Exhibit 10.19
MASTER AGREEMENT
BETWEEN
UNIVERSITE DU QUEBEC EN ABITIBI-TEMISCAMINGUE, a legal entity duly incorporated
with headquarters at 445 boulevard de l'Universite in Rouyn-Noranda, province of
Quebec, J9X 5E4, acting and represented by Mrs. Johanne Jean, rector, and Mr.
Jean Turgeon, general secretary, duly authorized for the purpose hereby as
declared by them,
(hereafter called <<UQUAT OR UNIVERSITY)
AND
DERMOND INC., a legal entity duly incorporated with a main business office at
31, du Terminus West in Rouyn-Noranda, province of Quebec, J9X 2P3, acting and
hereby represented by its president, Mr. Jacquelin Dery, duly authorized for the
purpose hereby as declared by him,
(hereafter called <<DERMOND)
CONSIDERING THAT DERMOND , at the date of the signature, holds the intellectual
property on the WindStor energy management system which it desires to implement
and evaluate;
CONSIDERING THAT DERMOND WISHES TO tie-up with UQUAT to undertake evaluation,
analysis as well as research and development work on and with the aforementioned
system in the Rouyn-Noranda region (hereafter the <<Project>>);
CONSIDERING THAT UQUAT owns expertise in education and research in the field of
applied sciences;
Consequently, the parties agree on the following:
Article 1 - Interpretation
The following arrangements rule the agreement hereby and must be used for the
interpretation of its content:
1.1 Titles: the titles of this agreement's articles are included only for
the purpose of making its reading easier and can't be used for its
interpretation.
1.2 Reference: in an article, except where otherwise stated, any
reference to an article includes all of its paragraphs and any reference to a
paragraph includes all of its paragraphs.
1.3 Gender and number: as the context requires, the singular includes the
plural, the masculine includes the feminine and conversely.
1.4 Applicable law: this agreement is ruled by the provisions of the laws in
force applicable in Quebec, with the exception of their provisions relative to
laws conflict.
1.5 Copies: all the copies of the hereby agreement constitute as many
originals of the only one and same agreement.
1.6 Benefits and cession: except when hereby specified, the rights conferred
by this agreement are intransferable as a whole or in part without the written
consent of all parties except when DERMOND will be allowed to alienate the
hereby agreement to DERMOND's parent company; this agreement binds all the
parties as well as their agents, legal representatives and claimants, and
benefits to them.
1.7 Addition to the letter of intent: the parties acknowledge that the
hereby agreement replaces the Letter of intent signed on January 31, 2004
between the hereby parties. The hereby agreement includes the annexes.
1.8 Preamble and annexes: the preamble and annexes to the hereby master
agreement are an integral part of it.
1.9 Implicit abandonment: the default of an hereby party, at all times, in
requesting from any hereby party to comply with one of the provisions of the
agreement, won't affect in any way his right to request it subsequently. The
abandonment by any hereby party to cite the default in conforming with one of
the provisions of the hereby agreement will not be deemed to be an abandonment
towards the conformity with this provision; except where otherwise stated, any
abandonment by either hereby party towards any of his rights, takes effect only
when specified in writing and any such abandonment is attributable to only the
rights and circumstances expressly specified in the abandonment.
1.10 Representative: any person, physical or legal entity, whom one of the
partners specifically appoints to act in the project.
1.11 Modification: the hereby agreement can be modified or changed at all
times as a whole or in part, but any change or modification takes effect only
when it is acknowledged in writing, duly signed by each of the parties.
1.12 Validity and enforcement: any decision from a court or an arbitration
board in order to declare one of the provisions of the hereby agreement invalid
or non enforceable, will not affect the other provisions of the hereby agreement
or their validity or enforcement.
1.13 Signature: the hereby agreement can be signed at different dates and in
different locations without the parties being present together.
1,14 Legal relationships: any provision of the hereby agreement must not be
interpreted as creating a corporation, a joint venture or any other legal
relationships between parties.
Article 2 - Installation of the management system
2.1 The energy management system WindStor, installed at UQUAT, includes one
wind turbine, a long-life battery, a centralized controller and an internal
combustion generator with the possibility of adding a solar energy source
(hereby called the <<System>>).
2.2 UQUAT authorizes DERMOND to install the parts of the system at the
following locations, situated on its Rouyn-Noranda campus (hereby the
<<Sites>>):
2.2.1 Wind turbine: on the highest point of the Cap d'Ours (320 meters)
located on the land of UQUAT.
2.2.2 Other parts of the System: in proximity to the highest point of the Cap
d'Ours (320 meters) located on the land of UQUAT, including the access road from
the parking lot 3 of UQUAT.
2.3 UQUAT authorizes DERMOND to connect to the electric pannel located in
room D-004 of the main pavilion, located on its Rouyn-Noranda campus. Subject
to having beforehand notified and obtained an agreement with the UQUAT
representative in charge of buildings.
2.4 UQUAT provides DERMOND and its representatives with free access to the
System installations and to the Sites, subject to notification by DERMOND and
its representatives to UQUAT of their presence on the site, through the security
agent on duty.
2.5 For the good of the Project, UQUAT provides DERMOND and its
representatives with an access to the computer network of the University and
this will be governed by a specific agreement.
2.6 The installation right, agreed in article 2.2, is subjected to the
following conditions:
2.6.1 DERMOND will have to comply, at its own expenses, with all the
requirements and obligations resulting from the laws and regulations of the
federal, provincial and municipal governments, more particularly for
environment, construction standards, safety and zoning. DERMOND will have to
obtain all the required permits and licences and give a copy of these to UQUAT.
Before starting the work to put in place and install the System, DERMOND will
have to give UQUAT two copies of the drawings and specifications of the System's
installation. As soon as it will be able to do it, DERMOND will also give the
name of the contractors assigned to the System's installation as well as their
project shedule.
2.6.2 DERMOND will install the System at its own expenses, including the road
and pedestrian accesses linking roadways and parking lots of the University to
the locations where will be installed the parts of the System. Maintenance of
these accesses, during any season, will be at the expenses of DERMOND and
invoiced by the University which will carry it out or contract it out.
2.6.3 The building and other containers as well as the sites where the System
will be installed, will have to respect normal aesthetic rules and conform to
laws and regulations. The drawings, specifications and materials will have to
be approved beforehand by UQUAT. DERMOND will ensure that the parts of the
System , more particularly the wind turbine and the generator, have the
necessary devices to reduce the noise level of these equipments. For reasons
related to the University's education mission, UQUAT and DERMOND will have to
agree on the shutdown of the parts of the System generating noise, for limited
periods of time.
2.6.4 The equipments for energy transmission and any wiring or cable linking
the parts of the System together and the equipments between the System and the
University, will have to comply with norms, laws and regulations in force at
UQUAT, Hydro-Quebec and the federal, provincial and municipal governments. In
order to ensure aesthetics and safety, UQUAT will be allowed to require that the
wiring and cables be buried.
2.6.5 Any sign and board installed on the site and grounds of UQUAT, will have
to be approved beforehand by the University and comply with policies and
regulations of University, as well as municipal regulations in force.
2.6.6 For any electronic or electric connection of one or many parts of the
System with buildings of the University, their drawings and specifications will
have to be approved by the University and will be at the expenses of DERMOND.
Such connections will be carried out at the expenses of DERMOND either by the
University or sub-contractors, approved by the University and DERMOND. Should
the occasion arise, the schedule and the work will have to be approved by the
University, in order not to interfere with its regular teaching and research
activities. The work will be undertaken under the joint supervision of DERMOND
and the University.
2.6.7 All the sites where the parts of the System will be installed shall be
surrounded by a fence and equiped with all the necessary devices for the safety
and protection of persons having access to the site of the University as well as
for the protection of the property of the University, at the expenses of
DERMOND.
2.6.8 At the expiration of the hereby agreement, if the University refused to
acquire the System or, should the occasion arise, if either parties ended the
agreement in virtue of article 9 of the hereby agreement, DERMOND would remove
the System from the site of the University and will put the site back to the
conditions prevailing before the installation of the System or to the conditions
prevailing at the moment of land repossession by the University, at the choice
of UQUAT.
2.6.9 The installation and utilization of fuels, greases, oils, lubricants and
cooling fluids, as well as of the electrolyte of the parts of the System, will
be carried out in conformity with the laws and regulations in force. The
installations will comply with the aforementioned laws and regulations, and
DERMOND will take charge of all costs resulting from incidents or accidents,
notably discharges due to the utilization of such products. DERMOND will obtain
all permits, licences and necessary certificates.
DERMOND shall dispose of domestic and industrial wastes, at its own
expenses, according to the regulations in force in Rouyn-Noranda.
2.6.10 At the signature of the hereby master agreement, DERMOND will provide
the following documents:
a. an insurance policy for legal liability and with respect to damage done to
property to a minimum amount of one million dollars (1 M $).
This policy shall cover the following clauses: - bodily injury and
death; - damages to property; - an insurance policy for contingent
liability.
DERMOND shall provide the University with an official declaration or a
possession certificate for the aforementioned insurances.
b. an insurance policy for liability against fire and damages caused by fire,
covering DERMOND and its possessions.
c. an insurance policy with legal liability for tenants in a broad form,
including an environmental portion, to an amount of one million dollars (1M $).
A copy of the document <<endorsement to the insurance policy for legal
liability>> completed and signed by the insurance broker will be provided to
UQUAT.
During the length of the Projet, any insurance policy shall be issued jointly to
the name of DERMOND and the University. DERMOND won't be allowed to cancel or
modify the aforementioned policies without the written authorization of the
University and DERMOND shall take care of the policies'renewal and provide
copies to the University.
2.6.11 The University , in any case, wont be responsible of damages or losses
incurred by DERMOND as a result of events beyond the control of the University,
or act of God, notably theft and vandalism, as well as in case of strike, lock-
out, student events or others.
2.6.12 DERMOND holds harmless the University for the installation and
utilization of the System by DERMOND. DERMOND will reimburse to UQUAT all of
the expenses incurred resulting from a damage caused to the UQUAT installations
by the implementation and utilization of the System by DERMOND.
2.6.13 DERMOND undertakes to inform beforehand UQUAT of the modifications to be
undertaken on the Systems. UQUAT reserves itself the right to issue comments
and undertakes to communicate with DERMOND as soon as possible if authorizations
are required. Any modification to the System will be done at the expenses of
DERMOND.
2.6.14 The University cannot be held responsible for the stability and
reliability of the ground and underground conditions of the sites where the
parts of the System will be installed. DERMOND will have to undertake the
investigations that it deems necessary in order to determine the soil and /or
underground conditions at the location of the installations.
2.6.15 Hereunder, DERMOND represents all the contractors and professionals who
will have to work under the management of DERMOND to the installation and
operation of the System.
Article 3 - Participation of the University to the utilization and operation of
the System
The parties agree that the annexes hereby are an integral part of the hereby
master agreement and could be modified after agreement between parties. Annex 1
presents the drawings of the site and the connection diagram; annex 2 presents
the operational procedures; annex 3 shows the required authorizations for the
System installation; and annex 4 (CONFIDENTIALITY AGREEMENT) presents DERMOND's
confidentiality agreement.
DERMOND undertakes to offer the University a right of first refusal in order to
use the services of researchers, teachers or students of UQUAT, or third party
education or research institutions recommended by UQUAT, for the work related to
training of the operators and maintenance teams of the System, to the evaluation
of the System and its performances, as well as to the research on the System,
its components and its applications, as long as the costs of the work are
competitive and that the work schedule determined by DERMOND is respected.
UQUAT undertakes that any individual involved in the aforementioned work will
sign the form of Annex 4 on confidentiality agreement. UQUAT could carry out
itself the work, in association with partners or contract it out partly, or
refuse to carry it out, in which case, Dermond could select a partner of its
choice.
All the work carried out in virtue of this article will be subjected to
contracts or distinct mandates, determining among other things the parties
responsibilities, financing, addition of partners, intellectual property,
valuation of intellectual property, clauses of confidentiality and should the
occasion arise, cessions of right. These contracts will be submitted to the
provisions of the hereby agreement.
3.1 Work on the performance evaluation and definition of the testing
protocol.
DERMOND will integrate University representatives to its team to define
the evaluation protocol of the System and will also integrate University
representatives to the evaluation work of the System performance.
Subject to no competition from UQUAT relative to DERMOND'S activities,
DERMOND accepts to provide UQUAT with a licence, perpetual and and at no
expenses, for the use of the intellectual Property developed this way,
for the purpose of education and research. Before the beginning of the
work, the hereby parties will have to inform each other of the
subsequent applications resulting from the aforementioned intellectual
Property. It's understood that DERMOND and the University will deal
with certified organizations for standardization.
3.2 Expertise work
UQUAT could undetake specific mandates linked to expertise work in the
System analysis, to DERMOND's request. These specific mandates will be
subjected to distinct agreements and will be interpreted in accordance
with the hereby master agreement. In all cases, the intellectual
Property of the work resulting from the contracts will be owned by
DERMOND. Twelve (12) months from the creation of a new invention
related to the System, which could be the object of a patent request,
UQUAT will have a right of publication for scientific articles,
presentation of results during scientific conferences and a right of
utilization without any limit of time for the purpose of education and
research, subject to provisions relative to intellectual Property
protection, its valuation, its trade secrets, or elements relative to
commercial and industrial stategies, determined in specific agreements
and contracts.
3.3 Research and development work
3.3.1 DERMOND could work in association with UQUAT and, should the occasion
arise, with organizations which could bring in subsidies or corporations in
partnership, to carry out research projects for the purpose of improving and
developing applications related to the System. The projects will be the object
of distinct contracts and will be prepared in reference to the hereby master
agreement. The intellectual property Rights on the System and its improvements
originating from these contracts will belong to UQUAT and DERMOND will benefit
from an exclusive and perpetual operating licence. Contracts will necessarily
contain an agreement which will take into account the respective field of each
partner and should determine the extent as well as the terms and conditions to
the awarding of the aforementioned licence. UQUAT will benefit from a
publication right for scientific articles, presentation of results during
scientific conferences and a right of utilization without any limit of time for
the purpose of education and research, subject to provisions relative to
intellectual Property protection, its valuation, its trade secrets, or elements
relative to commercial and industrial stategies, determined in specific mandates
and contracts.
3.3.2 UQUAT can undertake and carry out on its own, research projects relative
to the System or requiring the utilization of one or several parts of the
System. Such projects will be presented to DERMOND beforehand, who could choose
to be associated to the University to carry them out, in which case, provisions
of article 3.3.1 will apply. However, the intellectual property will be owned
by the University if DERMOND refuses to get associated to a project proposed by
UQUAT. In that case, DERMOND will be provided with a right of first refusal on
an operating license. The aforementioned license will be the object of a
negotiated agreement. These projects will be carried out according to the
availability of equipments. Subject to DERMOND'S participation, the
intellectual property resulting from these projects will be owned by the
University.
Article 4 - Intellectual property, valuation and licenses
4.1 <<Rights of intellectual property>> means any right conferred by any law
(including any regulation, judicial or administrative decision, with any
principle derived from the civil law or common law) with the object of
protecting intellectual Property at any location in the world, such as laws
relative to patents, copyrights (including those related to softwares and data
compilation or banks), the rights neighbour of the copyright, industrial
drawings, trademarks, maskworks and the protection of confidential informations,
trade and know-how secrets, including the right to register or any other
formality necessary or useful in order to confer, acknowledge or hold such
rights.
4.2 <<Intellectual property>> means everything which can be the object of an
intellectual property Right such as, but without being limited to the
following, findings, inventions, work and other objects of copyrights or rights
neighbour of the copyright, industrial drawings, names, marks or distinctive
signs, maskworks as well as the protection conferred to confidential
informations, know-how and trade secrets.
4.3 Pre-existing intellectual property means any intellectual property
conceived, developed, worked out by DERMOND, its representatives or by UQUAT
outside of the framework of the hereby agreement, including anything which can
be the object of a right to an intellectual property.
4.4 Despite any license awarded to DERMOND by UQUAT, the latter keeps at any
time the right to use any results from research for the purpose of education and
research, subject to provisions relative to the protection of intellectual
Property, its valuation, industrial secrets or elements relative to trade and
industrial strategies, determined in the hereby agreement or in any agreement
or any specific mandate put in place within the framework of the hereby master
agreement.
Article 5 - Confidentiality
Within the framework of the hereby master agreement, DERMOND and UQUAT agree
that any exchanged information is confidential unless otherwise stated.
DERMOND, its representatives and UQUAT will be allowed to exchange confidential
information. Each party undertakes to protect and maintain confidentiality of
all of the confidential information being provided with. For this purpose, each
party undertakes to limit access to confidential information to members of its
personnel who need to know it, as long as they are themselves subjected to a
commitment to confidentiality. Moreover, UQUATand its representatives undertake
to use confidential information for the only purposes of fulfilling the
obligations determined in virtue of the hereby master agreement. All the
contracts and specific mandates will have to determine a procedure to manage
disclosures which will allow DERMOND to assess its content, to comment or to
take action.
Article 6 - No representation or guaranty
Considering the exploratory nature of research and work related to the System
and the Project, DERMOND and UQUAT acknowledge that none of the parties give
representations or guaranties, nor take commitments relative to the quality
or/and the nature of the work results, their marketing possibilities or the fact
that the results of the work could serve a specific purpose. Moreover, none of
the parties give representation or guaranty to the effect that any patent
request in relation with the results of the work could give rise to the issue of
a patent.
Article 7 - Support to UQUAT
7.1 DERMOND and the University, within ninety (90) days from the sinature of
the hereby agreement, will work on the preparation of a work program involving
researchers, teachers and should the occasion arise, members of the University
personnel, within the framework of the work related to the System. This plan of
activities will be regularly updated , but at least once a year.
7.2 To support the University to carry out projects related to the System,
DERMOND will provide UQUAT annually, the 1st of June of each year, the amount of
10 000 $ for the length of the hereby master agreement. In the year of the
signature of the hereby master agreement, this instalment will be effected
within twelve (12) months from the signature. The University will submit
annually to DERMOND a report relative to the utilization of these funds. These
funds could, at the request of DERMOND, be transferred via the UQUAT Foundation.
Article 8 - Arbitration
8.1 If ever any disagreement or dispute between the parties to the hereby
agreement relative to the interpretation of the hereby agreement or its
application, these subjects shall be, excluding any recourse before the courts
of common right ( but without limiting the right of one of the parties to use a
court in order to obtain a seizure prior to judgment, the issue of a temporary,
interlocutory or permanent injunction, or in the case of extraordinary remedy)
submitted to arbitration in conformity with articles 940 and the following from
the Code of civil procedure of Quebec, as modified by the following provisions:
8.1.1 Composition: the arbitration court will consist of only one arbitrator.
8.1.2 Notice: one of the parties who wishes to submit a disagreement to
arbitration must give notice to the other party in writing. The party who
wishes to submit a disagreement to arbitration must clearly indicate in the
transmited notice, the question which is submitted to arbitration.
8.1.3 Appointment by the court: if, within twenty (20) days from the issue of
the aforementioned notice, the parties didn't agree on the selection of an
arbitrator, one of the parties will be allowed, at any time, to address a
request to a judge of the superior Court of the Rouyn-Noranda district to
appoint an arbitrator who will have all the authority determined by the hereby
agreement. Any appointment by a judge of the superior Court will be final.
8.1.4 Meeting date: the arbitrator selected this way must, within ten (10)
days from his appointment, set a date for a meeting, thirty (30 ) days after, at
the latest, to examine the disagreement submitted to arbitration.
8.1.5 Locations: the arbitration sessions will be held in Rouyn-Noranda.
8.1.6 Decision: the arbitrator will have the authority to determine his
procedure. He will have, however, to give his decision in writing within sixty
(60) days from his appointment. Each party will incur the costs of his legal
advisors as well as all of those incurred in relation with the arbitration. The
arbitration expenses will be equally shared by the involved parties. The
arbitrator will settle the disagreement according to the rules of law and his
decision will be final and will bind the parties.
Article 9 - Termination
The parties can, at all times, terminate the agreement, relative to the work, by
giving a ninety day written notice to the other parties. This termination has
no effect upon the provisions relative to intellectual property or
confidentiality. At the moment of termination, the parties who, at the
termination of the agreement, must reimburse expenses, must reimburse expenses
incurred before the notice as well as useless expenses directly resulting from
the termination of commitments or resulting from commitments which cannot be
terminated.
Article 10 - Length of the agreement
The hereby agreement is in force from the date of the signature by all the
parties and will end on May 31, 2010. It will be renewed after by tacit
renewal, for periods of one year, until May 31, 2015.
Article 11 - Ownership of the installation at the end of the agreement
At the termination of the hereby master agreement, UQUAT, if it wishes, will
become, at no costs, the only owner of the parts of the System whom DERMOND is
the owner. DERMOND and UQUAT agree to make the owners of the other equipments
interested in lending or give the aforementioned equipments to UQUAT.
Article 12 - Commitment to improvement
The parties agree, by the hereby agreement, to sign from time to time, all the
necessary documents to enforce the hereby agreement, including patents requests.
Article 13 - Notice
Any required notice or permit in virtue of this hereby agreement must be
communicated in writing and is deemed having been sufficiently and validly given
if it's forwarded from hand to hand to its recipient or posted, by registered
mail with postage paid, in the case there is no postal service interruption in
Canada, or transmitted by fax to the following addresses and numbers indicated
hereafter:
Universite du Quebec en Abitibi-Temiscamingue
Mme Johanne Jean, Rector
445, boulevard de l'Universite
Rouyn-noranda QC J9X 5E4
Fax : 819-797-4727
Dermond inc.
Mr. Jacquelin Dery, President
31, rue du Terminus Ouest
Rouyn-Noranda QC J9X 2P3
Fax :
Article 14 - Election of domicile
For the purpose of the hereby agreement, the parties elect domicile in the
Rouyn-Noranda district.
In witness whereof, the parties have signed the master agreement in Roun-
Noranda, this 17th day of June, 2004.
FOR THE UNIVERSITE DU QUEBEC EN ABITIBI-TEMISCAMINGUE,
/s/ Johanne Jean
- -------------------------
Mrs. Johanne Jean, Rector
/s/ Jean Turgeon
- ------------------------
Mr. Jean Turgeon, general secretary
DERMOND Inc.,
/s/ Jacquelin Dery
- ---------------------------
Mr. Jacquelin Dery, president
Interventions
For the purpose of the hereby agreement, intervenes Mr. Francois Godard, acting
as director of the education and research unit and of the applied sciences
Department of UQUAT, who declares having made himself acquainted with the hereby
document, having presented it to his departmental assembly who, by resolution
adopted the 23rd day of June, 2004, accepts its terms.
/s / Mr. Francois Godard
- -------------------------
Mr. Francois Godard