RESEARCH AGREEMENT Cooperative Research and Development Agreement

EXHIBIT 10.1

GENERAL PROVISIONS

1.

Definitions

ARS means the United States Department of Agriculture = s Agricultural Research Service.

Zeta means Zeta Corporation

Agreement means this Cooperative Research and Development Agreement.

Confidential Information means trade secrets or commercial or financial information that is privileged or confidential, under the meaning of 5 USC 552(b)(4).

Subject Inventions means any invention or other intellectual property conceived or first reduced to practice under this Agreement which is patentable or otherwise protectable under Title 35 of the United States Code, under 7 USC 2321, et seq., or under the patent laws of a foreign country.   Specifically not included in the definition of Subject Inventions are inventions made outside The Scope of Agreement or prior to the execution of this Agreement .

Scope of Agreement means those activities set forth in Schedule 2, Statement of Work.

2.

Publications

a.

Subject to the requirements of confidentiality and preservation of rights in Subject Inventions, either party may publish the results of this Agreement, PROVIDED:

(1)

The other party is allowed to review the manuscript at least sixty (60) days prior to submission for publication.

(2)

The publication shall acknowledge this Agreement and the contributions of each party's personnel.

b.

The final decision as to the publication content rests with the party that writes the publication.

c.

Publication and/or other disclosure of the results of this Agreement shall be delayed as necessary to preserve both United States of America and foreign patent rights in a Subject Invention.

(1)

Such a delay will only be granted if requested in writing; and

(2)

The requesting party demonstrates promptness and diligence in seeking patent protection on the Subject Invention.

3.

Meetings, Reports and Records

a.

Frequent and effective communication is essential to the successful accomplishment of the objectives of this Agreement.  To this end, the scientific representatives of ARS and Zeta shall meet at least once every six (6) months to exchange results, perform critiques, and make plans and recommendations.  Written progress reports shall be supplied by each party to the other at least fifteen (15) calendar days prior to each semiannual meeting.

b.

Any such plan or recommendation that is outside the Scope of Agreement shall be reduced to writing and referred to the management of each party for appropriate action.  Any such plan or recommendation so referred shall not be binding upon either party unless incorporated into this Agreement by amendment.

c.

Each party shall keep complete records relating to this research.  All such records shall be available for inspection by either party at reasonable times.  The records, or true copies of them, shall be delivered to either party upon request.

d.

The results of this Agreement and research data which are collected, compiled, and evaluated under this Agreement shall be shared and mutually interchanged by Zeta and ARS.

e.

A final report summarizing all data shall be submitted by each party to the other within sixty (60) days of the completion of this Agreement.  

4.

Confidentiality

a.

Confidential Information which is owned by one party to this Agreement and given to the other shall not be disclosed by the recipient without the written permission of the owner.

b.

Confidential Information given by one party to the other  under this Agreement shall be labeled "CONFIDENTIAL" by the submitter.

c.

To the extent either party orally submits its Confidential Information to the other party, the submitting party will prepare a document marked "CONFIDENTIAL" embodying or identifying in reasonable detail such orally submitted Confidential Information and provide the document to the other party.

d.

Any Confidential Information created under this Agreement which normally would be included in scientific publications describing the results under this Agreement may be included in such publications after an one (1) year delay after creation of the information unless Zeta waives delay.

(1)

Such publications may be delayed an additional year upon justifiable request from the non-publishing party; and

(2)

The preparation and filing of a patent application on a Subject Invention is sufficient justification.

e.

Neither party shall be bound by confidentiality if the Confidential Information received from the other party:

(1)

Already is available to the public or known to the recipient;

(2)

Becomes available to the public through no fault of the recipient; or

(3)

Is nonconfidentially received from another party legally entitled to it.

5.

Research Exclusion

a.

The results of this Agreement owned or co-owned by the US Government may be made available to others by ARS for bona fide noncommercial research purposes if:

(1)

Confidentiality is not breached; or

(2)

Patent or Plant Variety Protection Certificate rights are not compromised.

b.

Plants and animals, their genetic materials or information relating thereto, or reproducing parts thereof, covered by Plant Variety Protection Certificates, Plant Patents, or Utility Patents, owned or co-owned by ARS, may be made available by ARS to third parties for bona fide research purposes including the development of new animals or plants.

6.

Ownership of Inventions

a.

All rights, title, and interest in any Subject Invention made solely by employee(s) of ARS shall be owned by ARS.  

b.

All rights, title, and interest in any Subject Invention made jointly by at least one (1) employee of ARS and at least one (1) employee of Zeta shall be jointly owned by ARS and Zeta.  

c.

All rights, title, and interest in any Subject Invention made solely by employees of Zeta shall be owned by Zeta.

7.

Subject Invention Licenses

a.

Zeta is granted an option to negotiate an exclusive license in each Subject Invention owned or co-owned by ARS for one or more field(s) of use encompassed by the Scope of Agreement.  This license shall be consistent with the requirements of 35 USC 209(a), 209(b), and 209(f) and other such terms and conditions as may be reasonable under the circumstances, as agreed upon through good faith negotiations between Zeta and ARS.

b.

The option shall terminate whenever Zeta fails to:

(1)

Submit a complete application for an exclusive license within sixty (60) days of being notified by ARS of an Inventions availability for licensing; or

(2)

Submit a good faith written response to a written proposal of licensing terms within forty five (45) days of such proposal.

c.

Zeta grants ARS, on behalf of the US Government, a royalty free, nonexclusive, worldwide, irrevocable, nontransferable license for any Zeta solely owned Subject Invention.  The purpose of this license shall be to practice the Subject Invention or have it practiced, by or on behalf of the US Government, for research or other US Government purposes.  15 USC 3710a(b)(2).

8.

Subject Invention Information

a.

The Authorized Agents or designees of each party shall promptly make written disclosure to each other of each Subject Invention.  

b.

This information shall be treated in confidence by the receiving party, EXCEPT: it may be shared with those having a need to know.

c.

Each party shall provide, when requested by the other, all information in its possession, or true copies thereof, pertaining to a Subject Invention which may be necessary or useful in the preparation, filing, and prosecution of patent or Plant  Variety Protection Certificate applications covering the Subject Invention.

9.

Intellectual Property Protection Applications

a.

ARS and Zeta agree to cooperate with the other in the preparation, filing, and prosecution of Patent or Plant Variety Protection Certificate applications on Subject Inventions in the United States of America and any other country.

b.

The Authorized Agents of each party or their designees shall provide the other party with a copy of any such application on a Subject Invention within fourteen (14) calendar days after filing.

c.

ARS shall have the first option to prepare and prosecute patent or Plant Variety Protection Certificate applications on Subject Inventions that are owned or co-owned by the U.S. Government, which option may be waived in whole or in part.

10.

Copyrights

a.

Any work copyrightable under 17 USC 101, et seq. , produced in whole or in part by Zeta's employees under this Agreement shall be owned by Zeta.

b.

Zeta shall mark any such works with a copyright notice showing Zeta as an owner and shall have the option to register the copyright at Zeta's expense.

c.

Zeta hereby grants in advance to the U.S. Government, as represented by ARS, a worldwide, royalty-free, and nonexclusive license to use such copyrightable work for U.S. Governmental purposes.

d.

Examples of Governmental purposes are:

(1)

The right to reproduce the work in copies, phonograph or electronic records;

(2)

The right to perform or display the work publicly;

(3)

The right to prepare derivative works based on the work; and

(4)

The right to have others do so for U.S. Governmental purposes.

e.

Zeta will prominently mark each such copyrighted work subject to the U.S. Government purpose license with the words:

"This work was created in the performance of a Cooperative Research and Development Agreement with the U.S. Department of Agriculture.  The Government of the United States has a royalty-free government purpose license to use, duplicate or disclose the work, in whole or in part and in any manner, and to have or permit others to do so, for government purposes."

f.

Zeta shall furnish to ARS, at no cost to ARS, three (3) copies of each such work created in whole or in part by Zeta under this Agreement.

11.

Use of Name or Endorsements

Zeta shall not in any way state or imply that this Agreement or the results of this Agreement is an endorsement of its organizational units, employees, products, or services except to the extent permission is specifically granted by ARS' Authorized Agent (Authorized Departmental Officer).

12.

Regulatory Approvals

a.

Zeta is responsible for obtaining appropriate opinions, permits, or licenses from Federal or State agencies which regulate research materials orcommercial products that may arise from the research work performed within the Scope of Agreement.

b.

In carrying out its responsibilities under this clause, Zeta shall:

(1)

Consult and coordinate regulatory approval actions with ARS; and

(2)

Give ARS = Authorized Agent or designee a copy of any applications and opinions, permits, or licenses issued.

13.

Indemnity and Liability

a.

Zeta agrees to indemnify and hold harmless ARS from any liability arising from the negligent acts or omissions of an employee, agent, or officer of Zeta, EXCEPT:  to the extent aforesaid liability arises from the negligent acts or omissions of ARS, its employees, agents, or contractors and employees or agents of the contractor.

b.

ARS will hold Zeta harmless from any liability arising from the negligent act or omission of a Federal Government officer or employee acting within the scope of his or her employment, EXCEPT:  to the extent afore