Exhibit 10.24
L I C E N C E A G R E E M E N T
BETWEEN
BIOMIN TECHNOLOGIES S.A.
------------------------
and
BOGOSO GOLD LIMITED
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TABLE OF CONTENTS
Page
1. DEFINITIONS AND INTERPRETATION............................................1
1.1 Definitions..........................................................1
1.2 Interpretation.......................................................6
2. GRANT OF LICENCE..........................................................7
3. TERM......................................................................9
4. IMPROVEMENTS AND DEVELOPMENTS.............................................9
5. LICENCE FEE..............................................................10
6. CONSTRUCTION OF PLANT....................................................11
7. COMMISSIONING OF PLANT...................................................13
8. OPERATIONAL SUPPORT AND TRAINING.........................................14
9. GENERAL OBLIGATIONS OF BOTH PARTIES......................................15
10. CONCENTRATE NOT OF FEEDSTOCK QUALITY.....................................15
11. BREACH...................................................................16
12. TERMINATION OF AGREEMENT AND DISMANTLING OF PLANT........................16
13. EXCLUSION OF WARRANTIES..................................................17
14. CONFIDENTIALITY..........................................................20
15. FORCE MAJEURE............................................................21
16. WARRANTY OF AUTHORITY....................................................21
17. RELATIONSHIP OF PARTIES..................................................21
18. ASSIGNMENT...............................................................22
19. PROTECTION OF PROCESS....................................................22
20. NOTICES..................................................................23
21. MISCELLANEOUS ...........................................................24
21.1 Variation...........................................................24
21.2 Waivers.............................................................24
21.3 Rights of Third Parties Act.........................................24
21.4 Payments............................................................24
21.5 Proper Law..........................................................25
21.6 Arbitration of Disputes.............................................25
21.7 Severability........................................................25
21.8 Costs...............................................................25
21.9 Successors Bound....................................................26
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TABLE OF CONTENTS
(continued)
Page
21.10 Entire Agreement...................................................26
21.11 Interest...........................................................26
SCHEDULES ATTACHED
Schedule 1 BIOX(R) Battery Limits
Schedule 2 Confidentiality Deed
Schedule 3 Feedstock Quality
Schedule 4 Process Performance Guarantees
Schedule 5 Tests and Procedures
Schedule 6 Schedule of Rates
Schedule 7 Deed of Power of Attorney
Schedule 8 Estimated Time and Cost of Consulting
Schedule 9 Address for Service
Schedule 10 Licencees of the BIOX(R) Process
ANNEXURES
Annexure A Testwork Agreement dated 30 October 2000
Annexure B Licence Area Map
-ii-
THIS LICENCE AGREEMENT is made this 28th day of June 2004.
BETWEEN: BIOMIN TECHNOLOGIES S.A., a company incorporated in Switzerland
and having its registered office there at c/o Progressia Societe de
Gestion SA, xxx Xx-Xxxxxx 00, 0000 Xxxxxxxx, Xxxxxxxxxxx (hereinafter
with its successors and assigns known as "BIOMIN")
AND: BOGOSO GOLD LIMITED, a company incorporated in Ghana and having
its registered office there at 00 Xxxxxxxx Xxxx, Xxxxxxx Xxxxxxxxxxx
Xxxx, Xxxxx, Xxxxx. (hereinafter with its successors and assigns known
as "BGL")
WHEREAS:
A. BIOMIN is the proprietor of a process known as the BIOX(R) Process whereby
micro-organisms are used in the oxidation of certain gold bearing sulphidic
minerals in order to facilitate gold recovery and BIOMIN is in possession
of and has access to technology and know-how pertaining to such a process.
B. BGL is the owner and operator of the Bogoso Gold Mine situated at Bogoso
and also the Prestea, Mansiso, Obuom and Asikuma Gold Mines, all situated
in Ghana.
C. BGL wishes to use the BIOX(R) Process at the Bogoso Gold Mine and BIOMIN is
willing to allow such use and the parties have accordingly entered into a
Testwork Agreement attached as Annexure "A" ("the Testwork Agreement")
which deals in principle with some of the matters relating to such use. If
any provision of this Agreement conflicts with any provision of the
Testwork Agreement, the relevant provision of this Agreement will prevail.
D. BIOMIN and BGL (hereinafter referred to as "the parties") are now entering
into this Agreement to record in more detail and comprehensively the terms
and conditions upon which the use of the BIOX(R) Process will be allowed,
using Inoculum provided by BIOMIN.
E. Notwithstanding their efforts pursuant to this Agreement, the parties shall
remain separate and distinct entities, involved in businesses and efforts
independent hereof and of each other. The parties wish to provide for and
record the basis of their relationship.
THE PARTIES ACCORDINGLY AGREE THAT:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement (which term includes the Recitals and Schedules)
unless the context requires otherwise:
1.1.1 "Affiliates" in relation to a person, means
any person, partnership, limited
liability company,joint venture,
corporation, entity or other
form of enterprise which
controls, is controlled by, or
is under common control with
that party. As used herein,
"control" means the ability,
directly or indirectly, to
direct or cause the direction
of management and policies of a
person or entity through
(i) the legal or beneficial
ownership of voting
securities or membership
interests;
(ii) the right to appoint
managers, directors or
corporate management;
(iii) contracts;
(iv) operating voting trusts;
(v) family relationship;
(vi) agency; or
(vii) otherwise.
1.1.2 "Ancillary Costs" means the reasonable costs of
accommodation, meals and local
and international travel on a
business class basis, which have
not been supplied by BGL in
terms of Clause 6.7.
1.1.3 "Approved Contractor" means the contractor appointed
by BGL for the construction of
the BIOX(R) Plant, as approved
by BIOMIN pursuant to Clause
6.3.
1.1.4 "BGL Material" means the concentrate produced
by the processing through a
flotation plant of run of mine
ore extracted by BGL from its
Bogoso, Prestea, Mansiso, Obuom
and Asikuma Mines, as shown on
the Licence Area Map annexed as
Annexure B.
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1.1.5 "BIOX(R) Battery
Limits" means all areas of the BIOX(R)
Plant:
(a) that fall within the bund
walls and vertical
projections thereof
surrounding each of the
surge/stock tanks and
nutrient make up facility,
BIOX(R) reactors,
countercurrent decantation
thickeners and
neutralisation units; and;
(b) where the BIOX(R)
compressors/blowers and
cooling towers are
situated;
all of which are shown on the
flow chart annexed as Schedule
1.
1.1.6 "BIOX(R) Plant" means all components and
equipment of the processing
plant to be constructed in
accordance with the Process
Design Package within the
BIOX(R) Battery Limits set out
in Schedule 1, at the Bogoso
Mine in Ghana.
1.1.7 "BIOX(R) Process" means the know-how and
technology in respect of the
biological process pursuant to
which microorganisms are used in
the oxidation of certain gold
bearing sulphidic minerals to
facilitate gold recovery.
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1.1.8 "BIOX(R) Proprietary
items" means the impellers, air
dispersers and cooling coils of
the BIOX(R) Plant.
1.1.9 "Business Day" means a day on which the main
branch of Barclays Bank in Ghana
is open for business.
1.1.10 "Competitive Supplier" means any supplier of a tank
bacterial process for the
processing of gold bearing
minerals (or its Affiliates) or
any person engaged in research
on such technology (or its
Affiliates) other than BIOMIN
and its Affiliates.
1.1.11 "Confidentiality Deed" means a deed substantially in
the form of Schedule 2.
1.1.12 "Date of Commence-
ment of Operations" means the date on which oxidized
ore slurry is first received
into the carbon-in-xxxxx ("CIL")
Plant from the final thickener
underflow from the BIOX(R)
Plant.
1.1.13 "Deemed Capital Cost" means US$ 15 million, as stated
in Clause 5.4.
1.1.14 "Dollars" and "$" sign means the lawful currency the
United States of America.
1.1.15 "Effective Date" means the date of this Agreement
as stated in its heading.
1.1.16 "Event of Force
Majeure" means any occurrence occurring
beyond the reasonable control of
the party affected by it and,
without limiting the generality
of the aforegoing, includes:
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(a) was (declared or
undeclared), civil
commotion, riot, political
unrest, military action or
an act of sabotage or
terrorism;
(b) strike, lockout and
industrial action, dispute
or any other kind of
disturbance;
(c) an act or failure to act
of government or a
governmental agency, in
either case whether de
jure or de facto;
(d) a xxxxx, xxxxxxx, fire,
flood, earthquake or other
calamity;
(e) delay in obtaining or
inability to obtain any
governmental permit,
consent or authority
necessary to implement any
material aspect of this
Agreement.
1.1.17 "Feedstock Quality" means the quality parameters set
out in Schedule 3.
1.1.18 "Inoculum" means the microorganisms used in
the oxidation of certain gold
bearing sulphidic minerals in
accordance with the BIOX(R)
Process.
1.1.19 "Licence Fee" means the fee payable by BGL in
terms of Clause 5.1 or any part
of such fee payable as an
installment in terms of Clause
5.2.
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1.1.20 "Manuals" means the BIOX(R) Operating
Manual and the BIOX(R) Inoculum
Build-up Manual, developed,
prepared and issued by BIOMIN,
or any of them, as the same may
be revised, replaced or
supplemented from time to time
by BIOMIN.
1.1.21 "Performance Test" means the performance test for
the BIOX(R) Plant set out in
Schedule 4.
1.1.22 "Performance Acceptance
Date" means the first day on which the
operational parameters, as set
out in Schedule 4, are met or
are deemed to have been met in
accordance with Clause 7.3.
1.1.23 "Process Design
Package" means a set of documents
prepared by BIOMIN consisting of
a process description, process
flow diagram, detailed mass and
heat balances, process
instrumentation and valve
diagrams, detailed equipment
lists, process design
specification and a process
control philosophy all of which
were or will be developed with
a view to procuring performance
of the BIOX(R) Plant.
1.2 Interpretation
In this Agreement, unless the context requires otherwise:
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1.2.1 words importing any one gender include the other two
genders, the singular includes the plural and vice
versa, and references to natural persons include created
entities (whether or not having a corporate legal
personality);
1.2.2 headings are used for convenience only and shall not
be used in the interpretation of this Agreement;
1.2.3 words or phrases defined in Clause 1.1 shall, where
they appear in any other grammatical form, have a
meaning corresponding to the defined meaning.
2. GRANT OF LICENCE
2.1 BIOMIN hereby grants to BGL a non-exclusive right and license to use
the BIOX(R) Process for the term of this Agreement at its Bogoso Mine,
situated at Bogoso in Ghana, solely for the purpose of:
2.1.1 erecting and commissioning the BIOX(R) Plant;
2.1.2 treating BGL Material or (subject to clause 2.4) other
material (for itself or on a toll basis for third
parties) through the BIOX(R) Plant.
2.2 BGL shall not use or allow the use of the BIOX(R) Process at any other
place or for any other purpose than as stated in Clause 2.1. Without
derogating from the generality of the aforegoing, BGL shall not:
2.2.1 upgrade, extend or expand the BIOX(R) Plant beyond
the nominal design capacity of 349 (three hunderd and
forty nine) metric tons per day of BGL Material, as
specified in the Process Design Package without the
prior consent of BIOMIN (not to be unreasonably withheld
or delayed); or
2.2.2 replace any components which would result in anincrease
in capacity of the BIOX(R) Plant beyond the design
capacity specified in the Process Design Package
without the prior consent of BIOMIN (not to be
unreasonably withheld or delayed).
2.3 If BGL desires an extension, expansion or replacement or wishes to
build an entirely new BIOX(R) Plant, for the purpose of processing BGL
Material, whether or not such new BIOX(R) Plant would be based on the
Process Design Package, the parties shall in good faith endeavour to
negotiate a new licensing agreement based on similar terms and
conditions as agreed in this licensing agreement, provided that:
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2.3.1 neither party shall have any liability if such an
agreement cannot be successfully negotiated for
whatever reason;
2.3.2 if the parties are unable to reach agreement on such
extension, expansion, replacement or new BIOX(R) Plant,
BGL shall not commence construction thereof.
2.4 Should BGL wish to use the BIOX(R) Process at the BIOX(R) Plant to
treat material other than BGL Material on a toll basis for a third
party, or treat material other than BGL Material for BGL itself, then
such material shall be tested by both parties to ensure that it is of
Feedstock Quality as described in Schedule 3. If the material is not
of Feedstock Quality, then the provisions of Clause 10 shall apply. In
addition, BGL shall pay BIOMIN a tolling fee of US$ 1.50 per ounce of
gold sold containing material other than BGL Material which has been
treated at the BIOX(R) Plant.
2.5 BIOMIN undertakes to cause BGL to be entered as a registered user of
the registered "BIOX(R)" trade xxxx in respect of the BIOX(R) Plant,
for the duration of this Agreement.
2.6 The registered user agreement being entered into pursuant to Clause
2.5 shall include terms providing for the automatic cancellation of
such agreement upon termination of this Agreement.
2.7 Subject to clause 18.1, BGL shall not, during the term of this
Agreement or at any time thereafter without the prior consent of
BIOMIN, in any country whatsoever:
2.7.1 assign or otherwise provide to any third party a
sublicense, grant, or use of any right granted to BGL
herein;
2.7.2 apply to patent the BIOX(R) Process or the bacterial
strain used in the BIOX(R) Process or to register the
term BIOX(R) as a trade xxxx;
2.7.3 attack the validity of the patents granted in respect
of the BIOX(R) Process or the registration of the trade
xxxx BIOX(R) or BIOMIN's common law rights in and to the
trade xxxx BIOX(R) and the BIOX(R) Process.
2.7.4 attack BIOMIN's title to the patents granted in respect
of the BIOX(R) Process, or any of its registered and
common law rights to the BIOX(R) Process.
2.8 BGL shall use the term "BIOX(R)" whenever it makes written reference ,
and the term "BIOX(R)" wherever it makes oral reference, to the
BIOX(R) Process or the BIOX(R) Plant and shall not use any other
trademark, term, name or description in relation to the BIOX(R)
Process or BIOX(R) Plant.
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2.9 Upon termination of this Agreement, BGL shall join with BIOMIN in any
application which may be necessary to cancel the registration, if any,
of BGL as a registered user in respect of the BIOX(R) trade xxxx.
2.10 For the purpose of Clause 2.9, BGL shall, simultaneously with this
Agreement, execute a Power of Attorney in favour of BIOMIN,
substantially in the form of Part A of Schedule 7.
2.11 The licence granted to BGL pursuant to Clause 2.1 and this Agreement
shall not include the right to grant any sub-license to any person or
entity.
3. TERM
3.1 This Agreement shall commence on the Effective Date and shall continue
until terminated:
3.1.1 by unanimous agreement of the parties;
3.1.2 pursuant to Clauses 6.9 or 11.1 or 15.3;
3.1.3 upon written notice to BGL from BIOMIN if construction
of the BIOX(R) Plant shall not have been completed on
or before a date two years after the Effective Date;
3.1.4 upon written notice to BGL from BIOMIN if,following
its construction, the BIOX(R) Plant is not operated to
process BGL Material for any continuous period of at
least twelve months,
whichever is the earliest.
3.2 The termination of this Agreement shall not in any way affect the
parties' respective continuing obligations in terms of the
Confidentiality Deed attached hereto as Schedule 2 or any covenants
signed pursuant to the Confidentiality Deed or any confidentiality
undertakings which have been signed by third parties pursuant to this
Agreement.
3.3 BGL undertakes to notify BIOMIN in writing where possible of any
intended permanent or temporary cessation of operations scheduled to
last for more than a quarter at the BIOX(R) Plant and the anticipated
dates thereof as well as the date of resumption of any operations.
4. IMPROVEMENTS AND DEVELOPMENTS
4.1 BGL shall promptly disclose in writing to BIOMIN all inventions,
improvements and developments made by its employees contractors or
agents of which it is aware in respect of the BIOX(R) Process or the
BIOX(R) Plant.
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4.2 All such inventions, improvements or developments, whether patentable
or not, shall belong to BIOMIN and BGL shall, at BIOMIN's reasonable
request and cost, procure the signing of all documents and the
performance of all acts which may be necessary to prove BIOMIN's title
thereto and to enable BIOMIN to apply for and obtain patent or other
protection in respect thereof throughout the world.
4.3 BIOMIN shall inform BGL of all inventions, improvements and
developments in respect of the BIOX(R) Process in which it obtains
proprietary rights after the Effective Date.
4.4 Any information disclosed in terms of Clause 4.1 shall, after such
disclosure, and any inventions, improvements and developments referred
to in Clause 4.3 shall, be included in the definition of the "BIOX(R)
Process" for purposes of this Agreement.
4.5 BGL shall be entitled to use all inventions, improvements or
developments referred to in Clauses 4.1, 4.2 and 4.3 pursuant to the
terms of this Agreement and no additional consideration shall be
payable to BIOMIN in respect of such use.
5. LICENCE FEE
5.1 In consideration for the grant of the rights referred to in Clause
2.1, BGL shall pay to BIOMIN in cash or by telegraphic transfer to a
bank account designated by BIOMIN, and without deduction or set-off, a
licence fee equal to 10 % (ten per centum) of the Deemed Capital Cost
of the BIOX(R) Plant.
5.2 The amount due to BIOMIN in terms of Clause 5.1 shall be payable in
installments, as follows:
5.2.1 25 % of the fee upon notification of a decision by
BGL to proceed with the construction of a BIOX(R) Plant
at the Bogoso Mine;
5.2.2 25 % of the fee on the Date of Commencement of
Operations;
5.2.3 50 % of the fee after completion of a Performance Test
as per Schedule 5 demonstrating the achievement of
the operational parameters set out in Schedule 4, or
twelve (12) months after the Date of Commencement of
Operations, if through no fault of its own,BIOMIN cannot
complete a Performance Test within twelve months after
the Date of Commencement of Operations, whichever date
occurs first.
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5.3 Each installment payable in terms of Clause 5.2 shall be paid in
accordance with Clauses 21.4 and 21.12.
5.4 The Deemed Capital Cost referred to in Clause 5.1 shall be US$
15,000,000 (Fifteen Million Dollars).
6. CONSTRUCTION OF PLANT
6.1 It is hereby recorded that BIOMIN provided BGL with a Process Design
Package for the construction of the BIOX(R) Plant at the Bogoso Mine
on 3 April 2001.
6.2 After execution of this Agreement, BGL shall design, erect and
commission the BIOX(R) Plant in accordance with the Process Design
Package within a period of 60 (sixty) months after the date referred
to in Clause 6.1.
6.3 It is recorded that BGL will appoint one or more contractors ("the
Approved Contractors") for the engineering, design and construction of
the BIOX(R) Plant, which appointment shall be subject to the written
approval of BIOMIN, provided that such approval shall not unreasonably
be withheld or delayed for more than fifteen days after notice of
appointment is given by BGL to BOMIN. Approval of BIOMIN shall not be
required for any of Minproc, MDM, Xxxxxxx or Lycopodium to be an
Approved Contractor.
6.4 BIOMIN shall:
6.4.1 within one month of a request by BGL, supply
metallurgical and process engineering consultancy
services as required by BGL to BGL during the
construction and commissioning of the BIOX(R) Plant;
6.4.2 within two weeks of submission by BGL, consider and,
if deemed fit, verify final process engineering design
drawings pertaining to the BIOX(R) Plant (provided
that BGL shall give BIGMIN at least one month's notice
of the intended submission).
6.5 BGL shall not allow any person access to the Process Design Package if
such person has not entered into a Confidentiality Covenant
substantially in the form of Schedule 2.
6.6 BIOMIN shall be compensated by BGL for any services rendered pursuant
to Clause 6.4 in terms of the rates set out in Schedules 6 and 8, plus
Ancillary Costs.
6.7 BGL shall provide, at no charge to BIOMIN, food, accommodation and
transport for no more than four people at a time as may be reasonably
available at the Bogoso Mine for any of BIOMIN's accredited
representatives or employees rendering services as contemplated in
Clauses 6.4, 7 and 8.
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6.8 Subject to Clause 6.10, BGL shall not commence construction of the
BIOX(R) Plant unless and until it has received BIOMIN's written
approval of the final process engineering plans in respect of such
Plant, such approval not to be unreasonably withheld or delayed beyond
the timeframe mentioned in Clause 6.4.2. Construction of the BIOX(R)
Plant shall be only in accordance with the plans as so approved.
6.9 If BIOMIN has not approved such plans and design within a period 60
(sixty) months after the Effective Date through no fault of its own,
then BIOMIN may, at its sole option and discretion, at any time
thereafter:
6.9.1 terminate this Agreement by 7 (seven) days' written
notice to BGL; or
6.9.2 extend such 60 (sixty) month period for such further
period which it may, in its discretion, determine.
6.10 If BIOMIN has not approved such plans and design within a period of
30(thirty) days after submission by BGL, then BGL may give notice to
BIOMIN stating that it will commence construction of the BIOX(R) Plant
after a further period of 15 (fifteen) days and if BIOMIN has not
approved such plans and design within such period of 15 (fifteen)
days, then BGL may commence construction of the BIOX(R) Plant.
6.11 BGL shall allow BIOMIN to conduct regular inspections of and general
supervision over the planning, process design and construction of the
BIOX(R) Plant during normal business hours of BGL and with at least
two weeks' prior written notice without any undue interference from
BGL or its contractors and provided that such inspections and
supervision do not unduly interfere with such planning, process design
and construction.
6.12 Without the prior written consent of BIOMIN, BGL shall install only
new equipment in the BIOX(R) Plant, which consent may be withheld by
BIOMIN in its sole discretion.
6.13 BGL shall, at its own cost, solely be responsible to obtain all
approvals, consents and permits (if any) which may be necessary to
enable it to construct the BIOX(R) Plant.
6.14 Notwithstanding any other provision in this Agreement, the engineering
(other than process engineering), design, construction and operation
of the BIOX(R) Plant, including all costs thereof and risks relating
thereto or arising therefrom, shall be the sole responsibility of BGL
and no approval or verification thereof by BIOMIN shall render BIOMIN
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liable for any defects, faults, shortcomings or any other problems or
injuries including, without limitation, personal injury or death, in
respect of, relating to or arising out of the BIOX(R) Plant or
implementation of any aspect of this Agreement without prejudice to
BIOMIN's liability under Clause 13.2 and Schedule 4.
7. COMMISSIONING OF PLANT
7.1 As soon as practical after the approval by BIOMIN of the final process
engineering and design drawings, BIOMIN shall, at BGL's request and
cost, assist in and supervise the Inoculum build-up at the BIOX(R)
Plant.
7.2 As soon as is reasonably practicable after the Date of Commencement of
Operations, Performance Tests will be carried out in the presence of
designated representatives of both parties in accordance with the
procedures set out in Schedules 4 and 5 to determine whether the
operational parameters as set out in Schedule 4 can be met.
7.3 The said operational parameters will be deemed as having been met:
7.3.1 on agreement between the designated representatives of
the parties after mutual observation and consideration
of day to day operating data; or
7.3.2 on successful completion of a Performance Test; or
7.3.3 12 (twelve) months after the Date of Commencement of
Operations if the Performance Test has not been
completed successfully as a result of the matters
mentioned in Clauses 7.4.1, 7.4.2 or 7.4.3.,
whichever occurs first.
7.4 If the said operational parameters are not met during the Performance
Test for reasons other than that:
7.4.1 the plant inputs are not of Feedstock Quality as
described in Schedule 3; or
7.4.2 the BIOX(R) Plant is not supplied uniformly at the
design rate;
7.4.3 or the BIOX(R) Plant has not been constructed in
accordance with the engineering design drawings,
verified by BIOMIN;
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then up to 100% (one hundred per centum) of the licence fee stipulated
in Clause 5.1 shall, to the extent necessary to cause the operational
parameters to be met, be applied by BIOMIN to supply services
specified in Schedule 6.
7.5 During the commissioning of the BIOX(R) Plant, BIOMIN shall, at the
request and cost of BGL, render metallurgical assistance to BGL until
the Date of Commencement of Operations. The aforesaid costs shall be
charged at the rates set out in Schedule 6, plus Ancillary Costs.
8. OPERATIONAL SUPPORT AND TRAINING
8.1 As soon as practical but no later than four months after the
commencement of the construction of the BIOX(R) Plant, BIOMIN shall
supply BGL with four (4) copies of the Manuals.
8.2 BGL shall use reasonable endeavours to operate the BIOX(R) Plant in
accordance with the procedures set out in the Manuals, as revised by
BIOMIN from time to time (provided that such revisions do not
adversely affect the efficiency of the operation of the BIOX(R)
Plant).
8.3 The Manuals and all documentation relating to the BIOX(R) Process are
the proprietary materials of BIOMIN. Prior to distribution of the
Manuals or such documentation, BGL shall cause all personnel likely to
have access to copies of the Manuals or such documentation, to execute
a covenant substantially in the form of Annexure 2 to Schedule 2. BGL
shall at its cost duly stamp the originals of such covenants and
thereafter keep them in safe custody and forward a copy of each
covenant to BIOMIN upon its signature.
8.4 Neither BGL nor any of its employees, consultants, agents or
contractors shall copy any Manual or documentation relating to the
BIOX(R) Process or any part thereof without BIOMIN's prior written
consent, not to be unreasonably withheld or delayed.
8.5 During commissioning of the BIOX(R) Plant, BIOMIN shall at BGL's
request and cost, provide operator training to BGL's personnel. The
aforesaid costs shall be charged at the rates set out in Schedule 6,
plus Ancillary Costs.
8.6 For a period of 5 (five) years commencing on the Performance
Acceptance Date, BIOMIN shall, at BGL's request and cost, provide
on-going technical support in respect of the BIOX(R) Plant, provided
such support shall not exceed twenty (20) man days per year. The costs
to be charged in respect of such support shall be at the rates set out
in Schedule 6, plus Ancillary Costs.
8.7 Throughout the term of this Agreement, BIOMIN shall procure that
reasonable endeavours are made to answer as promptly as possible all
reasonable enquiries made by BGL in respect of the use of the BIOX(R)
Process at the BIOX(R) Plant.
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9. GENERAL OBLIGATIONS OF BOTH PARTIES
9.1 BGL shall disclose to BIOMIN and give BIOMIN and its respective
employees, agents and representatives access to all information,
books, statements, vouchers and records relating to the operating
performance of the BIOX(R) Plant as is reasonably required to enable
BIOMIN to verify the performance by BGL of its obligations under this
Agreement or so as to enable BIOMIN to fulfil its obligations under
this Agreement. The information disclosed to BIOMIN shall be kept
strictly confidential by BIOMIN and shall be used only for the
purposes of verifying the performance by BGL of its obligations under
this Agreement or enabling BIOMIN to fulfil its obligations under this
Agreement.
9.2 BIOMIN, its employees or its accredited representatives may visit and
inspect the Bogoso Mine and the BIOX(R) Plant from time to time during
ordinary business hours and on at least two weeks' prior written
notice to monitor and verify the fulfillment by BGL of its obligations
under this Agreement, inter alia regarding the use of the BIOX(R)
Process by BGL, provided that such visits and inspections do not cause
unreasonable interference with the operations of BGL or the BIOX(R)
Plant.
9.3 Both parties shall be allowed to invite visitors to the BIOX(R) Plant
who are not employees or accredited representatives of either party
provided that:
9.3.1 if the visitor is an employee or representative of a
gold mine operator or research institute, then
BIOMIN shall be given reasonable notice of such visit
and BGL shall comply with BIOMIN's reasonable
instructions in relation to such visit;
9.3.2 such visits take place during ordinary business hours
of BGL (and, in the case of visitors invited by BIOMIN,
on at least two weeks' prior written notice) and do
not cause unreasonable interference with its operations
or those of the BIOX(R) Plant;
9.3.3 such visitors are not employed by, or associated in any
way with a Competitive Supplier, and provided further
that such visitors are not Competitive Suppliers
themselves.
10. CONCENTRATE NOT OF FEEDSTOCK QUALITY
The parties acknowledge that the BIOX(R) Plant was designed to process BGL
Material of Feedstock Quality as described in Schedule 3. BGL further
15
acknowledges that the processing of any other material shall, to the extent
permitted by this Agreement, be at the sole risk and expense of BGL.
11. BREACH
11.1 If a party is in material breach of its obligations under this
Agreement, the non-defaulting party may give notice in writing to the
defaulting party specifying the default and requiring that it be
remedied forthwith. If, with respect to a default relating to the
payment of money, such default has not been remedied within ten (10)
days after service of such notice, the non-defaulting party may,
without prejudice to any other remedies it may have at law or in
equity, terminate this Agreement forthwith by notice in writing to the
defaulting party. If, with respect to a non-monetary default, such
default has not been remedied within sixty (60) days after service of
such notice or, in the case of a non-monetary default that cannot be
completely remedied within sixty (60) days, the defaulting party has
not diligently started to remedy the same within sixty (60) days after
service of notice and thereafter succeeded within a reasonable time
thereafter in completing such remedy, the non-defaulting party may,
without prejudice to any other remedies it may have at law or in
equity, terminate this Agreement forthwith by notice in writing to the
defaulting party.
11.2 Without in any way limiting the provisions of Clause 11.1 and the
meaning of the term "material breach" as used in Clause 11.1, the
parties agree that it shall be regarded as a material breach of this
Agreement if a provisional or final winding-up or liquidation order is
issued in respect of a party or if a party becomes insolvent, files a
petition in bankruptcy, makes an arrangement for the benefit of
creditors or has a receiver appointed to manage its affairs, whether
provisionally or finally.
12. TERMINATION OF AGREEMENT AND DISMANTLING OF PLANT
12.1 Upon termination of this Agreement, howsoever such termination may
arise, BGL shall forthwith:
12.1.1 cease to use the BIOX(R) Process and BIOX(R) trade xxxx;
12.1.2 de-commission the BIOX(R) Plant;
12.1.3 dismantle the BIOX(R) Proprietary Items and destroy or
dispose of them in accordance with BIOMIN's instructions
provided that such instructions do not result in
additional cost to BGL; and
12.1.4 return all Manuals, all other documentation relating
to the BIOX(R) Process and all copies thereof to BIOMIN.
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12.2 BGL shall not sell the BIOX(R) Plant as a whole unit but may sell
individual components of the BIOX(R) Plant for use in other plants
provided such plants are not bacterial oxidation based processing
plants, and provided further that BGL shall not sell any of the
BIOX(R) Proprietary Items.
12.3 Upon termination of this Agreement, and without prejudice to any other
rights which the parties may have at law or in equity:
12.3.1 BIOMIN shall retain all payments made by BGL prior to
such termination, as consideration for the performance
by BIOMIN of its obligations prior to such termination
12.3.2 BGL shall remain liable for all license fees, service
fees and other payments that have become payable under
this Agreement prior to the date of termination.
12.4 Under no circumstances shall BIOMIN's liability to BGL for breach of
this Agreement exceed the amount of payments actually received by
BIOMIN from BGL pursuant to Clause 5.1.
13. EXCLUSION OF WARRANTIES
13.1 To the best of BIOMIN's knowledge and belief the BIOX(R) Process will
not infringe any patent, trade xxxx or other proprietary right of any
other person. BIOMIN warrants that it is the sole and beneficial owner
of the trade xxxx BIOX(R) in Ghana and that to the best of its
knowledge, information and belief use of the trademark BIOX(R) by BGL
in relation to the BIOX(R) Process will not infringe the intellectual
property rights of any third party.
13.2 If the use of the BIOX(R) Process by BGL results in any claim against
BGL or any of its Affiliates, or their respective officers, directors
or employees for any infringement of any patent, trade xxxx, design or
any other proprietary right (save for any claim by BIOMIN), then:
13.2.1 if, as a result of any legal action, BGL is prevented
from using the BIOX(R) Process unless a licence fee is
paid by it to the plaintiff or claimant in such action,
then:
13.2.1.1 BIOMIN shall use its best endeavours to alter
the BIOX(R) Process at its cost to avoid
any further infringements of the rights of
such plaintiff or claimant (and BGL shall
give BIOMIN reasonable assistance with such
alterations); or
13.2.1.2 if such alterations prove to be impossible
or impractical, BIOMIN shall pay such licence
fee to such plaintiff or claimant (subject to
the provisions of Clause 12.4), provided that
BGL shall assign any rights of recovery of
such licence fee to BIOMIN (up the amount
actually paid by BIOMIN).
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13.2.2 Subject to the provisions of Clause 12.4, BIOMIN
shall indemnify and hold harmless BGL and its
Affiliates and their respective officers, directors and
employees against 50% of such claim (other than a claim
for a licence fee as set out in Clause 13.2.1 above),
including, without limitation reasonable lawyers' fees
and costs of litigation which may be incurred by them or
for which they may become liable in respect of or
arising out of the defence, settlement or compounding
of any such claim or any judgement ordered against them
in respect of any such claim or costs.
13.3 BGL shall inform BIOMIN of any claim against it referred to in Clause
13.2 and, without prejudice to the validity of any such claim or the
liability of BIOMIN, BGL:
13.3.1 shall not make any admission of liability, agreement
settlement, or compromise or otherwise take any action
in relation thereto without the prior written consent
of BIOMIN, which shall not be unreasonably withheld or
delayed;
13.3.2 shall (if BIOMIN so directs) allow BIOMIN and its
professional advisers to investigate the matter or
circumstance alleged to give rise to the claim and BGL
shall give all such assistance in making such
investigations as BIOMIN may reasonably request,
including upon reasonable notice and in normal business
hours access to (and copies of) any documents or any
other information in the possession of BGL and to all
employees or officers having any responsibility for the
matter giving rise to the claim;
13.3.3 shall (if BIOMIN so directs) at all times permit BIOMIN
to take conduct of the claim, subject always to BGL
first being indemnified to its reasonable satisfaction
by BIOMIN against any losses, costs or expenses which it
may thereby incur.
13.4 Save as provided for in this Agreement, BIOMIN shall be exempted from
and shall not be liable under any circumstances whatsoever for any
loss of profits, loss of revenue or any indirect or consequential
damages of any nature, whether in the contemplation of the parties or
not, which BGL or any other person may suffer or incur, arising out of
or in connection with, any act or omission, whether negligent or not,
of BIOMIN, its employees, sub-contractors or agents.
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13.5 Except as expressly set forth in this Agreement to the contrary, BGL
shall indemnify and hold harmless BIOMIN and its Affiliates and their
respective officers, directors and employees from and against any
losses, costs, expenses, liabilities, obligations, claims and actions,
including without limitation reasonable lawyers' fees and costs of
litigation, which they or any of them may incur or become subject to
as a result of or arising out of BGL's use of the BIOX(R) Process or
the construction, operation, maintenance, repair, dismantling or
reclamation of the BIOX(R) Plant or the property on which it is
situated or any implementation of this Agreement, save where such
losses, costs, expenses, liabilities, obligations, claims and/or
actions are attributable to the fault and/or negligence of BIOMIN
and/or its Affiliates and/or their respective officers, directors,
employees, shareholders, agents, representatives or subcontractors.
13.6 BIOMIN shall inform BGL of any claim against it referred to in Clause
13.5 and, without prejudice to the validity of any such claim or the
liability of BGL, BIOMIN:
13.6.1 shall not make any admission of liability, agreement,
settlement or compromise or otherwise take any action in
relation thereto without the prior written consent of
BGL,which shall not be unreasonably withheld or delayed;
13.6.2 shall (if BGL so directs) allow BGL and its professional
advisers to investigate the matter or circumstance
alleged to give rise to the claim and BIOMIN shall give
all such assistance in making such investigations as
BGL may reasonably request, including upon reasonable
notice and in normal business hours access to (and
copies of) any documents or other information in the
possession of BIOMIN and to all employees or officers
having any responsibility for the matter giving rise to
the claim;
13.6.3 shall (if BGL so directs) at all times permit BGL to
take conduct of the claim, subject always to BIOMIN
first being indemnified to its reasonable satisfaction
by BGL against any losses, costs or expenses which it
may thereby incur.
13.7 Except as expressly set forth in this agreement to the contrary,
BIOMIN makes no representations, warranties or covenants whatsoever,
express or implied, including without limitation with respect to any
services, designs, documents, Inoculum or other material to be
provided by it pursuant to this Agreement and BIOMIN expressly
disclaims any such representations, warranties or covenants and any
and all warranties of merchantability or fitness for a particular
purpose.
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14. CONFIDENTIALITY
14.1 BGL undertakes:
14.1.1 that simultaneously with the signature of this
Agreement, it will sign the Confidentiality Deed in the
form of Schedule 2;
14.1.2 that any confidential information as defined in the
said confidentiality agreement (hereafter "Confidential
Information") will be used by it solely for the purposes
of this Agreement and not otherwise;
14.1.3 where disclosure is made by it to any third party for
the purposes of this Agreement, it shall promptly
advise BIOMIN thereof in writing and ensure that the
third party is under an obligation of
confidentiality to it in respect of any Confidential
Information so disclosed and shall ensure that no more
Confidential Information is disclosed than is necessary
in the relevant circumstances;
14.1.4 that the Confidential Information will be restricted to
such of its directors and employees as must necessarily
have access to the same for the performance of their
duties in connection with this Agreement and BGL agrees
to take reasonable steps to ensure that such directors
and employees are required to maintain the same
confidence and do not disclose to any third party the
Confidential Information; and
14.1.5 that no BIOX(R) Proprietary Items will be shown to
any employees or representatives of gold mine operators
or research institutes or sold to any person unless the
identity of such person and the terms and conditions
relating to the same have been first approved of in
writing by BIOMIN;
and BGL agrees that its obligations under this Clause 14 shall
continue throughout the term of this Agreement and for a period of
fifteen (15) years thereafter.
14.2 In any dispute between the parties the burden of proving that any
information is not Confidential Information shall rest on BGL.
14.3 BGL shall ensure that the Approved Contractor on the termination or
expiration of its contract returns to BGL all Confidential Information
disclosed in writing to such contractor, all tender documents and all
other contractual documents together with any copies thereof which are
in existence.
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14.4 Where pursuant to this Agreement a third party is required to enter
into a covenant pursuant to a Confidentiality Deed, BGL shall execute
such covenant as attorney for BIOMIN pursuant to the Power of Attorney
granted to BGL in substantially the form of Part B of Schedule 7 and
shall forward to BIOMIN a copy of each covenant executed pursuant to
such Power.
14.5 BGL shall ensure that all such covenants and Confidentiality Deeds are
duly and properly acknowledged and notarised and shall be responsible
for the costs of these. Where such covenant is entered into, BGL shall
use reasonable endeavours where practical and to the extent within its
power to procure that each party signing such covenant shall perform
its obligations in terms of that covenant.
15. FORCE MAJEURE
15.1 If any party is prevented, hindered or delayed from performing any of
its obligations under this Agreement (other than an obligation to pay
money) by any Event of Force Majeure then so long as that situation
continues that party shall be excused from the performance of such
obligation to the extent that it is so prevented, hindered or delayed
and the time for performance of such obligations shall be extended
accordingly.
15.2 A party affected by an Event of Force Majeure shall forthwith notify
the other party of its occurrence and shall take reasonable steps
within its power to minimise the effect of such Event of Force Majeure
or to bring it to an end.
15.3 Should such Event of Force Majeure endure for a period of longer than
six (6) months, the party that is not relying upon it shall be
entitled to terminate this Agreement on notice to the other party.
16. WARRANTY OF AUTHORITY
16.1 BGL hereby warrants that it is duly authorised to enter into, perform
and be bound by the provisions of this Agreement.
16.2 BIOMIN hereby warrants that it is duly authorised to enter into,
perform and be bound by the provisions of this Agreement.
16.3 BGL warrants that BGL Material of Feedstock Quality as described in
Schedule 3 is available at its Bogoso and Prestea Mines for processing
through the BIOX(R) Plant during commissioning thereof and for the
completion of the Performance Test.
17. RELATIONSHIP OF PARTIES
17.1 This Agreement does not in any way constitute BIOMIN as guarantor or
surety of BGL and BIOMIN shall not be obliged to accept responsibility
for any acts or omissions of BGL or for any liabilities incurred by
21
BGL or for any failure by BGL successfully to render any services or
in respect of any claims of whatever nature which may be made against
BGL, except as otherwise stated in this Agreement.
17.2 Nothing contained in this Agreement shall be construed or is intended
to constitute a party as an agent or representative of any other party
or to create any partnership, trust or mining or commercial
partnership or new or separate taxable legal entity for any purpose
whatsoever, it being expressly understood that each party is
exercising, protecting and developing its own interests. Nothing in
this Agreement shall be construed as making BIOMIN an owner or
operator of the BIOX(R) Plant or any other facility on the Bogoso
Mine.
18. ASSIGNMENT
18.1 No party may assign or transfer any of its rights and interests under
this Agreement to any third party unless and until it has obtained the
written consent of the other party, which consent will not be withheld
or delayed unreasonably, provided that no consent will be required for
the assignment and/or transfer by BGL of its rights and interests
under this Agreement
18.1.1 by way of security to a financier of its operations,
to the financier on enforcement of such security or by
such financier to a third party following enforcement of
such security; or
18.1.2 to a third party or third parties acquiring any of the
Bogoso, Prestea, Obuom, Mansiso or Asikuma Mines from
BGL or to a third party or third parties acquiring BGL's
business generally (unless such third party is a
Competitive Supplier), or a portion of its business, or
to a third party merging with BGL; or
18.1.3 to an Affiliate.
18.2 Notwithstanding Clause 18.1, BIOMIN shall be entitled to appoint such
contractors and sub-contractors as it may, in its sole discretion,
deem fit to perform on behalf of BIOMIN its obligations under this
Agreement, provided that BIOMIN shall remain liable for the
performance of such obligations.
19. PROTECTION OF PROCESS
19.1 During the term of this Agreement and for a period of five years
thereafter, BGL shall not directly or indirectly engage in any tank
bacterial process for the processing of gold bearing minerals. BGL
shall use reasonable endeavours to ensure that none of its Affiliates
22
engage in such activity. Nothing in Clause 19.1 prevents or limits BGL
or its Affiliates from entering into, or being party to, an agreement
with a third party concerning the licensing of intellectual property
rights or processes similar to the BIOX(R) Process where such licence
or agreement does not infringe the intellectual property rights of
BIOMIN.
19.2 BGL shall forthwith advise BIOMIN in writing of any claim, assertion,
action or proceeding, actual or threatened which comes to its
attention whereby:
19.2.1 any of BIOMIN's rights pertaining to the BIOX(R) Process
or the BIOX(R) trade xxxx or patent to be granted are
infringed; or
19.2.2 any such rights are attacked; or
19.2.3 BGL is itself threatened with infringement of any
proprietary rights of a third party due to its use of
the BIOX(R) Process.
19.3 BIOMIN shall be entitled to institute or defend any proceedings of the
kind referred to in Clause 19.2 and BGL shall provide all such
assistance and co-operation to BIOMIN as may reasonably be required
for the purpose of such proceedings.
19.4 BGL shall not allow any person, other than either party's employees,
approved contractors or their employees, access to the BIOX(R) Plant
or the BIOX(R) Process unless it is in full operation and unless the
provisions of Clause 9.3 are complied with.
19.5 BGL shall not dispose of any of the Inoculum to any person for any
purpose whatsoever without the prior written consent of BIOMIN.
20. NOTICES
20.1 All notices and other communications required or permitted to be given
under this Agreement shall be in writing in the English language,
shall be addressed to the address of the applicable party as set out
in the heading of this Agreement or at such other address as any such
party may have submitted therefor by notice to the other party, and
shall be either delivered personally or by international courier
service or sent by facsimile communication.
20.2 Notices shall be deemed to be received on the day of actual receipt if
received between the hours of 09h00 and 15h00 at the place of receipt
on a Business Day, or otherwise on the next following Business Day, at
the place of receipt.
The addressee, when requested by the sender, shall promptly provide
the sender with a facsimile or courier acknowledgement of the receipt,
23
but the delay or failure to give or receive any such acknowledgement
will not affect the validity of the notice in respect of which it is
sought.
21. MISCELLANEOUS
21.1 Variation
No variations, modifications or waiver of any provisions in this
Agreement, nor consent to any departure by any party from such
provision, shall be of any effect unless the same shall be in writing
and signed by both parties (or, in the case of a waiver, by the party
giving it); and then such variation, modification, waiver or consent
shall be effective only to the extent to or for which it may be made
or given.
21.2 Waivers
No failure, delay, relaxation or indulgence on the part of any party
in exercising any power or right conferred upon it by the terms of
this Agreement shall operate as a waiver of such power or right nor
any single failure to do so, preclude any other or future exercise
thereof, or the exercise of any other power or right under this
Agreement.
21.3 Rights of Third Parties Act
The English Contracts (Rights of Third Parties) Act 1999 shall not
apply to this Agreement save so as to confer rights on the third
parties mentioned in Clauses 13.2 and 13.5. However, the consent of
such third parties shall not be required for the modification or
amendment of this Agreement.
21.4 Payments
21.4.1 Except where otherwise expressly stipulated, any sum of
money to be paid to or tendered by a party shall only
be validly and effectively paid or tendered if such
payment is given or delivered or made in Dollars or by
bank cheque or by that party's cheque in Dollars or in
such other currency or in such other form as may be
agreed.
21.4.2 All amounts of money payable as stipulated in this
Agreement shall be paid without deduction or set-off in
respect of banking charges, duties or levies,
withholding taxes or any other currency transfer
charges.
21.4.3 All monies payable by BGL in terms of this Agreement
shall, except for payment in terms of Clause 5.1. and
Clause 5.2 (which are due on the dates specified in
such clauses) or where a date for payment has been
stipulated herein, be paid within thirty (30) days of
BIOMIN furnishing an invoice therefor to BGL.
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21.5 Proper Law
This Agreement shall be governed by and construed in accordance with
the laws of England. The parties agree that the choice of English law
is both reasonable and appropriate, particularly in view of the
international nature of this transaction, the different material
domiciles of the parties, the status of England as a centre of
international commerce, the well developed, refined and understood
nature of English law and the parties' familiarity and comfort
therewith.
21.6 Arbitration of Disputes
In the event of any dispute between the parties arising out of or in
connection with this Agreement either party may give to the other
written notice identifying the dispute and, after the expiry of
fourteen (14) days from the giving of that notice, that dispute
(unless settled) shall be referred to arbitration in accordance with
the rules of the London Court of International Arbitration.. The
arbitration shall be held before one arbitrator in London, England and
be conducted in the English language. The costs of the arbitration,
including without limitation the fees of the arbitrator, shall be paid
by the party that does not prevail in the arbitration (as determined
by the arbitrator). The decision of the arbitrator shall be final,
binding, enforceable and non-appealable and may be entered as a
judgement in any court or records. Provided that nothing contained in
this Agreement shall be construed as limiting the ability of either
party from applying to any court of competent jurisdiction for relief
of an urgent or interim nature, the parties agree that all disputes
arising out of or in connection with this Agreement shall be resolved,
if not by negotiation, solely by arbitration pursuant to this Clause
21.6.
21.7 Severability
If:
21.7.1 any part of this Agreement is void, voidable, illegal
or unenforceable; or
21.7.2 this Agreement would be void, voidable, illegal
or unenforceable unless any part of this Agreement was
severed from the Agreement,
that part shall be severed from and shall not affect the continued
operation of the rest of this Agreement unless to do so would change
the underlying commercial purpose of this Agreement.
21.8 Costs
Subject to any express provision to the contrary elsewhere in this
Agreement contained, each party shall bear its own costs (including
25
without limitation lawyers' fees) of and incidental to the
preparation, negotiation and execution of this Agreement and the
parties shall share equally any liability for stamp duty, and all
similar duties, taxes and other imposts and registration fees assessed
hereof, or any document created under the Agreement, in respect of the
transaction evidenced in whole or in part by it or in respect of the
performance by the parties of their obligations under it.
21.9 Successors Bound
This Agreement shall be binding upon the parties and their respective
successors and permitted assigns and shall incur to their benefit.
21.10 Entire Agreement
This Agreement constitutes the only and entire agreement between the
parties relating in any way to the subject matter hereof (except for
the Testwork Agreement) and no oral or written warranties,
representations, guarantees or other term or conditions of any nature
not contained in this Agreement, including the schedules hereto, shall
be of any force unless they have been contained in the Testwork
Agreement).
21.11 Interest
If any party shall neglect or fail to pay any amount due and payable
under this Agreement then the amount so due shall as from the date on
which such amount was due bear interest in favour of the party to whom
the money is owed at a rate per annum which is two percentage points
greater than the average LIBOR Dollar six (6) month rate from time to
time.
IN WITNESS WHEREOF and intending to be legally bound, the parties have
executed this Agreement effective as of the Effective Date.
For: BIOMIN TECHNOLOGIES S.A.
--------------------------------
Signatory:
Capacity:
Authority:
26
For: BOGOSO GOLD LIMITED
--------------------------------
Signatory:
Capacity:
Authority:
27
