Exhibit 10.11
EXHIBIT 10.11
STANDARD TERMS FOR R&D PROJECT OF SERVICE
Date of this draft: 1 FEBRUARY, 2000
THIS IS AN AGREEMENT made under the laws of the province of Quebec, Canada
THE PARTIES ARE NATIONAL RESEARCH COUNCIL OF CANADA (called "NRC")
Head {1200 Montreal Road Participating {Industrial Materials Institute}
Office {Ottawa, Ontario, K1A 0R6 Institute(s) {75, boul. De Mortagne
Boucherville, Quebec J4B 6Y4
AND
RTICA INC. (called the "COLLABORATOR")
whose address is:
999 Barton St.
Stoney Creek, Ont. L8E 5H4
RD-1. This agreement concerns scientific research and development, called the
"Project", described as: PET fiber blowing process development.
RD-2. The Collaborator chooses to work with NRC because of NRC's unique
capabilities, and ASSURES NRC that NRC's work in this Project is not
competing with Canadian firms or universities.
RD-3. The parties will contribute to the Project by the performance of work as
described in the attached "STATEMENT OF WORK AND DELIVERABLES", or by
payments, or both. This agreement is subject to the terms in the attached
"GENERAL CONDITIONS".
RD-4. The Total Cost of the Project, is estimated to be:
Eight hundred and forty eight thousand dollars (848 000$)
(If applicable) that amount includes the following inputs from others (not
bound by this agreement).
RD-5. The Collaborator will pay to NRC in cash, according to the attached
"SCHEDULE OF PAYMENTS":
Four hundred thousand dollars (400 000$)
Without implying that tax authorities are bound by this, the Parties
consider applicable taxes are:
(a) Goods and Services tax at: -%; registration number 121 491 807
(b) Quebec Sales Tax at: -%; registration number 1006 178 088.
RD-6. The Collaborator will also put into the Project, without charge, work
that costs (plus or minus 10%):
Three hundred forty four thousand dollars (344 000$)
RD-7. NRC will put into the Project, without charge, work that costs (plus or
minus 10%):
One hundred four thousand dollars (104 000$)
RD-8. No agreement or offer exists until NRC signs. Project starts on:
January 2000.
This agreement expires, except for the Intellectual Property
provisions, on:
June 30, 2001.
Exhibit 10.11
RD-9. The Intellectual Property from the Project will be dealt with in
accordance with attached ANNEX: IU entitled "INTELLECTUAL PROPERTY", which
remains in effect for an extended period stated therein.
SIGNED by the COLLABORATOR in duplicate at: Stoney Creek, Ontario
--------------------------------
(City, Province, County)
Per: /s/Warren Arseneau Date: February 6, 2000
----------------------------------- ---------------------------
(Signature)
W. Arseneau, President
-----------------------------------
(Print Name and Title)
SIGNED by NATIONAL RESEARCH COUNCIL CANADA in duplicate at:
OTTAWA, ONTARIO, CANADA
--------------------------------
(City, Province, County)
Per: /s/ Arthur J. Carty DATE: 14/2/2000
----------------------------------- ---------------------------
(Signature)
A.J. CARTY, PRESIDENT
-----------------------------------
(Print Name and Title)
Exhibit 10.11
ANNEX GC: GENERAL CONDITIONS
GC-1. INTERPRETATION OF AGREEMENT This agreement supersedes all prior
communications, negotiations and agreements concerning the Project
or financial contributions to the Project. No amendment or waiver
of terms in this agreement, or in the STATEMENT OF WORK AND
DELIVERABLES is effective unless it is in writing, signed by all
Parties, and explicitly states the intention to affect this
agreement. In case of inconsistency between the STATEMENT OF WORK
AND DELIVERABLES and the rest of this agreement, the rest of this
agreement prevails. No forbearance by a Party implies any broader,
continuing, or future forbearance. If a court finds part of this
agreement invalid, the remainder is valid in accordance with its
most reasonable interpretation. This agreement does not create a
relationship of agency, employment, partnership, or joint venture.
GC-2. ASSIGNMENT This agreement is personal to the Parties, so that no
assignment or assumption by a corporation formed by amalgamation with a
Party is valid except by written consent of all Parties.
GC-3. EXCLUSION OF CERTAIN LIABILITY No Party may allege liability in tort
arising out of this contract or relating to the Project. Claims based
on contractual liability are actionable, but not for failure or delay
in performance caused by circumstances beyond the reasonable control of
the defending Party, nor for incorrectness or inaccuracy of data
supplied, advice given, or opinions expressed. No claim may be made for
indirect, consequential, or contingent damages.
GC-4. LIMITED WARRANTIES Each Party warrants that it will conduct the Project
work in a professional manner conforming to generally accepted
practices for scientific research and development. However, because of
the nature of such work, no specific result is promised.
GC-4.1 The Parties will not include in the deliverables, without
so stating, any technical information the use of which is
known by a Party (in the case of NRC, limited to within the
Participating Institute) to infringe the rights of others.
However, no Party warrants that technical information conveyed
in the deliverables does not infringe the rights of others
under a present or future patent.
GC-4.2 No Party warrants the validity of patents under which rights
may be granted pursuant to this agreement, or makes any
representation as to the scope of patents or that inventions
may be exploited without infringing the rights of others.
GC-4.3 No Party warrants the correctness or accuracy of data
supplied, advice given, or opinions expressed.
GC-5. VISITS Each Party will permit visits by another Party's employees on
the premises where work on the Project is conducted, if relevant to the
Project and not likely to interfere with regular operations. Persons
who work at NRC must personally sign an agreement waiving any right to
sue NRC for injuries.
GC-6. RECORDS Parties who perform work in the Project, and (if applicable)
Parties who obtain a licence by this agreement, must maintain
records and accounts related directly to the work or the licence, in
accordance with generally accepted accounting principles applicable
to the Collaborator, and Treasury Board rules applicable to NRC.
Those records must be preserved for at least three years after they
are created, and must be available at each Party's address of
record, upon reasonable written request, for inspection and the
making of extracts and copies by the requesting Party. This
paragraph survives the rest of this agreement for the same length of
time that records must be preserved.
GC-7. TERMINATION OF WORK A Party may terminate this agreement, with
respect to the work and not obligations concerning Intellectual
Property or confidentiality, at any time, upon sixty days written
notice. Upon termination, each Party must pay the other Party any
costs pre-dating the
Exhibit 10.11
notice that were intended to be reimbursable under this agreement,
as well as any wasted costs that result directly from the
cancellation of obligations and from uncancellable obligations.
GC-8. TERMINATION OF LICENCE NRC has the right to terminate any licence or
option of Intellectual Property that is granted by or results from
this agreement if the Collaborator fails to submit to NRC any
required report or payment. NRC shall not exercise this right until
the Collaborator has received notice that the report or payment is
overdue and has been allowed sixty days from the effective date of
that notice to submit the report or payment. That termination shall
not be the basis of any liability of NRC, and does not terminate the
Collaborator's outstanding obligations nor NRC's right to claim
damages based on this agreement.
GC-9. NOTICES Any notice related to this agreement, including a notice of
change of address, must be sent to the addresses stated at the
beginning of this agreement, either by registered mail, which is deemed
to be effective notice five days after mailing, or by courier or
facsimile, which are effective notices only when acknowledged by a
courier's delivery receipt or by a specific non-automatic return
facsimile transmission.
GC-10. CONDITIONS The following are conditions of this agreement, and any
violation of them entitles NRC to forthwith terminate this agreement,
including any licence granted by this agreement, in whole or part,
without liability for the termination and retaining the right to claim
damages:
GC-10.1 No member of the House of Commons of Canada shall be admitted
to any share or part of this agreement or to any benefit to
arise from it.
GC-1 0.2 No person will receive a direct benefit from this contract
if that person is subject to, and not in compliance with, a
Conflict of Interest and Post-Employment Code, either the one
for Public Office Holders, for the Public Service, or for NRC
Employees. (NOTE: post-employment rules mainly affect persons
in the NRC "MG" category, the public service categories
"Senior Manager" and above, ministerial staff, and Governor in
Council appointees).
GC-10.3 No Party paid, gave, promised or offered any bribe, gift, or
inducement to any person, nor employed any person on the basis
of a commission or contingent fee, in relation to obtaining
this agreement (unless disclosed to NRC, in writing, referring
explicitly to this clause).
GC-10.4 No person who will receive a direct benefit from this
agreement has ever been convicted of a Criminal Code offence
of fraud on the government (s.121), selling or purchasing
public office (s.124), or selling defective stores to Her
Majesty (s.418).
GC-10.5 Any licence to the Collaborator of Intellectual Property that
is granted by or results from this agreement is personal to
the Collaborator, and shall not be exercised by or on behalf
of a successor, trustee, or receiver of the Collaborator.
GC-10.6 No research work involving human subjects, human tissues,
laboratory animals, or animal tissues, may be undertaken
without the prior approval of NRC's Human Subjects Research
Ethics Committee or NRC's Animal Care Committee.
GC-11. DISPUTE RESOLUTION Disputes concerning the Project shall not be
litigated. If negotiations fail to resolve a dispute within 60
days, a Party can require non-binding mediation, whereupon the
Parties shall jointly appoint one impartial expert mediator to
mediate according to mutually agreed procedures. If a Party refuses
to effectively participate in mediation, or if mediation continues
for more than 60 days, a Party can require binding arbitration under
the Commercial Arbitration Act of Canada, whereupon the Parties
shall attempt to jointly appoint one impartial expert arbitrator.
If they cannot agree within 30 days on the choice of an arbitrator,
each Party shall appoint its own arbitrator and those arbitrators
shall jointly appoint a chairperson of an arbitral tribunal. An
arbitral award shall not include punitive damages, costs, or interim
measures. Each Party shall pay its own costs and an equal share of
all other costs of mediation and arbitration.
Exhibit 10.11
ANNEX SP: SCHEDULE OF PAYMENTS TO NRC
For an agreement with RTICA Inc.
The "Project", described as: PET Fiber Blowing Process Development
Billing Address, if not the same as the Party's address at the beginning of this
agreement:
___________________________________________.
Invoicing reference number, if
DESIRED:
___________________________________________.
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WHEN PRINCIPAL PST GST TOTAL
AMOUNT
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1. PREPAYMENT 20,000.00 20,000.00
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2. FEBRUARY 1, 2000 20,000.00 20,000.00
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3. MARCH 1, 2000 20,000.00 20,000.00
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4. APRIL 1, 2000 20,000.00 20,000.00
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5. MAY 1, 2000 20,000.00 20,000.00
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6. JUNE 1, 2000 20,000.00 20,000.00
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7. JULY 1, 2000 20,000.00 20,000.00
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8. AUGUST 1, 2000 20,000.00 20,000.00
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9. RECEIPT OF INTERIM 20,000.00 20,000.00
REPORT
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10. SEPTEMBER 1, 2000 20,000.00 20,000.00
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11. OCTOBER 1, 2000 20,000.00 20,000.00
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12. NOVEMBER 1, 2000 20,000.00 20,000.00
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13. DECEMBER 1, 2000 20,000.00 20,000.00
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14. JANUARY 1, 2001 20,000.00 20,000.00
- ------------------------------------------------------------------------------------
15. FEBRUARY 1, 2001 20,000.00 20,000.00
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16. MARCH 1, 2001 20,000.00 20,000.00
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17. APRIL 1, 2001 20,000.00 20,000.00
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18. MAY 1, 2001 20,000.00 20,000.00
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19. JUNE 1, 2001 20,000.00 20,000.00
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20. RECEIPT OF FINAL REPORT 20,000.00 20,000.00
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21.
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22.
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23.
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24.
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400,000.00
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Exhibit 10.11
TERMS OF PAYMENT
SP-1. "When"can be answered by words such as "monthly", "on completion",
"after first report", "at milestoneN", or simply "as invoiced". For
the amount, words such as "balance" or "expenditure to date" can be
used.
SP-2. If the total of payments above does not agree with a statement in the
main body of the agreement about the amount to be paid to NRC in cash,
the main body is considered correct.
SP-3. NRC may suspend its performance of any obligations under this
agreement until the specified prepayment is received, and for as
long as any payments are in arrears.
SP-4. If a surplus of prepayment remains when the agreement terminates, it
will be refunded.
SP-5. A Party shall notify the other Party if it appears at any time that
costs expressed in this agreement as estimates will be exceeded by more
than 10%. The Parties shall then negotiate a further agreement on costs
or payments, and either Party may suspend the performance of any
obligations, other than obligations to pay, until a further agreement
is reached.
SP-6. Payments must be made by cheque payable to: "Receiver General -
National Research Council of Canada" aid addressed to:
Finance and Information Management Services
National Research Council
1200 Montreal Road
Ottawa, Ontario - KlA OR6, CANADA
SP-7. Interest at one percent (1%) per month compounded monthly (annual rate
of 12.68%), must be paid on overdue amounts from the date when payment
is due until the date it is received. NRC may revise that rate upon 2
months' notice. The Collaborator shall pay an administrative charge of
25$ for any cheque which is refused payment by the Collaborator's bank.
Exhibit 10.11
ANNEX: STATEMENT OF WORK AND DELIVERABLES
THE ATTACHED DOCUMENT, IN WHICH THE WORK TO BE DONE UNDER THIS AGREEMENT WAS
PROPOSED, HAS BEEN ACCEPTED BY THE PARTIES AS THE "STATEMENT OF WORK" FOR THIS
AGREEMENT. IT CONSISTS OF THE FOLLOWING 9 PAGES.
Exhibit 10.11
ANNEX IU: INTELLECTUAL PROPERTY (UNCERTAIN)
IU-1. NATURE OF THE PROJECT By the nature of the Project, the Intellectual
Property that may arise is difficult to predict, and the Parties
consider it desirable to defer settling the terms on which it will be
available until the Intellectual Property is known.
IU-2. DEFINITIONS
- "INTELLECTUAL PROPERTY" is all rights to inventions, patents,
copyright material, trade secrets, proprietary information, and the
right to control the reproduction and use of living plant or animal
material that has new genetic or other characteristics first
produced by a Party.
- "ARISING INTELLECTUAL PROPERTY" is Intellectual Property that is
developed in the Project. The possessive adjective "NRC's" or
"Collaborator's" indicates ownership or control by a Party.
- "COMMERCIALLY EXPLOIT" is to use, reproduce and modify Intellectual
Property, and to manufacture, use, and sell articles embodying or
made by use of Intellectual Property.
IU-3. INVENTIONS The Parties represent that, by law or contract, they will
own their employees' interest in any inventions made in the Project.
A Party who is the sole owner of an invention is responsible for
patenting and licensing of it, but is not obliged by this agreement
to obtain protection of Intellectual Property, nor to share
ownership with the other Party. However, a Party who is unwilling to
obtain protection for Arising Intellectual Property must diligently
and effectively do so if the other Party undertakes to pay all
reasonable expenses incurred in obtaining the protection.
IU-4. JOINT INVENTIONS If inventions arise from joint efforts of employees of
NRC and of the Collaborator, the Parties will try to distinguish
different inventions by different inventors in order to file separate
patent applications. However, if a patent application does name
co-inventors from both Parties, the Collaborator must assign its entire
interest in the invention to NRC.
IU-5. SHARING INFORMATION The Parties will keep each other promptly informed
of Arising Intellectual Property. Each Party must give the other a copy
of any patent application for Arising Intellectual Property immediately
upon filing the application, and a copy of related correspondence with
a patent office if requested (in confidence, if so stated at the time).
IU-6. LICENSING NRC'S INTELLECTUAL PROPERTY NRC undertakes to negotiate
with the Collaborator in good faith to settle the terms of a licence
which will allow the Collaborator to Commercially Exploit NRC's
Arising Intellectual Property, upon request by the Collaborator no
later than six months after the end of the Project. Without
foreclosing any possibility, the Parties agree that the terms will
be fair and reasonable. If that licence cannot be settled within six
months of negotiation, a Party may require that the terms be fixed
by arbitration, according to the following paragraph. In addition,
NRC hereby licenses the Collaborator under Crown copyright, free and
without time limit, to use and reproduce all documents and drawings
that are deliverable under this Agreement.
IU-7. ARBITRATION If licence terms cannot be agreed by the Parties, a
Party may require that they be fixed by binding arbitration. No
recourse may be had to a court for the purpose of fixing licence
terms. The arbitration shall be conducted in English pursuant to
the COMMERCIAL ARBITRATION ACT OF CANADA. Unless the Parties
mutually select another site, hearings shall be in the same city as
the Participating Institute. The Collaborator and NRC shall jointly
appoint a single arbitrator familiar with a relevant field of
business. The Parties must bear their own costs, and must share
equally the charges of the arbitrator. The arbitrator shall base
the decision on, among other things: typical commercial licences for
similar Intellectual Property, patenting and other costs before
sales start, the availability of patents and other protection to
prevent competition, and the principle that the licence should not
give more rights than the Collaborator will likely use within a
reasonable time.
Exhibit 10.11
IU-8. LICENSING COLLABORATOR'S INTELLECTUAL PROPERTY The Collaborator
hereby grants to NRC a fully prepaid and royalty-free licence for
all the Collaborator's Arising Intellectual Property, solely for
research purposes within NRC. In addition, the Collaborator
undertakes to negotiate with NRC in good faith to settle, the terms
of a licence which will allow NRC to sub-license third parties to
Commercially Exploit the Collaborator's Arising Intellectual
Property in ways that will not unreasonably compete with the
business of' the Collaborator. If that licence cannot be settled
within six months of negotiation, a Party may require that: the
terms be fixed by arbitration, according to the preceding paragraph.
IU-9. NON-PROJECT TECHNOLOGY This agreement does not grant any rights to
Intellectual Property produced or obtained by a Party independently of
the Project before or after the Project starts. If a Party needs such
Intellectual Property to perform work in the course of the Project, a
licence for that limited purpose is granted by this agreement and
terminates at the end of the Project, but any other licence must be
negotiated and cannot be arbitrated.
I U-1 0. CONFIDENTIALITY OF NON-PROJECT INFORMATION This paragraph
concerns information that is not part of Arising Intellectual Property.
The Parties will cooperate to minimize the other Party's obligations of
confidentiality by making confidential disclosures in a manner that
allows the receiving Party to halt the disclosures and avoid the
obligation. No information is confidential unless a written form of it
is plain marked as being confidential. Information disclosed verbally
or without markings of confidentiality it!3 temporarily presumed to be
confidential if there are indications that it might be confidential,
but that presumption ends three months after the disclosure if the
receiving party has not received a written version, or summary, plainly
describing what is confidential. Documents marked "return required", or
equivalent, will be returned if not destroyed. Unless specifically
licensed, confidential information may not be used for any commercial
purpose, or sub-licensed.
IU-11. CONFIDENTIALITY OF PROJECT INFORMATION Information that is
specifically deliverable according to the STATEMENT OF WORK AND
DELIVERABLES, or that is reasonably foreseeable to arise in the
Project, will be maintained in mutual confidentiality by the
Parties, except as required for any patent application and for any
licence to a third party that is permitted by this agreement. In
any case, NRC may use that information for internal purposes and for
developing expertise to serve other clients to the extent possible
without disclosing the information.
[U-12. END OF CONFIDENTIALITY All obligations of confidentiality and
restrictions on the use of information in this agreement cease to
apply five years after the termination of this agreement. They also
cease to apply when essentially the same information is in the
public domain, or was developed by the Party under the obligation
without relying on the other Party's information, or was received by
the Party under obligation without any reason to suspect a breach of
a third party's obligation. Nothing in this agreement supersedes
the ACCESS TO INFORMATION ACT, in which section 20 prohibits NRC
from giving access to confidential financial, commercial, scientific
or technical information, and trade secrets, supplied to NRC by the
Collaborator.
IU-13. PUBLICITY The Parties may publicize the Work, to the extent permitted
by confidentiality, and in so doing will acknowledge each Party's
contribution. No Party will publicly suggest that the other Party
endorses or recommends any product or process or results of the
Project.