# [Joint Genome Institute (JGI)]{.mark} 

# [User /Material Transfer Agreement]{.mark} 

For the Production Genomics Facility

No. [\_\_\_\_\_\_\_\_\_\_]{.underline}

BETWEEN

**The Regents of the University of California**

**as the Management and Operating Contractor for the**

**Ernest Orlando Lawrence Berkeley National Laboratory ("CONTRACTOR")**

under the U.S. Department of Energy Contract No.

**DE-AC02-05CH11231**

AND

\_\_\_\_\_\_\_\_\_\_\_\_\_

(\"USER\")

(Collectively, "the Parties")

**ARTICLE I: [SCOPE OF SERVICES]{.underline}**

CONTRACTOR shall sequence the genetic resources, as described below, at
the JGI facilities. The Parties will agree to a Statement of Work that
shall set forth the technical scope of work, including deliverables, to
be performed pursuant to this Agreement and can be modified as necessary
without amending this USER agreement. The scope of work shall not be
considered proprietary information and shall be publicly releasable. The
Parties agree that an initial abstract of the work to be performed shall
be a deliverable under this Agreement.

Genetic Resource Description:

If USER needs to furnish equipment, tooling, test apparatus, or assist
in Permance of sequencing Tasks at the JGI, this Agreement will be
amended accordingly. However, the USER may be granted access to the JGI
to review the sequencing data and discuss issues with the JGI staff.

**ARTICLE II. [TERM OF THE AGREEMENT]{.underline}**

This agreement shall have a term of \_\_\_\_ months/years from the
effective date. The term of this agreement shall be effective as of the
date on which it was signed by the last of the Parties.

**ARTICLE III: [COST]{.underline}** Each Party will bear its own costs
and expenses associated with this Agreement. No money will be
transferred to or from either Party as consideration, in whole or in
part, for this Agreement.

**ARTICLE IV: [PROPERTY AND MATERIALS]{.underline}**

A.  While every effort will be made to properly handle the material,
    USER acknowledges that any material supplied by USER may be damaged,
    consumed or lost. Materials (including residues and/or other
    contaminated material) remaining after performance of the work or
    analysis will be removed in their then condition and handled in
    accordance with the SOW.

> B. USER asserts that it has the [either title or sufficient legal
> rights in the genetic resource]{.mark} to be provided to the JGI for
> sequencing to authorize the Activity and work to be completed by the
> CONTRACTOR.
>
> .

**ARTICLE V: [SCHEDULING]{.underline}** USER understands that CONTRACTOR
will have sole responsibility and discretion for allocating and
scheduling usage of the facilities and equipment needed for or involved
in the Activity.

**ARTICLE VI:** **[INTELLECTUAL PROPERTY PROVISIONS]{.underline}**

> Individuals for whom USER is responsible, but who are not actual
> employees of USER, shall be considered employees of USER solely for
> the purposes of ownership of intellectual property.
>
> A. The Parties do not contemplate any inventions, patents, or
> trademarks to be developed under this project.
>
> B. The Parties agree that the rights in Technical Data will be set
> forth as follows:
>
> **1. Definitions:**
>
> a\. "Technical Data\" means recorded information regardless of form or
> characteristic, and of a scientific or technical nature. It may, for
> example, document research, experimental, developmental,
> demonstration, results or engineering work to be usable or used to
> define a design or process, or to procure, produce, support, maintain,
> or operate material. Technical data as used herein does not include
> financial reports, costs analyses, and other information incidental to
> Agreement administration.
>
> b\. \"Proprietary Data\" means technical data which embody trade
> secrets developed at private expense, outside of this agreement,
>
> c\. \"Unlimited Rights\" means right to use, duplicate, or disclose
> technical data, in whole or in part, in any manner and for any purpose
> whatsoever, and to permit others to do so.
>
> d\. \"Contracting Officer\" means the DOE entity having contract
> authority over CONTRACTOR and the Facility Operator.
>
> [e. "Genetic Resources" means genetic material of actual or potential
> value.]{.mark}
>
> **2. Allocation of Rights**
>
> The Government and the USER shall have Unlimited Rights in technical
> data first produced or specifically used in the performance of this
> Agreement. User may request the data when generated if practical.
> Sequences and related information that will be posted to GenBank or
> otherwise be made publicly available may be used by anyone, including
> CONTRACTOR and USER, for any purpose, and may result in intellectual
> property rights accruing to such person or entity.
>
> **3. Deliverables**
>
> USER agrees to furnish to DOE or CONTRACTOR those data, if any, which
> are (a) specified to be delivered in the SOW, (b) essential to the
> performance of work by DOE or CONTRACTOR personnel or (c) necessary
> for the health and safety of such personnel in the performance of the
> work. Any data furnished to DOE or CONTRACTOR shall be deemed to have
> been delivered with unlimited rights.

Upon completion or termination of the project, USER agrees to deliver to
DOE and CONTRACTOR a nonproprietary report describing the work performed
under this Agreement.

> **4. Legal Notice**
>
> The following legal notice shall be affixed to each report or
> publication resulting from this Agreement which may be distributed by
> USER:
>
> DISCLAIMER NOTICE
>
> This document contains results from work performed under the auspices
> of the US Department of Energy's Office of Science, Biological and
> Environmental Research Program and by the University of California,
> Lawrence Berkeley National Laboratory, Lawrence Livermore National
> Laboratory and Los Alamos National Laboratory. Neither CONTRACTOR,
> DOE, or U.S. Government, nor any person acting on their behalf: (a)
> make any warranty or representation, express or implied, with respect
> to the information contained in this document; or (b) assume any
> liabilities with respect to the use of, or damages resulting from the
> use of any information contained in the document.
>
> **5. Copyrighted Material**
>
> Unless the USER obtains specific written approval of the Contracting
> Officer, USER agrees that it will not knowingly include any
> copyrightable material furnished or delivered under this Agreement
> without the consent of the copyright owner, which may be the USER or a
> third party. If the USER receives approval from the Contracting
> Officer, the USER agrees to, and does hereby grant to the Government,
> and to its officers, agents, servants and employees acting within the
> scope of their duties, a royalty-free, nonexclusive, irrevocable
> license to reproduce, translate, publish, use, and dispose of and to
> authorize others so to do, all copyrightable material.
>
> **6. Disclosure of Proprietary Data**
>
> The USER shall not disclose Proprietary Data to the JGI. Any such
> data, regardless how it is marked, shall be deemed technical data and
> the Contractor shall have Unlimited Rights in the data.
>
> **[7. Relationship with the Convention on Biological
> Diversity]{.mark}**
>
> [The permitted use of the genetic resources will be limited to that
> which is described in the Statement of Work. Substantive changes in
> the Statement of Work will require execution of a new Agreement. JGI
> will not transfer the genetic resources to other parties without the
> consent of USER. Sequence data from the genetic resources will be
> posted to GenBank or will otherwise be made publicly available for use
> by anyone for any purpose. The USER understands that the JGI can not
> limit how the sequence data will be ultimately used after posting to
> GenBank.]{.mark}
>
> [Pursuant to the Convention on Biological Diversity, JGI will provide
> benefits-sharing and capacity-building to USER by allowing USER access
> to the JGI Site, so that USER may benefit from the expertise of JGI
> personnel in the area of genomic sequencing. In addition to obtaining
> the sequence data from the genetic resources, USER will benefit by
> having the opportunity to develop its own expertise in the field of
> genomic sequencing, and will thereby build such capacity for its
> country. Pursuant to the Convention on Biological Diversity, JGI will
> provide the sequencing data in advance to the USER and delay
> publication in GenBank for \_\_\_\_\_(months (not to exceed 6 months)
> in order for USER to perform independent research for
> patentability.]{.mark}

**ARTICLE VII: [EXPORT CONTROLS]{.underline}** USER acknowledges that
the export of goods or technical data may require some form of export
control license from the U.S. Government and that failure to obtain such
export control license may result in criminal liability under the laws
of the United States.

**ARTICLE VIII:** **[JGI SITE ACCESS]{.underline}**

If the USER consults with JGI personnel on site, USER must complete all
JGI Site Access documentations and requirements. USER must comply with
all applicable safety, health, access to information, security and
environmental requirements of the JGI.

**ARTICLE IX: [PUBLICATIONS ]{.underline}**

**A.** USER and CONTRACTOR will provide each other copies of articles of
any publication of information generated pursuant to this Agreement for
review and comment 14 days prior to publication.

**B.** USER will not use the name of CONTRACTOR or the United States
Government or their employees in any promotional activity, such as
advertisements, with reference to any product or service resulting from
this Agreement, without prior written approval of the Government and
CONTRACTOR. However, the USER may cite the JGI's sequencing
contributions in scientific and technical articles.

**ARTICLE X: [ADMINISTRATION OF THE AGREEMENT]{.underline}** This
Agreement is entered into by CONTRACTOR under the authority of its Prime
Contract with DOE. CONTRACTOR will administer this Agreement in all
respects. Administration of this Agreement may be transferred from
CONTRACTOR to DOE or its designee with notice of such transfer to USER,
and CONTRACTOR will have no further responsibilities except as set forth
in Article XIV of this Agreement.

**ARTICLE XI: [DISPUTES]{.underline}** The parties will attempt to
jointly resolve all disputes arising from this Agreement. If the parties
are unable to jointly resolve a dispute within a reasonable period of
time, the dispute will be decided by the DOE Contracting Officer. After
the Contracting Officer's decision is made, either Party may request
that the dispute be settled by arbitration in accordance with the then
current and applicable rules of the American Arbitration Association.
Judgment upon the award rendered by the Arbitrator(s) shall be
nonbinding on the Parties, and any costs incurred there from shall be
divided equally between the Parties.

**ARTICLE XII. [CONFLICT OF TERMS]{.underline}** This agreement
constitutes the primary document which governs the work described in the
attached Appendix A. In the event of any conflict between the terms of
this document and any other document issued by either party, the terms
of this document shall prevail.

**ARTICLE XIII: [INDEMNITY AND LIABILITY]{.underline}**

> **A. General** **Liability** - To the extent such liability, claims,
> or damages is caused or contributed to [by the intentional or
> negligent act or willful misconduct of USER or its employees or
> representatives]{.underline} during the performance of the work under
> this Agreement and to the extent permitted by law, USER hereby agrees
> to indemnify and hold harmless CONTRACTOR and the United States
> Government, their officers, agents and employees from any and all
> liability, claims, damages, costs and expenses, including attorney
> fees, for injury to or death of persons, or damage to or destruction
> of property.

**B.** **General Disclaimer -** THE GOVERNMENT AND CONTRACTOR MAKE NO
EXPRESS OR IMPLIED WARRANTY AS TO THE CONDITIONS OF THE RESEARCH OR ANY
INTELLECTUAL PROPERTY, GENERATED INFORMATION, OR PRODUCT MADE OR
DEVELOPED UNDER THIS AGREEMENT, OR THE OWNERSHIP, MERCHANTABILITY, OR
FITNESS FOR A PARTICULAR PURPOSE OF THE RESEARCH OR RESULTING PRODUCT;
THAT THE GOODS, SERVICES, MATERIALS, PRODUCTS, PROCESSES, INFORMATION,
OR DATA TO BE FURNISHED HEREUNDER WILL ACCOMPLISH INTENDED RESULTS OR
ARE SAFE FOR ANY PURPOSE INCLUDING THE INTENDED PURPOSE; OR THAT ANY OF
THE ABOVE WILL NOT INTERFERE WITH PRIVATELY OWNED RIGHTS OF OTHERS.
NEITHER THE GOVERNMENT NOR CONTRACTOR SHALL BE LIABLE FOR SPECIAL,
CONSEQUENTIAL, OR INCIDENTAL DAMAGES ATTRIBUTED TO SUCH RESEARCH OR
RESULTING PRODUCT, INTELLECTUAL PROPERTY, GENERATED INFORMATION, OR
PRODUCT MADE OR DELIVERED UNDER THIS AGREEMENT.

######  **C.** **Patent and Copyright Indemnity-Limited -** USER shall fully indemnify the Government and CONTRACTOR and their officers, agents, and employees for infringement of any United States patent or copyright arising out of any acts required or directed by USER to be performed under the Agreement [to the extent such acts are not normally performed at the facility]{.underline}. The foregoing indemnity shall not apply unless USER shall have been informed as soon as practicable by CONTRACTOR or the Government of the suit or action alleging such infringement, and such indemnity shall not apply to a claimed infringement that is settled without the consent of USER unless required by a court of competent jurisdiction

**ARTICLE XIV: [TERMINATION]{.underline}** Either party may terminate
this Agreement for any reason at any time by giving not less than thirty
(30) days prior written notice to the other party. Notice will be deemed
made as of the day of receipt. The obligations of any clause of this
Agreement, which by their nature extend beyond its termination shall
remain in full force and effect until fulfilled.

**FOR THE CONTRACTOR:**

**BY:**

**TITLE:**

**DATE:**

**FOR THE USER:**

**BY:**

**TITLE:**

**ADDRESS:**

**TELEPHONE:**

**The standard terms and conditions of this User Agreement Form has been
reviewed and approved by US DOE. No change to this form may be made
without DOE approval.**