オーストラリア国立海洋生物研究所非商用研究用素材ライセンス契約

オーストラリア国立海洋生物研究所非商用研究用素材ライセンス契約
Material Licence Agreement ? Non Commercial Research

背景
This Agreement is entered into by THE AUSTRALIAN INSTITUTE OF MARINE SCIENCE (ABN 78 961 616 230) a body corporate established under the Australian Institute of Marine Science Act 1972 (Cth) of Cape Ferguson, via Townsville, Queensland 4810, Australia (“AIMS”) and the RECIPIENT for the licensing of certain materials as follows:

DETAILS
TERM:

Commencement Date:

Expiry Date:

AIMS:

AIMS Representative:		Telephone:
Address for Service:	1526 Cape Cleveland Road, Cape Cleveland, Qld 4810.	Fax:	+61 7 4772 5852
		Mobile Phone:
Mailing Address:	PMB3, Townsville MC,	Email:

RECIPIENT:

Full Legal Name:		ABN:
Mailing Address:		Telephone:
		Fax:
		Mobile Phone:
Address for Delivery of Materials:		Email:
		Contact Person:
		Custodian:

DESCRIPTION OF MATERIALS:

Definition:
Quantity:
Packaging:
Mode of Transport:

APPROVED PURPOSE:

Approved Purpose:	Non-commercial use of Materials, relevant AIMS IP and Intellectual Property arising from use of the Materials and Derivatives associated with the research activities outlined below.
Details of Non-Commercial Research Activities:

SPECIAL CONDITIONS (to the extent of any inconsistencies between the Special Conditions and the attached Terms and Conditions, these will override the attached Terms and Conditions):

契約本文
EXECUTION PAGE

AIMS agrees to grant to the RECIPIENT a licence to receive and use the Materials and the parties agree to accept certain other rights and obligations on the Terms and Conditions attached to and forming part of this Agreement.

Signed for and on behalf of THE AUSTRALIAN INSTITUTE OF MARINE SCIENCE:		Signed for and on behalf of FLINDERS UNIVERSITY :
Signature of Authorised Officer:		Signature of Authorised Officer:
Print Name:		Print Name:
Date:		Date:
In the presence of:		In the presence of:
Signature of Witness:		Signature of Witness:
Print Name:		Print Name:

Terms and Conditions

1. Definitions & interpretation
In this Agreement, descriptions and terms referred to in the Details section have the meanings respectively there appearing. In addition:

1.1 “Confidential Information” means all know-how, Intellectual Property, financial information and other commercially valuable or sensitive information in whatever form, including inventions (whether or not reduced to practice), trade secrets, methodologies, formulae, graphs, drawings, samples, biological materials, devices, models, business plans, policies, information regarding future products and any other materials or information which a party regards as confidential, proprietary or of a commercially sensitive nature that may be in the possession of a party or its employees or officers, whether transmitted orally, in writing or by electronic means, directly or indirectly or via a third party associated with the disclosing party, and whether disclosed before or after the Commencement Date, and includes all information in or relating to the Materials, Derivatives and Results, provided that Confidential Information does not include information which:
(a) is now in the public domain, or enters the public domain after the Commencement Date, through no fault of the receiving party;
(b) can be shown by contemporaneous records of the receiving party to have been known to the receiving party at the time it is received pursuant to this Agreement;
(c) is provided to the receiving party by a third party after the Commencement Date, lawfully and without violating any restriction on its disclosure; or
(d) is independently developed by the receiving party without using any Confidential Information of the other party.

1.2 “Derivative” means anything (excluding Results), derived by the Recipient from or using the Materials and where appropriate the Derivatives, including without limitation:
(a) improvements, developments, modifications, structural or functional analogs and homologs of the Materials;
(b) expression products, replicates and progeny of any of the above; and polynucleotides and
polynucleotides coding for any of the above;

1.3 “Details” means the matters set out in the Details section on the front pages of this Agreement.

1.4 “Intellectual Property” means statutory, general law and any other proprietary rights in respect of copyright and neighbouring rights, all rights in relation to inventions, patents, plant varieties, registered and unregistered trade marks, registered and unregistered designs, circuit layouts and rights to require information to be kept confidential, but does not include moral rights that are not transferable.

1.5 “Results” means all information, Intellectual Property, intellectual assets, data and knowledge arising from the Recipient’s use of the Materials and any Derivatives.

1.6 Interpretation
(a) Headings are for convenience only and do not affect interpretation.
(b) The Details, Terms and Conditions and any schedules or attachments together constitute this Agreement.
(c)The singular includes the plural and conversely, and a gender includes all genders.
(d) A reference to any legislation or to any provision of any legislation includes any modification or re-enactment of it, any legislative provision substituted for it and all regulations and statutory instruments issued under it.

2. SUPPLY OF THE MATERIALS

2.1 AIMS agrees to provide the Recipient with the Materials in the quantity and in the packaging, and by the Mode of Transport, set out in the Details. The Recipient is solely responsible for all transport, insurance and any other costs incurred in supplying and/or using the Materials and to the extent that these are paid for by AIMS will reimburse AIMS within twenty-eight (28) days of written request.

2.2 The Recipient acknowledges that the Materials have been developed or acquired by AIMS, are the sole and absolute property of AIMS and are of considerable value, both in terms of research use and in their actual or potential commercial applications.

3. USE OF THE MATERIALS

3.1 The Recipient must only use the Materials for the Approved Purpose.

3.2 The Recipient agrees to keep the Materials secure, confidential and under the personal care and control of the Custodian for the Recipient. If the Custodian for the Recipient named in the Details changes, the Recipient must notify the full name and contact addresses of the replacement Custodian for the Recipient and the reason for his or her replacement no later than three (3) days after the change becomes effective.

3.3 The Recipient must not without the prior written permission of AIMS:
(a) sell, loan or otherwise provide or give physical possession of any of the Materials or any Derivative to any third party;
(b) use the Materials or any Derivative for any purpose other than the Approved Purpose; or
(c) use or store the Materials or any Derivative in any location other than in the laboratory of the Custodian for the Recipient and under his or her direct supervision.

3.4 Subject only to clause 4.6, the Recipient warrants that the research that will be conducted pursuant to this Agreement is non-commercial and that no person or entity that carries on or proposes to carry on any business holds or at any time will hold any option, licence or other rights to the use or commercialisation of the Materials or any Results or Intellectual Property arising from the Derivatives.

3.5 The Recipient must ensure that its use of the Materials complies with all relevant laws, codes of practice and ethical principles applicable in Australia and any other country in which the research by the Recipient takes place. In particular, the Recipient must not use the Materials or Derivatives in any research or trials involving human subjects without AIMS’ prior express consent in writing. To the extent of any inconsistency between the laws, codes of conduct and ethical principles of Australia and the laws, codes of conduct and ethical principles of another country, the laws, codes of conduct and ethical principles, (as the case may be) of Australia shall prevail.

4. OWNERSHIP & INTELLECTUAL PROPERTY RIGHTS

4.1 AIMS is to be the owner of the entire right, title and interest in the Materials, any Intellectual Property rights subsisting in them at the point of transfer and any Derivatives.

4.2 The right of the Recipient to use the Materials and Derivatives under this Agreement is non-exclusive.

4.3 Nothing in this Agreement or the use of the Materials by the Recipient gives the Recipient any licence of or other proprietary or non-proprietary interest in any Intellectual Property rights of AIMS in relation to the Materials beyond the non-exclusive licence to use the Materials and Derivatives, created by this Agreement.

4.4 AIMS gives no warranty that any use of the Materials and/or Derivatives will not infringe the Intellectual Property rights or other rights of any third party.

4.5 The Recipient is to be the owner of all Results including Intellectual Property rights created by the Recipient after the date of this Agreement as a result of the use of the Materials and Derivatives by the Recipient in accordance with this Agreement. The Recipient grants AIMS a non-exclusive licence to use any Results and Intellectual Property rights so created by the Recipient for non-commercial purposes free of any charge, fee or other payment.

4.6 If the Recipient wishes to commercialise or have commercialised any Results or Intellectual Property rights arising from its use of the Materials or Derivatives, or otherwise deal with any Derivative for any commercial purpose, it must first enter into an appropriate agreement with AIMS. The parties agree to negotiate in good faith with a view to concluding such an agreement on terms reasonably acceptable to both parties.

4.7 If AIMS wishes to commercialise any Results including Intellectual Property created by the Recipient from the use of the Materials or Derivatives it must first enter into an appropriate agreement with the Recipient. Both Parties agree to negotiate in good faith with a view to concluding such an agreement on terms reasonably acceptable to both parties.

5. PUBLICATIONS

5.1 (a)The Recipient will provide AIMS a copy of any publications (including media releases) arising from the use of the Materials and Derivatives thirty (30) days in the case of scientific publications and fourteen(14) days in the case of media releases prior to public release or release outside of the Recipient’s workplace which cannot be so published or released without AIMS’ prior written consent which will not be unreasonably withheld or delayed for longer than 30 days and 14 days as the case may be.
(b)Where the intended publication is a student thesis it will be unreasonable for AIMS to withhold or delay consent unless AIMS can establish within 30 days of receipt of the request for publication that AIMS’ Intellectual Property Rights or Confidential information would be adversely affected by the publication.
(c)Failure by AIMS to respond within the time limits specified in this clause 5.1 will be deemed to be a consent.

5.2 The Recipient agrees to acknowledge the role of AIMS in any publication arising out of the Recipient’s use of the Materials and Derivatives (including without limitation the provision of the Materials pursuant to this Agreement) and, where any significant advice or recommendations have been provided by an employee of AIMS, the Recipient further agrees to acknowledge the authorship of that person.

5.3 The Recipient will not use AIMS’ name or logo without AIMS’ prior written consent.

6. CONFIDENTIALITY

6.1 The Recipient must treat the Materials as Confidential Information and restrict access to the Materials to those researchers who are directly involved in the Approved Purpose and who are placed under an obligation to observe the terms of this Agreement.

6.2 ach party will treat the terms of this Agreement and all Confidential Information owned by the other party as confidential. Each party’s obligation of confidentiality will survive expiration or termination of this Agreement and will continue until the Confidential Information is disclosed to it lawfully becomes part of the public domain.

7. REPORTING

7.1 (a)The Recipient will provide Reports of the Results to AIMs in accordance with requirements set out in the Details.
(b)AIMS will keep such Reports confidential subject to any AIMS’ rights described in clause 4.

8. LIABILITY & INDEMNITY

8.1 AIMS gives no warranty that the Materials are fit for the Approved Purpose, or that they have any particular qualities or characteristics. The Recipient acknowledges that the Materials are experimental in nature and that the speculative nature of scientific research is such that it is unreasonable to expect AIMS to give any assurances to the Recipient as to the performance of the Materials, the Derivatives or the Results.

8.2 To the extent permitted by law, all implied warranties and conditions relating to the supply of the Materials to the Recipient are excluded or, where such an exclusion is prohibited by law, liability under any such implied conditions and warranties is limited to the extent permitted by law. The Recipient indemnifies AIMS, its officers, staff, contractors, representatives and agents against any loss or liability arising out of or relating to the Recipient’s possession, use, storage or transport of the Materials, however that loss or liability may arise. For the avoidance of doubt, the fact that AIMS has reviewed a description of the Recipient’s research does not constitute any advice by AIMS, or any endorsement of such research.

8.3 The Recipient indemnifies AIMS and its officers, staff, contractors, representatives and agents against all loss, liability, damage (whether to persons or property), costs and expenses (including without limitation legal expenses), claims, demands, suits and other actions arising out of the Recipient’s acceptance, use and disposal of the Materials and/or Derivatives and publication or disclosure of the Results arising from the use of the Materials and/or Derivatives.

9. EXPLOITATION OF THE MATERIALS

9.1 Nothing in this Agreement prevents AIMS from exploiting the Materials or any derivatives or distributing, or licensing the Materials or any derivatives to any third party, including both profit and non-profit organisations.

10. TERMINATION & ASSIGNMENT

10.1 The Recipient may terminate this Agreement at any time by giving 14 days written notice to AIMS

10.2 In addition to its rights at common law , AIMS may immediately terminate this Agreement by notice in writing given to the Recipient if the Recipient :
(a) enters into liquidation or has receiver or manager appointed or enters into a scheme of arrangement with any of its creditors;
(b) breaches this agreement which is not in the reasonable opinion of AIMS capable of rectification;
(c) breaches this Agreement and does not rectify it to the satisfaction of AIMS within 14 days after receiving notice from AIMS requiring it to do so;
(d) engages in dishonest or fraudulent conduct; or
(e)fails to perform its obligations under this Agreement for more than 60 days due to an event beyond its control that AIMS did not cause.

10.3 The Recipient must either return the Materials and/or the Derivatives to AIMS or destroy the Materials and Derivatives (to be determined at AIMS’ discretion) at the Recipient’s cost upon the earlier of:
(a) demand by AIMS;
(b) termination or expiration of this Agreement; and
(c) once the Materials and/or Derivatives are no longer required for the Approved Purpose.

10.4 The Recipient’s rights under this Agreement are not assignable.

11. DISPUTE RESOLUTION

11.1 If a dispute arises out of or related to this Agreement no party may commence court or arbitration proceedings (other than proceedings for urgent interlocutory relief) unless it has first complied with this clause.

11.2 A party to this Agreement claiming that a dispute has arisen under or in relation to this Agreement must give written notice to the other party specifying the nature of the dispute. On receipt of that notice by the other party the parties’ representatives must endeavour in good faith to resolve the dispute expeditiously and failing agreement within 7 days must use informal dispute resolution techniques such as mediation, expert evaluation or determination or similar techniques agreed to by them.

11.3 If the parties do not agree within 7 days of receipt of the notice referred to in this clause as to the dispute resolution technique and procedures to be adopted, the time table for all steps in those procedures, and the selection of compensation of the independent person required for such a technique, then the parties must mediate the dispute as to which the President of the Law Society of Queensland or his nominee will select the mediator and determine the mediator’s remuneration. The mediator will determine the procedure for mediation which so far as is reasonably capable of application shall be based on the Rules of Arbitration of the International Chamber of Commerce.

12. GENERAL

12.1 Any notice under this Agreement may be served by hand delivery or by being forwarded by prepaid post to the address of the party or to such other address as may be notified in writing by the party from time to time and in the case of service by post is deemed to have been received within four days after posting. Notices may be served by facsimile transmission or e-mail and are valid if in fact received, as demonstrated by a valid transmission report or notification of delivery to the recipient’s computer.

12.2 This Agreement contains the entire agreement of the parties with respect to its subject matter. It sets out the only conduct relied on by the parties and supersedes all earlier conduct by the parties with respect to its subject matter.

12.3 This Agreement may be varied only by written agreement signed by both parties.

12.4 No waiver by AIMS of any provision of or right, remedy or power of AIMS, and no amendment to this Agreement, will be effective unless it is in writing signed by AIMS and any such waiver will be effective only in the specific instance and for the specific purpose for which it is given.

12.5 No failure or delay by AIMS to exercise any right, remedy or power under this agreement or to insist on strict compliance by the Recipient with any obligation under this Agreement, and no custom or practice of the parties at variance with the terms of this Agreement, will constitute a waiver of the right of AIMS to demand full compliance with this Agreement.

12.6 If any provision of this Agreement is unenforceable or invalid for any reason, the relevant provision will be deemed to be modified to the extent necessary to remedy such unenforceability or invalidity or, if this is not possible, then such provision will be severed from this agreement, without affecting the enforceability or validity of any other provision of this Agreement.

12.7 This Agreement is governed by the laws of Queensland and Australia without regard to conflicts of laws principles, and the parties submit to the non-exclusive jurisdiction of the courts of Queensland and Australia.

12.8 Each signatory to this Agreement warrants that he or she has authority to bind to this Agreement the party that he or she is stated to represent.

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