Exhibit 7.3
MATERIAL TRANSFER AGREEMENT
(HYPERTHYROIDISM DIAGNOSTIC ASSAY SYSTEM)
Effective on the date indicated below, NEXGEN BIOTECHNOLOGIES INC, having an
address at WONCHON-DONG 65-1, YUSUNG-GU, DAEJON CITY, KOREA, 305-370
(hereinafter the "PROVIDER") agrees to provide MATERIAL (as defined in paragraph
3) to GUARDIAN BIOTECHNOLOGIES INC having an address at IPW 110 GYMNASIUM PLACE,
SASKATOON, SASKATCHEWAN, CANADA, S7N 0W9 (hereinafter the "RECIPIENT") subject
to the following conditions and terms:
1. DULY AUTHORIZED REPRESENTATIVES OF PROVIDER AND RECIPIENT ORGANIZATIONS
PROVIDER SCIENTIST DR. SUN LEE
CEO/PRESIDENT
NEXGEN BIOTECHNOLOGIES INC
RECIPIENT SCIENTIST: DR. JAMES MACPHERSON
GENERAL MANAGER
GUARDIAN BIOTECHNOLOGIES INC
2. MATERIAL: transformed plant material containing genes for human
thyroid stimulating hormone receptor.
3. PURPOSES: The development of a diagnostic screening system for human
hyperthyroidism.
4. RESERVATION OF TITLE: PROVIDER retains ownership of MATERIAL
transferred to the RECIPIENT. The RECIPIENT acknowledges that MATERIAL
is or may be the subject of a patent, trademark, or any other
proprietary rights of PROVIDER.
5. SOLE PURPOSE: The RECIPIENT and its RECIPIENT SCIENTIST agree that
MATERIAL is to be used only at the RECIPIENT organization and only in
the RECIPIENT laboratory under the direction of the RECIPIENTs agent
or others working under his/her direct supervision for the sole
purpose of DEVELOPMENT OF A HUMAN HYPERTHYROIDISM ASSAY SYSTEM.
MATERIAL will not be transferred to any third party without the prior
written consent of the PROVIDER. The RECIPIENT and the RECIPIENT
SCIENTIST agree to refer to the PROVIDER any request for the MATERIAL
from anyone other than those persons working under the RECIPIENT
Scientist's direct supervision.
6. DISCLOSURE OF NEW INTELLECTUAL PROPERTY: The RECIPIENT is free to file
patent and any other intellectual property application(s) claiming
inventions made by the RECIPIENT through the use of the MATERIAL
outlined in paragraph 5 but agrees to notify the PROVIDER before
filing a patent application and will work with the provider to file
joint applications.
7. NO WARRANTY: Any MATERIAL delivered pursuant to this Agreement is
understood to be experimental in nature and may have hazardous
properties. The PROVIDER MAKES NO REPRESENTATIONS AND EXTENDS NO
WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED. THERE ARE NO
EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, OR THAT THE USE OF THE MATERIAL WILL NOT INFRINGE
ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER PROPRIETARY RIGHTS.
8. HOLD HARMLESS: Except to the extent prohibited by law, the RECIPIENT
assumes all liability for damages, which may arise from its use,
storage or disposal of MATERIAL. The PROVIDER will not be liable to
the RECIPIENT for any loss, claim or demand made by the RECIPIENT, or
made against the RECIPIENT by any other party, due to or arising from
the use of the MATERIAL by the RECIPIENT.
9. COMPLIANCE WITH FEDERAL REGULATIONS: The RECIPIENT agrees to use
MATERIAL in compliance with all applicable statutes and regulations,
including Public Health Services and or National Institutes of Health
regulations and guidelines.
10. TERMS OF AGREEMENT: This Agreement will terminate on the earliest of
the following dates: (a) when the MATERIAL becomes generally available
from third parties, for example, though reagent catalogs or public
depositories or (b) on completion of the RECIPIENT'S current research
with the MATERIAL, or (c) on thirty (30) days written notice by either
party to the other, provided that:
(i) if termination should occur under 10(a), the RECIPIENT
shall be bound to the PROVIDER by the least restrictive terms
applicable to the MATERIAL obtained from the then-available
resources; and
(ii) if termination should occur under 10(b) above, the
RECIPIENT will discontinue its use of the MATERIAL and will, upon
direction of the PROVIDER, return or destroy any remaining
MATERIAL.
(iii) in the event the PROVIDER terminates this Agreement
under 10(c) other than for breach of this Agreement or for cause
such as an imminent health risk or patent infringement, the
PROVIDER will defer the effective date of termination for a
period of up to one year, upon request from the RECIPIENT, to
permit completion of research in progress. Upon the effective
date of termination, or if requested, the deferred effective date
of termination, RECIPIENT will discontinue its use of the
MATERIAL and will, upon direction of the PROVIDER, return or
destroy any remaining MATERIAL.
11. COSTS: MATERIAL is provided at no cost during the initial test period.
12. APPLICABLE LAW: This Agreement is made under, and shall be construed
according to, the laws South Korea.
13. CONFIDENTIALITY: Each party agrees that all information disclosed by
it to the other party hereunder shall be deemed to be "Confidential
Information". Not withstanding the foregoing, Confidential Information
shall not include information which (i) the recipient can demonstrate
was lawfully in its position prior to its first receipt of such
information or (ii) at the date hereof or hereafter becomes available
to the public without breach by the recipient from third parties. Each
party agrees to treat such Confidential Information as confidential
information and shall take reasonable precautions to safeguard such
information, shall not use it for unauthorized purposes and shall not
disclose it to any third party without prior written consent of the
party from whom it was obtained.
14. LISENCE AGREEMENTS: Both the Provider and Recipient organizations
agree to negotiate in good faith to develop a license agreement for
the distribution of a hyperthyroidism assay test kit should the
research be successful.
EACH OF THE PARTIES has caused this Agreement to be executed in duplicate
originals by their duly authorized representative.
Signed this 9th day of February, 2003
/s/ Sun Lee /s/ /s/ James Macpherson /s/
- ------------------ ---------------------------
Dr. Sun Lee Dr. James Macpherson
CEO/President General Manager
Nexgen Biotechnologies Inc. Guardian Biotechnologies Inc
(Provider Organization) (Recipient Organization)