Please read the terms and conditions of this license agreement ("Agreement") carefully. By clicking "Accept" on the "Review and Accept Agreement" page during the licensing process, you are agreeing to the following terms and conditions on behalf of the Licensee identified below, and you represent and warrant that you are authorized to do so.
SnowSweet® Brand Wilding Apple Tree
Apple Orchard Nondistribution Agreement
LICENSEE desires to grow SnowSweet® Brand Wilding Apple Trees ("LICENSED VARIETY") for fruit production purposes only in the United States. Subject to the terms and conditions set forth in this Agreement, the Regents of the University of Minnesota ("University") grants LICENSEE (i) the nonexclusive right to propagate trees and produce apples of the LICENSED VARIETY for the use of the LICENSEE, and (ii) the nonexclusive right to use the trademark name SnowSweet ® Apple Tree ("LICENSED TRADEMARK") on tags or labels on all specimens of the LICENSED VARIETY or in connection with marketing of the LICENSED VARIETY.
Licensee shall pay to the University a royalty of $AGREEMENT - UNIT PRICE ($) USD for each tree of the Licensed Variety that is asexually propagated or a minimum of seventy-five dollars ($75 USD) which allows propagation of up to 60 trees. Licensee herewith remits the appropriate royalty amount for the initial propagation for the number of trees indicated below. If Licensee propagates additional trees after initial propagation as per this Agreement, then Licensee shall promptly inform the University of Minnesota by reporting of such propagation by completing another Agreement.
Number of trees to be propagated: AGREEMENT - QUANTITY
Licensee: LICENSEE - ORGANIZATION
Contact: LICENSEE - FIRST NAME LICENSEE - LAST NAME
Contact Email: LICENSEE - EMAIL ADDRESS
Contact Phone: LICENSEE - PHONE NUMBER
Doing business at:
LICENSEE ADDRESS - STREET LICENSEE ADDRESS - STREET (LINE TWO)
LICENSEE ADDRESS - CITY, LICENSEE ADDRESS - STATE LICENSEE ADDRESS - ZIP CODE
LICENSEE ADDRESS - COUNTRY
TERMS AND CONDITIONS - The following terms and conditions govern this Agreement by and between the Regents of the University of Minnesota, a constitutional corporation under the laws of the State of Minnesota, ("University") and the Licensee.
Definitions - For purposes of this agreement, the following terms have the following meanings.
"Effective Date" means the date when the Licensee clicks the button indicating agreement with all the terms and conditions of the license and has successfully completed payment in the checkout process. The Effective Date is GENERAL - EFFECTIVE DATE.
“Licensed Intellectual Property Rights” means, collectively, (i) each utility patent, plant patent, plant variety protection rights (“PVP”), and if the Territory encompasses one or more foreign countries, plant breeders rights (“PBR”) (under the rules and regulations of the International Union for the Protection of New Varieties of Plants) along with any reissues or reexaminations of such plant patents, PVP or PBR, (ii) each plant patent application, PVP application or PBR application along with any continuations, continuations-in-part, and divisions of such applications; and (iii) each trademark defined as a Licensed Mark.
"Licensed Mark" means United States Trademark Registration No 3,320,704 for the mark "SnowSweet" registered to the Regents of the University of Minnesota on October 23, 2007. The term “Licensed Intellectual Property Right” used in the Agreement shall include each Licensed Mark.
“Licensed Variety” means any product or good made by the Licensee during the term of this Agreement and the Post-Termination Period that but for the granting of the rights set forth in this Agreement would infringe (including under the doctrine of equivalents) one or more claims in a Licensed Intellectual Property Right. United States Plant Patent 19,446 issued to the Regents of the University of Minnesota on November 11, 2008 titled Apple tree called “Wilding”.
“Term” commences on the Effective Date and expires automatically on the date that no Licensed Intellectual Property Rights remain pending or valid.
“Territory” means United States.
Grant of Licenses - Subject to the terms and conditions of this Agreement, the University hereby grants to the LICENSEE, and the LICENSEE hereby accepts, a non-exclusive, non-sub licensable, revocable license to propagate trees and produce apples of the LICENSED VARIETY for the use of the LICENSEE in a single apple orchard in the TERRITORY.
The LICENSEE shall not and shall not permit others to use or alter the LICENSED VARIETY or any progeny, portion or derivative thereof for breeding purposes, genetic manipulation, transformation, mutagenesis, non-propagative tissue culture, molecular or cellular techniques, or for any form of plant variety improvement.
LICENSEE shall not ship, transport, transfer, sell or assign any LICENSED VARIETY or any part thereof to any persons or persons, domestic or foreign, for any purpose whatsoever, except the resultant apple.
This agreement is effective on the EFFECTIVE DATE.
Rights of the U.S. Government and Third Parties - No provision of this Agreement limits, conditions or otherwise affects the United States of America's or any other third party’s rights and interests in the Licensed Variety.
University’s Rights - The University retains all right, title and interest in and to the LICENSED VARIETY and the LICENSED INTELLECTUAL PROPERTY RIGHTS except for the licenses granted to the LICENSEE. No provision of this Agreement shall be construed to grant the LICENSEE, by implication, estoppel or otherwise, any rights other than the rights expressly granted it in this Agreement.
Use of the University's Name and Trademarks or the Names of University Faculty, Staff or Students - The University hereby grants to the LICENSEE the right to state in its promotional and informational materials that the LICENSED VARIETY were developed at the University of Minnesota, as long as such statements do not imply an endorsement or promotion by the University of the LICENSEE or of the LICENSEE's Products.
No provision of this Agreement grants the LICENSEE any right or license to use the name or trademarks of the University or the names or identities of any member of the faculty, staff, or student body of the University. The LICENSEE shall not use any such trademarks, names, or identities without the University's and, as the case may be, such member’s prior written approval.
Sports – LICENSEE shall report immediately to the UNIVERSITY Any Sports or mutations ("Sports") discovered on LICENSED VARIETY growing in the greenhouses or on the lands of LICENSEE. The LICENSEE hereby grants to the UNIVERSITY the sole ownership of all such Sports and all intellectual property rights contained therein.
Licensee Responsible for Authorized Users - Licensee is responsible and liable for the actions of Authorized Users of the Software. It is also the Licensee’s responsibility to back-up any data entered into the Software by Authorized Users.
Annual Royalty Payments – The LICENSEE shall deliver to the University the payment specified as Royalties in the License Fees section. The LICENSEE may make such payments by check or wire transfer. All checks to the University shall be payable to “Regents of the University of Minnesota” and shall be mailed to the University at the address specified in the Notices section of this Agreement. Upon request the University shall deliver to the LICENSEE written wire transfer instructions.
Written Sales Report – Within thirty (30) days after the end of each Year during the term of this Agreement and the Post-Termination Period, the LICENSEE shall deliver to the UNIVERSITY a written sales report recounting the number of all sales or other dispositions of LICENSED VARIETY during such Year.
Records Retention - The LICENSEE, at its expense, shall keep and maintain complete and accurate records of all propagation and planting of trees of the LICENSED VARIETY and all other records related to this Agreement. These records shall be furnished to the University upon request.
Payment Terms - Licensee shall pay, upon checkout, the License Fee and any applicable taxes, duties, fees, excises or other charges. All amounts payable hereunder by Licensee are non-refundable and non-creditable. All amounts payable hereunder by Licensee shall be payable in United States funds.
Audit - The University, at its expense except as set forth below in this section, shall have the right to inspect and audit the records such as purchase, propagation and planting reports at the LICENSEE's principal TERRITORY office and during the LICENSEE’s normal business hours, or such other locations as the parties shall mutually agree. LICENSEE shall allow UNIVERSITY reasonable opportunity to observe tree plots if requested to do so. The University shall have the right to determine the LICENSEE’s compliance with the terms of this Agreement. The LICENSEE shall reimburse the University for all its out-of-pocket expenses to inspect and audit such records if the University, in accordance with the results of such inspection and audit, determines that the LICENSEE has underpaid amounts owed to the University by at least three percent (3%) or twenty-five thousand and no/100 dollars ($25,000.00), whichever is smaller. In connection with, and prior to the commencement of, an audit, if the LICENSEE so requests in writing to the University, the LICENSEE, the University and the auditor shall enter into an agreement prohibiting the auditor and the University from disclosing the LICENSEE’s nonpublic, proprietary information to any third party without the LICENSEE’s prior written consent; provided, however, that consistent with generally accepted auditing standards and the auditor’s professional judgment, the auditor may disclose such information to the University and its agents, counsel, or consultants. The LICENSEE acknowledges that such an agreement is adequate to protect its legitimate interests, and the parties agree that there shall be no additional nondisclosure agreement demanded as a condition to the commencement of an audit and the University’s exercising its rights under this section.
LICENSEE's Release - For itself and its employees and agents, the LICENSEE hereby releases the University and its regents, employees and agents, forever, from any and all actions, claims, or liabilities relating to or arising out of the University’s acts or omissions with the exception of the University’s warranties set forth in the Express Warranties section.
LICENSEE's Indemnification - Throughout the TERM of this Agreement and thereafter, the LICENSEE shall indemnify, defend and hold the University and its regents, employees and agents harmless from all suits, actions, claims, liabilities, demands, damages, losses or expenses (including reasonable attorneys' and investigative expenses), relating to or arising out of the LICENSEE’s and each of the LICENSEE’s agent’s acts and omissions, including, without limitation, any contract, tort or other claim, arising out of or relating to a LICENSED VARIETY or use of a Licensed Mark by the LICENSEE, including, without limitation, breach of contract and warranty and products liability claims.
LICENSEE 's Insurance - Throughout the TERM of this Agreement, or during such period as the parties shall agree in writing, the LICENSEE shall maintain in full force and effect comprehensive general liability (CGL) insurance, with single claim limits acceptable to the University. Such insurance policy shall include coverage for claims that may be asserted by the University against the LICENSEE under the indemnification section of this Agreement and for claims by a third party against the LICENSEE or the University arising out of purchase or use of a LICENSED VARIETY. Such insurance policy shall name the University as an additional insured if the University so requests in writing. Such insurance policy shall require the insurer to deliver written notice to the University at the address set forth in this Agreement, at least thirty (30) days prior to the termination of the policy. Upon receipt of the University's written request, the LICENSEE shall deliver to the University a copy of the certificate of insurance for such policy.
The provisions of this section shall not apply if the University agrees in writing to accept the LICENSEE's self-insurance plan as adequate insurance.
Express Warranties - Each party represents and warrants to the other party that it has full corporate power and authority to execute, deliver and perform this Agreement, and that no other corporate proceedings by such party are necessary to authorize the party's execution or delivery of this Agreement.
Permitted Trademark Usage - The LICENSEE’s use of a Licensed Mark in any manner shall inure to the benefit of the University. The LICENSEE shall not: (i) challenge, cause, or assist any other person to contest the validity of a Licensed Mark or the University’s sole and exclusive right and title in each Licensed Mark; (ii) use a Licensed Mark or any components thereof, or any words or designs confusingly similar thereto, in any corporate name, trade name, domain name, or other products, goods or services not considered a LICENSED VARIETY; (iii) attempt to register or register a Licensed Mark or any components thereof or any word or design confusingly similar thereto, as or within any trademark, corporate name, trade name, or domain name; or (iv) commit any other act that might prejudice or adversely affect the validity of a Licensed Mark or the University’s rights in each Licensed Mark. The LICENSEE shall use the Licensed Marks in full compliance with all applicable federal and state law, including all federal export laws and regulations.
Prior to the use of a Licensed Mark on any tag label, container, packaging, advertising, promotional, or display material, the LICENSEE shall submit a sample to the University for its approval, such approval shall not be unreasonably withheld. The University shall have fifteen (15) days to review and approve such use. If the University does not respond to submission with fifteen (15) days of such submission and submission is consistent with the terms of this Agreement, it shall be deemed accepted by the University. Any submission made under this section shall be sent to the address provided in the Notice section of this Agreement. All rights, including copyrights in artwork utilizing a Licensed Mark created by the LICENSEE or its agents in connection with this Agreement shall be owned by the University, and the LICENSEE, for itself and its agents, hereby assigns all the right, title and interest in such artwork to the University.
Trademark Standards - LICENSEE recognizes the importance to the University of maintaining high, uniformly applied standards of quality in the LICENSED VARIETY identified by a Licensed Mark, and covenants that LICENSED VARIETY covered by this Agreement shall be of high standard and quality. The LICENSEE agrees to follow any and all written specifications of the University relating to the nature and quality of LICENSED VARIETY and the use of the Licensed Marks. From time to time during the TERM of the Agreement, as requested by the University in writing, the LICENSEE shall submit sample(s) of requested LICENSED VARIETY to the University for its Inspection and approval. Such specimen(s) or sample(s) may be used by University in the filing, prosecution or maintenance of a Licensed Mark. LICENSEE further agrees to cooperate, from time to time as necessary, with the University in the filing, prosecution and maintenance of the Licensed Marks.
Disclaimer - EXCEPT FOR THE WARRANTIES SET FORTH IN THE EXPRESS WARRANTIES SECTION, THE UNIVERSITY DISCLAIMS AND EXCLUDES ALL WARRANTIES, EXPRESS AND IMPLIED, CONCERNING THE LICENSED VARIETY, LICENSED INTELLECTUAL PROPERTY RIGHTS, AND LICENSED VARIETIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE.
In addition to the foregoing, the University expressly disclaims any warranties concerning and makes no representations:
- that an application for a Licensed Intellectual Property Right will be approved or that a Licensed Intellectual Property Right will remain valid and subsisting throughout the term of this Agreement;
- concerning the validity or scope of any Licensed Intellectual Property Right; or
- that the propagation, sale, or disposition of a Licensed Variety will not infringe or violate a third party's domestic or foreign intellectual property rights.
LIMITATION OF LIABILITY - UNIVERSITY IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCURRED BY THE LICENSEE OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF THE UNIVERSITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE UNIVERSITY'S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE LICENSE FEE PAID TO THE UNIVERSITY UNDER THE AGREEMENT. THIS LIMITATION APPLIES REGARDLESS OF WHETHER OTHER PROVISIONS OF THIS LICENSE HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE OR EXTEND THESE LIMITS. LICENSEE ACKNOWLEDGES AND AGREES THAT THE FOREGOING LIABILITY LIMITATIONS ARE ESSENTIAL ELEMENTS OF THIS LICENSE AND THAT IN THE ABSENCE OF SUCH LIMITATIONS, THE MATERIAL AND ECONOMIC TERMS OF THIS LICENSE WOULD BE SUBSTANTIALLY DIFFERENT.
Export and Regulatory Restrictions – The Licensee shall ensure that the propagation, sale or transfer of a Licensed Variety complies with all applicable federal and provincial law, including all federal export laws and regulations regarding the use of the Licensed Variety in the relevant territory.
Right to Injunctive Relief - Licensee acknowledges and agrees that monetary damages are not sufficient to compensate University in the event of Licensee's material breach or violation of this Agreement, and that University may be irreparably harmed by such breach or violation, and that University will have the right to seek other remedies available to it in law and equity to remedy such breach or violation, including injunctive and equitable relief. If Licensee fails to perform an obligation or otherwise breaches one or more of the terms of this Agreement, Licensee shall pay the University's costs and expenses (including actual attorneys' and investigative fees) to enforce the terms of this Agreement.
Governing Law and Forum – The internal laws of the state of Minnesota shall govern the validity, construction and enforceability of this Agreement, without giving effect to the conflict of laws principles thereof. Any suit, claim, or other action to enforce the terms of this agreement, or any suit, claim or action arising out of or related to this agreement, may be brought only in the state courts of Hennepin County, Minnesota. The Licensee hereby submits to the jurisdiction of that court and waives any objections it may have to that court asserting jurisdiction over the Licensee or its assets and property. This Agreement is not to be governed by the United Nations Convention on Contracts for the International Sale of Goods.
Entire Agreement - This Agreement constitutes the entire understanding of the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings of the parties on such subject matter. This Agreement may be amended, only in writing, and duly executed by all the parties.
Assignment and Sublicense - Licensee shall not assign or sublicense its interest or delegate its duties under the Agreement without the written consent of the University. Any assignment, sublicense, or delegation attempted to be made in violation of this section is void. Absent the written consent of the University, an assignment, sublicense or delegation will not release the assigning or delegating party from its obligations.
Compliance With Laws - Licensee represents and warrants that its use of the Licensed Variety will comply with all applicable laws and regulations.
Survival - The following provisions (to the extent they appear in this Agreement) survive termination of the Agreement: "Definitions, University Intellectual Property Rights, Protection of Proprietary Rights, Payment Terms, Termination, Disclaimer, Limitation of Liability, Indemnification, Export Control, Right to Injunctive Relief and Attorney's Fees, Governing Law, and any other provision, which by its nature is intended to survive.
Relationship of the Parties - In entering into, and performing their duties under the Agreement, the parties are acting as independent contractors and independent employers. No provision of the Agreement creates or is to be construed as creating a partnership, joint venture, or agency relationship between the parties. No party has the authority to act for or bind the other party in any respect.
Severability - If a court of competent jurisdiction adjudges a provision of the Agreement to be unenforceable, invalid, or void, such determination is not to be construed as impairing the enforceability of any of the remaining provisions hereof and such provisions will remain in full force and effect.
Notice - In order to be effective, all notices, requests, and other communications that a party is required or elects to deliver must be in writing and must be delivered personally, or by facsimile or electronic mail (provided such delivery is confirmed), or by a recognized overnight courier service or by United States mail, first-class, certified or registered, postage prepaid, return receipt requested, to the other party at its address set forth below or to such other address as such party may designate by notice given under this section:
If to University:
Office for Technology Commercialization, University of Minnesota
Attn: Contracts Manager
McNamara Alumni Center
200 Oak St. SE, Suite 280
Minneapolis, MN 55455
If notice alleges breach of the Agreement, a copy must be sent to:
Office of the General Counsel, University of Minnesota
Attention: Director of Transactional Law Services.
200 Oak Street, SE
Minneapolis, MN, 55455
If to Licensee: As set forth above in the "Licensee" section.
Accept Terms - Clicking "Accept" on the "Review and Accept Agreement" page during the licensing process indicates that you agree with the terms and conditions of this license agreement, and agree to receive required notices from the University of Minnesota electronically.