Exhibit 10.7
TECHNICAL SERVICES AGREEMENT
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THIS AGREEMENT is made as of the 2 day of October, 2000
BETWEEN:
PLANET EARTH MANAGEMENT INC., a corporation duly incorporated
pursuant to the laws of Yukon Territory having its principal
place of business at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇
(hereinafter referred to as "PEM")
OF THE FIRST PART
AND:
HAMILTON BIO CONVERSION INC., a corporation duly incorporated
pursuant to the laws of Province of Ontario and having an office
at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(hereinafter referred to as "NEWCO")
OF THE SECOND PART
WHEREAS:
A. NEWCO is the licensee of a certain technological process (and
certain patents, know-how, trade secrets and trade names) relating to the
digestion of biodegradable waste, which technological process is called
"Thermophilic Aerobic Digestion Process for Producing Animal Nutrients and other
Digested Products", and which technological process is described in patent
number US 5810903 and CDN patent application number 2184044 (such technological
process together with the related trade secrets, know-how and trade names being
hereinafter collectively referred to either as the "Process");
B. PEM has significant know-how concerning the design,
construction, operation and maintenance of industrial process plants that
utilize the Process, hereinafter referred to as "Plants". PEM also has know-how
concerning the procurement and contracting for organic waste supplies for the
Plants;
C. NEWCO intends to utilize the license referred to in Recital A
and to construct and operate a Plant that uses the Process. NEWCO requires
technical support for operating the Process and Plant;
D. PEM wishes to provide NEWCO with ongoing technical and
operations support for operating the Plant;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual
exchange of promises as set out below the parties agree hereto as follows:
1. DEFINITIONS
Where used herein or in any amendments or Schedules hereto, the following
terms shall have the following meanings:
"END PRODUCT PURCHASERS" means the legally contracted direct purchaser of
products (feed or fertilizer base materials) from the Plant;
"FORCE MAJEURE CAUSE" has the meaning as defined in Section 3.5.1 to this
Agreement;
"NEWCO" has the meaning as defined on the first page of this Agreement;
"PROCESS" means the patented Thermo Master(TM) Process as described in
Patent numbers US 5810903 and CDN Patent Application Number 2184044;
"PERSONNEL MANUAL" means the manual setting out policies and procedures for
the staff of the Plant, including matters specifically related to the Plant
and its proper function and locally mandated policies or regulations
related to the jurisdiction in which the Plant is located;
"PLANT" means a plant designed and built for the recycling of organic waste
into either animal feed or fertilizer ingredients to be constructed using
TTTI's Process;
"QUALITY ASSURANCE MANUAL" means a manual of information and procedures to
be followed within the Plant to monitor and ensure the proper function of
systems and the production of end product according to specified standards;
"SERVICES" means services described in Section 2 of this Agreement;
"WORK" means the scope of services, materials and other things provided by
PEM to NEWCO under this Agreement.
2. SCOPE OF WORK
2.1 Ongoing Operations Services
2.1.1 Review Plant Operation Reports
PEM will perform the following Work related to the review of plant
operation reports:
(a) Provide bi-weekly review of operating reports and quality control
records for incoming and processed materials;
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(b) Monthly reviews of accounts to ensure the proper and effective
operation of the accounting system; and
(c) Monthly reports to NEWCO on the Plant operations that highlight
operational, administrative and financial performance of the
Plant.
2.1.2 Regular Plant Inspections
PEM will perform the following Work related to regular plant
inspections:
(a) Visit to Plant on a monthly basis for onsite review;
(b) Inspect plant conditions and observe operation of the Plant;
(c) Review quality of incoming waste and outgoing product;
(d) Assess capability and knowledge of Plant staff; and
(e) Prepare report with findings of inspection and observations.
2.1.3 Process Optimization
PEM will assist NEWCO to optimize operating revenues and costs of
operation, such assistance to include:
(a) Optimize Product Revenue
(b) Optimize Tipping Fee Revenue
(c) Optimize Utilities Costs
(d) Optimize Environmental Disposal Costs
(e) Optimize Labour Costs
(f) Optimize Off-spec Product Claims
2.1.4 Process and Equipment Operation Problems
PEM will provide the following services related to process and
equipment operation problems:
(a) Trouble shooting assistance to Plant administrators;
(b) Trouble shooting assistance to Plant operators;
(c) For minor problems, provide problem diagnosis and advice over the
telephone; and
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(d) For major problems, provide onsite problem review and advice.
2.2 Engineering Assistance
2.2.1 Process and Equipment Operation Problems
PEM will provide the following services relating to process and
equipment operation problems:
(a) Provide technical evaluation of problems, including onsite
measurements and testing as required; and
(b) Prepare report on problems with recommendations for correction.
2.2.2 Technical Assistance for Minor Plant Design Changes
PEM will provide the following services related to technical
assistance for minor plant design changes:
(a) Review suggested plant design changes with Plant;
(b) Gather information on proposed changes and prepare technical
report evaluating the changes proposed; and
(c) Assist Plant with engineering design for making the changes.
2.3 Training
2.3.1 General Training
PEM will provide the following services related to general training:
(a) Assess capability and knowledge of Plant staff;
(b) Provide refresher training for plant supervisors, such refresher
training to include, as required:
- How to supervise employees;
- Maintaining employee records;
- How to train employees;
- Plant process knowledge;
- Plant equipment operations knowledge;
- Biological process knowledge; and
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- Quality control practices.
2.3.2 Operation Manuals
PEM will provide the following services related to operation
manuals:
(a) Review and recommend changes to operating manuals for the Plant;
and
(b) Update process schematics and layout drawings for the Plant, as
required.
2.4 Personnel Manual
PEM will review and recommend changes to the Personnel Manual for Plant to
suit local conditions.
2.5 Quality Assurance
PEM will perform the following services related to quality assurance:
2.5.1Perform routine (internal) audits and prepare reports on any quality
assurance program undertaken in the Plant;
2.5.2Review and recommend revisions to Plant's Quality Assurance Manual as
required;
2.5.3 Review correspondence and complaints from End Product Purchasers;
2.5.4 Identify potential problem areas based on reports received; and
2.5.5 Prepare recommendations for corrective action.
2.6 Review of Financial Performance
PEM will perform the following services related to review of financial
performance:
2.6.1 Review of accounting and financial reports prepared by Plant;
2.6.2Make recommendations concerning the preparations of these reports;
and
2.6.3Make recommendations concerning the administration and management of
the Plant.
3. PERFORMANCE OF THE WORK
PEM will perform the Work in a ▇▇▇▇▇▇▇ like manner in accordance to the
normal standards of skill and competence employed by management
consultants, in the waste industry. The Work will be performed diligently
and continuously with the required complement of competent personnel so as
to achieve the required schedule for the Work.
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3.1 Reasonable Notice
NEWCO will, as far as possible, provide adequate notice to PEM of any
special requirements or schedules for Services or meetings at the Plant.
Failure to provide adequate notice will be an acceptable reason for PEM not
meeting NEWCO requirements.
3.2 Information Supplied to PEM
PEM will be entitled to rely on information provided by NEWCO, unless the
contrary is specifically stated in writing when such information is
provided. Where NEWCO has information that is required by PEM for the Work,
such information will be provided in a suitable form to PEM without undue
delay.
3.3 Conflicts of Interest
PEM, its agents, employees or Subconsultants will take all steps to ensure
avoidance of all conflicts of interest between any of their individual
interests and those of NEWCO.
3.4 Subconsultants
3.4.1PERI is at liberty to employ sub-consultants and any others necessary
to discharge its obligations under this Agreement. PEM will be
permitted to employ Local Subconsultants, including but not limited to
engineers, accountants, operating specialists, training specialists,
environmental consultants, security consultants and similar
consultants.
3.4.2PEM will negotiate and issue subcontracts for the Subconsultants'
services that include all necessary requirements for secrecy,
protection of proprietary knowledge, insurance and other requirements
specified by NEWCO.
3.5 Force Majeure
3.5.1PEM's performance of any of the obligations hereunder, other than
financial, may be delayed or suspended while, but only so long as PEM
is prevented from performance by any cause, except lack of funds,
beyond its reasonable control ("Force Majeure Cause"). For the
purposes of this paragraph, a labour dispute is beyond the reasonable
control of PEM if, in their judgement, settlement of the dispute would
not be compatible with its best interests. PEM will immediately report
to NEWCO any information relating to any labour demands, labour
disputes, labour trends, pending or ongoing labour negotiations or any
other problems that may affect the Work and its performance.
3.5.2PEM will give NEWCO notice of any Force Majeure Cause within 24 hours
after the occurrence of any Force Majeure Cause in respect of which
PEM intends to claim entitlement to either a suspension in performance
or delay in completion of any of the Work. PEM will promptly give
notice to NEWCO on conclusion of the force majeure cause.
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3.6 Independent Contractor
PEM is an independent Contractor with respect to all the Work.
Notwithstanding NEWCO's rights of consent or approval as provided in this
Agreement, PEM has the complete control, supervision and direction of the
method and manner of obtaining the required results for any project or
Work.
4. COMPENSATION
4.1 Monthly Fee for Basic Services
NEWCO will pay PEM a fixed monthly fee of $10,000.00 (TEN THOUSAND DOLLARS)
for providing the Services.
4.2 Reimbursable Costs and Flat Rate Charges for Extra Work
Where additional services are requested beyond PEM's normal scope of work,
NEWCO will pay PEM for all such additional Services based on PEM's hourly
rates and will pay PEM for all reimbursable costs and flat rate charges,
including, but not limited to the following:
4.2.1 Services by PEM Employees
NEWCO will reimburse PEM as and when invoiced for:
Technical and other services will be charged at:
(a) hourly calculated according to the following formula:
Hourly Rate = Gross Annual Salary 2000 x 2
(b) timesheets will be provided by PEM with PEM's invoices to
substantiate the invoiced amounts and services provided;
4.2.2 Services by PEM Contract Employees
NEWCO will reimburse PEM as and when invoiced for:
Where contract employees are employed by PEM for the Work and their
normal place of work is in PEM's offices, PEM will invoice NEWCO for
the services performed by the contract employees at a rate that is
equivalent to the hourly rate charged for an existing staff member
with similar qualifications and experience. If there are no similar
staff members to draw a comparison against, contract employees will be
charged out at the hourly rate paid to the contract employee by PEM
plus a 30% ▇▇▇▇-up.
Timesheets will be provided with PEM's invoices to substantiate the
invoiced amounts and services provided.
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4.2.3 Reimbursable Subcontracts
NEWCO will reimburse PEM as and when invoiced for:
(a) The cost of Local Subconsultants and Specialist Subconsultants
for feasibility studies and special technical advisory services;
(b) The cost of graphic artists services, special photography,
typesetting and advertising incidental to the Work;
(c) In addition to the costs and flat rate charges for Subcontractors
and Subconsultants, PEM shall be entitled to and paid a ▇▇▇▇-up
of 15% on such reimbursable costs and flat rate charges to
compensate PEM for office services, administration, handling and
carrying costs; and
(d) Copies of invoices will be provided with PEM's invoices to
substantiate the invoiced amounts and scope.
4.2.4 Reimbursable Expenses
NEWCO will pay PEM for all out of pocket costs for providing the extra
work, including:
(a) The cost of reproduction and delivery of information, drawings,
specifications and other documents necessary for the feasibility
studies, including but not limited to plans, drawings,
specifications, contracts and purchase orders;
(b) The expense of long distance telephone calls, telegrams and telex
beyond the agreed monthly budget for these items;
(c) The expense of reproduction and delivery of information,
drawings, specifications and other documents necessary to the
Project, and fees paid for securing approvals, permits or
licenses from regulatory agencies having jurisdiction over the
Project; and
(d) The expense of transport, subsistence and lodging in connection
with the Work beyond the agreed monthly budget for these items.
Car expenses shall be charged at $0.35 per kilometre, and other
means of travel at cost plus 15%.
4.2.5 Other Reimbursable Items
NEWCO will reimburse at the time of execution of the Agreement; PEM as
and when invoiced for:
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(a) Charges levied by authorities having jurisdiction over the Work
which were not reasonably foreseeable
(b) Costs incurred due to emergencies affecting the safety of persons
or property;
(c) Legal costs incurred by PEM, arising out of the performance of
the Agreement provided that such do not arise out of any
negligence or failure to perform the Agreement in accordance with
its provisions; and
(d) All other costs reasonably incurred by PEM in the performance of
the Work.
4.2.6 Rates and ▇▇▇▇-up Charges
(a) All reimbursable costs specified in the immediately preceding
sections that are internal costs to PEM shall be reimbursed at
the prevailing rates charge by other consultants in the same
jurisdiction as PEM for such costs. Items for which there are no
prevailing rates shall be reimbursed at a rate to reflect PEM's
reasonable internal cost; and
(b) In addition to the above reimbursable costs and flat rate
charges, PEM shall be entitled to and paid a markup of 15% on
such reimbursable costs and flat rate charges to compensate PEM
for office services, administration, handling and carrying costs.
4.2.7 Rate Adjustments
Billing rates and in-house costs included in this section may, at
PEM's option, be adjusted upward on an annual basis to reflect
increases in the local Consumer Price Index as prepared by Statistics
Canada.
5. INVOICES AND PAYMENT
5.1.1 PEM will submit invoices to NEWCO on a monthly basis.
5.1.2 NEWCO will pay the invoices within 15 days of presentation by PEM.
5.1.3Any amounts on the invoice that are disputed by NEWCO will be
deducted from the invoice and the balance of undisputed charges will
be paid promptly. NEWCO will promptly notify PEM of disputed items on
the invoices within 7 days of receipt of the invoice. PEM will
promptly adjust, correct or provide substantiation of the disputed
items contained within the invoice.
5.1.4If NEWCO does not make the required payment within 15 days, PEM will
have the option of suspending all Work upon 5 days written notice from
the date the invoice was received by NEWCO until payment is made or
satisfactory arrangements for payment are provided and agreed upon to
by PEM.
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5.1.5NEWCO will pay PEM interest on invoiced amounts that remain unpaid
after 15 days after receipt of the invoice in the case of undisputed
items and 15 days after resolution of the dispute in the case of
disputed items. Interest will not begin to accrue until the respective
15 day period has elapsed. Interest on the amount outstanding will be
charged at a rate of 1.5% per month (18% per annum). Interest amounts
will be invoiced on a monthly basis.
6. TERM OF AGREEMENT
The term of the Technical Services Agreement is five (5) years from the
date of this Agreement. The Agreement can be extended for a further five
(5) years by mutual consent of the Parties.
7. TERMINATION
7.1 Termination by NEWCO with Cause
If PEM is adjudged bankrupt, or if it makes a general assignment for the
benefit of its creditors, or if a receiver is appointed on account of its
insolvency, or if it disregards laws, ordinance, rules, regulations or
orders of any authority having jurisdiction in a material way, or subject
to the Agreement is otherwise in breach of a material provision of the
Agreement, then NEWCO may, without prejudice to any right or remedy and
after giving PEM 90 days written notice, during which period PEM fails to
cure the violation, terminate the Agreement. If it is not possible to cure
the violation within the 90 days, PEM will be deemed to have cured the
violation if it commences to cure the violation within those 90 days and
provides NEWCO with a schedule indicating the violation will be cured
within a reasonable time. Termination by NEWCO in accordance with the
foregoing will not affect any rights or remedies NEWCO would otherwise have
under the Agreement or which may otherwise be available to NEWCO at law or
in equity, including the right to recover damages, nor will any such action
relieve PEM from any consequences or liabilities arising from its acts or
omissions.
7.2 Termination by NEWCO without Cause
7.2.1NEWCO may, without cause, terminate the Agreement upon 180 days' prior
written notice to PEM.
7.2.2In the event of termination of the Agreement with or without cause,
PEM will be paid:
(a) An amount equal to PEM's fee earned for all Work performed to the
date of termination, as well as to such later date as may
reasonably be required by the authorities having jurisdiction and
by professional responsibilities of PEM to perform an orderly
termination and winding up of the Agreement and the Project, plus
all reimbursable costs reasonably incurred; and
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(b) PEM's reasonable demobilization costs and expenses, plus any
costs and expenses incurred by PEM in the cancellation of any
contracts it has with its Subconsultants.
7.2.3In the event of termination of the Agreement without cause, PEM will
be paid:
(a) 15% of the average yearly return PEM expects to earn over the
term of the Agreement for a period of two years after Termination
by NEWCO.
7.2.4After receipt of the payments referred to in subsection 7.2.2 and
7.2.3 of this Agreement, PEM will execute and deliver all such papers
and take all such steps including, if requested, the legal assignment
of its contractual rights, as NEWCO may reasonably require for the
purpose of fully vesting in NEWCO the rights and benefits of PEM under
such obligations or commitments
7.3 Termination by PEM with Cause
7.3.1If NEWCO is adjudged bankrupt, or if it makes a general assignment for
the benefit of its creditors, or if a receiver is appointed on account
of its insolvency, or if it disregards laws, ordinance, rules,
regulations or orders of any authority having jurisdiction, or fails
to make payment to PEM when due, or is considered by PEM to be
otherwise in breach of a material provision of the Agreement, then PEM
may, without prejudice to any right or remedy and after giving NEWCO
90 days written notice, during which period NEWCO fails to cure the
violation, terminate the Agreement. If it is not possible to cure the
violation within the 90 days, NEWCO will be deemed to have cured the
violation if it commences to cure the violation within those 90 days
and provides PEM with a schedule acceptable to PEM indicating the
violation will be cured within a reasonable time. Termination by PEM
will not affect any of the rights or remedies of PEM under the
Agreement or which may otherwise be available to PEM at law or in
equity, including the right to recover damages, nor will any such
action relieve NEWCO from any consequences or liabilities arising from
its acts or omissions.
7.3.2In addition to any other right of suspension or termination contained
elsewhere in the Agreement, PEM in its sole discretion may suspend or
terminate the Agreement in accordance with the following:
(a) If PEM elects to suspend performance of the Work according to the
requirements of subsection 5.1.4 and if NEWCO fails to make the
payment within 7 days after the expiry of the notice period
referred to in subsection 5.1.4, PEM may elect to immediately
terminate the Agreement or continue to suspend the performance of
the Work for such period of time as PEM may decide.
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(b) If NEWCO requests that PEM perform any part of the Work contrary
to the professional judgement of PEM or in a manner contrary to
the professional judgement of PEM or the requirements of any
authority having jurisdiction, PEM may terminate the Agreement
immediately upon written notice to NEWCO.
(c) If PEM encounters a conflict in interest in the performance of
the Work, which cannot be resolved to the satisfaction of PEM,
PEM may suspend the Work until such conflict is resolved or may
terminate the Agreement after giving reasonable notice to NEWCO,
not to exceed 30 days.
8. INDEMNIFICATION
8.1 Subject to any limitations of liability in the Agreement, PEM will at its
own cost and expense, including attorney fees, defend, indemnify and hold
harmless the NEWCO and its agents and employees from and against the
following:
8.1.1all claims or liens of Subconsultants of PEM arising out of PEM's
failure to pay its Subconsultants in accordance with its agreements
with those Subconsultants, provided such failure is not caused by a
failure of NEWCO to make payment to PEM;
8.1.2all fines, penalties, assessments or other exactions imposed by any
governmental authority by reason of PEM's failure to comply with the
Agreement;
8.1.3all claims, damages, losses and expenses, including attorney fees,
arising out of or resulting from the performance of the Agreement,
provided that any such claim, damage, loss or expense;
(a) is attributable to bodily injury, sickness, disease or death, or
to injury or destruction of tangible property (other than some
part of the Project itself); and
(b) is caused solely by, or to the extent it is caused by, any
negligent act or omission of PEM or any of its officers, agents,
employees, representatives, Subconsultants, or anyone directly or
indirectly employed by any of them;
8.2 NEWCO will at its own cost and expense, (including attorney fees), defend,
indemnify and hold harmless PEM, its agents and employees, from and against
the following:
8.2.1 all claims or liens of NEWCO's Consultants and Contractors;
8.2.2all fines, penalties, assessments or other financial charges imposed
by any governmental authority by reason of NEWCO's failure to comply
with the Agreement;
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8.2.3all claims, damages, losses and expenses, including attorney fees,
arising out of or resulting from the performance of the Agreement or
the construction of the Project, provided that any such claim, damage,
loss or expense;
(a) is attributable to bodily injury, sickness, disease or death, or
to injury or destruction of tangible property (other than some
part of the WORK itself);
(b) is caused solely by, or to the extent it is caused by, any
negligent act or omission of NEWCO or any of its officers,
agents, employees, representatives, Consultants, Contractors,
Suppliers or anyone directly or indirectly employed by any of
them;
8.2.4all claims, damages, losses and expenses incurred as a result of a
defect in title or ownership of the lands on which the Project is or
is to be located; and
8.2.5all claims, damages, losses, expenses, fines, penalties and
assessments, including but not limited to fines, penalties,
assessments and other exactions imposed by any governmental authority
and actual legal fees and disbursements, arising out of, relating to,
resulting from or in any way connected with the actual, potential or
alleged presence, release, escape or discharge of any Hazardous
Substances on, in or under the Site howsoever caused and whether
occurring prior to or after the date of the Agreement. Without
limiting the generality of the foregoing, such indemnity extends to
claims which arise or are alleged to arise out of the actual or
threatened dispersal, discharge, escape, release or saturation
(whether sudden or gradual) of any Hazardous Substances in or into the
atmosphere, or on, upon, in or into any one or more of the surface or
subsurface soils, water, watercourses, persons, objects, structures or
any other tangible matter.
9. INSURANCE
9.1.1PEM will provide, maintain and pay for the insurance coverages
specified in this Section 9. Unless specified otherwise in Section 9,
the duration of each insurance policy shall be from the date of
commencement of the Work until the termination of the Agreement.
9.1.2PEM will be responsible for deductible amounts under the policies
referred to in Section 9 of this Agreement.
9.2 Automobile Public Liability and Property Damage Insurance
9.2.1PEM will provide Automobile Public Liability and Property Damage
insurance coverage for all vehicles owned or leased, operated and/or
licensed by the Contractor or its Subcontractors with a single
combined limit of $5,000,000.00 (FIVE MILLION DOLLARS) for each
occurrence involving bodily injury, death or property damage. PEM will
provide NEWCO with not less than 15 days notice in writing in advance
of cancellation, change or amendment restricting coverage.
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9.3 General Comprehensive Liability Insurance
9.3.1General Comprehensive Liability insurance coverage will be provided by
PEM in the joint names of PEM and NEWCO, including insurance for
non-owned automotive units used in performing the work. The value of
the insurance, covering products and completed operations and
contractual liability, will have a combined limit of not less than
$5,000,000.00 (FIVE MILLION DOLLARS) for each occurrence involving
bodily injury, death or property damage. The policy will have a
property damage deductible not exceeding $2,500.00. The loss in the
amount of the deductible will be PEM's responsibility. The insurance
will be in effect from the time the work commences until the final
completion date plus twelve (12) months thereafter for completed
operations thereunder.
9.3.2Policies mentioned in 9.3.1 above will be endorsed to provide NEWCO
with not less than 30 days notice in writing in advance of any
cancellation, and of change or amendment restricting coverage.
9.4 Workers Compensation
9.4.1PEM will comply with the Workers Compensation Act or equivalent in the
Province or State of the site and the rules and regulations of the
local jurisdiction.
9.5 Certificates of Insurance
9.5.1Before starting the Work, both PEM and NEWCO will provide certificates
of insurance as evidence that each has obtained the required
insurance.
9.5.2Before permitting any Subcontractors or Subconsultants to perform any
of the Work, PEM will obtain certificates of insurance from each of
the Subcontractors and Subconsultants as evidence that each has
obtained the required insurance.
10. DISPUTE RESOLUTION
10.1 If the parties are unable to resolve, by unanimous agreement, any matter
arising out of or relating to the terms of the Agreement, or their
interpretation, existence, validity, termination or breach, either party
may submit the matter to the president of NEWCO and to the president of PEM
for a final determination by them.
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10.2 Provided that no other party is or may become involved in a dispute with
either or both NEWCO and PEM related to the subject matter of the dispute,
if the respective presidents of NEWCO and PEM fail to settle the dispute
referred to them within thirty (30) days following its submittal to them,
all such disputes arising out of or in connection with the Agreement, or in
respect of any defined legal relationship associated therewith or derived
therefrom, subject to the written agreement of the respective Presidents,
may be referred to and finally resolved by arbitration under the rules of
the Arbitration and Mediation Institute of Canada or its successor, or if
it is no longer in existence then a suitable arbitration centre located in
Ontario, Canada (collectively and individually the "Arbitration Centre").
The appointing authority will be the Arbitration Centre and the case will
be administered by the Arbitration Centre in accordance with its procedures
for cases under its rules. The Place of Arbitration will be ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇.
10.2.1 The award rendered by the arbitrator(s) will be final and binding
and judgement may be entered upon it in accordance with applicable law
in any court having jurisdiction.
10.2.2 If either party becomes involved in litigation with another party
which involves the same disputes or the same factual or legal issues
as the dispute(s) between NEWCO and PEM, either NEWCO or PEM may apply
to the arbitrator or a court of competent jurisdiction for a stay of
any arbitration proceedings then in process, and the arbitrator or
court may, if it considers it to be just and convenient to do so,
order a stay of the arbitration pending the outcome of the litigation.
11. GENERAL PROVISIONS
11.1 Time shall be of the essence of this Agreement.
11.2 The section headings are for the purpose of convenience of reference only
and shall not be construed as interpretation of the text.
11.3 Except as contemplated herein, this Agreement contains the whole agreement
between the parties hereto in respect of the construction of the Thermo
Master Plant and there are no warranties, representations, terms,
conditions or collateral agreements expressed, implied or statutory, other
than as expressly set forth in this agreement.
11.4 This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns.
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11.5 Any notice to be given under this Agreement shall be duly and properly
given if made in writing and by delivering or telecopying the same to the
addressee at the address as follows:
Hamilton Bio Conversion Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: The President
Planet Earth Management Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
(President)
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
11.6 Any notice given as aforesaid shall be deemed to have been given or made
on, if delivered, the date on which it was delivered or, if telecopied, on
the next business day after it was telecopied. Any party hereto may change
it address for notice from time to time by notice given to the other
parties hereto in accordance with the foregoing.
11.7 This Agreement may be executed in one or more counter-parts, each of which
so executed shall constitute an original and all of which together shall
constitute on and the same agreement.
11.8 No failure or delay on the part of any party in exercising any power or
right under this Agreement will operate as a waiver of such power or right.
No single or partial exercise of any right or power under this Agreement
will preclude any further or other exercise of such right or power. No
modification or waiver of any provision of this Agreement and no consent to
any departure by any party from any provision of this Agreement will be
effective until the same is in writing. Any such waiver or consent will be
effective only in the specific instance and for the specific purpose for
which it was given. No notice to or demand on any party in any
circumstances will entitle such party to any other or further notice or
demand in similar or other circumstances.
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11.9 This Agreement shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the laws of the Province of
Ontario, Canada and each of the parties hereto attorns to the jurisdiction
of the Courts of the Province of Ontario, Canada.
IN WITNESS WHEREOF the parties hereto have executed this agreement as of the day
and year first above written.
PLANET EARTH MANAGEMENT INC.
/S/ ▇▇▇▇▇ ▇▇▇▇▇
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Authorized Signatory
HAMILTON BIO CONVERSION INC.
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Authorized Signatory
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