Provision Language
9. Materials
(a) The Parties anticipate that under this Agreement it may be necessary for either Party to transfer to the other material(s) of a proprietary nature, including but not limited to cell lines, vectors, nucleic acid sequences, sera, processes, samples and reagents (Program Materials). Program Materials provided by IAVI on a non-exclusive basis to Theraclone, whether owned by IAVI or by other third parties shall be, for purposes of this Agreement, owned by IAVI and controlled by the licenses granted by this Agreement (IAVI Materials). IAVI Materials are human biospecimens of freshly cryopreserved lymphocytes from HIV-infected volunteers, and include any cellular progeny, compositions and formulations of such materials, and any mixtures or combinations of such materials. Program Materials provided by Theraclone to IAVI, IAVI’s collaborators, or IAVI’s contractors shall be owned by Theraclone and controlled by the licenses granted by this Agreement (Theraclone Materials). Theraclone Materials include B-cell supernatants, any replicates ,progeny, compositions, formulations, and derivatives therefrom (including, without limitation, antibodies derived from any of the foregoing), and any mixtures or combinations of such materials. The Parties agree that other Party’s Program Materials may not be distributed to any other Party for any purpose except those covered by the licenses granted by this Agreement.
(b) THERACLONE AND IAVI DISCLAIM AND MAKE NO REPRESENTATIONS NOR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, PATENTABILITY OR THAT THE USE OF PROGRAM MATERIALS OR DISCOVERY PROGRAM RESULTS WILL NOT INFRINGE ANY PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER RIGHTS OF THIRD PARTIES. Notwithstanding the foregoing, IAVI hereby represents, warrants, and covenants to Theraclone that the IAVI Materials have been or will be collected under IRB-approved and appropriately consented protocols in which the subjects from which the IAVI Materials were sourced have released any and all claims to economic and intellectual property rights with respect to any potential future products derived from such materials and that such appropriately consented protocols allow for unencumbered product development related to the field of HIV.