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RESEARCH DEVELOPMENT AGREEMENT TEMPLATE This

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RESEARCH DEVELOPMENT AGREEMENT TEMPLATE
This Research Development Agreement is made as of the Effective Date,
BETWEEN:
[Name of Institution], having its administrative offices at
________________________________________________
(“Institution”)
AND:
AGGREGATE THERAPEUTICS, INC., a corporation
incorporated under the laws of Canada and having its
administrative offices at 451 Smyth Road, Room 3105, Ottawa,
Ontario K1H 8M5
(the “Company”)
BACKGROUND:
A.
The research program described in Schedule “A” attached to this Research Development
Agreement was developed [select one: solely by Institution / jointly by Institution and
Company] (the “Research Program”);
B.
The Company wishes to provide financial and/or in-kind support for the Research
Program as set out herein; and
C.
Institution agrees to perform the Research Program in accordance with the terms and
conditions set out in this Research Development Agreement.
NOW THEREFORE, in consideration of the foregoing premises, the mutual covenants and
obligations contained in this Research Development Agreement, and other good and valuable
consideration, Institution and Company agree as follows.
1.
DEFINITIONS
1.1
In this Research Development Agreement:
(a)
“Background Intellectual Property” means Intellectual Property of a party that
is proprietary to that party and that was conceived, created, or developed prior to,
or independent of, the Research Program and is necessary for the performance of
the Research Program;
(b)
“Budget” means the budgeted amount set out in Schedule “B” attached to this
Research Development Agreement to be paid by Company for the research
conducted by the Institution in the Research Program;
(c)
“Company Intellectual Property” means Intellectual Property conceived or
reduced to practice during the Contract Period solely by one or more employees
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Research Development Agreement
or agents of Company arising out of or resulting from the Research Program;
(d)
“Confidential Information” means the contents of this Research Development
Agreement and all information disclosed or provided by the disclosing party
(including the Intellectual Property of the disclosing party) to the receiving party
relating to the Research Program, and designated or otherwise indicated by the
disclosing party as confidential at the time of disclosure. If such disclosure was
made in writing or in other tangible form, it will be marked “confidential”, and if
made orally, it was or will be reduced to writing or other tangible form and
marked “confidential” within 30 days of the oral disclosure. However,
“Confidential Information” of the disclosing party does not include:
(i)
information that is in the public domain at the time it is received by the
receiving party;
(ii)
information that after receipt thereof by the receiving party enters the
public domain other than through a breach of this Research Development
Agreement by the receiving party;
(iii)
information that the receiving party can show was, prior to receipt
thereof from the disclosing party, lawfully in the possession of the
receiving party and not then subject to any obligation on the part of the
receiving party to maintain the confidentiality thereof;
(iv)
information that the receiving party can show was independently
developed by employees, agents or consultants of the receiving party
without any knowledge or use of the information disclosed by the
disclosing party; or
(v)
information that is approved in writing by the disclosing party for
disclosure, provided that such disclosure by receiving party was made in
accordance with the terms of such approval;
(e)
“Contract Period” means the period commencing on the date of this Research
Development Agreement and ending on the close of business on the date set out
in Schedule “B” attached to this Research Development Agreement, unless
terminated earlier in accordance with the terms of this Research Development
Agreement or extended by mutual written agreement of the parties;
(f)
“Institution Intellectual Property” means Intellectual Property conceived or
reduced to practice during the Contract Period solely by one or more employees
of Institution arising out of or resulting from the Research Program;
(g)
“Intellectual Property” means any and all discoveries, inventions, processes,
methods, techniques, know-how, and intellectual property and proprietary rights,
expressed in whatever form and may include technical information, procedures,
cell lines, formulae, protocols, software, specifications, flowcharts, instructions,
data, and other documents and materials.;
(h)
“IP Toolkit” means the set of standard form agreements developed by Company
and intended to be used by the Parties in connection with transactions related to
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Research Development Agreement
the unencumbered intellectual property disclosed to Company under the
Disclosure and Standstill Agreement dated в—Џ between Company, Institution and a
principal investigator;
2.
(i)
“Joint Intellectual Property” means Intellectual Property conceived or reduced
to practice during the Contract Period jointly by one or more employees of
Institution, and one or more employees or agents of Company, arising out of or
resulting from the Research Program;
(j)
“Materials” means the materials (which may include biological materials), if
any, described in Schedule “D” attached to this Research Development
Agreement;
(k)
“Materials Transfer Agreement Template” means an agreement substantially
the same as the then current standard form agreement entitled “Materials Transfer
Agreement Template” included in the IP Toolkit;
(l)
“Option Agreement Template” means an agreement substantially the same as
the then current standard form agreement entitled “Option Agreement Template”
included in the IP Toolkit;
(m)
“Option Period” means the period commencing on the Effective Date of this
Research Development Agreement and ending on the close of business on the
date set out in Schedule “C” attached to this Research Development Agreement;
(n)
“Principal Investigator” means the individual designated by Institution in
Schedule “B” attached to this Research Development Agreement;
(o)
“Research Program” has the meaning ascribed to it in Recital A; and
(l)
Technical Representative” means the individual designated by Company in
Schedule “B” attached to this Research Development Agreement as its technical
representative, unless another individual is subsequently designated by Company
upon written notice to Institution.
RESEARCH PROGRAM
2.1
Principal Investigator. The Research Program will be carried out on behalf of Institution
by Principal Investigator. During the Contract Period, Principal Investigator and his or her
research team will perform the Research Program in a professional and competent manner.
2.2
Materials to Facilitate Performance. In the event that Materials are necessary to enable
Institution to perform the Research Program, and to the extent that Company owns or has rights
to and can provide such Materials, Company will provide such Materials to Institution on the
terms and conditions set out in Schedule “D” attached to this Research Development Agreement.
2.3
Notebook Records and Inspection of Facilities. Institution will require Principal
Investigator and his or her research team to keep adequate laboratory or other notebook records in
accordance with generally accepted standards for notebook keeping and sufficient to provide
satisfactory evidence of discoveries on a timely basis. Upon giving Principal Investigator at least
two (2) weeks advance notice, Company will have the right, during the regular business hours of
-3Research Development Agreement
Institution, to (i) examine such records and to take copies of all data and work products arising
from the performance of the Research Program by Institution, and (ii) inspect the facilities where
the Research Program are performed.
2.4
Meetings and Reports. During the Contract Period, the Company and Principal
Investigator will meet at times and places mutually agreed upon to discuss the progress and
results of the Research Program. With respect to written reports, unless otherwise expressly set
out in the Research Program, Principal Investigator will provide the Company with a written
progress report every six (6) months following commencement of the Contract Period. The
Principal Investigator will further provide a final report to Company within 30 days following the
expiration or termination of this Research Development Agreement. In the event the date of
termination or expiration will coincide with the reporting date for any progress report, such final
report will replace and fulfill the Principal Investigator’s obligation to make a progress report.
2.5
Subcontract. If Institution or Principal Investigator recognizes a need (that could not
have been reasonably anticipated by Institution or Principal Investigator during the planning
phase of the Research Program) for Institution to subcontract performance of any part of the
Research Program, Institution will so notify Company promptly in writing, together with
particulars such as the nature and scope of the work to be subcontracted, the name of the
proposed subcontractor, and the effect, if any, such subcontract will have on the timing for
completing the Research Program. Company will act reasonably in evaluating the subcontracting
proposed by Institution and will notify Institution of its approval or disapproval, and if
disapproval, the rationale for such disapproval, which may include the personal nature of the
work to be performed.
2.6
Technical Representative of Company. For technical matters relating to the Research
Program such as clarification sought by Institution or Principal Investigator with respect to the
scope of the Research Program or the deliverables that does not involve the amendment of any
provision of this Research Development Agreement, Institution and Principal Investigator will
contact the Technical Representative of Company.
2.7
Changes in Scope. Any modifications to the Research Program described in the Research
Program must be made in writing and signed by all parties to this Research Development
Agreement.
3.
COMPENSATION
3.1
Payment. Company will pay Institution an amount not to exceed the Budget set out in
Schedule “B”. All equipment, materials and supplies required by Institution to perform the
Research Program have been anticipated in the Budget, including any and all direct, indirect and
incidental costs and institutional overhead charges.
3.2
Interest Charges on Late Payment. All amounts due and owing to Institution but not paid
by Company on the due dates set out in Schedule “B” will bear interest from the due date in
Canadian dollars at the rate of 12 per cent (12%) per annum (calculated and compounded on a
monthly basis), until such time that all of the outstanding amount and interest thereon is paid in
full.
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4.
INTELLECTUAL PROPERTY
4.1
Background Intellectual Property. If Background Intellectual Property is utilized in the
Research Program, then the owner (or rights holder) of such Background Intellectual Property
will promptly provide the other party with sufficient details of the Background Intellectual
Property in a document entitled “Notice of Background Intellectual Property”. With respect to
Background Intellectual Property of Institution, Institution will also include information on the
existence, and extent of, any restrictions or other conditions imposed by a third party (or by a preexisting arrangement of the Institution) on the use of the Institution Background Intellectual
Property and on the ability of Institution to grant Company an option to such Background
Intellectual Property under section 5.1. A description of the Background Intellectual Property
will be attached at Schedule “E” of this Research Development Agreement (i.e. as “E(BIP)1” for
the first item, “E(BIP)2” for the second item, etc., where “BIP” denotes Background Intellectual
Property). The owner (or rights holder) hereby grants to the other party, a royalty-free, nonexclusive, non-transferable, licence to use the Background Intellectual Property, during the term
of this Agreement, solely in connection with the Research Program. No other rights or licences in
Background Intellectual Property are granted by the owner (or rights holder) to the other except
as expressly set out in this Research Development Agreement. Background Intellectual Property
will remain the exclusive property of the owner (or rights holder), and if disclosed in compliance
with the terms of section 6 will be considered that party’s Confidential Information.
4.2
Institution Intellectual Property. Institution will promptly provide Company with
sufficient details of any Institution Intellectual Property in a document entitled “Notice of
Institution Intellectual Property”. A description of each item of new Institution Intellectual
Property will be attached at Schedule “E” of this Research Development Agreement (i.e. as
“E(IIP)1” for the first item, “E(IIP)2” for the second item, etc., where “IIP” denotes Institution
Intellectual Property) as a record of the intellectual property available under the option granted to
Company in section 5.1.
4.3
Joint Intellectual Property. Each party will promptly provide the other party with
sufficient details of any Joint Intellectual Property in a document entitled “Notice of Joint
Intellectual Property”. The parties will similarly attach a description of each item of such Joint
Intellectual Property at Schedule “E” of this Research Development Agreement (i.e. as “E(JIP)1”
for the first item, “E(JIP)2” for the second item, etc., where “JIP” denotes Joint Intellectual
Property) as a record of the intellectual property available under the option granted to Company
in section 5.1.
4.4
Assignment of Principal Investigator Intellectual Property to Institution. To the extent
that any Institution Intellectual Property and any Joint Intellectual Property conceived or reduced
to practice by Principal Investigator and/or any member of his or her research team arising out of
or resulting from performance of the Research Program may, by operation of law or otherwise,
vest in one or more of these individuals, Institution will cause each of such individuals to
irrevocably assign to Institution all of his or her right, title and interest in such Institution
Intellectual Property and Joint Intellectual Property.
4.5
Ownership. Except as expressly set out in this Research Development Agreement, all
rights, title and interest in and to (i) the Company Intellectual Property will be the sole and
exclusive property of the Company, (ii) the Institution Intellectual Property will be the sole and
exclusive property of Institution, and (iii) the Joint Intellectual Property will be the joint property
of Institution and Company, and notwithstanding applicable patent or other intellectual property
-5Research Development Agreement
laws in any jurisdiction, neither party may commercially exploit its interest in the Joint
Intellectual Property except in accordance with Article 5.
4.6
Patent Prosecution. As deemed appropriate by Institution and in consultation with
Company, Institution will prepare, file, and prosecute all patent applications and maintain the patents
issuing therefrom (i) in the name of Institution for the Institution Intellectual Property and (ii) in the
names of both Institution and Company for the Joint Intellectual Property. Company will be given
reasonable opportunity to advise Institution in such filing, prosecution and maintenance and be
provided with documentation and correspondence from, sent to or filed with patent offices
concerning such filing, prosecution and maintenance. All such documentation and correspondences
provided to Company will be maintained as Confidential Information of (i) Institution in the case of
the Institution Intellectual Property, and (ii) of both Institution and Company in the case of the Joint
Intellectual Property, and in accordance with the terms of Article 6.
4.7
Patent Expenses. Company will bear the cost of expenses incurred by Institution under
section 4.6, and will, within 30 days of receipt of an invoice from Institution, reimburse Institution
for such expenses. If Institution wishes to obtain patent protection for the Institution Intellectual
Property and the Joint Intellectual Property beyond that for which Company wishes to provide its
financial support under this section, Institution will be free to file or continue prosecution of the
patent applications or maintenance of the patents issuing therefrom, at its own expense, and in such
event, Institution will not have any obligation to Company under section 5.1 with respect to such
patent rights.
5.
GRANT OF OPTION
5.1
Grant of Option. Subject to the terms and conditions of this Research Development
Agreement, Institution hereby grants Company the option set out in the Option Agreement
Template with respect to (i) each item within the Institution Intellectual Property, (ii) Institution’s
interests in each item within the Joint Intellectual Property, and (iii) Institution Background
Intellectual Property, to the extent possible as described in Schedule “E” attached to this Research
Development Agreement, and to the extent necessary for Company to practice the intellectual
property described in (i) and (ii) above. The parties will negotiate only those provisions in the
Option Agreement Template that expressly direct the parties to negotiate and settle in the schedules
attached to the Option Agreement Template, to the extent that they have not already been settled in
Schedule “C” attached to this Research Development Agreement. If the parties are able to settle
the remaining provisions with respect to each item of the Institution Intellectual Property or the
Joint Intellectual Property as it arises, the parties will promptly amend Schedule “C” attached to
this Research Development Agreement. The parties acknowledge and agree that amendment of
Schedule “C” attached to this Research Development Agreement is sufficient to create a legally
binding agreement between the parties without requiring the parties to further execute and deliver
a separate option agreement for each item of the Institution Background Intellectual Property (to
the extent possible as described in section 4.1), Institution Intellectual Property or the Joint
Intellectual Property in Schedule “E” attached to this Research Development Agreement for
which an Option (as defined in the Option Template Agreement) is granted.
6.
CONFIDENTIALITY AND PUBLICATION
6.1
Use of Confidential Information. Company and the Institution may disclose Confidential
Information one to the other to facilitate work under this Research Development Agreement.
Such Confidential Information will be safeguarded and will be disclosed only to those individuals
of the receiving party who need to know the Confidential Information in order perform the
-6Research Development Agreement
activities directly related to this Research Development Agreement and who are aware of and are
bound by this obligation of confidentiality. All copies of Confidential Information will, upon
reproduction by the receiving party, contain the same proprietary and confidential notices and
legends that appear on the original Confidential Information. During the Contract Period and for
five (5) years thereafter, the receiving party will use reasonable efforts to keep the disclosing
party’s Confidential Information confidential and will not, directly or indirectly, deal with, use,
exploit or disclose such Confidential Information to any person or entity for any purpose except
as expressly set out in this Research Development Agreement or unless and until expressly
authorized in writing to do so by the disclosing party.
6.2
Disclosure Required By Law. If a party is required by a judicial, administrative or other
process to disclose the other party’s Confidential Information, that party will promptly notify the
other party and will allow the other party reasonable time to oppose the process before disclosing
the Confidential Information.
6.3
Publication. Company acknowledges that it is part of Institution’s mandate as an
academic research institution to publish or present the results of research conducted by
Institution’s researchers. Institution will acknowledge the support of Company in all such
publications and presentations. The Institution will provide the Company with a copy of any
proposed presentation or publication arising from the Research Program at least 60 days prior to
its presentation or submission for publication. Upon Company’s request received within 30 days,
Institution will: (i) ensure any Company Confidential Information identified by the Company is
removed from the proposed presentation or publication; and/or (ii) delay publication up to ninety
(90) additional days in order that a patent application may be filed or other appropriate steps
taken to protect the commercial value of the Institution Background Intellectual Property (to the
extent possible as described in section 4.1) and/or Institutional Intellectual Property that would
otherwise be disclosed by said presentation or publication, as determined by Institution in
consultation with Company. Failure of Company to respond to Institution within the 30-day
period will be deemed acceptance by Company of the proposed presentation or publication, and
Institution may proceed with such presentation or publication without further notice to Company.
6.4
Publicity. Except as required by law, no party may use the name, logo or trademark of
the other party without the prior written consent of an authorized representative of the other party.
However, both parties may make the following information a matter of public record: names of
Principal Investigators; Principal Investigator’s department; Institution’s name; Company’s name;
Research Program general description (but not title, unless title is of a general nature); Research
duration; and Budget value. Except as expressly permitted in this Research Development
Agreement, neither party may use the name of the other, nor of any member of the other party’s
staff, in any publicity, advertising, or news release without the prior written approval of an
authorized representative of the other.
7.
DISCLAIMER OF WARRANTY, AND LIMITATION ON LIABILITY
7.1
Disclaimer. Except as expressly set out in this Research Development Agreement,
INSTITUTION MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER
EXPRESS OR IMPLIED, WITH RESPECT TO THE INSTITUTION INTELLECTUAL
PROPERTY AND BACKGROUND INTELLECTUAL PROPERTY, THE JOINT
INTELLECTUAL PROPERTY, DATA OR OTHER RESULTS ARISING FROM ITS
PERFORMANCE OF THE RESEARCH PROGRAM other than that the Research Program will
be performed in good faith, with reasonable efforts of those participating, and in accordance with
the object and spirit of this Research Development Agreement, in a reasonable and cost-effective
-7Research Development Agreement
manner, using reasonable skill and care, and in compliance with all applicable laws of the
jurisdiction in which Institution is situated. INSTITUTION SPECIFICALLY DISCLAIMS ANY
IMPLIED WARRANTY OF NON-INFRINGEMENT OR MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE AND WILL IN NO EVENT BE LIABLE FOR ANY
INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR AGGRAVATED OR OTHER
SIMILAR OR LIKE DAMAGES OR LOSSES, INCLUDING ANY LOSS OF PROFITS,
ARISING FROM ANY DEFECT, ERROR OR FAILURE TO PERFORM, EVEN IF
INSTITUTION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR
LOSSES. COMPANY HEREBY ACKNOWLEDGES THAT THE RESEARCH PROGRAM IS
OF AN EXPERIMENTAL AND EXPLORATORY NATURE, THAT NO PARTICULAR
RESULTS CAN BE GUARANTEED, THAT IT HAS BEEN ADVISED BY INSTITUTION TO
UNDERTAKE ITS OWN DUE DILIGENCE WITH RESPECT TO ALL MATTERS ARISING
FROM THIS RESEARCH DEVELOPMENT AGREEMENT, AND THAT THE ENTIRE RISK
AS TO ANY USE BY COMPANY OF THE INSTITUTION INTELLECTUAL PROPERTY,
THE JOINT INTELLECTUAL PROPERTY, DATA OR OTHER RESULTS ARISING FROM
PERFORMANCE BY INSTITUTION OF THE RESEARCH PROGRAM IS BORNE SOLELY
BY COMPANY.
7.2
Infringement by New Intellectual Property.
INSTITUTION MAKES NO
REPRESENTATIONS AS TO THE POTENTIAL FOR ANY CLAIM OF PATENT,
COPYRIGHT OR TRADE SECRET INFRINGEMENT BASED ON THE USE OF THE
INSTITUTION INTELLECTUAL PROPERTY OR THE JOINT INTELLECTUAL PROPERTY
NOR WILL INSTITUTION BE RESPONSIBLE FOR PROCURING THE USE OF SUCH
INTELLECTUAL PROPERTY FOR COMPANY IN THE EVENT THAT SUCH
INTELLECTUAL PROPERTY OR ANY PART THEREOF BECOME THE SUBJECT OF A
CLAIM OF INFRINGEMENT OF PATENT, COPYRIGHT OR TRADE SECRET.
7.3
Limitation on Liability. For breach or default by Institution of any of the provisions of
this Research Development Agreement or the failure of Institution to comply with any duty or
obligation arising out of or related to this Research Development Agreement other than a breach
of the confidentiality provision, Institution’s entire liability, regardless of the form of action,
whether based on contract, tort or otherwise, including negligence, including without limitation,
the furnishing, the failure to furnish, the quality, performance or non-performance of the
Institution Intellectual Property, the Joint Intellectual Property, data or results of the Research
Program will in no event exceed the amount paid by Company for the Research Program.
Nothing in this Research Development Agreement will exclude or restrict Institution’s liability
for death or personal injury arising from either the gross negligence or wilful malfeasance of
Institution or its employees or agents while acting in the course of their employment or agency.
8.
INDEMNITY
8.1
Indemnification by Company. Company agrees to indemnify, hold harmless and defend
Institution, its Board of Governors, officers, employees, faculty, students, invitees, and agents,
including the Principal Investigator (the “Indemnified Parties”) against any and all third party
demands, claims, suits, proceedings, actions of any nature or kind whatsoever (“Claims”),
liabilities, damages, judgments, costs, expenses and fees (including reasonable legal expenses)
(“Losses”) arising out of or in any way associated with the use by Company or a third party
acting on behalf of Company or under the authorization of Company of the Institution Intellectual
Property, Joint Intellectual Property, data and/or other results arising from the performance of the
Research Program by Institution, to the extent that such Claims or Losses do not result from the
gross negligence or wilful misconduct of the Indemnified Parties.
-8Research Development Agreement
8.2
Insurance of Company. During the Contract Period and for three (3) years thereafter,
Company will obtain and maintain comprehensive general liability insurance including product
liability and errors and omissions insurance which will protect the Indemnified Parties with
respect to events covered by the indemnification granted by Company to Institution under section
8.1 of this Research Development Agreement. Such insurance will be endorsed to include
product liability coverage of at least $1 million per occurrence on a claims-made basis.
8.3
Insurance of Institution. Institution has liability insurance applicable to its directors,
officers, employees, faculty, and students while acting within the scope of their employment by
the Institution. The Institution has no liability insurance policy that can extend protection to any
other person. Therefore, subject to section 8.2, each party hereby assumes any risks of personal
injury and property damage attributable to the negligent acts or omissions of that party and its
directors, officers, employees and agents, and where applicable, its faculty and students.
9.
NOTICES
9.1
All payments, reports and notices or other documents that a party is required or may want
to deliver to the other party will be in writing and delivered by (i) personal delivery or nationally
recognized courier service and deemed to have been received at the time of delivery, or (ii)
registered or certified mail (with all postage and other charges prepaid) and deemed to have been
received at the end of the fifth (5th) day after it is posted, except that in the event of a postal strike,
such notice will be deemed to have been received upon actual receipt, to the address set out in
Schedule “B” for the other party or to such other address that the other party may subsequently
direct in writing.
10.
TERMINATION
10.1
Automatic Termination. This Research Development Agreement will automatically and
immediately terminate (i) upon the expiry of the term of this Research Development Agreement,
or (ii) without notice to Company upon or after (A) the filing by Company of a petition in
bankruptcy or insolvency, or (B) any final adjudication that Company is bankrupt or insolvent.
10.2
Termination by Institution. Institution may, at its option, terminate this Research
Development Agreement with immediate effect by giving written notice to Company if one or
more of the following occurs:
(a)
the filing by Company of any petition or any application seeking
reorganization, readjustment or rearrangement of the business of Company
under any federal or provincial law relating to bankruptcy or insolvency;
(b)
the making by Company of any assignment or attempted assignment for the
benefit of creditors;
(c)
Company becoming insolvent, as evidenced, for example (without
limitation) by (i) the appointment of a receiver or a receiver manager for
all or substantially all of the property of Company, (ii) the inability of
Company to pay its liabilities generally as they become due, (iii) the
termination of a majority of Company’s employees, or (iv) Company
ceasing, or imminently ceasing by way of a third party petition remaining
in place for 30 days, to carry on business;
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Research Development Agreement
(d)
any resolution passed, order made, or other steps taken by Company for
the winding up, liquidation or other termination of the existence of the
Company; or
(e)
if Company cancels its insurance coverage or materially alters its
insurance coverage to the detriment of Institution.
10.3
Non-completion by Principal Investigator. If for any reason Principal Investigator is
unable to complete the Research Program and a successor proposed by Institution is not
acceptable to Company, either party may terminate this Research Development Agreement upon
giving the other party at least 30 days written notice thereof. In such event, Institution will, at a
reasonable cost to Company, cooperate with Company fully in transferring the remaining work
for completion by Company or its third party designate, and if Institution Intellectual Property
and/or Background Intellectual Property of the Institution is required to enable the Company or
its designate to complete the remaining work, Institution will not charge Company or its
designate a mark-up or any additional cost for such use.
10.4
Termination or Suspension of Research Program by Institution. Institution may suspend
performance of the Research Program or terminate this Research Development Agreement upon
written notice to Company if Company fails to pay any invoiced amount that remained overdue
for at least 30 days.
10.5
Termination by Either Party. Either party may terminate this Research Development
Agreement, for whatever reason, upon giving the other party at least 30 days written notice.
10.6
Payment of Outstanding Amounts. In the event of early termination of this Research
Development Agreement by Company or due to a breach of this Research Development
Agreement by Company, Company will pay the Institution for all work done on the Research
Program to date, not to exceed the Budget, including any work in progress and non-cancellable
commitments as at the receipt of notice of such termination.
11.
GOVERNING LAW AND DISPUTE RESOLUTION
11.1
Governing Law. This Research Development Agreement is governed by, and will be
construed in accordance with, the laws of the jurisdiction in which the Institution is situated and
the laws of Canada applicable therein, without regard to any choice or conflict of laws, rule or
principle, that will result in the application of the laws of any other jurisdiction.
11.2
Dispute Resolution. The parties agree that any and all disputes and controversies arising
from, connected with, or relating to this Research Development Agreement, including relating to
the construction, meaning, performance or effect of this Research Development Agreement or
any breach thereof (collectively “Disputes”) will be resolved in accordance with the terms of this
section 11.2 as follows:
(a)
Informal Dispute Resolution. Prior to initiating formal dispute resolution
procedures, the parties will first attempt to resolve any Dispute directly through
good faith negotiations. Either party may deliver to the other a written notice
requiring negotiation of the Dispute (“Notice to Negotiate”). The parties will
seek to resolve Disputes through negotiations, but may escalate the resolution of
any Dispute internally as necessary or appropriate at the executive level. If the
Dispute has not been resolved within 15 days after the delivery of a Notice to
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Research Development Agreement
Negotiate, either party may by written notice (“Notice to Mediate”) require the
other to mediate the Dispute in accordance with section 11.2(b). To the fullest
extent permitted by law, the parties will conduct the negotiations in confidence.
(b)
Mediation. The parties agree to retain the services of a mutually acceptable third
party mediator to mediate the resolution of the Dispute. Unless the parties
otherwise agree in writing, the mediator will be resident in the city in which the
Institution is situated, and all meetings regarding the mediation will be held
either by video or telephone conference or by in-person meetings held in such
city. No party will unreasonably withhold acceptance of a mediator, and the
selection of a mediator will be made within 15 days following the conclusion of
direct negotiations regarding a Dispute pursuant to paragraph 11.2(a) above. If a
mediator is not appointed, or if, following the appointment of a mediator, the
Dispute is not resolved within 30 days, or such extended period that the parties
may agree to in writing, after the delivery of the Notice to Mediate, then any
party may elect to commence litigation pursuant to section 11.3 below. To the
fullest extent permitted by law, the parties agree to maintain the mediation
proceedings in confidence; and share the costs of the mediator and the mediation
facilities equally. All communications during the mediation referred to in
section 11.2(b), including any documents or information prepared and exchanged
solely for the purposes of that mediation, will be considered to be “without
prejudice” and will not be admissible in any subsequent litigation.
11.3
Litigation. Any party may seek (i) interim measure of protection, including injunctive
relief, prior to or during the negotiation or mediation of Disputes, and (ii) final resolution, from the
courts sitting in the city in which the Institution is situated regarding any Dispute, and each party
irrevocably and unconditionally attorns to the exclusive jurisdiction of such courts, and all courts
competent to hear appeals therefrom, for that purpose.
12.
GENERAL
12.1
Headings. The headings and subheadings in this Research Development Agreement are
inserted for convenience of reference only and will not be used in interpreting or construing the
provisions of this Research Development Agreement.
12.2
Independent Contractor. The relationship between Institution and Company is that of
independent contractors and nothing in this Research Development Agreement will be construed as
establishing an agency, partnership, joint venture, or employment relationship between the parties.
No party has the authority to act on behalf of the other party, or to commit the other party in any
manner at all or cause any other party’s name to be used in any way not specifically authorized by
this Agreement.
12.3
Entire Agreement. The parties hereto acknowledge that this Research Development
Agreement sets forth the entire agreement and understanding of the parties hereto as to the subject
matter hereof, and replaces and supersedes all prior discussions, agreements and writings in respect
hereto, unless expressly set out in Schedule “B” attached to this Research Development Agreement.
12.4
Amendment. No amendment or variation to this Research Development Agreement will
operate to change or vary the terms, obligations or conditions hereof except upon mutual agreement
by both parties signed by an authorized representative of each party.
- 11 Research Development Agreement
12.5
Severability. In the event that any provisions of this Research Development Agreement are
determined to be invalid or unenforceable by a court of competent jurisdiction in any jurisdiction, the
remainder of the Research Development Agreement will remain in full force and effect without said
provision in said jurisdiction and such determination will not affect the validity or enforceability of
such provision or the Research Development Agreement in any other jurisdiction. The parties will in
good faith negotiate a substitute clause for any provision declared invalid or unenforceable, which
will most nearly approximate the intent of the parties in entering this Research Development
Agreement.
12.6
Waiver. No condoning, excusing or overlooking by any party of any default, breach or
non-observance by any other party at any time(s) regarding any terms of this Research
Development Agreement operates as a waiver of that party’s rights under this Research
Development Agreement. A waiver of any term, or right under, this Research Development
Agreement will be in writing signed by the party entitled to the benefit of that term or right, and is
effective only to the extent set out in the written waiver.
12.7
Survival. Sections 2.4, 3.2, 10.6 and 12.7 and Articles 4, 5, 6, 7, 8, 9 and 11 will survive
the expiry or earlier termination of the Contract Period, unless expressly set out in Schedule “B”
attached to this Research Development Agreement.
12.8
Time of the Essence. Time is of the essence of this Research Development Agreement.
12.9
Further Assurances. The parties will promptly do such acts and execute and deliver to
each other such further instruments as may be required to give effect to the intent expressed in
this Research Development Agreement.
12.10 Enurement. This Research Development Agreement will enure to the benefit of and be
binding upon the parties hereto, and their respective administrators, successors, and permitted
assigns.
IN WITNESS WHEREOF, the duly authorized officers of the parties have executed this
Research Development Agreement to be effective as of the Effective Date noted below.
Effective Date: _______________
[name of Institution]
by its authorized signatory:
Per: ______________________
Name: ____________________
Title: _____________________
Date: _____________________
AGGREGATE THERAPEUTICS, INC.
by its authorized signatory:
Per: ______________________
- 12 Research Development Agreement
Name: ____________________
Title: _____________________
Date: _____________________
- 13 Research Development Agreement
SCHEDULE “A”
RESEARCH PROGRAM
- 14 Research Development Agreement
SCHEDULE “B”
CONTRACT PERIOD, PRINCIPAL INVESTIGATOR, TECHNICAL
REPRESENTATIVE, NOTICES, BUDGET, AND OTHER INFORMATION
1.
Contract Period End Date
The Contract Period will end on the close of business on ________________.
2.
Principal Investigator
The Principal Investigator designated by Institution is:
[name, address, phone, fax and email]
3.
Technical Representative
The Technical Representative designated by Company is:
[name, address, phone, fax and email]
4.
Notices
If to Company:
Aggregate Therapeutics, Inc.
451 Smyth Road, Room 3105
Ottawa, Ontario
K1H 8M5
Attention: _________________
Fax: (___) ___-_____________
If to Institution:
[name of Institution]
[address of Institution]
Attention: __________________
Fax: (___) ___ - _____________
5.
Budget and Payment Schedule
Budget amount is $_________ in Canadian funds, to be paid in accordance with the
following payment schedule:
6.
(a)
$___________ [date or event];
(b)
$___________ [date or event]; and
(c)
$___________ [date or event].
Invoice Submission to Company
- 15 -
Research Development Agreement
Institution will submit invoices to Company at the following address (if different from
the Notice provision in item 4 above):
7.
Payment by Company
Payment of all amounts due to Institution under this Research Development Agreement
may be made as follows:
a)
by cheque made payable to “[name of Institution]” delivered to Institution at the
above address; or
b)
by wire transfer in accordance with the instructions set out below:
Note: Please ensure ALL of the information is provided for efficient receipt of wire payments:
For CAD $ Deposits via wire
(General):
Pay Via:
Pay to:
Bank Address:
For USD Deposits via wire:
For Account:
Beneficiary: [name of Institution]
Reference:
Phone:
Re:
Dept Name: [UILO]
For Account:
Beneficiary: [name of Institution]
Reference:
Phone:
Re:
Dept Name: [UILO]
Cover/Reimbursement:
Receiving Bank:
Pay Via:
Pay to:
Bank Address:
Beneficiary Bank:
- 16 Research Development Agreement
SCHEDULE “C”
OPTION
1.
Option Period End Date
For each item of the Institution Intellectual Property or Institution’s interest in the Joint
Intellectual Property, the Option Period will be generally set to end on the close of
business _______ months after the date Company receives written notification from
Institution containing sufficient description of such item. However, nothing prevents the
parties from amending the Option Period in writing for a particular item once such item
becomes known following commencement of the Research Program and more
particularly set out in Schedule “E” attached to this Research Development Agreement.
2.
Option Fee
Subject to payment by Company of the expenses set out in section 4.7, the option fee for
that particular item of Institution Intellectual Property or Institution’s interest in the Joint
Intellectual Property is waived by Institution.
- 17 Research Development Agreement
SCHEDULE “D”
MATERIALS (which ay include biological materials)
If Materials will be provided by Institution, please complete the following information:
1.
Description
2.
Quantity
3.
Other Terms and Conditions
Institution and Company agree that except as expressly set out in this Schedule “D”
attached to this Research Development Agreement, all of the terms and conditions of the
Materials Transfer Agreement Template will apply to govern the provision and use of the
Materials described above, and that the parties will not be required to further execute and
deliver a separate Materials Transfer Agreement with respect to such Materials.
- 18 Research Development Agreement
SCHEDULE “E”
BACKGROUND INTELLECTUAL PROPERTY,
INSTITUTION INTELLECTUAL PROPERTY, AND
JOINT INTELLECTUAL PROPERTY
1.
Background Intellectual Property
Description of each item to be set out in Schedule E(BIP)1 (or E(BIP)2, or E(BIP)3, etc.)
and attached to this Schedule “E”. With respect to Institution Background Intellectual
Property, Institution will also include in such information the existence, and extent of,
any restrictions or other conditions imposed by a third party (or by a pre-existing
arrangement of the Institution) on the use of the Institution Background Intellectual
Property and on the ability of Institution to grant Company an option to such Background
Intellectual Property under section 5.1.
2.
Institution Intellectual Property
Description of each item to be set out in Schedule E(IIP)1 (or E(IIP)2, or E(IIP)3, etc.)
and attached to this Schedule “E”.
(None, as of the Effective Date of this Research Development Agreement.)
3.
Joint Intellectual Property
Description of each item to be set out in Schedule E(JIP)1 (or E(JIP)2, or E(JIP)3, etc.)
and attached to this Schedule “E”.
(None, as of the Effective Date of this Research Development Agreement.)
[END OF DOCUMENT]
- 19 Research Development Agreement
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