research agreement


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RESEARCH AGREEMENT (A               )

Effective __________, 2000 ("Effective Date"), The Brigham and Women's Hospital, Inc., a Massachusetts not-for-profit corporation having its principal offices at 75 Francis Street, Boston, MA  02115  ("BWH"), and                                a                     corporation having its principal offices at                                (the "Company") agree as follows:

BACKGROUND

BWH has ongoing research in the area                                  conducted by Dr.                          _________________ and desires to obtain funding and technical support from the Company to further such research. The Company wishes to obtain from BWH an option to obtain certain rights to inventions that are developed during the course of research funded by the Company hereunder.

1. DEFINITIONS

A. "Company  Representative" shall be ____________________or such other representative as Company may subsequently designate in writing.

B. "Confidential Information" of a party shall mean all technical or marketing reports, data or information disclosed by such party to the other party which is in writing and marked "Confidential", "Proprietary" or the like, or, if disclosed orally, is indicated as confidential at the time of disclosure and is confirmed as confidential in writing within thirty (30) days after such disclosure.

C. "Invention" shall mean BWH’s interests in any technology in the field of       ___________________ conceived and reduced to practice, solely or jointly, in the performance of the Research during the Term.

D.   "Principal Investigator" shall mean                                  who shall be responsible for the direction and conduct of the Research.  

E. "Research" shall mean the research program in the area of__________________ that is described in Appendix A, entitled __________________.

F. "Performance Period" shall mean the period beginning on the Effective Date of this Agreement and ending one year from the Effective Date.

G. “Term” shall mean (a) the Performance Period or (b) the period beginning on the Effective Date of this Agreement and ending upon termination of this Agreement pursuant to Paragraph 12, whichever is earlier.

2. SCOPE OF WORK

The scope of the work to be performed by the Principal Investigator under this Agreement shall be the Research.
                                      
3. PAYMENTS

A. Payments to BWH in support of the Research during the Term  shall be made as follows:
i. $ ______________dollars upon execution of this Agreement;
ii. $ ______________dollars on [date];  
iii. $ ______________dollars on [date]; and  
iv. $ ______________dollars on [date];      

for a total payment  of $______________________ as set forth in the attached Appendix B, entitled " Budget".

B. Checks shall reference agreement number A______.  Checks for all payments to BWH under this Agreement shall be made payable to:

The Brigham and Women's Hospital, Inc.
75 Francis Street
Boston, MA 02115
ATTN: Director, Corporate Sponsored Research and Licensing
BWH Agreement #_____

C.   BWH shall not be obligated to expend funds in excess of those provided under this Agreement to conduct the Research.

4. TECHNICAL REPORTS AND USE OF RESULTS AND/OR DATA

A. Within sixty (60) days after the expiration of this Agreement, the Principal Investigator shall submit a comprehensive final report to Company.

B. Company shall have the right to use the results and data of the Research to the extent such use does not infringe any BWH patent not expressly licensed to Company.

5. PUBLICATION AND REPORTS ON DATA

A. Prior to public presentation or submission to a journal, BWH agrees to submit for review to Company Representative the content of any manuscript for publication, abstract, or presentation containing data and results of the Research, developed under this Agreement,.

B. Within 30 days of receipt of such manuscript or 10 days after receipt of an abstract or presentation from BWH the Company shall, submit its comments, if any, to the Principal Investigator.  The Principal Investigator shall not be bound to incorporate the Company's comments, and the Principal Investigator's decision as to what manuscript, presentation, or abstract  shall contain shall be final, except that upon the Company’s notification, BWH shall delete Company’s Confidential Information.  

C. If the Company has reason to believe that any such manuscript or  abstract reveals a potentially patentable Invention, the Company shall notify BWH in writing within the time periods indicated in Paragraph 5B.  In such case, BWH agrees to delay publication or public presentation until the earlier to occur of the following:  (i) a U.S. patent application has been filed; (ii) BWH's Corporate Sponsored Research and Licensing office has determined, in consultation with the Company, that no patentable invention exists; or (iii) 60 days have passed from the date of such notification by the Company.

6. INTELLECTUAL PROPERTY

A. Principal Investigator shall promptly report an Invention to BWH.  BWH shall promptly advise Company, in writing, of each Invention disclosed to BWH. All information given to Company by BWH in accordance with this Section 6 will be held in confidence by Company so long as such information remains unpublished or publicly undisclosed by BWH.

B. BWH agrees to cause patent applications for any Invention to be filed and prosecuted at Company's request and expense.  If the Company does not agree to support a patent application claiming an Invention within forty-five (45) days after disclosure of such invention to Company, BWH may file at its own expense and the Company shall have no further rights to BWH’s interest in that patent application.

C. BWH, subject to the provisions of 35 USC §203 and 37 CFR 401 et seq. and regulations pertaining thereto, grants to the Company an exclusive option to negotiate worldwide licenses  to Inventions.  Such option shall be exercised by the Company by written notice directed to BWH within forty-five (45) days of such disclosure, unless extended by mutual agreement, in writing, by the parties ("Option Period").   In the event that the Company fails to exercise its option to take a license within the Option Period, or in the event that the parties fail to reach agreement on terms within ninety (90) days from the exercise of the option ("Negotiation Period"), then all of BWH’s rights to Inventions shall remain with BWH without further obligation to the Company.

D.   Any license granted shall contain license terms standard for agreements between universities and industry including without limitation clauses providing for: BWH to retain a non-exclusive license for research, clinical, and educational purposes only; specific reservation of the rights of the United States of America as set forth under 35 USC §203 and 37 CFR 401 et seq. and regulations pertaining thereto; payment of reasonable royalties and other compensation to BWH; objective, time-limited due diligence provisions for the development, commercialization and marketing of a product embodying the Invention; and product liability indemnification and insurance requirements which are acceptable to BWH’s liability insurance carrier.

7. INDEMNIFICATION AND DISCLAIMER OF WARRANTIES

A. BWH and Company shall each be responsible and shall hold the other harmless for any injury to persons or damage to property to the extent that such injury or damage is caused by the negligence or willful misconduct of their employees or staff in carrying out the Research provided, however, Company will defend, indemnify, and hold harmless BWH and its trustees, employees and staff against any and all actions, suits, claims, demands or prosecutions that may be brought or instituted against BWH and/or its trustees, employees and staff based on or arising out of or connected with this Agreement or the Research Program, including, without limitation, claims relating to the manufacture, use, sale or other distribution of any product by Company, its affiliates or licensees excepting any such action, suit, claim, demand or prosecution which is based solely on the negligence or willful misconduct of BWH and/or its trustees, employees or staff.

B. BWH MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THE CONDITION OF RESEARCH CONDUCTED UNDER THIS AGREEMENT OR AS TO ANY INVENTION OR PRODUCT CONCEIVED, DISCOVERED, LICENSED, OR DEVELOPED UNDER THIS AGREEMENT; OR THE OWNERSHIP, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE RESEARCH OR ANY SUCH INVENTION OR PRODUCT.  BWH SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL OR OTHER DAMAGES SUFFERED BY THE COMPANY, ANY LICENSEE, OR ANY OTHERS RESULTING FROM SUCH RESEARCH OR FROM ANY SUCH INVENTION OR PRODUCT.

8. USE OF NAME

Neither party shall use the name of the other in any form of advertising or promotion without the prior written approval of the other.  The parties, however, may acknowledge the Company's support for the investigations being pursued under this Agreement.  In any such statement, the relationship of the parties shall be accurately and appropriately described.

9. CONFIDENTIALITY

A. Except as otherwise provided in Paragraph 9.B below, during the duration of this Agreement and for a period of five (5) years thereafter, each party agrees to use reasonable efforts not to disclose to third parties any Confidential Information of the other party.

B. Nothing in this Agreement shall limit in any way (i) disclosure of information required by a public authority or (ii) disclosure by BWH of information that is necessary to prevent imminent danger to the public.  

C. Information received from the other party hereto shall not be deemed Confidential Information, and the receiving party will have no obligation with respect to such information:

i. which, as of the effective date of this Agreement, is part of the public domain;

ii. which subsequently becomes part of the public domain through no fault of the receiving party;

iii. which, as evidenced by written records, is developed independently by the receiving party without reference to the Confidential Information

iv. which the receiving party can show was in its possession, as evidenced by written records kept in the ordinary course of business or by the proof of actual use at the time of executing this Agreement, and which information had not been wrongfully acquired, directly or indirectly, from the other party;

v. which is subsequently disclosed to the receiving party by a third party not in violation of any right of, or obligation to, the other party hereto; or

vi. is required to be disclosed by operation of law, provided that the receiving party has received advanced notice of the proposed disclosure by the disclosing party.

10. INDEPENDENT CONTRACTOR

The Company will not have the right to direct or control the activities of BWH in performing the Research, and BWH shall act hereunder only as an independent contractor; and nothing herein contained shall be construed to be inconsistent with that relationship or status.  Under no circumstances shall BWH be considered to be an employee or agent of the Company.  This Agreement shall not constitute, create, or in any way be interpreted as a joint venture, partnership, or formal business organization of any kind.

11. NOTICES

All notices of every kind and description whatsoever required or permitted under this Agreement shall be in writing and shall be deemed to have been received when personally delivered or when mailed through the U.S. Postal Service, postage prepaid, return receipt requested, or when shipped by private express carrier, shipment charges prepaid, to the party to whom delivery shall be made at the respective addresses as set out below.

HOSPITAL:    The Brigham and Women's Hospital, Inc.
75 Francis Street
Boston, MA  02115
Attn: Director, Corporate Sponsored Research and Licensing          BWH Agreement #________
      
COMPANY: ___________________________________
___________________________________
___________________________________
Attn:¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬______________________________

12. TERMINATION

A. If the Company fails to meet any of its material obligations under this Agreement and shall fail to remedy these failures within thirty (30) days after receipt of written notice thereof, BWH shall have the option of terminating this Agreement upon written notice thereof, and may terminate any licenses or options granted after the initiation date of this Agreement to the Company, and BWH shall thereafter be entitled to grant any such option to any third party of BWH's choice.  In the event BWH fails to meet its obligations under this Agreement and shall fail to remedy these failures within thirty (30) days after receipt of written notice thereof, the Company shall have the option of terminating this Agreement upon written notice thereof, and such right to terminate shall be the Company's sole remedy at law or in equity.

B. In the event that this Agreement is terminated by the Company due to a material breach by BWH, the Company will pay to BWH all costs due for the Term.  In the event that this Agreement is terminated by BWH due to a material breach by the Company, the Company will pay to BWH all costs due for the Performance Period.

C. In the event that this Agreement is terminated pursuant to Paragraph 12.A by either party, the Company shall return to BWH all research data, biological and other material, prototypes, process information, clinical data, and the like relating to or arising out of the Research.

13. MODIFICATION

No modification or waiver of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by both parties.

14. SURVIVORSHIP

The provisions of Sections 5, 6, 7, 8, 9, 10, 12, and 14 shall survive any expiration or termination of this Agreement.

15. GOVERNING LAW

This Agreement shall be interpreted in accordance with, and governed by, the laws of the Commonwealth of Massachusetts.  


EXECUTED by the respective duly authorized officers or agents for BWH and the Company to be effective as of the day and year first above written.

THE BRIGHAM AND  
WOMEN'S HOSPITAL, INC.   __________________________________


BY: ___________________________       BY: ____________________________

NAME: __________________________ NAME: ____________________________

TITLE: ________________________ TITLE: ___________________________
DATE:  __________________________ DATE: ____________________________


Acknowledged and Agreed:


________________________________ ________________________________
Principal Investigator Date


APPENDIX A
RESEARCH (see attached)

APPENDIX B
BUDGET (see attached)