Exhibit 10.3
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DATED: 1st July 2002
UNIPATH LIMITED
and
HALL EFFECT TECHNOLOGIES LIMITED
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RESEARCH AND DEVELOPMENT AGREEMENT
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CONTENTS
Clause ............................ Page
CONTENTS............................................................. 2
BACKGROUND........................................................... 3
1. Interpretation.................................................. 3
2. The Project..................................................... 4
3. Provision of Information........................................ 5
4. Intellectual Property Rights.................................... 5
5. Price and Payment............................................... 7
6. VAT............................................................. 7
7. Confidentiality................................................. 7
8. Warranties...................................................... 8
9. Term and Termination............................................ 8
10. Limitation of Liability......................................... 9
11. Force Majeure................................................... 10
12. Notices......................................................... 10
13. Assignment and Subcontracting................................... 11
14. Disputes........................................................ 11
15. General......................................................... 11
Schedules
1. Project........................................................... 14
2. Field of Interest................................................. 15
3. Project Plan...................................................... 16
4. Fees ............................................................ 17
Signatories.......................................................... 18
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THIS AGREEMENT is dated 1st July, 2002
BETWEEN:
(1) UNIPATH LIMITED (registered number 0417198) whose registered office is at
Priory Business Park, Bedford, MK44 3UP (Unipath); and
(2) HALL EFFECT TECHNOLOGIES LIMITED (registered number 3344705) whose
registered office is at Xxxx 0, Xxxxxx Xxxx, Xxxxxx Xxxxxxxxx, Xxxxxxxxxx,
XX0 0XX, Xxxxxxx (HET).
BACKGROUND
IT IS AGREED:
1. Interpretation
1.1 In this agreement:
Affiliate means, in relation to a party, any other entity which directly or
indirectly Controls, is Controlled by, or is under direct or indirect
common Control with, that party from time to time;
Background Intellectual Property Rights means any Intellectual Property
Rights, which are used in performing any Project and which are owned by or
licensed solely to one of the parties prior to the Effective Date;
Confidential Information means the confidential information more
particularly described in clause 7;
Control means that a person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of the other
person, whether through the ownership of voting shares, by contract or
otherwise, and Controls and Controlled shall be interpreted accordingly;
Effective Date means 8th May 2002;
Field of Interest is as defined in Schedule 2;
Foreground Intellectual Property Rights means any Intellectual Property
Rights that arise or are obtained or developed by either party on or after
the Effective Date in the course of or in connection with any Project;
Intellectual Property Rights means (i) copyright, patents, database rights
and rights in trade marks, and designs (whether registered or
unregistered); (ii) applications for registration, and the right to apply
for registration, for any of these rights; and (iii) all other intellectual
property rights and equivalent or similar forms of protection existing
anywhere in the world;
Project means the project to be carried out by Unipath and HET, details of
which are set out in Schedule 1 to this agreement, as may be amended by
written agreement from time to time;
Project Plan means the agreed plan for the implementation of the Project as
set out in Schedule 3;
Project Report means the written report prepared and agreed by Xxxxxxx and
HET at the completion of the Project, as more fully described in clause
2.7;
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Technology and Know-how means all information, know-how, confidential
information, specifications, formulae, data, processes, methods,
techniques, and other technology which is (i) under the control of either
party as of the Effective Date, is relevant to the Project and may be
freely disclosed to each other; or (ii) is generated by the parties under
this agreement;
1.2 The headings in this agreement do not affect its interpretation.
1.3 The schedules and appendices to this agreement form part of it.
1.4 If there is any conflict or inconsistency between a term in the main part
of this agreement and a term in any of the schedules or appendices or other
documents referred to or otherwise incorporated into this agreement, the
term in the main part of this agreement shall take precedence, unless the
schedule or the appendices or other document which is incorporated into
this agreement is expressly stated to take precedence over this agreement.
2. The Project
2.1 Schedule 1 sets out details of the Project as at the date of this
agreement. The Project, as defined in Schedule 1, may be amended from time
to time by the mutual agreement of the parties recorded in writing.
2.2 Each party agrees to use its reasonable endeavours to fulfil its
obligations and responsibilities as set out in the Project and the Project
Plan.
2.3 The parties shall each appoint a project manager to assume overall
responsibility for its roles and obligations under this agreement (Project
Manager). The Project Managers will be responsible for (amongst other
things):
(a) co-ordinating all development work in respect of the Project,
including overseeing the performance and quality of the Project;
(b) arranging and attending (personally or by representative) at each
party's own cost progress meetings as described in clause 2.6 and
other meetings, at intervals and locations as agreed between the
parties from time to time, to discuss developments and seek to resolve
any issues arising. The Project Managers shall use all reasonable
endeavours to resolve issues arising under this agreement, but shall
refer all problems which are outside their ordinary authority to
resolve to appropriate members of the parties' respective senior
management;
(c) day to day liaison between the parties;
(d) preparing and agreeing the Project Reports; and
(e) any other matters as may be agreed between the parties from time to
time.
2.4 Each party shall have the right to replace its appointed Project Manager at
any time on prior written notice to the other party.
2.5 Subject to the obligations of confidentiality contained in clause 7, each
party shall permit the other's Project Manager (and other duly authorised
representatives) access to its premises at which the Project is being
conducted as is reasonably required having regard to the nature and
progress of the Project.
2.6 The parties agree, at least once every 3 months during the term of this
agreement, or at other intervals, and at locations as may be agreed between
them from time to time, to arrange and attend at their own cost by their
duly authorised representatives, including their respective Project
Managers, meetings to discuss and review the progress and status of the
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Project performed under this agreement, and consider proposals and agree
actions in relation to the Project with a view to ensuring a timely
completion of the Project in accordance with the Project Plan and any dates
and quality standards as may be agreed between the parties.
2.7 On completion of the Project, the parties shall jointly inspect and
evaluate the work performed and shall produce and sign the Project Report
in respect of the Project, incorporating those matters and details as may
be agreed between the parties but as a minimum the Project Report shall
include enough detail so that the Project Report can be understood by a
reasonable scientist who is familiar with this branch of technology. Each
party shall be entitled to retain two copies of the Project Report for its
records.
3. Provision of Information
3.1 During the term of this agreement, each party undertakes to use its best
efforts to make available to the other party all relevant Technology and
Know-How at its disposal which is reasonably required for the performance
by that other party of its part of the Project. Without limitation to the
generality of the foregoing, each of the parties agrees that it shall
provide the other party in good time with (or with access to, as
appropriate) information, documents, material, data, experience, expertise
and equipment, as is reasonably required in order for the other party to
perform its obligations under the Project.
3.2 Each party shall keep the other party informed as necessary in relation to
all relevant improvements in Technology and Know-How, marketing information
and other information in its possession or control which is necessary for
the performance by that other party of its obligations under the Project.
3.3 In providing any Technology and Know-How to the other party, each of the
parties shall use its best efforts to ensure the accuracy of that
Technology and Know-How and in the event of any error with that Technology
and Know-How, will promptly notify the correction of the error to the
receiving party. Subject to clause 8.1, the providing party shall be under
no further obligation or liability in respect of such Technology and
Know-How and no warranty or representation of any kind is made or is to be
implied as regards the sufficiency, accuracy, fitness for any purpose of
such Technology and Know-How.
4. Intellectual Property Rights
4.1 Background Intellectual Property Rights
(a) Subject to the obligations of confidentiality contained in clause 7,
each party shall give full disclosure to the other of all Background
Intellectual Property Rights owned by or licensed by it which are
relevant to the Project and which are reasonably required for the
performance by that other party of its part of the Project and the
other party shall be entitled to use the same solely for the purpose
and duration of the Project.
(b) Save for the right to use the Background Intellectual Property Rights
contained in clause 4.1(a), nothing in this agreement shall restrict
that party's right to use such Background Intellectual Property Rights
for any other purpose whatsoever. No licence or similar right to such
Background Intellectual Property Rights, expressed or implied, is
granted, assigned or transferred by either party under this agreement,
unless expressly agreed in writing and signed by both parties. Each
party shall be and shall remain the sole and exclusive owner of any
and all of its Background Intellectual Property Rights.
4.2 Foreground Intellectual Property Rights
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(a) Any Foreground Intellectual Property developed or created in Unipath's
Field of Interest shall vest in and be owned absolutely by Unipath and
any Foreground Intellectual Property developed or created in HET's
Field of Interest shall vest in and be owned absolutely by HET.
Nothing in this agreement shall restrict a party's right to use its
Foreground Intellectual Property Rights for any purpose whatsoever.
Save for the right to use the Foreground Intellectual Property Rights
for the purpose and duration of the Project, no licence or similar
right to such Foreground Intellectual Property Rights, expressed or
implied, is granted, assigned or transferred by either party under
this agreement, unless expressly agreed in writing and signed by both
parties.
4.3 In the event that the parties disagree on the ownership of any Foreground
Intellectual Property Rights, the dispute shall be dealt with in accordance
with clause 14.
4.4 Each party agrees to sign all documents and provide any other reasonable
assistance, at the other party's request and expense, whether during or
after the termination of this agreement so that the party making the
request may apply for, obtain and enforce any of its Foreground
Intellectual Property Rights .
4.5 To the extent that either party sub-contracts performance of the Project,
that party shall ensure that any Foreground Intellectual Property Rights
created from the work of its sub-contractors shall be assigned to the party
whose relevant Field of Interest those Foreground Intellectual Property
Rights fall within.
4.6 Each party shall immediately give written notice to the other of any
infringement or threatened infringement of, or any challenge to, the other
party's Background Intellectual Property Rights, Foreground Intellectual
Property Rights or any unauthorised use of the other party's Technology and
Know-How by a third party which comes to its knowledge. The party that owns
the Background Intellectual Property Rights, Foreground Intellectual
Property Rights or Technology and Know-How to which the infringement,
threatened infringement or challenge relates shall decide, in its sole
discretion, what steps shall be taken (if any) to resolve the activity.
4.7 Subject to the remainder of this clause 4, each party (Indemnifying Party)
shall, at its own expense, defend or at its option settle any action
brought against the other party (Indemnified Party) which consists of a
claim that the use of the Indemnifying Party's Technology and Know-How or
Background Intellectual Property Rights for any activity contemplated under
this agreement infringes any Intellectual Property Right belonging to a
third party, and the Indemnifying Party agrees to be responsible for all
losses, costs (including reasonable legal costs), damages, liabilities,
claims and expenses suffered or incurred by the Indemnified Party in
connection with any such claim. The Indemnifying Party's obligations under
this clause 4.7 shall be conditional on the Indemnified Party:
(a) notifying the Indemnifying Party within 30 days of receiving such
claim;
(b) giving the Indemnifying Party express authority to proceed as
contemplated by this clause4.7; and
(c) providing the Indemnifying Party with all such available information
and assistance as it may reasonably require.
4.8 In addition and without prejudice to clause 4.7, in the event that the use
of the Indemnifying Party's Technology and Know-How or Background
Intellectual Property Rights for any activity contemplated under this
agreement infringes any Intellectual Property Right belonging to a third
party, the Indemnifying Party shall have the right, at its sole option and
at its own expense, either to modify its Technology and Know-How or
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Background Intellectual Property Rights to be non-infringing or to obtain
at its own expense for the Indemnified Party a licence to continue using
the Indemnifying Party's Technology and Know-How or Background Intellectual
Property Rights, provided that in the event that the parties reasonably
agree that it is not possible either to modify the Indemnifying Party's
Technology and Know-How or Background Intellectual Property Rights to be
non-infringing or to obtain for the Indemnified Party a licence to continue
using the Indemnifying Party's Technology and Know-How or Background
Intellectual Property Rights then the Indemnified Party may terminate this
agreement immediately on written notice. Termination under this clause 4.8
shall be without prejudice to the rights of either party accrued at the
date of termination.
4.9 This clause 4 states the entire obligation and liability of the
Indemnifying Party to the Indemnified Party and the sole remedy of the
Indemnified Party in respect of any infringement or alleged infringement of
any Intellectual Property Right by the use of the Technology.
5. Price and Payment
5.1 In consideration for HET undertaking the development work as set out in
Schedule 1, Unipath shall pay the fees to HET in accordance with the terms
of Schedule 4. If any additional expenditure is required for the Project
which is not set out under Schedule 4, the parties shall meet to discuss
that expenditure. HET shall not incur any additional expenditure without
the prior written consent of Unipath.
5.2 Subject to clause 5.3, Unipath shall pay to HET the fees within 30 days
after it has received the relevant invoice from HET.
5.3 HET shall include on or with each invoice provided to Unipath under this
agreement such details as are reasonably required or appropriate for
Unipath to verify the accuracy of the invoice and HET's compliance with
this agreement. HET shall maintain complete and accurate records of, and
supporting documentation for, all amounts billable to and payments made by
Unipath under this agreement, in accordance with generally accepted
accounting principles applied on a consistent basis, and shall retain
records for each invoice for at least 2 years from the date of such invoice
was received by Unipath.
6. VAT
6.1 If any VAT is properly chargeable in respect of any supply made by HET
under this agreement, Unipath shall pay the amount of that VAT to HET
against the issue of a proper VAT invoice by HET.
1.1 Without limiting clause 6.1, each amount stated as payable by HET under
this agreement is exclusive of VAT (if any) and is to be construed as a
reference to that amount plus any VAT in respect of it.
7. Confidentiality
7.1 Each of the parties undertakes to keep confidential and not to disclose to
any third party or to use themselves other than for the purposes of the
Project or as permitted under or in accordance with this agreement any
confidential or secret information in any form directly or indirectly
belonging or relating to the other party, its Affiliates, its or their
business or affairs, disclosed by the one and received by the other
pursuant to or in the course of this agreement or the Project, including
without limitation any Technology and Know-How, Project Reports, Background
Intellectual Property Rights or Foreground Intellectual Property Rights of
the other and the existence and terms of this agreement (Confidential
Information).
7.2 Each of the parties undertakes to disclose Confidential Information of the
other on a confidential basis only to those of its officers, employees,
agents, professional advisers, bankers and contractors, to whom and to the
extent to which, such disclosure is necessary for the purposes contemplated
under this agreement and to ensure that all such personnel are bound by
obligations of confidentiality no less onerous than those contained in this
agreement.
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7.3 Each party shall, upon the written request of the other, procure that, free
of expense to the other, there is forthwith returned to the other any
material in which there is recorded any Confidential Information as defined
in clause 7.1 save insofar as the same falls within the Field of Interest
of the party receiving such written request or falls within any of the
exceptions specified in clause 7.4.
7.4 The obligations contained in this clause 7 shall survive the expiry or
termination of this agreement for any reason for a period of 10 years from
the date of expiration or termination but shall not apply to any
Confidential Information which:
(a) is publicly known at the time of disclosure to the receiving party;
(b) after disclosure becomes publicly known otherwise than through a
breach of this agreement by the receiving party, its officers,
employees, agents or contractors;
(c) can be proved by the receiving party to have reached its hands
otherwise than by being communicated by the other party including
being known to it prior to disclosure, or having been developed by or
for it wholly independently of the other party or having been obtained
from a third party without any restriction on disclosure on such third
party of which the recipient is aware, having made due enquiry;
(d) is required by law, regulation or order of a competent authority
(including any regulatory or governmental body or securities exchange)
to be disclosed by the receiving party, provided that, where
practicable, the disclosing party is given reasonable advance notice
of the intended disclosure.
1.1 This clause 8 replaces the confidentiality agreement dated 24th June 2002
to be replaced between Unipath and HET and that agreement is terminated
save that any information disclosed under that confidentiality agreement is
now subject to the obligation of confidentiality contained in this clause
8.
8. Warranties
8.1 Each of the parties warrants that:
(a) it shall perform the Project in a professional manner with reasonable
skill and care, using suitably qualified personnel, and shall use all
reasonable endeavours to achieve the objectives of the Project;
(b) all Technology and Know-How provided by it to the other party will be,
to the best of its knowledge, accurate and complete in all material
respects, and it is entitled to provide that information, data and
materials to the other without recourse to any third party; and
(c) without limitation to the foregoing, its Background Intellectual
Property Rights or the use of those Background Intellectual Property
Rights under this agreement do not, so far as it is aware, infringe
the rights of any third party, and no third party has threatened or,
so far as it is aware, is currently threatening proceedings in respect
of any infringement, and none of its Background Intellectual Property
Rights is the subject of any actual or, so far as it is aware,
threatened challenge or opposition or revocation proceedings.
9. Term and Termination
9.1 This agreement shall come into effect on the Effective Date and, subject to
the remaining terms of this agreement, shall continue in full force and
effect until the completion of the Project unless agreed otherwise by the
parties in writing.
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9.2 HET shall have the right to terminate this agreement if Unipath fails to
pay any invoice submitted in accordance with Schedule 4 which is properly
due and which remains unpaid for a period of 30 days after Unipath has
received the relevant invoice from HET.
9.3 Unipath shall have the right to terminate this agreement if HET fails to
complete any of the key milestones (as defined in schedule 4) within a
reasonable period of time.
9.4 Each party shall be entitled to terminate this agreement at any time,
including during the currency of the Project, by notice in writing to the
other if:
(a) the other party is in material breach of this agreement which breach
is irremediable or, if remediable, is not remedied by the defaulting
party within 30 days of being requested to do so by the other;
(b) the other party ceases to do business, becomes unable to pay its debts
as they fall due, becomes or is deemed insolvent, has a receiver,
manager, administrator, administrative receiver or similar officer
appointed in respect of the whole or any part of its assets or
business, makes any composition or arrangement with its creditors,
takes or suffers any similar action in consequence of debt or an order
or resolution is made for its dissolution or liquidation (other than
for the purpose of solvent amalgamation or reconstruction), or any
equivalent or similar action or proceeding is taken or suffered in any
jurisdiction and the same is not dismissed or discharged within thirty
(30) days thereafter;
(c) the other party is in breach of any of its confidentiality obligations
under clause 7;
(d) the other party challenges or disputes the validity or ownership of
any of the terminating party's Background Intellectual Property Rights
or Foreground Intellectual Property Rights;
(e) the other party undergoes any change in legal or beneficial ownership
or control, unless such ownership or control is acquired by an
Affiliate.
9.5 Within 30 days of termination of this agreement, each party shall, where
reasonably practical, return to the other all documents and materials
(whether in tangible or electronic form) supplied by one party to the other
under this agreement which contain reference to any Confidential
Information and all copies thereof then in the possession or under the
control of the other. Save that this clause shall not apply to the Project
Reports.
9.6 Termination in accordance with this clause 9 shall be without prejudice to
the rights of the parties accrued at the date of termination.
10. Limitation of Liability
10.1 Subject to clauses 10.2 and 10.3:
(a) the liability of either party under this agreement, whether arising
from negligence, breach of contract or otherwise, is excluded; and
(b) neither party shall be liable to the other party for any indirect or
consequential loss or damage including, without limitation, any loss
of business or profits in each case whether arising from negligence,
breach of contract or otherwise.
10.2 Neither party, including for the purpose of this clause 10, any Affiliate
of either party, limits its liability for fraud or for death or personal
injury arising from its negligence or that of its employees, agents or
subcontractors.
10.3 The exclusion of liability set out in clause 10.1 shall not apply in
relation to:
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(a) the indemnity given in clause4.7, in respect of which the liability of
either party shall not exceed in aggregate (pound)50,000 per event or
series of connected events;
(b) any breach of the obligation of confidentiality, in respect of which
the liability of either party shall not exceed in aggregate
(pound)50,000 per event or series of connected events; or
(c) ,Unipath only, for a breach of any obligation to pay under clause 5,
in respect of which the liability for the period during which the
failure to pay occurred shall not exceed in aggregate the values set
out below:
Period Maximum Aggregate Liability
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Failure to make a payment between Contract (pound)128,813
signing & Project Start and Completion of Stage 1
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Failure to make a payment between Completion of (pound)69,302
Stage 1 and Completion of Stage 2
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Failure to make a payment between Completion of (pound)43,362
Stage 2 and Completion of Stage 3
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10.4 Each party shall remain responsible for the acts and omissions of its
subcontractors as if they were the acts and omissions of the party or its
employees or agents.
11. Force Majeure
11.1 Neither party shall be liable to the other party for any delay or
non-performance of its obligations under this agreement arising from any
cause or causes beyond its reasonable control including, without
limitation, any of the following: act of God, governmental act, war, fire,
flood, explosion, civil commotion. Subject to the affected party promptly
notifying the other party in writing of the cause of the delay or
non-performance and the likely duration of the delay or non-performance,
and provided the affected party uses its reasonable endeavours to limit the
effect of that delay or non-performance on the other party, the performance
of the affected party's obligations, to the extent affected by the cause,
shall be suspended during the period that the cause persists. If the delay
or non-performance described under the first sentence continues for a
period greater than 3 months, each party shall have the right to terminate
this agreement.
12. Notices
12.1 Any notice or other document to be served under this agreement may be
delivered or sent by post or facsimile process to the party to be served at
its address set out below:
(a) to Unipath at: (b) to Hall Effect Technologies at:
Priory Business Park 22 The Office Village
Bedford Exchange Quay
MK44 3UP Manchester M5 3EQ
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Fax: x00 0000 0000 Fax: x00 000 000 0000
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Marked for attention of Company Marked for attention of the Chief
Secretary Executive Officer
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or at any other address or facsimile number or to any other addressee
as it may have notified to the other party in accordance with this
clause 12. Any notice or other document sent by post shall be sent by
prepaid first class recorded delivery post (if within the United
Kingdom) or by prepaid airmail (if elsewhere).
12.2 In proving service of a notice or document it shall be sufficient to prove
that delivery was made or that the envelope containing the notice or
document was properly addressed and posted (either by prepaid first class
recorded delivery post or by prepaid airmail, as the case may be) or that
the facsimile message was properly addressed and despatched, as the case
may be.
13. Assignment and Subcontracting
13.1 Subject to 13.2, neither party may assign, sublicense, transfer, create a
charge over or otherwise dispose of any of its rights or transfer or
otherwise dispose of any of its obligations under this agreement without
the prior written consent of the other party which shall not be
unreasonably withheld or delayed.
13.2 Nothing in this agreement shall prevent or restrict either party from
assigning, sublicensing, transferring, creating a charge over or otherwise
disposing of any of its rights or from subcontracting, transferring or
otherwise disposing of any of its obligations under this agreement to an
Affiliate or to any person acquiring the whole or any part of its business
or assets.
14. Disputes
14.1 Any dispute arising out of or in connection with this agreement (Dispute),
shall be referred by either party first to the nominated representatives of
each of the parties for resolution. If the Dispute cannot be resolved by
the nominated representatives of the parties within 14 days after the
Dispute has arisen, either party may give notice to the other party in
writing (Notice) that a Dispute has arisen. Within seven days after the
date of the Notice, the Dispute shall be referred to a senior executive of
each of the parties for resolution. If the Dispute is not resolved by
agreement in writing between the parties within 14 days after the date of
the Notice, the Dispute shall be resolved in accordance with the remaining
provisions of this clause 14.
14.2 Any Dispute which has not been resolved under clause 14.1 shall, at the
request of either party made within 30 days after the Notice is given, be
referred to arbitration and finally resolved by arbitration under the
Controlled Cost Rules at the Chartered Institute of Arbitration, and those
rules are deemed incorporated by reference in this agreement
14.3 This clause 14 is without prejudice to either party's right to seek interim
relief against the other party (such as an injunction) through the English
courts to protect its rights and interests, or to enforce the obligations
of the other party.
15. General
15.1 No partnership or agency: Nothing in this agreement shall be deemed to
constitute a partnership between the parties, nor constitute either party
the agent of the other party for any purpose.
15.2 Counterparts: This agreement may be executed in any number of counterparts.
This has the same effect as if the signatures on the counterparts were on a
single copy of this agreement.
15.3 Waiver: The rights of each party under this agreement:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of rights or remedies provided by
law; and
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(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver
of that right.
15.4 Amendments: Any amendment of this agreement shall not be binding on the
parties unless set out in writing, expressed to amend this agreement and
signed by authorised representatives of each of the parties.
15.5 Severability: If any term of this agreement is or becomes illegal, invalid
or unenforceable in any jurisdiction, that shall not affect:
(a) the legality, validity or enforceability in that jurisdiction of any
other term of this agreement; or
(b) the legality, validity or enforceability in other jurisdictions of
that or any other provision of this agreement.
In the event any term or provision of this agreement is declared to be
invalid, the parties agree that such invalidity shall not affect the
validity of the remaining terms and provisions of this agreement and
further agree to substitute for the invalid term or provision a valid term
or provision which approximates the intent and business purpose of the
invalid term or provision as closely as possible.
15.6 Further assurance: Each party undertakes, at the request, cost and expense
of the other party, to sign all documents and to do all other acts, which
may be necessary to give full effect to this agreement.
15.7 Costs: Each party shall pay the costs and expenses incurred by it in
connection with the entering into of this agreement.
15.8 Language: Any notice given in connection with this agreement must be in
English.
15.9 Third Party Rights: A person who is not a party to this agreement may not
enforce any of its terms under the Contracts (Rights of Third parties) Act
1999.
15.10 Whole agreement:
(a) This agreement, the documents referred to in it contains the whole
agreement between the parties relating to the transactions
contemplated by this agreement and supersede all previous agreements
between the parties relating to those transactions.
(b) Subject to clause 15.10(c), each party acknowledges that in entering
into this agreement it has not relied on any representation, warranty,
collateral contract or other assurance (except those set out in this
agreement and the documents referred to in it made by or on behalf of
any other party before the date of this agreement. Each party waives
all rights and remedies which, but for this clause 15.10, might
otherwise be available to it in respect of any such representation,
warranty, collateral contract or other assurance.
(c) Nothing in clause 15.10(b) limits or excludes any liability for fraud.
15.11 Jurisdiction: parties agree that, subject to clause 14, the English
courts are to have exclusive jurisdiction to settle any disputes which
may arise in connection with this agreement and that any proceedings
arising in connection with this agreement may be brought to those
courts.
15.12 Governing law: This agreement is governed by English law.
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THIS AGREEMENT has been signed on behalf of the parties by their duly authorised
representatives (see below).
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SCHEDULE 1
THE PROJECT
o Title
Feasibility, development and introduction to market of a low-cost,
minimally invasive system to measure plasma or blood coagulation using the
patented technology of Unipath and the patented measurement techniques of
HET.
o Objectives of Project
HET Obligations:
HET shall use its reasonable efforts to achieve the objectives of the three
stages of the projects within the time frame set out in Schedule 3. The
three stages are as follows:
Stage 1: Proof of principle and optimise measurement methodology:
Outcome: Definition of the measurement methodology (or combination of
methodologies)
Demonstration of the test principle using laboratory equipment
and prototype test devices Assessment of the performance
characteristics of the test
Blood volume requirement (Target <= 1ul)
Accuracy: Correlation of the measurement method to a lab
result using clinical
reference sample (Target Correlation => 0.95)
Precision: Reproducibility of a sample tested at low,
mid and high INR (Target
Precision <= 5% CV at all levels)
Stage 2: Development of the system design and configuration
Outcome: Development of the system performance, Definition of the
instrument design
Development of the system configuration to achieve product
requirement specifications:
Definition of the instrument design to meet product requirement
specifications
Stage 3: Optimised system configuration for production release and
transfer of the technology to
Unipath
Meter design finalised
Meter bill of materials defined
Meter design specifications defined
1st run meter samples built
Meter reliability testing completed
Meter test fixtures requirements defined
Meter hardware and software validation plans defined
Final system tested to meet product requirements specifications
UNIPATH Obligations:
During each stage of the project and within the time frames set out in schedule
3, Unipath shall ensure the timely supply of materials and technical support as
may be reasonably requested by HET from time to time to support the projects.
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SCHEDULE 2
FIELD OF INTEREST
Part A
The Field of Interest of Unipath shall mean any Intellectual Property
Rights which have any application in the field of Medical devices for
point of care testing or home testing for measuring plasma or blood
coagulation.
Part B
The Field of Interest of HET shall mean all Intellectual Property
Rights which are outside of the Field of Interest of Unipath.
If any of HET's Foreground Intellectual Property Rights have
application in the Field of Interest of Unipath, HET shall first offer
to Unipath an exclusive licence to those Foreground Intellectual
Property Right in the Field of Interest of Unipath. Unipath shall have
an exclusive option over those HET's Foreground Intellectual Property
Rights for exploitation in the Field of Interest of Unipath for a
period of 6 months from the date that HET first offers those Foreground
Intellectual Property Rights to Unipath. Unipath may exercise this
option at any time prior to the end of the 6 month period.
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SCHEDULE 3
PROJECT PLAN
[[GRAPHIC]]
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SCHEDULE 4
FEES
The Fees will be paid in three instalments according to the following budget:
[[GRAPHIC]]
HET may submit invoices to Unipath only upon achievement of each milestone set
out in the table below.
Milestone Xxx Xxxxxxxxx Payment
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(a) Contract signing & Project Start (pound)128,813
(b) Completion of Stage 1. (pound)69,302
Stage 1 shall be completed on HET
achieving the objects of Stage 1 as
set out under Schedule 1
(c) Stage 2 shall be completed on HET
achieving the objects of (pound)43,362
Stage 2 as set out under Schedule 1
HET shall not incur any other charges except as set out above except as
expressly agreed to by Unipath in writing prior to the charge being incurred.
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SIGNATORIES
Signed by Xxxxx Xxxxx Date
/s/ Xxxxx Xxxxx
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for Unipath Limited
Signed by Xxxx Xxxxxx Date
/s/ Xxxx Xxxxxx
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For Hall Effect Technologies Limited
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