Exhibit 10.3
DATED: 1st July 2002
UNIPATH LIMITED
and
HALL EFFECT TECHNOLOGIES LIMITED
RESEARCH AND DEVELOPMENT AGREEMENT
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
Xxxxxx Xxxxxxxx Xxxx, Xxxxxxx, XX00 0XX (Xxxxxxx); 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 Unipath 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
------------------------------------------------- ---------------------------
Failure to make a payment between Contract (pound)128,813
signing & Project Start and Completion of Stage 1
------------------------------------------------- ---------------------------
Failure to make a payment between Completion of (pound)69,302
Stage 1 and Completion of Stage 2
------------------------------------------------- ---------------------------
Failure to make a payment between Completion of (pound)43,362
Stage 2 and Completion of Stage 3
------------------------------------------------- ---------------------------
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 Xxxxxxxxxx X0 0XX
--------------------------------- ---------------------------------
Fax: x00 0000 0000 Fax: x00 000 000 0000
--------------------------------- ---------------------------------
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) Xxx 0000.
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 xxxx 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 Max Milestone Payment
--------- ---------------------
(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
-------------------------------------
for Unipath Limited
Signed by Xxxx Xxxxxx Date
/s/ Xxxx Xxxxxx
-------------------------------------
For Hall Effect Technologies Limited
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