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Data Sharing Agreement

This Data Sharing Agreement is made on [EFFECTIVE DATE] (the "Effective Date") between [DISCLOSER NAME], a [CORPORATE JURISDICTION] corporation with its principal place of business at [DISCLOSER ADDRESS] (the "Disclosing Party") and [RECIPIENT NAME], a [CORPORATE JURISDICTION] corporation with its principal place of business at [RECIPIENT ADDRESS] (the "Recipient").

The parties agree as follows:

1. Purpose. The Disclosing Party will disclose [DESCRIPTION OF DATA DISCLOSED] (the "Data") to the Recipient for [PURPOSE OF DISCLOSURE] (the "Purpose") in accordance with this agreement.

2. Confidentiality

2.1. Confidentiality Obligations. The Recipient shall hold all the Data in confidence in accordance with the terms of this agreement.

2.2. Use Solely for Purpose. The Recipient shall use the Data solely for the Purpose.

2.3. Permitted Disclosure. The Recipient may disclose the Data to any director, officer,[ trustee,] shareholder, partner, employee, agent, professional advisor, or other authorized representative, but only

(a) to the extent necessary to carry out the Purpose, and

(b) if the Recipient first informs them of, and directs them to maintain, its confidential nature in accordance with the terms of this agreement.

2.4. Required Disclosure. The Recipient may disclose the Data to a third party if it is required to do so by law but only if, before that disclosure, the Recipient, to the extent permitted by law,

(a) gives the Disclosing Party Notice to allow it a reasonable opportunity to either seek a protective order or other appropriate remedy or waive the Recipient's compliance with this section,

(b) reasonably cooperates with the Disclosing Party[, at the Disclosing Party's expense,] in its reasonable efforts to obtain a protective order or other appropriate remedy,

(c) discloses only that portion of the Data that[, having consulted with its counsel,] it is legally required to disclose, and

(d) uses reasonable efforts to obtain reliable written assurance from the third party that the Data will be kept confidential.

3. License to Use Data

3.1. Grant of License. The Disclosing Party grants to the Recipient, and the Recipient accepts, a limited, non-exclusive, non-transferable, and revocable licence to access, copy, and use the Data, but solely for the Purpose.

3.2. Reservation of Rights. The Recipient does not acquire any interest under this agreement other than the right to use the Data in accordance with the terms of this agreement.

4. Term. This agreement is effective as of the Effective Date and will terminate when the Recipient either returns to the Disclosing Party or destroys all Data in its possession or control.

5. No Warranty. The Data are provided "as is." The Disclosing Party does not make any warranty as to their accuracy or completeness.

6. Ownership of Intellectual Property. The Recipient acknowledges that all intellectual property rights in and to the Data are and will remain the Disclosing Party's exclusive property.

7. No Violations. The Disclosing Party's disclosure of the Data to the Recipient under this agreement will not violate any proprietary rights of, or any contractual obligations that it may owe to, any third party.

8. No Modification of Data. The Recipient shall not copy, decompile, modify, reverse engineer, or create derivative works out of any of the Data.

9. Privacy of Data. The Recipient shall not attempt to identify any individuals whose information is contained in the Data or attempt to contact those individuals.

10. Standard of Care. The Recipient shall exercise at least the same degree of care as it uses with its own confidential Information, but in no event less than reasonable care, to protect the Data from misuse and unauthorized access or disclosure, including

(a) maintaining adequate physical controls and password protections for any server or system on which any Data may reside,

(b) encrypting any Data that is in transmission[, and

(c) encrypting any Data located on any storage media].

11. Report Disclosure

11.1. Report. The Recipient shall give Notice to the Disclosing Party of any unauthorized use or disclosure of the Data of which the Recipient becomes aware. The Recipient shall give this Notice promptly but, in any event, no later than [three] business days after the Recipient becomes aware of the unauthorized use or disclosure.

11.2. Cooperation and Mitigation. The Recipient shall cooperate fully with any remediation that the Disclosing Party determines is necessary to

(a) address any applicable reporting requirements, and

(b) mitigate any effects of the disclosure.

12. [Proposed Publication

12.1. Advance Copy to Recipient. If the Recipient intends to publish any document that is based on or that uses the Data, the Recipient shall provide the Disclosing Party a copy of the manuscript of the proposed publication at least [20] business days, and of the abstract at least [10] business days, before its submission for publication, for the Disclosing Party's review and comments.

12.2. Acknowledgements. If publication results, in whole or in part, from research using the Data, the Recipient shall acknowledge the Disclosing Party and give credit to its scientists, as scientifically appropriate, based on any direct contribution they may have made to the research.]

13. Indemnification

13.1. Recipient's Indemnity. The Recipient shall indemnify the Disclosing Party and its officers, directors[, trustees], employees, and agents against all claims, liability, costs, and expenses (including legal fees) arising from any third party claim or proceeding brought against Disclosing Party arising out of or in connection with any unauthorized use or disclosure of the Data.

13.2. Notice of Claim. The Disclosing Party party shall give prompt Notice to the Recipient of any claim or potential claim for indemnification under this section 13 (Indemnification). 

14. Termination

14.1. Termination upon Notice. Either party may terminate this agreement for any reason upon [TERMINATION FOR CONVENIENCE NOTICE] business days' Notice to the other party.

14.2. Termination upon Recipient's Breach. If the Recipient

(a) commits any material breach or material default in the performance of any obligation under this agreement, and

(b) the breach or default continues for a period of [CURE PERIOD] business days after the Disclosing Party delivers Notice to it reasonably detailing the breach or default,

then the Disclosing Party may terminate this agreement, with immediate effect, by giving Notice to the Recipient.

14.3. [Termination upon Recipient's Insolvency. This agreement will terminate immediately upon the Recipient's insolvency, bankruptcy, receivership, dissolution, or liquidation.]

14.4. Effect of Termination

(a) Return of Property. Upon termination of this agreement, the Recipient shall return to the Disclosing Party all Data, both originals and copies, under its direct or indirect control.

(b) [Regulatory Reporting. In the event of any material breach or material default in the performance of any of the Recipient's obligation under this agreement, the Disclosing Party shall file all necessary reports with applicable regulatory bodies.]

15. General

15.1. Entire Agreement. This agreement contains all the terms agreed to by the parties relating to its subject matter. It replaces all previous discussions, understandings, and agreements.

15.2. Amendment. This agreement may only be amended by a written document signed by both parties.

15.3. AssignmentThe Recipient may not assign this agreement or any of its rights or obligations under this agreement without the Disclosing Party’s prior written consent. The Disclosing Party may assign this agreement or any of its rights and obligations under this agreement, effective upon Notice to the Recipient,

(a) to any subsidiary or affiliate, or

(b) in connection with any sale, transfer, or other disposition of all or substantially all of its business or assets but only if the assignee assumes all of the Disclosing Party’s obligations.

15.4. Notices

(a) Definition of Notice. In this agreement, "Notice" means any notice, request, direction, or other document that a party can or must make or give.

(b) Form of Notice. All Notices and other communications between the parties must be in writing.

(c) Method of Notice. Notices must be given by (i) personal delivery, (ii) a nationally-recognized, next-day courier service, (iii) first-class registered or certified mail, postage prepaid[, (iv) fax][ or (v) electronic mail] to the party's address specified in this agreement, or to the address that a party has notified to be that party's address for the purposes of this section.

(d) Receipt of Notice. A Notice given in accordance with this agreement will be effective upon receipt by the party to which it is given or, if mailed, upon the earlier of receipt and the fifth business day following mailing.

15.5. Remedies Cumulative. The rights and remedies available to a party under this agreement are cumulative and in addition to, not exclusive of or in substitution for, any rights or remedies otherwise available to that party.

15.6. Survival. Sections 2.1 (Confidentiality Obligations), 13 (Indemnification), and 14.4 (Effect of Termination) survive the termination of this agreement.

15.7. Equitable Relief. The Recipient acknowledges that its breach or threatened breach of any its obligations under section 2.1 (Confidentiality Obligations) would not be susceptible to adequate relief by way of monetary damages only. Accordingly, the Disclosing Party may, in that case, apply to court for any applicable equitable remedies (including injunctive relief), without the need to post any security.

15.8. Governing Law. This agreement will be governed by and construed in accordance with the laws of the State of [GOVERNING LAW STATE ], without regard to its conflict of laws rules.

This agreement has been signed by the parties.

[DISCLOSING PARTY]

By:___________________________________

Name:

Title:

Date:

[RECIPIENT]

By:___________________________________

Name:

[Title:]

Date:

Overview

Data Sharing Agreement is an agreement between a party that has useful data (the discloser), and a party seeking data to do research on (the recipient), under which the discloser agrees to share its data with the recipient. This could be two universities agreeing to share data to collaborate in research, it could include one or more private companies engaged in research or development, and could even include a government agency collaborating with a private entity.

Data Sharing Agreements do implicate intellectual property rights, but very thin rights. Databases are protected by copyright, but they only have very thin, or weak copyright protection in the United States, but enjoy more robust protection elsewhere. See the Intellectual Property clause for more information.

Without strong intellectual property rights protecting data and databases in the United States, Data Sharing Agreements work best when they are one individual piece of a more comprehensive agreement between research partners. An individual Data Sharing Agreement is not to supplant the larger agreement between partners, but to supplement and support a particular aspect of the larger agreement. For an indepth look at the role of a Data Sharing Agreement within a larger venture between research partners, see Data Sharing: Creating Agreements, Paige Backlund Jarquín MPH, Colorado Clinical and Translational Sciences Institute & Rocky Mountain Prevention Research Center.

KEY POINTS IN A DATA SHARING AGREEMENT:

  • Description of the Data: One of the most important aspects of a data sharing agreement is the description of the data shared under the agreement. An overly-inclusive description could result in the discloser giving away more data than intended, whereas an underinclusive description could hinder the recipient’s ability to pursue the research intended under the agreement.
  • Confidentiality: As in any agreement likely to span a number of years, the Confidentiality clause is very important for a Data Sharing Agreement.  
  • Access to Data and Data Security:These two clauses, along with the Confidentiality clause are the tools the discloser has to maintain control over the data shared under this agreement. Of course—and even more so than many types of agreements—a Data Sharing Agreement works best when part of a more comprehensive agreement between research partners, or at very least, where the research venture is buttressed by mutual respect and trust between the parties.