BiOS Health Technology Support Services Subscription Agreement

Version 1.3

This BiOS Technology Support Services Subscription Agreement (the “Agreement “) is effective as and from the _______, 200X (the “Effective Date”).

BETWEEN:

BiOS LICENSEE

– and –

BiOS LICENSOR

(Hereinafter together the “PARTIES”, or individually the “PARTY”)


Recitals

Whereas, for the purpose of fostering innovations in Agriculture the BiOS initiative of CAMBIA strives to bring together various parties as BiOS Licensees to jointly provide and develop a portfolio of inventions and improvements in the field of enabling technologies readily accessible to any party in interest under the general conditions of the BiOS License AGREEMENT; and

Whereas
, CAMBIA owns or is the licensee of certain Technologies and associated patents, patent applications, knowhow, data, materials, and business, technical, economical and manufacturing information (the “IP & Technology”); and

Whereas
, CAMBIA and BiOS LICENSEE have entered as of the Effective Date into a BiOS License Agreement with respect to certain license rights; and

Whereas, the BiOS License AGREEMENT contemplates sharing with and licensing to BiOS LICENSEE of Improvements including Materials and Technology Data developed by other BiOS Licensees, and sharing with and licensing to other BiOS Licensees of Improvements including Materials and Technology Data developed by BiOS LICENSEE and any sublicensees; and

Whereas
, to provide for the costs of services in furtherance of the BIOS Initiative and to facilitate BiOS LICENSEE’S implementation and use of technologies licensed under the BiOS License Agreement (the “Services”) and to provide a discussion forum and framework for developing new innovations within the BIOS Initiative (the “BiOS Enabling Technologies Protected Commons” or “BioForge”),

therefore, BiOS LICENSEE and CAMBIA hereby agree as follows:


1. Definitions

Capitalized terms have the same meaning as defined under the BiOS License Agreements if not explicitly defined otherwise hereunder.

1.1 “Non-BiOS Third Party” means any person or entity not party to a BiOS License Agreement.


2. Material and Technology Data Transfer

2.1 CAMBIA shall employ best efforts to ensure that all Licensed Materials in relation to Licensed Patents are made accessible under the terms of this Agreement to BiOS LICENSEE. CAMBIA agrees to notify BiOS LICENSEE within thirty (30) days after new Licensed Material becomes available to CAMBIA. CAMBIA shall employ reasonable efforts to provide with such notification a detailed description of the Licensed Material, including but not limited to its properties and use. Only in case BiOS LICENSEE requests in writing provision of said new Licensed Material, CAMBIA shall provide BiOS LICENSEE said requested new Licensed Material within thirty (30) days or as soon as practicable after receiving from BiOS LICENSEE said written request and any import/export documentation and fees necessary. New Licensed Material provided by CAMBIA to BiOS LICENSEE shall be listed in Annex A or on CAMBIA’s Protected Commons Website (BioForge), while Annex B or CAMBIA’s Protected Commons Website (BioForge) is to be amended in case additional BiOS Licensed Material is provided.

2.2 Within thirty (30) days of informing CAMBIA of any Improvement, or within thirty (30) days of request by CAMBIA, BiOS LICENSEE will at BiOS LICENSEE’s cost provide reasonable quantities of Improvement Material to CAMBIA or its designee. “Reasonable” in this context means at least a sufficient quantity to enable CAMBIA to practice the Improvement, to propagate the material for providing other members of the BIOS initiative, and to establish a long-term backup. CAMBIA is entitled to provide other BiOS Licensees with the Improvement Material. No license additional to the license grant specified in the BiOS License Agreement is implied or conferred to BiOS Licensees for use of the Improvement Material.

2.3
 BiOS LICENSEE will report to CAMBIA all Technology Data generated by or on behalf of BiOS LICENSEE, comprehensively in writing in the shortest possible time, at the latest within fourteen (14) days of submission of any in-house or other written report.

In case CAMBIA or any other BiOS Licensee receiving Technology Data generated by BiOS LICENSEE desires to discuss said Technology Data with BiOS LICENSEE, BiOS LICENSEE shall provide that experts shall be available upon reasonable notice and for a reasonable time for such discussion via telephone or other electronic means. The first contact for such discussion about Technology Data between different BiOS Licensees shall be made via CAMBIA. CAMBIA may decide in its sole discretion to participate in such discussions.

2.4 Likewise CAMBIA shall provide all Technology Data generated by or on behalf of CAMBIA and shall require that the other BiOS Licensees provide all Technology Data generated by or on behalf of said other BiOS Licensees, and shall require that in case BiOS LICENSEE desires to discuss said Technology Data provided by another BiOS Licensee with said other BiOS Licensee, experts from said other BiOS Licensee shall be available upon reasonable notice and for a reasonable time for such discussion via telephone or other electronic means,

2.5 CAMBIA shall require that Information disclosed by BiOS LICENSEE under this Article 3 which is marked “CONFIDENTIAL” or Material marked or identified in writing as “PROPRIETARY MATERIAL” shall be held by BiOS Licensees in confidence, and shall not be disclosed or released to any Non-BiOS Third Party without the prior written consent of BiOS LICENSEE, except where said Information or Material:

2.5.1 is disclosed in a printed publication available to the public, is described in an issued patent anywhere in the world, is otherwise in the public domain at the time of disclosure, or becomes publicly known through no breach of this Agreement by CAMBIA;
2.5.2 becomes known to any BiOS Licensee or Affiliate through disclosure by sources other than BiOS LICENSEE having the right to disclose such information;
2.5.3 is disclosed by any BiOS Licensee or Affiliate pursuant to the requirements of a governmental agency or any law requiring disclosure thereof, provided that BiOS LICENSEE is given prior written notice of any such disclosure and an opportunity to seek an order to prohibit such disclosure;
2.5.4 is approved for release or disclosure by written authorization of BiOS LICENSEE;
2.5.5 can be established by reasonable written or electronic evidence to have been in the possession of any BiOS Licensee or Affiliate prior to the time of disclosure by BiOS LICENSEE; or
2.5.6 is or was developed by or for any BiOS Licensee or Affiliate independently from any information obtained from BiOS LICENSEE as proven by reasonable written or electronic evidence.

2.6 All PARTIES hereunder shall neither use any material marked “PROPRIETARY MATERIAL“ provided by the other PARTY for the benefit of a Non-BiOS Third Party nor make it accessible to a Non-BiOS Third Party without prior written approval of the providing PARTY. The material will not be used in research that is subject to any consulting or licensing obligation to any Non-BiOS Third Party, nor in commercial or non-commercial work on behalf of any Non-BiOS Third Party, regardless of whether or not such an obligation presently exists or previously existed or may be entered into in the future, without the express prior written permission of the providing PARTY.

2.7 All PARTIES shall employ reasonable efforts to ensure that the use, preparation, storage, handling, transport and/or disposition of provided Material will be conducted in strict accordance with all international, federal, state and/or local laws, statutes, regulations, guidelines, policies, permits, authorizations, industry standards, and/or agreements. In cases where CAMBIA provides Improvement Material to other BiOS Licensees, CAMBIA shall require by appropriate written agreement that these other BiOS Licensees agree to compliance guidelines not less restrictive than agreed upon hereunder.

2.8 THE MATERIALS PROVIDED HEREUNDER ARE BEING SUPPLIED WITH NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO THE IDENTITY, PURITY, OR ACTIVITY OF A PARTICULAR SAMPLE, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES OF NON-INFRINGEMENT OF ANY THIRD PARTY PATENT.

Each PARTY hereunder will bear all risk to said PARTY and to others resulting from said PARTY’s own negligence or wrongful act or omission during or after the term of this Agreement, its own breach of this Agreement, or its own use, commercialization, or sublicensing of Materials or any product made through use of or incorporating any Materials.

Each PARTY hereunder will hold, for all claims, suits, losses, liabilities, damages, costs, fees, and expenses resulting from said PARTY’s said negligence or wrongful act or omission during or after the term of this Agreement, breach of this Agreement, or use, commercialization, or sublicensing of IP & Technology or Improvements or any product made thereby, the other PARTY harmless, and will also hold harmless any parties from which said other PARTY obtained the IP & Technology or Improvement or Technology Data. Neither the providing PARTY nor its employees or agents shall be liable to the receiving PARTY or its employees or agents for any loss resulting from the receiving PARTY’s receipt or use of the material.

2.9 The PARTIES hereunder acknowledge that title to any tangible Material provided under this Agreement is owned by the providing PARTY and said ownership is not transferred to the other PARTY (or any other BiOS Licensee) under this Agreement. The receiving PARTY will not sell, donate, abandon, or otherwise transfer the Materials to any third party, except as permitted under this Article 2. Notwithstanding the foregoing, while this Agreement and the associated License Agreement are in force, nothing herein shall restrict BiOS LICENSEE to commercialize, transfer, or otherwise exploit any BiOS LICENSEE Product made from or by using any such tangible material.

2.10 The Services provide BiOS LICENSEE with the right to send a representative to an annual meeting of all BiOS Licensees, and to obtain user permissions for employees of BiOS LICENSEE to access CAMBIA’s Protected Commons website (BioForge).


3. Considerations of BiOS LICENSEE

3.1 In consideration of the Licensed Material provided and other services granted hereunder BiOS LICENSEE agrees to pay to CAMBIA a Technology Support Services Subscription Fee based on the number of employees in the fields of plant biotechnology and plant breeding (including all personnel worldwide in research and technical development, and associated administration, business development, regulatory and public affairs and marketing) of BiOS LICENSEE, and its Affiliates within thirty (30) days after the Effective Date of this Agreement and of each subsequent anniversary of the Effective Date (unless terminated in writing prior to said date according to the provisions of Article 4.1) in the amount shown in Annex D.

3.2 The PARTIES understand that for academic, not-for-profit organizations no subscription fees are due.

3.3 BiOS LICENSEE is entitled to withhold any taxes from any payments made hereunder only if required by law or governmental regulation notified to CAMBIA and translated into English in advance of such payments, unless and until CAMBIA provides a legally binding ruling from the relevant authority granting BiOS LICENSEE the approval for a reduced withholding or for an exemption. CAMBIA shall ensure full cooperation in order to enable BiOS LICENSEE to fulfill such withholding obligations as notified by BiOS LICENSEE prior to the onset of such obligations, and BiOS LICENSEE shall ensure full and prompt cooperation with CAMBIA’s efforts to provide such a ruling where applicable. The remittance of such withholding by BiOS LICENSEE to the respective governmental authority while such a ruling is pending does not withdraw BiOS LICENSEE from its according payment obligation under this Agreement, to be made promptly upon provision of said ruling. Notwithstanding this provision, BiOS LICENSEE shall strictly adhere to the conditions and rates applicable under the law, practice or policy of the relevant authority.

Other than regulated above, all aforementioned amounts due to CAMBIA shall be understood without any applicable Value Added Tax (VAT) or any similar tax, and shall be made without deduction of any bank or transfer or currency exchange charges. Any such taxes or fees on any payments made hereunder shall be paid by BiOS LICENSEE. Said taxes or fees paid to a government or bank may not be considered as meeting BiOS LICENSEE’s corresponding payment obligation to CAMBIA.

3.4 CAMBIA shall have the right to publish the names of BiOS LICENSEES that have paid the annual fees, but not the amount of paid fees.


4. Termination

4.1 After a duration of three (3) years following the Execution Date hereof, this Agreement may be terminated independently from the BiOS License Agreement. This Agreement shall be terminated automatically when said BiOS License Agreement is terminated.

4.2 Upon termination of this Agreement all rights and obligations of BiOS LICENSEE and CAMBIA shall cease except as otherwise provided in the BiOS License Agreement. For avoidance of doubt, in case the BiOS License Agreement is not terminated with this Agreement, only rights and obligations of this Agreement shall cease, except as otherwise provided in the BiOS License Agreement, but the rights and obligations of the BiOS License Agreement shall survive.


5. Revival and Re-entry

As part of the BiOS License Agreement CAMBIA will offer BiOS LICENSEE from time to time new IP & Technology and related Licensed Material. As a subscriber to the BiOS License Agreement, BiOS LICENSEE is entitled to a license to the IP & Technology. As a subscriber to this BiOS Technology Support Services Subscription Agreement, BiOS LICENSEE is entitled to receive Licensed Material as permitted by applicable laws and regulations and following payment of costs under Articles 2 and 3.

Upon termination of this BiOS Technology Support Services Subscription Agreement, BiOS LICENSEEs rights to receive any Licensed Material shall cease as regulated under Article 4 hereof. BiOS LICENSEE is not entitled to any Licensed Material corresponding to licensed IP & Technology offered and accepted during a time when BiOS LICENSEE was not a subscriber to this BiOS Technology Support Services Subscription Agreement.

However, if BiOS LICENSEE decides to subscribe again and re-enter a BiOS Technology Support Services Subscription Agreement after receiving an offer for additional IP & technology and associated Licensed Material from CAMBIA, and prior to accepting such license pays the agreed Subscription Fee, BiOS LICENSEE is entitled to said new Licensed Material and any subsequent material becoming available during the term of the renewed BiOS Technology Support Services Subscription Agreement. The terms of the renewed BiOS Technology Support Services Subscription Agreement shall be substantially similar to those of this Agreement.


6. Model Framework for Initiating New Project

From time to time BiOS LICENSEE may have interest in exploring solutions to certain problems in its field of business. In such case BiOS LICENSEE shall send a written project proposal to CAMBIA. To the extent that such project proposal is consistent with the terms and intent of the BIOS License, which consistency shall be determined by CAMBIA in its sole discretion, CAMBIA shall use its best efforts to

  1. employ the Services to bring the proposal to the attention of other parties within the BIOS Initiative which may be interested to join such exploratory effort, and
  2. employ the Services to collect, identify and provide potential means that may be available from among parties within CAMBIA’s Protected Commons website (BioForge) for such solution, which may include suggested research schedules, development time-lines, and costs.

CAMBIA, BiOS LICENSEE and potential other interested BiOS Licensees shall then have the option to enter into good-faith negotiations for such project that may involve other BiOS LICENSEE contributions (monetary or in-kind) to support innovation within CAMBIA’s Protected Commons (BioForge). The PARTIES agree that all outcomes of such project will be treated as Licensed Patents and shall be readily accessible under the same terms as this Agreement and the associated BiOS License Agreement among the BiOS Licensees.


7. Miscellaneous Regulations

7.1 The freightage including Value Added Taxes (- VAT -) for required delivery services of any Material hereunder will be due and payable by BiOS LICENSEE. Any further duties, VAT, import-turnover taxes or similar taxes and duties which are incurred by the import or haulage of any Material should be borne by BiOS LICENSEE.

BiOS LICENSEE shall be responsible to obtain all governmental, custom or other approvals or certificates necessary for importation or transport of any Material to be delivered hereunder and pay all associated costs therefore. Each PARTY shall assist the other, using reasonable effort, by providing existing technical information required to achieve or obtain such approval or certificates.

7.2 This Agreement may only be assigned or transferred in combination with and under the regulations of the associated BiOS License Agreement.

7.3 This Agreement may not be modified, changed, or discharged, in whole or in part, except by an agreement in writing signed by both PARTIES. No waiver of any term or condition of this Agreement shall be deemed to be or constitute a waiver with respect to any other terms or conditions of this Agreement, whether or not similar. Each such waiver shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver.

7.4 CAMBIA shall employ reasonable efforts to require that all Licensees of the BIOS Initiative are entitled and bound to substantially the same rights and obligations as agreed hereunder.

7.5 The PARTIES agree to attempt to mediate any dispute relating to this Agreement or the negotiation hereof or entry hereunto or any contract or agreement entered in pursuant hereto or the fulfillment and performance by the PARTIES of their respective duties and obligations under this Agreement, including any dispute under the corresponding License Agreement, and further agree that any dispute that cannot be resolved by mediation shall be settled by binding arbitration, with construction under Australian law, in accordance with the UNCITRAL Arbitration Rules in force at the time of the dispute.

7.6 All notices, requests, consents and other communications hereunder shall be in writing, shall be addressed to the receiving PARTY’s address set forth above or to such other address as a PARTY may designate by notice hereunder, and shall be either sent by an internationally recognized private courier service providing confirmations of receipt, or by registered or certified mail.

In the case of conflict between the terms and conditions of this Agreement and the License Agreement, the License Agreement shall prevail.

CAMBIA may publish revised and/or new versions of the BiOS Technology Support Subscription Agreement for IP and Technology under the associated License Agreement from time to time. Such new versions will be similar in spirit to the present version, but may differ in detail to address new problems or concerns. Each version will be given a distinguishing version number. With written notice to CAMBIA, BiOS LICENSEE may opt to be bound by the terms and conditions of a later version published by CAMBIA. CAMBIA may also publish versions of the BiOS Technology Support Subscription Agreement for IP and Technology under the associated License Agreement in other languages and showing other currencies. Where there is any conflict between the present version and such translations or any controversy between the parties respecting the interpretation or application of the terms of this Agreement, the latest English language version of the Agreement published by CAMBIA and showing US dollar amounts shall be controlling.

7.7 Should any part of this Agreement be declared invalid or unenforceable by any Court of competent jurisdiction for any reason, such declaration of judgment shall not affect the validity of the rest of the Agreement and any associated Agreements, which shall remain in full force and effect to the fullest extent provided by law.

7.8 The relationship of the PARTIES hereto is that of independent contractors. The PARTIES hereto are not deemed to be agents, partners or joint venturers of the other PARTY or of other BiOS Licensees for any purpose as a result of this Agreement or the transactions contemplated thereby.

IN WITNESS WHEREOF the PARTIES have duly executed this Agreement this _____________ day of __________________

_________________________________ Name of BiOS LICENSEE’s Representative

_________________________________ Title of BiOS LICENSEE’s Representative

_________________________________ Name of BiOS LICENSOR’s Representative

_________________________________ Title of BiOS LICENSOR’s Representative


Annex A. CAMBIA Material

Material (Description)
Corresponding Licensed Patent (If Any)
Owner
Sinorhizobium bacteria containing relevant plasmids, subject to Materials Transfer Agreement USPTO Applications 10/954,147 and 10/953,392 and corresponding PCT applications CAMBIA
Rhizobium bacteria containing relevant plasmids, subject to Materials Transfer Agreement USPTO Applications 10/954,147 and 10/953,392 and corresponding PCT applications CAMBIA
Mesorhizobium bacteria containing relevant plasmids, subject to Materials Transfer Agreement USPTO Applications 10/954,147 and 10/953,392 and corresponding PCT applications CAMBIA
pCAMBIA plasmids containing GUSPlus gene cassettes, subject to Materials Transfer Agreement US Patent 6,391,547 and corresponding PCT applications, conversions, divisionals, continuations and continuations-in-part, and issued patents CAMBIA

This Annex A may be expanded; applicable changes will be executed with dated signatures below.

________________________________ Name of BiOS LICENSEE’s Representative
________________________________ Title of BiOS LICENSEE’s Representative
________________________________ Date

________________________________ Name of BiOS LICENSOR’s Representative
________________________________ Title of BiOS LICENSOR’s Representative
________________________________ Date


Annex B. BiOS Licensed Material

Material (Description) Corresponding License Patent (If Any) Owner
.
.
.

This Annex B may be expanded; applicable changes will be executed with dated signatures below.

________________________________ Name of BiOS LICENSEE’s Representative
________________________________ Title of BiOS LICENSEE’s Representative
________________________________ Date

________________________________ Name of BiOS LICENSOR’s Representative
________________________________ Title of BiOS LICENSOR’s Representative
________________________________ Date


Annex C. Improvement Material

Material (Description) Corresponding License Patent (If Any) Owner
.
.
.

This Annex C may be expanded; applicable changes will be executed with dated signatures below.

________________________________ Name of BiOS LICENSEE’s Representative
________________________________ Title of BiOS LICENSEE’s Representative
________________________________ Date

________________________________ Name of BiOS LICENSOR’s Representative
________________________________ Title of BiOS LICENSOR’s Representative
________________________________ Date


Annex D. Technology Support Subscription Fee

As of the date of execution, the following annual fees in support of technology support subscription services are in effect for for-profit companies based in OECD countries, calculated from the total number of employees worldwide in the fields of plant biotechnology and plant breeding (including all personnel in research and technical development, and associated administration, business development, regulatory and public affairs and marketing) of BiOS LICENSEE, and its Affiliates.

US$ 150,000 for large commercial entities having more than 500 of such employees,

US$ 50,000 for medium commercial entities having 50 to 500 of such employees, or

US$ 10,000 for small commercial entities having less than 5-49 of such employees.

For-profit companies based in non-OECD countries will be encouraged to provide support for technology support subscription services in the form of in-kind contributions. CAMBIA may publish revised and/or new versions of the BiOS Technology Support Subscription fee table for IP and Technology under the associated License Agreement from time to time on its website. Such new versions will be similar in spirit to the present version, but may be altered once yearly, in March, to account for reasonable currency fluctuations and inflation. With written notice to CAMBIA, BiOS LICENSEE may opt to be bound by the terms and conditions of a later version published by CAMBIA. CAMBIA may also publish versions of the BiOS Technology Support Subscription fee table for IP and Technology under the associated License Agreement in other languages and showing other currencies. Where there is any conflict between the present version and such translations or any controversy between the parties respecting the interpretation or application of the terms of this Agreement, the latest English language version of the Agreement published by CAMBIA and showing US dollar amounts shall be controlling.

________________________________ Name of BiOS LICENSEE’s Representative
________________________________ Title of BiOS LICENSEE’s Representative

________________________________ Name of BiOS LICENSOR’s Representative
________________________________ Title of BiOS LICENSOR’s Representative