Realistic Canine Training Models

This Non-Exclusive Material License Agreement (“Agreement”), effective as of the latest date of signing below (“Effective Date”), between ________, an entity with offices at _____________(“Licensee”), the University of Tennessee, a public higher education institution and instrumentality of the State of Tennessee with principal office in Knoxville, Knox County, Tennessee (“University”) and the University of Tennessee Research Foundation, a Tennessee nonprofit corporation with offices at 400 W Summit Hill Drive, UT Tower 961A Knoxville, TN 37902 (“UTRF”), and, wherein individually either may be known as “Party” and collectively they shall mean “Parties.”

RECITALS

            WHEREAS, UTRF is a non-profit organization that has as one of its primary functions the management of innovations arising out of the research carried out by the University;

WHEREAS, UTRF and University both have rights to certain units of the research tool, as listed on the official distribution website(“Material”), developed by the University researchers during their employment at University;

WHEREAS, Licensee wishes to receive  ______ unit(s) of the Material (“Licensed Material”) for Licensee’s education use as authorized by this Agreement; and

WHEREAS, University and UTRF are willing to grant such a non-exclusive license to Licensee and University and UTRF will approve the transfer of Licensed Material by University to Licensee under the terms and conditions set forth in this Agreement.

            NOW THEREFORE in consideration of the mutual promises made herein and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties further agree as follows:

ARTICLE 1 GRANT LICENSE RIGHTS AND OBLIGATIONS

1.1 Grant: During the Term hereof, subject to and conditioned on Licensee's compliance with the terms and conditions of this Agreement, UTRF and University hereby grant to Licensee, and Licensee accepts a non-exclusive, royalty-free, non-transferable, non-sublicensable license and right to use the Licensed Material solely for Licensee’s education purposes in the United States (“License”). 

1.2 Limitations and Restrictions: The granting and acceptance of the License in Section 1.1 is subject in all respects to the following conditions:

• (a) Restrictions: In no event shall Licensee:
  • (i) reproduce, sell, modify, or transfer, or redistribute any Licensed Material;
  • (ii) use Licensed Material for any commercial or for-profit purpose;
  • (iii) remove, obscure, or alter any copyright, trademark, or proprietary notices from the Licensed Material or its components;
  • (iv) reverse-engineer, disassemble, or copy the physical construction or layout of the Licensed Material for the purpose of duplication or imitation; or
  • (v) use Licensed Material for any other purpose or use other than specified in the License under Section 1.1. 
• (b) Ownership: University retains ownership of all units of the Licensed Material and UTRF retains the Intellectual Property Rights associated with and in the Licensed Material. Intellectual Property Rights means patents, rights to exploit inventions, trademarks, service marks, registered designs, copyrights and related rights, design rights, in each case whether registered or unregistered, from time to time in any jurisdiction, together with all rights of action in relation to the infringement of any of the above.
• (c) Implied Rights: Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party, any Intellectual Property Rights or other right, title, or interest in or to any of the Licensed Material.

ARTICLE 2 RESPONSIBILITIES OF THE PARTIES

2.1 License Fee: In consideration for the rights granted under this Agreement, Licensee shall pay to UTRF a non-refundable license fee in U.S. dollars in the amount specified on the official distribution website for the Material (“License Fee”). The License Fee shall be paid in the manner specified on the official distribution website. Licensee shall be solely responsible for any and all taxes, duties, or similar governmental charges associated with the License Fee.

2.2 Shipping: Within ten (10) business days after Licensee’s payment of the License Fee, University shall ship the Licensed Materials to the Licensee to the Licensee’s address provided in Article 5.

2.3 Report: Licensee shall complete an evaluation questionnaire requested by UTRF or University within six (6) months after receiving the Licensed Material.

ARTICLE 3 INDEMNIFICATION; REPRESENTATIONS; DISCLAIMER OF WARRANTIES

3.1 Indemnification: Licensee shall defend, indemnify and hold UTRF, University, UTRF’s and University’s respective trustees, directors, officers, employees, contractors, subcontractors, and agents (“Indemnitees”) harmless against any and all claims for loss, damage, or injuries in connection with or arising out of use of Licensed Material  by Licensee or its directors, employees, contractors, subcontractors, or agents or by third parties whose use is authorized by Licensee.  Such indemnity shall include all costs and expenses, including attorney’s fees and any costs of settlement. Any Indemnitee shall have the right to retain legal counsel of its own choosing for purposes of this Section 3.1. Licensee shall not enter into any settlement of a claim, suit, action, demand, or judgment covered by this Section 3.1 without the prior written approval of the Indemnitees if such settlement contains an admission of fault or wrongdoing on the part of such Indemnitees.

3.2 Representations: Each party represents that:

• (a) It has full power and authority to enter into, execute, deliver and perform this Agreement;
• (b) Entering into this Agreement does not and will not create a conflict with or breach of the terms of any other agreement to which it is a party; and
• (c) All rights exercised and obligations undertaken in connection with this Agreement will comply with all applicable foreign, federal, state, and local laws and regulations.

3.3 Disclaimer of Warranties: Any MATERIAL delivered pursuant to this Agreement is understood to be experimental in nature and may have hazardous properties. THE LICENSED MATERIAL IS PROVIDED “AS IS.” EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, UTRF, UNIVERSITY, AND THEIR DIRECTORS, OFFICERS, AND EMPLOYEES AND UNIVERISTY AUTHORS MAKE NO REPRESENTATIONS AND EXTEND NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ENFORCEBILITY OF COPYRIGHT, NONINFRINGEMENT OF ANY INTELLECTUAL PROPERTY AND THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE. 

IN NO EVENT SHALL UTRF OR UNIVERSITY OR THEIR RESPECTIVE TRUSTEES, DIRECTORS, OFFICERS, AND EMPLOYEES BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY KIND, LOST PROFITS, COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, LOST BUSINESS, ENHANCED DAMAGES FOR INTELLECTUAL PROPERTY INFRINGEMENT OR PUNITIVE DAMAGES, WHETHER GROUNDED IN TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, CONTRACT OR OTHERWISE, REGARDLESS OF WHETHER UTRF OR UNIVERSITY SHALL BE ADVISED, SHALL HAVE OTHER REASON TO KNOW, OR IN FACT SHALL KNOW OF THE POSSIBILITY OF THE FOREGOING. LICENSEE HEREBY RELEASES UTRF AND UNIVERISTY, AND ITS DIRECTORS, OFFICERS, EMPLOYEES, FROM ALL CLAIMS RELATING TO THE FOREGOING.

IN NO EVENT SHALL UNIVERSITY CONTRIBUTOR(S), UTRF, UNIVERSITY, OR ANY PERSONS ACTING ON THEIR BEHALF, BE RESPONSIBLE FOR ANY INJURY TO OR DEATH OF PERSONS OR OTHER LIVING THINGS OR DAMAGE TO OR DESTRUCTION OF PROPERTY OR FOR ANY OTHER LOSS, DAMAGE, OR INJURY OF ANY KIND WHATSOEVER RESULTING FROM LICENSEE’S USE OF LICENSED MATERIAL.

5.5 Limitation on Liability: Licensee’s exclusive remedy for a breach of this agreement shall be termination of this agreement.

ARTICLE 4 TERM AND TERMINATION

4.1 Term: The term of this Agreement commences as of the Effective Date and, unless terminated earlier as provided herein, will remain in force for a period of five (5) years (“Term”).

4.4 Automatic Termination for Failure to Carry on Licensee’s Business: If Licensee shall be adjudicated by a court of competent jurisdiction to be insolvent or is dissolved or declared bankrupt or is placed in receivership pursuant to proceedings directed against Licensee or if Licensee shall declare bankruptcy or insolvency, this Agreement shall terminate immediately, unless UTRF, after being informed of the same, elects in writing to the contrary. 

4.3 UTRF and University Termination: Either UTRF or University, at its option, may immediately terminate this Agreement upon written notice, if any of the following occur:

• (a) Licensee fails to pay UTRF any payment due and payable under this Agreement and does not cure such breach within thirty (30) days after delivery of written notice from UTRF.
• (b) Licensee breaches or defaults on any obligation under this Agreement and does not cure within thirty (30) days after delivery of written notice from UTRF.

4.4 Licensee Termination: Licensee shall have the right to terminate this Agreement any time on thirty (30) days written notice to UTRF, stating the reason for such termination provided that Licensee has paid all amounts due UTRF through the effective date of the termination.

4.5 Termination by Mutual Consent. The Parties may mutually agree in writing to terminate this Agreement at any time for any reason.

4.6 Effect of Termination or Expiration: Upon the termination or expiration of this Agreement, all license rights granted, explicitly or impliedly, to Licensee under this Agreement, and any obligation for UTRF or University to take any further action or refrain from taking any action hereunder, shall terminate, subject to the remaining provisions of Section 4.7.  Upon any termination or expiration, the Licensed Material will be properly disposed, destroyed or returned to UTRF at UTRF's option.

4.7 Surviving Obligations:  Rights and obligations that by their nature prescribe continuing rights and obligations shall survive the termination or expiration of this Agreement. Without limiting the generality of the foregoing, the following provisions shall survive: Section 1.2(c), 2.2, Article 3, Sections 4.6, 4.7, and Article 5, as well as any other provisions that by their nature are intended to survive. Nothing herein shall be construed to release any Party from any obligation that matured prior to the effective date of such termination or expiration.

ARTICLE 5 NOTICES AND OTHER COMMUNICATIONS

5.1 Any payment, notice, shipping or other communication required or permitted hereunder shall be in writing and shall be hand-delivered; sent by FedEx or UPS; mailed by certified United States mail, return receipt requested; or sent by email to the address(es) given below or to such other address(es) as the Parties may hereafter specify in writing.  Notice shall be deemed given and received five (5) days after being deposited with the U.S. Postal Service in certified mail postage prepaid format, or if notice is hand-delivered or sent by overnight courier, upon the date of actual delivery, or if sent by email, upon the date the receiving party acknowledges receipt in writing, by email, or otherwise. An email notice shall be given concurrently to a maximum of three email addresses provided by the recipient Party and the first acknowledgment of receipt from the recipient Party shall establish the date on which such notice is given.

UTRF If notice is given by means other than email: University of Tennessee Research Foundation 400 W. Summit Hill Drive, UT Tower 961A Knoxville, Tennessee 37902 Attn: Vice President If notice is given by email: utrf@tennessee.edu   University   If notice is given by means other than email: University of Tennessee 400 W. Summit Hill Drive, UT Tower Knoxville, Tennessee 37902

Licensee _______________ _______________ ______________ _______________   Attn: ________ If notice is given by email: ______________

ARTICLE 6 MISCELLANEOUS PROVISIONS

6.1 Non-Use of Names: Licensee shall not use the names or trademarks of UTRF or University, nor any adaptation thereof, nor the names of any of their employees, directors, trustees, in any advertising, endorsement, promotional, sales literature, publicity, public announcement or other disclosure or in any document employed to obtain funds or financing without prior written consent obtained from UTRF, University, or said employee, director, trustee, in each case, except that Licensee may state that it has Licensed Material from UTRF.

6.2 Successors and Assigns: This Agreement shall be binding upon and shall inure to the benefit of UTRF and its successors and assignees and University and its successors and assignees. The rights, responsibilities and duties under this Agreement are personal to the Licensee and may not be transferred or assigned.

6.3 Entire Agreement:  The Parties hereto acknowledge that this Agreement sets forth the entire agreement and understanding of the Parties, and supersedes, merges and voids any and all prior agreements related to its subject matter. No change, amendment, or modification of any provisions of this Agreement will be valid unless set forth in a writing signed by the Parties.

6.4 Applicable Law and Venue:  This Agreement is entered into in the State of Tennessee and shall be construed, governed, interpreted and applied in accordance with the laws of the State of Tennessee and the laws of the United States of America, without reference to or giving effect to any conflicts of laws principles therein. Only state and federal courts in the State of Tennessee shall have jurisdiction to hear and decide any claim or controversy between the Parties arising under or relating to this Agreement.  Notwithstanding the foregoing, any claims against University will be governed by and brought in accordance with the Tennessee Claims Commission Act, TCA § 9-8-301, et seq. Licensee submits to the jurisdiction of such tribunals for any such matter, and waives any claim that such court lacks jurisdiction over Licensee or such court constitutes an inconvenient or improper forum.

6.5 Authorship: No Party shall be considered the author of this Agreement for the purpose of interpreting any provision herein. Each Party has had the opportunity to consult with counsel in connection with the review, drafting and negotiation of this Agreement, and has either sought or refused the advice of such counsel. Accordingly, the rule of construction that any ambiguity in this Agreement shall be construed against the drafting Party shall not apply.

6.6 Interpretation: Headings used throughout this Agreement are for reference purposes only and such headings and terms shall not be held to explain or aid in the interpretation, construction or meaning of this Agreement’s provisions. When used in this Agreement, “including” and its cognates shall be deemed to mean “including, but not limited to,” regardless of whether such term is initially capitalized and notwithstanding any conflicting provision of this Agreement. Whenever the word “or” is used in this Agreement, it is intended to have the same meaning as “and/or” (even if the term “and/or” is also used in this Agreement), so that the sentence, phrase, or other part in which the word “or” appears be considered in both the conjunctive and disjunctive sense, unless the context could only mean that the disjunctive was intended.  Singular terms shall be interpreted as including the plural and vice versa, unless the context clearly indicates otherwise.

6.7 Party Relationship:  Each Party will be and act as an independent contractor to the other Party in the performance of its obligations pursuant to this Agreement. No Party will be entitled to, or will attempt to, create, or assume any obligation, express or implied, on behalf of the other Party. This Agreement will not be interpreted or construed to create an association, joint venture, partnership, or franchise between the Parties or to impose any partnership obligation or similar liability arising there from upon any Party.

6.8 Severability: The provisions of this Agreement are severable, and in the event that any provisions of this Agreement shall be determined to be invalid or unenforceable under any controlling body of the law, such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions hereof.

6.9 No Waiver of Remedies: The failure of a Party to assert a right hereunder or to insist upon compliance with any term or condition of this Agreement shall not constitute a waiver of that right or excuse a similar subsequent failure to perform any such term or condition by the other party.

6.10 Remedies Not Exclusive: Unless specifically stated in each case, the rights and remedies granted herein, and any other rights or remedies that the Parties may have, either at law or in equity, are cumulative and not exclusive of others.

6.11 Counterparts:  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The Parties agree that signatures transmitted electronically (including by facsimile) shall be acceptable to bind the Parties and shall not in any way affect this Agreement’s validity.IN WITNESS WHEREOF, the Parties execute this Agreement by their duly authorized representatives and acknowledge that they understand and agree to be bound by its terms and conditions.

("Licensee") By:  ____________________________________ Name: Title:   Date:  ___________________________________

UNIVERSITY OF TENNESSEE RESEARCH FOUNDATION (“UTRF”) By:  ____________________________________ Name: Title:   Vice President Date:  ___________________________________

THE UNIVERSITY OF TENNESSEE (“University”) By:                                                                   Name:                                                              Title:                                                                 Date: