(1)QIB EXTRA LIMITED, a Company registered in England and Wales with Company number 06500711 and whose registered office is Quadram Institute, Norwich Research Park, Norwich, Norfolk, NR4 7UQ, UK ("Licensor")
(2)XXX a Company registered in XXX with Company number XXX and whose registered office is XXX ("Licensee")
Whereas Licensor hereby agrees to licence to Licensee the NCYC Strain(s) (defined below) and associated Intellectual Property Rights in relation to production of NCYC Strain(s) by Licensee and onward sale of Products to third parties. The Parties agree to the following terms
"Annual Fee" means the fees set out below (as may be amended from time to time by notice in writing) that are payable by Licensee as consideration for provision of the Licence to the NCYC Strain(s) by the Licensor. The associated fee is the Annual Fee that will become payable in accordance with clause 5.
Turnover band XXX= Annual Fee XXX / Strain
"Commencement Date" means the date on which both the Licensor and the Licensee sign the Licence.
"Intellectual Property Rights" means patents, utility models, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
"NCYC Strain(s)" means the NCYC strain or strains set out at Appendix A or any strain derived therefrom.
"Products" means the net result of processes using NCYC Strain(s) and does not include any medium or product that is composed predominantly of live NCYC Strain(s).
"Territory" means worldwide.
2. Licence and Use
The Licensor hereby grants to the Licensee a non-exclusive, fee bearing licence in the Territory to use the NCYC Strain(s), to produce Product. The Licence shall commence from the Commencement Date and shall continue in full force and effect unless terminated in accordance with clause 7.
3.1Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other, except as permitted by clause 3.2.
3.2Each party may disclose the other party's confidential information only:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its rights or obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 3; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
3.3No party shall use any other party's confidential information for any purpose other than to exercise its rights and/or perform its obligations under or in connection with this agreement.
3.4Licensor shall not make any reference to the Licensee's name in any promotional or sales material or in any publication related to NCYC Strain(s) unless permitted to do so by Licensee.
4. Intellectual Property
Licensor retains ownership of all Intellectual Property Rights vested in Licensor as of the Commencement Date and which are developed by Licensor after the Commencement Date. No licence to Licensor's Intellectual Property Rights is granted to Licensee save as per clause 2.
The Licensee agrees to pay the Licensor the Annual Fee as consideration for the Licence. The Annual Fee shall be paid in pounds sterling and the Licensee shall be responsible for any currency conversion costs. The first Annual Fee shall be paid by the Licensee to the Licensor within thirty (30) days of the Commencement Date. Subsequent Annual Fees shall be payable by the Licensee to the Licensor within thirty (30) days of the anniversary of the Commencement Date.
6. Limitation of Liability
6.1All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Licence.
6.2Nothing in these conditions excludes or limits the liability of the Licensor for any matter which it would be illegal for the Licensor to exclude or attempt to exclude its liability or for fraud or fraudulent misrepresentation.
6.3Subject to condition 6.1 and condition 6.2:
(a) the Licensor's total liability arising out of or in connection with the Licence shall be limited to the Annual Fee in respect of a particular year; and
(b) the Licensor shall not be liable to the Licensee for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Licence
6.4The Licensee will hold harmless and indemnify and the Licensor, it's Directors, officers, employees and agents from any and all liabilities or claims brought by third parties resulting from the Licensee's breach of this agreement and or Licensee's use, and passing or selling the NCYC Strain(s) to third parties. Licensor holds no liability for how the Licensee distributes the NCYC Strain(s) or if any defect arises in the NCYC Strain(s) once passed to the Licensee.
6.5NCYC is a public open culture collection preserving and making yeast strains available to the community. NCYC shall have no liability to the buyer in the event that the Products (and/or Derivatives) infringe any intellectual property right of a Third Party and all warranties relating thereto whether expressed or implied, by statute or at common law, are hereby excluded.
7.1The Licensee may terminate the Licence upon sixty (60) days' notice in writing to the Licensor.
7.2The Licensor may terminate the Licence with immediate effect if(a) the Licensee commits a material breach of any term of the Licence which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days of being notified in writing to do so;
(a) the Licensor repeatedly breached any of the terms of the Licence in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Licence;
(b) the Licensee is the subject of a bankruptcy order made against him or, being a body corporate, the Licensee enters into liquidation, or any proceedings are commenced relating to the insolvency or possible insolvency of the Licensee; or
(c) the Licensee fails to observe or perform any of its obligations under the Licence or any other Licence between the Licensor and the Licensee, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Licensee ceases to trade; or
(d) the Licensee changes control within the meaning of section 1124 of the Corporation Tax Act 2010.
7.3Upon termination of the Licence in accordance with clause 7.1 or 7.2, the Licensee shall cease all use of the NCYC Strain(s) and shall destroy any NCYC Strain(s) or product embodying NCYC Strain(s) in its possession.
7.4In the event of termination of the Licence in accordance with clause 7.2, the Licensor shall not be required to reimburse any portion of the annual fee to the Licensee. The Licensee shall be required to pay any annual fee due notwithstanding termination of the Licence in accordance with clause 7.1 or clause 7.2.
8.1The rights of the Licensor under the Licence are without prejudice to any other right or remedy of the Licensor.
8.2The Licence constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. In particular, the Licence supersedes the Licensor's standard terms and conditions set out on its website (www.ncyc.co.uk) as may be amended from time to time.
8.3If any provision of the Licence is found by any court to be illegal or otherwise invalid it shall, to the extent of such illegality or invalidity be deemed severable and the remaining provisions of the Licence shall continue in full force and effect.
8.4Failure or delay by the Licensor in enforcing any provision of the Licence shall not be construed as a waiver of any of its rights under the Licence and any waiver by the Licensor of any breach of, or any default under, the Licence by the Licensee shall not be deemed a waiver of any subsequent breach or default and shall not affect the other terms of the Licence.
8.5The parties to the Licence do not intend that any term of the Licence shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
8.6Nothing in the Licence is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
8.7No variation of the Licence shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
8.8The Licensee may not assign or otherwise transfer its rights and obligations under the Licence without the prior written consent of the Licensor.
8.9This Licence may be executed in counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one Licence. Each counterpart may be exchanged by PDF via email.
8.10The Licence and any dispute or claim arising out of or in connection with it shall be governed by and construed in accordance with English law, and the parties submit to the exclusive jurisdiction of the English courts.
All communications between the parties about the Licence shall be in writing and sent by pre-paid first-class post to the addresses set out above or by email to [name and email] in the case of Licensor and to [name and email] in the case of Licensee.