Biological Materials Transfer Agreement
This Agreement by and between OPHIDIAN PHARMACEUTICALS, INC. (hereinafter
OPHIDIAN), a Delaware corporation, having a principal address at 0000 Xxxx
Xxxxxx Xxxxxxx, Xxxxxxx, XX 00000 and BIOSYNTECH LTD., (hereinafter
"BIOSYNTECH") a Canadian corporation with offices at 000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx (Xxxxx) XX, XXXXXX X0X 0X0 and shall govern the conditions of
transfer of materials and the confidential disclosure of proprietary information
to and from the aforementioned parties.
Whereas BIOSYNTECH and OPHIDIAN desire to receive certain Materials and
Information from the other party to this agreement for scientific and commercial
evaluation;
Whereas OPHIDIAN and BIOSYNTECH are willing to provide the Materials and
Information described herein;
Now, therefore OPHIDIAN and BIOSYNTECH agree as follows:
1. "Materials" shall mean proprietary original materials of the
respective parties;
2. "Information" shall mean, subject to paragraph 4 below, all
information relating to the Materials;
3 Materials shall remain the sole property of the party providing them.
The Providing Party shall retain all intellectual property rights in
Materials and Information. The Receiving Party shall not transfer
materials and materials derived from Materials to anyone other than
its employees. Only those employees of the Receiving Party with a
legitimate need for access will have access to Materials or
Information. Materials may not be transferred or taken by the
Receiving Party to another institution or company without the prior
written consent of the Providing Party. Materials will not be sold to
third parties and shall not be used for research, testing or treatment
involving human subjects or for making any clinical decisions relating
to human diagnosis or care.
4. Information generated during this material transfer and evaluation
shall be retained in confidence by both parties for three (3) years
and shall not be disclosed to third parties, unless the information:
a) at the time of disclosure is in the public domain; b) disclosure
becomes part of the public domain, except by breach of this Agreement;
c) was in the possession of the recipient of the information at the
time of disclosure as established by competent written evidence; d)
was received from a third party who is not, directly or indirectly,
under an obligation of confidentiality with respect to such
information; or e) is approved for public release by written
authorization of the other party to this agreement.
5 The Receiving Party agrees to use Materials or Information and the
results of Receiving Party's evaluation of Materials to; a) examine
the possibility of entering into a business relationship with the
Providing Party, and not for any other commercial purposes.
6. OPHIDIAN and BIOSYNTECH agree that nothing herein shall create or
imply any obligation to enter into any other agreement.
7. Information or materials received from the Providing Party and any
developments materially derived therefrom are and shall remain the
sole property of the Providing Party. Nothing herein shall be deemed
to constitute by implication or otherwise the license or grant to the
Receiving Party by the Providing Party of any intellectual property
right to or interest in the Providing Party's information and/or any
information, technology and/or products materially derived or
developed therefrom, except as the parties may subsequently agree in
writing. The Receiving Party shall not use, develop, disclose to any
third party, and/or commercialize any of the foregoing without the
Providing Party's written consent. No agency or partnership
relationship is created by this Agreement; no warranties are made by
the Providing Party or right to use or fitness for any purpose or of
any other kind; and it is understood that neither party has any
obligation to enter into any further agreements with the other related
to any Technology or any other matter.
8. The Materials to be delivered by the Providing Party to the Receiving
Party are to be used in a safe manner and in accordance with all
applicable governmental rules and regulations. They are provided by
the Providing Party "AS IS." THE PROVIDING PARTY MAKES NO
REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESS
OR IMPLIED, WITH RESPECT TO THE MATERIALS AND EXPRESSLY DISCLAIMS ALL
IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR
PURPOSE OR USE. THE PROVIDING PARTY DISCLAIMS ALL WARRANTIES OF NON
INFRINGEMENT WITH RESPECT TO ANY THIRD PARTY RIGHTS AND TITLE,
INCLUDING PATENT RIGHTS, IN THE MATERIALS.
9. Except to the extent specifically precluded by applicable federal or
state law, the Receiving Party agrees to defend, indemnify and hold
the Providing Party and its directors, trustees, appointees, employees
and agents harmless from any claims, liabilities, damages and losses
that might arise as a result of the Receiving Party use of the
Providing Party Materials or the Providing Party Information. Where
such indemnity is precluded, the Receiving Party assumes sole
responsibility for any claims, liabilities, damages and losses that
might arise as result of the Receiving Party use of the Materials.
10. Upon conclusion of the evaluation using the Providing Party Materials
or upon request by the Providing Party, the Receiving Party agrees to
discontinue use of the Providing Party Materials and will arrange for
the return to the Providing Party or for the lawful disposal of all
unused Providing Party Materials, as elected by the Providing Party.
11. This Agreement shall be governed and construed in accordance with the
laws of the State of Delaware without regard or giving effect to its
principles of conflict of laws. This Agreement constitutes the entire
agreement and understanding of the parties and supersedes any prior
agreements or understandings relating to the subject matter hereof
with the exception of the Confidentiality Agreement dated 12 August
1999 between the aforementioned parties. This agreement may not be
modified except by a written instrument signed by all parties. No
provision or benefit of this agreement may be waived, except by
Written instrument duly executed by the party or parties to be charged
therewith.
/S/ Xxxxxxxx Xxxxxxx Date 8/16/99 /S/ Xxxxxxx X. Xxxxxxxx Date: 8/12/99
-------------------- ------------ ----------------------- -------------
Xxxxxxxx Xxxxxxx Xxxxxxx X. Xxxxxxxx
Vice-President R&D President and CEO
Biosyntech Ltd. OPHIDIAN Pharmaceuticals, Inc.
475 Blvd. Xxxxxx-Xxxxxxxx 0000 Xxxx Xxxxxx Xxxxxxx
XXXXX. XX. Xxxxxxx, XX 00000
XXXXXX X00-0X0
