MATERIAL TRANSFER AGREEMENT
This Material Transfer Agreement (together with its Exhibits referred to herein
as the "Agreement") governs the transfer of certain substances from time to time
from Biosyntech Limited having its place of business at 000, xxxx.
Xxxxxx-Xxxxxxxx, Xxxxx, XX Xxxxxx, X0X 0X0 to BIOMET Corporation ("BIOMET")
Xxxxxxx Xxxxxxxxxx Xxxx, X.X. Xxx 000, Xxxxxx, XX 00000-0000.
1. Background. BIOMET desires to obtain samples of Biosyntech's proprietary
biomaterial described in Exhibits A (such biomaterial, together with its
progeny, derivatives or improvements is referred to herein as the "Biomaterial")
to evaluate the Biomaterial's suitability in its orthopaedic applications
research, referred xxxxx as "research" set forth in Exhibit A.
2. The Biomaterial and the research. Biosyntech will supply BIOMET with such
quantities of the Biomaterial as BIOMET may reasonably request and as Biosyntech
may make available, in its sole discretion, from time to time. However,
Biosyntech shall be under no obligation to supply any Biomaterial at any time
and may cancel the supply of Biomaterial at any time without advance notice.
BIOMET will use the Biomaterial and any product or process derived from the use
of the Biomaterial solely in its Research set forth in Exhibits A and for no
other purpose. The Research will be conducted solely by BIOMET at its research
facilities or by a third party contractor at their facilities. None of the
Biomaterial will be transferred or sold to third parties other than the
aforesaid third party contractors. BIOMET WILL NOT USE THE BIOMATERIAL FOR
TESTING IN OR TREATMENT OF HUMAN SUBJECTS. BIOMET acknowledges that the
Biomaterial is experimental and will comply with all laws and regulations
applicable to its handling and use. Any Biomaterial remaining upon completion of
the Research will be returned to Biosyntech.
3. In Vivo Studies. If Biosyntech or BIOMET is using the Biomaterial for
non-human in vivo studies, it will comply with all applicable federal, state and
local laws and regulations.
4. Inventions
In the course of evaluation of the Biomaterial's suitability in its orthopaedic
applications research, inventions may be developed which may be patentable due
to the superior characteristics and properties of Biosyntech's product.
Therefore, the parties shall jointly own inventions that are either made by the
parties' employees or consultants jointly or inventions that are made solely by
Biomet's employees and consultants where the patentability of such inventions is
attributable in whole or in part to the use of Biosyntech's material.
At Biosyntech's request, BIOMET will advise and update Biosyntech on the
progress and results of the Research subject to Section 6.
5. No Licence. Biosyntech retains all rights and title in and to the Biomaterial
and all related Biosyntech intellectual property rights, including without
limitation, any patents, patent applications, copyrights and copyright
applications, subject to the limited right of use granted to BIOMET herein to
carry out the Research, and retains the right to have any Biomaterial destroyed
and any Biomaterial returned to Biosyntech or disposed of upon request. BIOMET
understands that no other right or license to the Biomaterial is granted or
implied as a result of Biosyntech's sending the Biomaterial to it. Nothing
contained in this Agreement shall restrict Biosyntech's right to disclose, use,
sell, assign, transfer or distribute the Biomaterial to any other entity for
commercial or non-commercial purposes. BIOMET retains all right and title in and
to the Instruments and all related BIOMET intellectual property rights,
including without limitation, any patents, patent applications, copyrights and
copyright applications. Nothing contained in this Agreement shall restrict
BIOMET's right to
disclose, use, sell assign, transfer or distribute the Instruments to any other
entity for commercial or non commercial purposes.
6. Confidentiality. Subject to Section 4.3 hereof, for a period of 5 years from
the date of this Agreement, neither party will disclose or publish the results
of the Research to third parties other than in confidence to its directors,
officers, employees, consultants, corporate partners or potential corporate
partners. With the exception of the results of the Research, any confidential or
proprietary information provided by Biosyntech to BIOMET shall be considered
Biosyntech's Proprietary Information and for a period of five years from the
date of disclosure of any Biosyntech Proprietary Information hereunder, BIOMET
agrees that it will hold in confidence and not disclose or make available to any
third party, any Biosyntech Proprietary Information disclosed to it by or on
behalf of Biosyntech, will not use such Biosyntech Proprietary Information for
any purpose other than as advised or directed by Biosyntech and will not exploit
such Biosyntech Proprietary Information for its own benefit or the benefit of
another without the prior written consent of Biosyntech. With the exception of
the results of the Research, any confidential or proprietary information
provided by BIOMET to Biosyntech shall be considered BIOMET Proprietary
Information and for a period of five years from the latest date of disclosure of
any BIOMET Proprietary Information hereunder, Biosyntech agrees that it will
hold in confidence and not disclose or make available to any third party, any
BIOMET Proprietary Information disclosed to it by or on behalf of BIOMET, will
not use such BIOMET Proprietary Information for any purpose other than as
advised or directed by BIOMET, and will not exploit such BIOMET Proprietary
Information for its own benefit or the benefit of another without the prior
written consent of BIOMET. Biosyntech Proprietary Information and BIOMET
Proprietary Information shall not include information which:
a) is known to the public at the time of disclosure by the disclosing party or
become so known through no wrongful act on the part of the receiving party, but
only after it becomes so publicly known;
b) is in the receiving party's possession at the time of disclosure by the
disclosing party, as evidenced by written records;
c) becomes known to the receiving party through disclosure by sources not under
an obligation to the disclosing party to maintain such information in confidence
as evidenced by written records;
d) is independently developed by or on behalf of the receiving party without
reference to or reliance on the Proprietary Information of the disclosing party,
as evidenced by written records.
7. NO WARRANTY. THE BIOMATERIAL IS PROVIDED TO BIOMETAS-IS AND WITHOUT WARRANTY,
EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY , TITLE OR FITNESS
FOR A PARTICULAR PURPOSE AND WITHOUT ANY REPRESENTATION OR WARRANTY THAT THE USE
OF THE BIOMATERIAL WILL NOT INFRINGE ANY PATENT, OR OTHER RIGHTS.
8. Indemnification. To the extent permitted under governing law, BIOMET will
indemnify and hold Biosyntech harmless from any claims or liability resulting
from BIOMET's use, handling or storage of the Biomaterial except insofar as such
claims or liability result from Biosyntech's negligence or wrongdoing, subject
to Biosyntech providing prompt written notice of any such claim or liability and
BIOMET having the right to control the defence and/or settlement of such claim;
and to the extent Biosyntech has been negligent or engaged in wrongdoing,
Biosyntech shall indemnify BIOMET to the extent permitted under governing law
subject to BIOMET providing prompt written notice of any
such claim or liability and Biosyntech having the right to control the defence
and/or settlement of such claim.
9. Termination. Either party may terminate this Agreement on thirty (30) days
prior written notice to the other party. Upon termination, BIOMET shall destroy
any Biomaterial, shall immediately return to Biosyntech all Biosyntech
Proprietary Information provided by Biosyntech, and all Biomaterial and all of
BIOMET's right to use the Biomaterial shall end. Following termination, neither
party shall have any further obligation under this Agreement, except that
Section 5 through 10 shall survive termination.
10. Modifications. This Agreement supersedes all prior agreements, written or
oral, including the Confidential Disclosure Agreement dated __________ between
Biosyntech and BIOMET related to the subject matter of this Agreement provided
that the obligations of confidentiality and non-use attaching to the Proprietary
Information disclosed under such Confidential Disclosure Agreement shall survive
its termination. This Agreement may not be modified, changed or discharged, in
whole or in part, except by an agreement in writing signed by the Biosyntech and
BIOMET.
11. Third Partie. Biosyntech and BIOMET hereby represent that the acceptance of
the Biomaterial in accordance with, and the performance of all the terms of this
Agreement do not and will not breach or conflict with any other agreement or
arrangement to which Biosyntech or BIOMET is a party.
12. Bailment. It is the intent of the parties that the transfer of Biomaterial
to BIOMET be considered a bailment, and shall be considered neither a
conditional nor an unconditional sale. Any monies transferred in conjunction
with the transfer Biomaterial and information shall be only to cover the costs
associated with the transfer, and shall not represent consideration for an
exchange of title thereto.
13. Miscellaneous. This Agreement (a) may not be assigned or transferred by any
party without the prior written consent of the other party, except that
Biosyntech or BIOMET may assign this Agreement to an affiliated BIOMET or in
connection with the merger, consolidation or sale of all or substantially all of
its assets and (b) shall be governed by and construed in accordance with the
laws of the Province of Quebec, Canada.
IN WITNESS WHEREOF, Biosyntech and BIOMET have caused this Agreement to be
executed in their properly and duly authorized officers or representatives.
Biosyntech Limited
Name: /s/ Xxxxxxxx Xxxxxxx
--------------------
Xxxxxxxx Xxxxxxx
Title: Vice-President Research and Development
Date: __________________________________
Biosyntech Limited
000, xxxx. Xxxxxx-Xxxxxxxx
Xxxxx (XX) X0X 0X0
Xxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
BIOMET Corporation*
Name: /s/
-----------------------------
Title: _____________________________
Date: ______________________________
Xxxxxxx Xxxxxxxxxx Xxxx
X.X. Xxx 000
Xxxxxx, XX 00000-0000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
