UTRF or UT.
- “License Fee” means the non-refundable fee paid by Licensee in U.S. dollars as set forth on the official distribution website for the license granted in accordance with the terms and conditions set forth in this Agreement. Licensee is responsible for any and all taxes associated with this license.
- “Licensed Field” shall mean any non-commercial use of the Biological Materials for in-vitro and /or non-human animal in vivo research purposes where no payment or other compensation (other than payments for research) is received from third parties.
- “UT” shall mean the University of Tennessee, a public higher education institution and instrumentality of the State of Tennessee.
ARTICLE 2. TERMS OF LICENSE
- License: Subject to the terms and conditions of this Agreement, UTRF grants to Licensee, and Licensee accepts, a non-exclusive, worldwide, non-sublicenseable, and non-transferable license during the Term to use the Biological Material and Information, only for the Licensed Field. All uses which are not expressly and specifically included within the Licensed Field are specifically excluded and are not licensed under this Agreement.
- Ownership: UTRF owns all right, title and interest in and to the Biological Material and Information, including without limitation any and all progeny, unmodified derivatives, and any Biological Material contained or incorporated in a modification. Licensee shall retain exclusive ownership of all research results arising from its use of Biological Material and Information under this Agreement including but not limited to, any data, know-how, technology, discoveries and inventions. UTRF claims no rights to the intellectual property of Licensee which results from the use of Biological Material and Information by Licensee, excluding material that contain or incorporate the Biological Material.
- Limitations: Licensee shall retain control over the Biological Material and Information, and shall not grant, convey, assign, transfer or otherwise distribute the Biological Material or Information to any person, other than as specified in this Agreement. The license granted under this Agreement does not confer any rights upon Licensee: (a) by implication, estoppel, or otherwise as to any technology not specifically encompassed by this Agreement or (b) to use the Biological Material and Information outside of the Licensed Field or (c) by implication, estoppel, or otherwise a license to any of UTRF’s patents or patent applications. Licensee shall not use the Biological Material in humans or for research involving human subjects or clinical trials.
- Compliance with Laws. Licensee shall comply with all applicable laws, guidelines, and standards in using the Biological Material, including without limitation regarding humane care of laboratory animals.
- Publication: Licensee shall be free to publish and shall cite UT as the source of the Biological Material in any publication by Licensee of the results of its use of the Biological Material. Otherwise, Licensee shall not identify UT or UTRF in any promotional advertising or other promotional materials to be disseminated to the public or any portion thereof or to use the name of any UT or UTRF faculty member, employee, or student or any trademark, service mark, trade name, or symbol of UT or UTRF, without UT’s or UTRF’s prior written consent.
- Government Rights. If the Biological Material was made with U.S. government support, the U.S. Government retains certain rights in the Biological Material, and this Agreement is subject in all respects to U.S. law applicable to intellectual property funded in whole or in part by the U.S. Government.
- Export Control. Licensee shall comply with all export laws and restrictions and regulations of the United States or foreign agencies or authorities, and shall not export or reexport the Biological Material or Information in violation of any such restrictions, laws or regulations, or without all necessary approvals. Diversion contrary to U.S. law is prohibited. Neither the Biological Material nor the underlying information or technology may be downloaded or otherwise exported, re-exported, or transferred (i) into any country subject to U.S. trade sanctions covering the Biological Material, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons, the U.S. Commerce Department’s Denied Persons List, or the U.S. Commerce Department’s Entity List; or (iii) to an end-user engaged in activities related to weapons of mass destruction (nuclear, chemical, biological, and missile technology). Licensee agrees to the foregoing and represents and warrants that it complies with these conditions.
- Licensee Outside the U.S. If Licensee is located outside the U.S., then the provisions of this Article 2.8 shall also apply: (a) the parties confirm that this Agreement and all related documentation is and will be in the English language; and (b) Licensee is responsible for complying with any local laws in its jurisdiction which might impact its right to import, export or use the Biological Material or Information, and (c) Licensee represents that it has complied with any applicable laws and regulations or registration procedures required by applicable law to make this Agreement enforceable.
ARTICLE 3: LICENSE FEES
- Fee: Licensee shall pay License Fee in the amount and manner as set forth on the official distribution website for the Biological Material.
ARTICLE 4: WARRANTY DISCLAIMER AND INDEMNIFICATION
- Warranty Disclaimer. THE BIOLOGICAL MATERIAL AND ANY INFORMATION ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LICENSEE ACKNOWLEDGES THAT THE BIOLOGICAL MATERIAL IS EXPERIMENTAL IN NATURE AND HAS NOT BEEN FULLY CHARACTERIZED. UTRF DISCLAIMS ALL EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING THE BIOLOGICAL MATERIAL, INCLUDING WITHOUT LIMITATION: RELIABILITY, COMPLETENESS, OR ACCURACY OF UT’S OR UTRF’S INFORMATION; INFRINGEMENT OR NON-INFRINGEMENT; THE PERFORMANCE OF THE BIOLOGICAL MATERIAL, INCLUDING WITHOUT LIMITATION AS TO SAFETY, EFFECTIVENESS, OR COMMERCIAL VIABILITY; AND THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING, OR USAGE OF TRADE. UTRF MAKES NO REPRESENTATION THAT THE BIOLOGICAL MATERIAL, UT’S OR UTRF’S INFORMATION, OR THE METHODS USED IN MAKING OR USING THE BIOLOGICAL MATERIAL IS OR WILL BE FREE FROM INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADEMARKS, OR OTHER INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.
- Indemnification: Licensee shall indemnify and hold harmless UTRF, UT, and each of their respective officers, directors, trustees, faculty, employees, students, trainees, and agents, and their respective successors, heirs, and assigns against any claim, liability, cost, damage, deficiency, loss, expense or obligation of any kind or nature (including without limitation reasonable attorneys’ fees, expert witness fees, court costs and other costs and expenses of litigation at trial and appellate levels) incurred by or imposed upon any one of them in connection with any claims, suits, actions, demands or judgments that may arise from the use of the Biological Material and Information by Licensee, its personnel, or any other person acting on behalf of or under authorization from Licensee.
ARTICLE 5: TERM AND TERMINATION
- Term: This Agreement shall become effective on the date Licensee places its order for Biological Material and shall remain in effect for as long as Licensee retains any Biological Material.
- Termination by UTRF. Upon any default or material breach of this Agreement by Licensee, UTRF may terminate this Agreement and the license granted hereunder, if not cured within ten (10) days of written notice.
- Termination by Licensee. Licensee may terminate this Agreement upon at least thirty (30) days prior written notice.
- Effect of Termination. Upon termination or expiration of this Agreement, all rights granted hereunder shall revert to UTRF and Licensee will cease the use of the Biological Material. As directed by UTRF, in its sole discretion, Licensee shall either: (a) transfer to UT any remaining amounts of the Biological Material in its possession; or (b) destroy any remaining amounts of the Biological Material, and promptly confirm the same in writing.
- Survival: Expiration or termination of this Agreement does not relieve either party of any obligation which arises before expiration or termination, including without limitation payment obligations. Any provision of this Agreement which contemplates performance or observance subsequent to any termination or expiration of this Agreement shall survive any termination or expiration and shall continue in full force and effect.
ARTICLE 6: MISCELLANEOUS
- This Agreement may not be amended, nor may any right or remedy of either party be waived, unless the amendment or waiver is in writing and signed by a duly authorized representative of each party.
- Notices: All notices required or permitted relating to a claim or breach of this Agreement shall be in writing and sent to: (i) if to the Licensee: the address provided by Licensee when ordering the Biological Material; and (ii) if to UTRF: Attn: Vice President, 600 Henley Street, Conference Center Suite 211 Knoxville, Tennessee 37996. UTRF may substitute its address from time to time by written notice to the other and shall be deemed validly given upon documented delivery. All other notices relating to the usage of the Biological Material may be provided by UTRF either via telephone or e-mail.
- Independent Contractors. UTRF and Licensee are not (and nothing in this Agreement may be construed to constitute them as) partners, joint venturers, agents, representatives or employees of the other, nor is there any status or relationship between them other than that of independent contractors. No party has any responsibility or liability for the actions of the other party except as specifically provided in this Agreement. No party has any right or authority to bind or obligate the other party in any manner or make any representation or warranty on behalf of the other party.
- Assignment: This Agreement, and the license granted hereunder, may not be assigned by Licensee in whole or in part to any third party without the prior written consent of UTRF.
- Entire Agreement. This Agreement embodies the entire understanding between Licensee and UTRF. There are no contracts, understandings, conditions, warranties or representations, oral or written, express or implied, with reference to the subject matter of this Agreement that are not merged in this Agreement.