materials transfer agreement - Melbourne Research - University of ...

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MATERIALS TRANSFER AGREEMENT
THIS AGREEMENT is made on the day of 200_
BETWEEN
THE UNIVERSITY OF MELBOURNE a body politic and corporate established pursuant
to the University of Melbourne Act 1958 of Grattan Street, Parkville, Vic, 3010 (the
“University”)
AND
MATERIALSUPPLIER PTY LTD [ABN] of [insert MaterialSupplier address]
(“MaterialSupplier”)
RECITALS
A. The University has requested MaterialSupplier to provide certain Materials for the
purposes of Research Program to be conducted by the University.
B. MaterialSupplier has agreed to make the Materials available to the University on
the terms and conditions set out in this Agreement.
IT IS AGREED AS FOLLOWS
1. DEFINITIONS AND INTERPRETATION
1.0 Definitions
Agreement means this agreement, including all schedules.
Business Day means a day on which banks are open in Melbourne.
Commencement Date means the date specified in Schedule 1.
Completion Date means the date specified in Schedule 1.
Confidential Information means this Agreement, details relating to the Research
Program, Research Program IP, the Materials, all know-how, financial information
and other commercially valuable information in whatever form including
unpatented inventions, trade secrets, formulae, graphs, drawings, designs,
biological materials, samples, devices, models and other materials of whatever
description which a Party claims is confidential to itself and includes all other such
information that may be in the possession of a Party’s employees or management.
The following are exceptions to such information:
(a)
(b)
information which is or becomes part of the public domain otherwise than as
a result of an unauthorised disclosure by the recipient Party or its
representatives;
information which is or becomes available to the recipient Party from a third
party lawfully in possession of that information and who has the lawful power

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(c)
(d)
to disclose such information to the recipient Party on a non-confidential
basis;
information which is rightfully known by the recipient Party (as shown by its
written record) prior to the date of disclosure under this Agreement; and
information which is independently developed by an employee of the
recipient Party who has no knowledge of the disclosure under this
Agreement.
Dispute means a dispute between the parties, as referred to in Clause 7.
Intellectual Property means any technical, scientific or intellectual property and
other information whether capable of protection by statute, common law or in
equity including copyright, design rights, trade marks, patents and all rights and
interests of a like nature and any and all papers and documentation relating to
such rights and interests.
Materials includes biological materials, related information and data supplied by
MaterialSupplier as detailed in Schedule 1.
Party means a party to this Agreement.
Research Program has the meaning given in Schedule 1.
Research Program IP means the Intellectual Property which is created,
developed or discovered as a result of conducting the Research Program including
any improvements, derivatives or modifications to the Materials that the University
develops, directly or indirectly while conducting the Research Program or using the
Materials.
Research Period means the period of time between the Commencement Date
and the Completion Date.
1.2 Interpretation:
Headings are for convenience only and do not affect interpretation.
The following rules apply unless the context requires otherwise:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
The singular includes the plural and conversely.
A gender includes all genders.
If a word or phrase is defined, its other grammatical forms have a
corresponding meaning.
A reference to a person, corporation, trust, partnership, unincorporated body
or other entity includes any of them.
A reference to a Clause or Schedule is a reference to a clause of, or a
schedule to, this Agreement.
A reference to an agreement or document (including, without limitation, a
reference to this Agreement) is to the agreement or document as amended,
varied, supplemented, novated or replaced, except to the extent prohibited
by this Agreement or that other agreement or document.
A reference to legislation or to a provision of legislation includes a
modification or re-enactment of it, a legislative provision substituted for it and
a regulation or statutory instrument issued under it.
2. SUPPLY OF THE MATERIALS

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2.1 The University has requested MaterialSupplier to supply, and MaterialSupplier has
agreed to supply the Materials to enable the University to carry out the Research
Program during the Research Period.
3. INTELLECTUAL PROPERTY
3.1 MaterialSupplier grants the University a non-exclusive, royalty-free licence to use
the Materials and any Intellectual Property subsisting in or in relation to the
Materials for carrying out the Research Program.
3.2 MaterialSupplier warrants that, to the best of its knowledge, it is entitled to make
the Materials and any Intellectual Property subsisting in or in relation to the
Materials available to the University.
3.3 MaterialSupplier shall not make any claim asserting that it owns any right or
interest in the Research Program IP, products, methods and techniques used,
improved or developed in connection with the use of the Materials by the
University pursuant to this Agreement.
3.4 The University may wish to exploit or use the Materials on a commercial basis in
conjunction with the Research Program IP. If the Materials are required for a
commercial purpose, the University shall make a written request to
MaterialSupplier seeking a further licence to use the Materials. The parties shall
negotiate the terms and conditions of any further licence in good faith.
1. USE OF THE MATERIALS
4.1 The University shall not use the Materials in any human body fluids, extracts of
human tissues, human tissue in explant culture or human cells in cell culture,
without the prior written consent of MaterialSupplier.
4.2 The University acknowledges that the Materials are experimental in nature and
that, to the extent permitted by law, MaterialSupplier excludes all warranties of
merchantability, fitness for a particular use, safety or quality in relation to the
supply of the Materials.
3.0 The University accepts responsibility and liability for the conduct of the Research
and will use the Materials at its own risk.
5. CONFIDENTIALITY
5.1 The Parties may exchange Confidential Information relevant to the Research
Program and the Materials.
1.0 Each Party undertakes to treat as confidential all Confidential Information obtained
from the other Party and undertakes not to divulge any Confidential Information to
any person without first obtaining the consent of the other Party in writing.
2.0 Each Party will take such reasonable steps to provide for the safe custody of any
and all Confidential Information in its possession and to prevent unauthorised
access thereto or use thereof.
3.0 Each Party may disclose any of the Confidential Information to its employees,
officers or agents as is reasonably necessary to undertake the Research Program.
4.0 Each Party shall advise its employees, officers or agents of the need to ensure the
confidentiality of the Confidential Information.
5.0 Each party’s obligations of Confidentiality will survive expiration or termination of
this Agreement and will continue until the Confidential Information disclosed to it
lawfully becomes part of the public domain.

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6. PUBLICATIONS
6.1 The University shall not publish details or a description of the Materials unless:
(a)
(b)
(c)
7. TAXES
a copy of the proposed publication is first provided to MaterialSupplier;
the proposed publication acknowledges MaterialSupplier as the source of the
Materials; and
MaterialSupplier agrees in writing to the proposed publication.
1.0 If, under the GST Law, any supply under this Agreement is taxable, the supplier of
the supply (the Supplier) will be entitled to recover from the recipient of the supply
(the Recipient), an amount equal to the GST payable by the Supplier. If GST is
payable, the Supplier will provide the Recipient with a tax invoice or other
document adequate to claim an input tax credit.
2.0 In this clause “GST Law” means A New Tax System (Goods and Services Tax) Act
1999 and any substantially similar legislation which may operate at any time during
the term of this Agreement. “Supply” has the meaning given to that term in the GST
Law.
8. DISPUTE RESOLUTION
8.1 If any dispute or difference arises in connection with this Agreement, then the
Parties shall negotiate in good faith for a period of no more than 30 days, using
their best endeavours to resolve the dispute or difference.
8.2 If the Parties are unable to resolve any dispute or difference in accordance with the
above sub-clause, then the matter may be submitted to a person agreed by the
Parties (or failing agreement to a person appointed by the President of the Law
Institute of Victoria or any similar or successor organisation) for determination.
The costs of submission to the person appointed pursuant to this Clause will be
met equally by the Parties.
9. USE OF UNIVERSITY’S NAME
9.1 MaterialSupplier will not use the University’s name or logo without the prior written
consent of the University.
10. RELATIONSHIP OF PARTIES
10.1 The Parties are independent contracting parties, and nothing in this Agreement
shall make any Party the agent or legal representative of the other for any purpose
whatsoever, nor does it grant either Party any authority to assume or to create any
obligation on behalf of or in the name of the other.
11. ASSIGNMENT
11.1 A Party may not assign the rights and obligations arising under this Agreement
without the prior written consent of the other Party.
12. WAIVER
12.1 Any failure by a party to compel performance by the other party of any of the terms
and conditions of this Agreement will not constitute a waiver of those terms or
conditions or diminish rights arising from their breach.

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13. AMENDMENTS
13.1 This Agreement may only be amended in writing, signed by both parties.
13.2 If any provision of this Agreement is invalid or unenforceable, it shall be deemed
deleted but the remaining provisions of this Agreement shall remain in full force
and effect.
14. UNEXPECTED EVENT
14.1 The University will not be liable for any failure to perform its obligations under the
Agreement where such failure is due to any cause beyond the reasonable control
of the University.
15. TERMINATION
15.1 A party may terminate this Agreement if the other party is in default of the terms
and conditions of this Agreement and fails to take action to remedy the default
within 30 days after written notice from the requiring the remedy of the default.
16. NOTICES
16.1 Any Notice given under this Agreement must be in writing and signed by a person
duly authorised by the sender and must either be by post, by hand or fax to the
address at the front of this Agreement or the address or fax number last notified by
the intended recipient to the sender.
16.2 Depending on the method of sending the Notice, a Notice will be deemed given
when delivered or after two Business Days if posted locally, or ten Business days if
posted internationally. A Notice sent by fax is given on receipt of a transmission
control report from the despatching machine.
17. ENTIRE AGREEMENT
17.1 This Agreement contains the whole of the agreement between the University and
MaterialSupplier regarding the Materials.
18. EXECUTION OF AGREEMENT
18.1 This Agreement may be executed in counterparts and by each Party sending its
executed counterpart by facsimile transmission to the other Party’s fax number.
For evidentiary purposes only, each Party must deliver or send by post its original
executed counterpart to the other Party as soon as practicable after execution.
19. GOVERNING LAW AND JURISDICTION
19.1 This Agreement is governed by the laws of the State of Victoria and the
Commonwealth of Australia. Each Party submits to the non-exclusive jurisdiction
of courts exercising jurisdiction there in connection with matters concerning this
Agreement.

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EXECUTION PAGE
SIGNED for and on behalf of THE
UNIVERSITY OF MELBOURNE in the
presence of:
)
)
)
)
...............................................................
Signature of Witness
...............................................................
Signature of authorised person
...............................................................
Name of Witness (block letters)
...............................................................
Office held
...............................................................
Name of authorised person (block
letters)
SIGNED for and on behalf of
MATERIALSUPPLIER PTY LTD in the
presence of:
...............................................................
Signature of Witness
...............................................................
Name of Witness (block letters)
)
)
)
)
...............................................................
Signature of authorised person
...............................................................
Office held
...............................................................
Name of authorised person (block
letters)

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SCHEDULE 1
Commencement Date means ________________________________
Completion Date means _____________________________________
Materials includes biological materials, related information and data supplied by
MaterialSupplier as detailed below:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
___________________________________________________________
Research Program means:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
____________________________________________________________