LICENSE AGREEMENT
BY AND BETWEEN: POLYVALOR, Societe en commandite, hereinafter
represented by its General Partner, Polyvalor inc.,
having its principal place of business at 0000,
Xxxx-Xxxxxxxx Xxxxxx, 0xx floor, Montreal (Quebec);
X0X 0X0;
(hereinafter referred to as "Polyvalor");
AND: XXXXXX UNIVERSITY-THE ROYAL INSTITUTION FOR THE
ADVANCEMENT OF LEARNING, having its place of business
at 0000, Xxxxxxxxxx Xxxxxx, Xxxxxxxx (Xxxxxx), X0X0X0;
(hereinafter referred to as "McGill")
(Polyvalor and McGill being collectively referred to as the "Licensor")
AND: LUMENON INNOVATIVE LIGHTWAVE TECHNOLOGIES INC., having
its place of business at 000, Xxxxxxxx, Xxxxxxxxx
(Xxxxxx), X0X 0X0;
(hereinafter referred to as "Licensee")
WHEREAS Licensor is the owner of valuable Know-How (as hereinafter
defined) relating to integrated optical components for Dense Wavelength Division
Multiplexing ("DWDM") and Plastic Optical Fibre ("POF") devices for
telecommunication, data communications and sensor applications;
WHEREAS Licensor is the owner of Patents (as hereinafter defined);
WHEREAS Licensor wishes to grant unto Licensee and Licensee wishes to
acquire from Licensor an exclusive Patent and Know-How License as to enable
Licensee to produce, sell, distribute and promote Products (as hereinafter
defined) throughout the world (the "Territory").
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND AGREEMENTS
HEREIN CONTAINED, IT IS HEREBY COVENANTED AND AGREED BY AND BETWEEN THE PARTIES
HERETO AS FOLLOWS:
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SECTION I - DEFINITIONS
1.1 In this Agreement,
1.1.1 "Patents" shall mean an Invention of M. Amir Farfad, Xxxx X. Xxxxxxx
and S. Xxxx Xxxxxx entitled "Solvent-assisted lithographic process
using photosensitive sol-gel derived glass for depositing ridge
waveguides on silicon" as more particularly described in a patent
application therefor filed in the Canadian Patent Office on October 10,
1997 under No. 2,218,273 and in the U.S. Patent and Trademark Office on
October 10, 1997 under No.08/948,511 as well as all improvements
referred to in section 5.1 and all patent applications which may be
filed in relation thereto in the Territory and all patents which may
issue therefrom and any continuation, extension, division, revalidation
, reissue or other combination or renewal of same;
1.1.2 "Know-How" shall mean all the present technical knowledge and
accumulated experience acquired by Licensor and its predecessors in
title under the supervision of Xxxx X. Xxxxxxx and/or S. Xxxx Xxxxxx as
a result of research, practical experience or otherwise, in the design,
manufacture, production, and/or use of integrated optical components
for DWDM and POF devices for telecommunication, data communications and
sensor applications including, without limiting the generality of the
foregoing: ideas, unpatented inventions, processes, manufacturing
procedures, methods, designs and data;
1.1.3 "Product" shall mean any product produced, sold or distributed by
Licensee embodying or using the Patents or the Know-How;
1.1.4 "Contract Year" shall mean that period of time commencing on the
Effective Date (as defined in section 10.1) and ending on December
31st, 1999 and any subsequent calendar year.
SECTION II - GRANT OF LICENSE
2.1 Subject only to the license granted to OPS Technology Inc. ("QPS") on
May 4, 1998, Licensor hereby grants unto Licensee, the latter hereby
accepting, the exclusive license to use the Patents and/or the Know-How
to manufacture, produce , sell and distribute Products in the Territory
and for no other purpose.
2.2 For so long as this Agreement shall remain in effect, Licensor
undertakes and agrees that it will not distribute or sell, now will it
grant to any party other than QPS any other right or license to
manufacture, produce, import, distribute, sell or otherwise deal in
Products or parts thereof anywhere in the Territory.
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2.3 However, it is understood that the Licensor and Ecole Polytechnique
shall have the right to use and to allow its students, professors,
staff and other researchers affiliated therewith and those of their
affiliates to use the Patents and Know-How but only for research and
teaching purposes.
2.4 Notwithstanding the above, it is understood that the Patents and
Know-How are licensed on an "as is basis". Except as otherwise
expressly set forth in this Agreement, McGill and Polyvalor make no
representations and extend no warranties of any kind, either expressed
or implied, including but not limited to warranties of merchantability
fitness for any particular purpose and validity of the Patents or the
Know-How.
SECTION III - CONSIDERATION
3.1 As consideration for the entering into of this Agreement and for the
rights granted herein, Licensee undertakes and agrees to:
3.1.1 pay to each of The Office of Technology Transfer of McGill and
Polyvalor a licensing fee of $5,000.00 payable upon signature of this
agreement;
3.1.2 pay to each of McGill and Polyvalor a royalty at the rate of two and
one half percent (2.5%) of Licensee's total gross sales and those of
any sub-licensee to dealers, distributors and users of any products and
services up to cumulative total royalty of $1,750,000 for each of
McGill and Polyvalor;
3.1.3 to issue to each of McGill and Polyvalor or their nominee(s) 750,000
publicly traded common shares of Licensee. However, McGill and
Polyvalor agree that such share will be subject to a hold period of up
to one year. Such hold period shall not be more unfavourable to McGill
and Polyvalor than the one imposed on the other shareholders of
Licensee which have similar shareholdings in Licensee. As long as
Licensor remains the beneficial owner of at least 500,000 common shares
of Licensee. Licensor shall have the right, to have one of its
representatives to be advised of and attend all board meetings as an
observer. If requested by Licensor, Licensee shall cause its
shareholders to appoint Licensor's representative as a director of
Licensee. In the event Licensor appoints a director, Licensee shall
obtain and pay for director liability insurance covering such director.
In addition, Licensor shall have the same rights to subscribe
additional common shares, to receive warrants and options for such
common shares and to be issued convertible debentures or other
securities of Licensee as the principal shareholders, officers and
directors of Licensee.
3.2 As used herein, the term "gross sales" mean the gross amount charged by
Licensee to its customers, less all sales, use or other similar taxes
paid or payable by Licensee in connection with such sales, quantity and
cash discounts actually allowed and credits for returned goods,
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cancelled sales or bad debts. In the event such sales are made to an
entity which is directly or indirectly controlled by Licensee or
related to Licensee in any way, "gross sales" for such sales shall be
deemed to be the gross sales price charged by Licensee for identical
products or services sold in the same period to similar customers not
so related or controlled to or by Licensee. If there are no such other
sales, then the "gross sales" shall be the gross sales price of such
related and/or controlled customers of Licensee to their customers.
3.3 For the purpose of computing when royalties pursuant to the provisions
of section 3.1.2 are due, a "gross sale" shall be deemed to have
occurred on the date on which the Licensee issues, in the ordinary
course of trade, an invoice to a customer with respect to the wares or
services referred to in section 3.1.2.
3.4 For the purposes of this section the term "License" includes any and
all allowed sub- licensees.
3.5 All such royalties shall be paid quarterly within thirty (30) days
after the end of each calendar quarter, and shall be accompanied by a
report reflecting the quantities of Products, produced and sold by
Licensee during each such quarter and such other information as
Licensor may reasonably require to substantiate the royalties due and
payable by Licensee hereunder.
3.6 If the payment of any royalties is delayed for any reason, interest
shall accrue on the unpaid principal amount of such royalties from and
after the date on which the same became due pursuant to this Section at
a rate equal four percent (4%) over the prime rate of interest charged
from time to time by the Laurentian Bank to its most credit-worthy
customers. This shall not be interpreted as giving the Licensee a right
not to pay on time under section 3.5.
3.7 In order that the royalties payable hereunder may be accurately
determined, and the statements provided for hereinabove be verified,
Licensee undertakes and agrees to keep full, clear, accurate and
complete books and records relating to its operations under this
Agreement, to be kept available for at least three (30 years from the
end of the financial year during which a sale was reported to Licensor.
All of the said records and books of Licensee shall be open at all
reasonable times and upon a five (5) day notice during business hours
for inspection and audit by any duly authorized representative or
representatives of Licensor, at the latter's expense, to ascertain the
accuracy of the royalty payments made hereunder by Licensee or claimed
to be due hereunder by Licensor, provided however, that if there shall
have been an error in favour of Licensee in excess of two percent (2%)
in computing royalties for the period audited, all reasonable expenses
in connection with such inspection and audit shall be borne by and paid
for by Licensee.
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3.8 Licensor shall hold strictly confidential and secret, and shall not
disclose and information concerning royalty payments or any information
learned in the course of any inpection or audit of the records and
accounts of Licensee, except as required by law or when it is necessary
for Licensor to reveal such information in order to enforce its rights
pursuant to the provisions of this Agreement.
3.9 Upon the demand of Licensor, but not more than once during any calendar
year, Licensee shall at its expense furnish to Licensor a detailed
statement by an independent Chartered Accountant, attesting to the
royalties due and payable hereunder as of Licensee's last fiscal year
end.
3.10 Receipt or acceptance by Licensor of any statement furnished pursuant
to this Agreement or any sum paid hereunder shall not preclude Licensor
from questioning the correctness thereof at any time during the period
three (3) years from receipt thereof but not thereafter, and in the
event that any mistake is discovered in any such statement or payment,
and Licensee is appraised thereof, Licensee shall immediately rectify
same.
3.11 Licensee shall allocate and pay Licensor all royalties payable
hereunder separately for each country and all required statements to be
provided to Licensor hereunder by Licensee shall be separate and
distinct with respect to each country.
3.12 All monetary amounts stated herein shall refer to the lawful currency
of Canada and all payments to Licensor hereunder shall be in Canadian
dollars based upon the foreign exchange rate existing upon the date of
payment to Licensee.
SECTION IV - MARKETING AND SALES PROMOTIONS
4.1 Licensee shall use its best efforts to develop, manufacture, produce,
promote, sell and distribute the Product in accordance with the terms
and conditions set forth in this Agreement.
SECTION V - DEVELOPMENTS AND IMPROVEMENTS
5.1 If during the term of this Agreement, Licensor shall develop new
improvements and/or additional know-how pertaining to DWDM or POF,
Licensor shall forth with supply Licensee with complete details
thereof. Licensee shall have a period of thirty (30) days from the
receipt of such details to notify Licensor in writing of its intentions
to obtain a license for the use of such improvements and/or Know-how.
Failure to respond shall be deemed a refusal. The parties agree to
negotiate in good faith the terms and conditions of such licence.
Licensor agrees not to disclose such details until the first of: i)
termination of licence
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negotiations or ii) six (6) months have elapsed since the date on which
the details where disclosed to Licensee.
5.2 If during the term of this Agreement, Licensee shall develop
independently new improvements to the Product and/or additional
know-how pertaining to the design, manufacture, production or use of
the Product, Licensee shall supply Licensor with complete details
thereof including details relating to all intellectual property rights
and any other rights relating to same. Licensee shall be the sole owner
of all of the above. Licensor as well as Ecole Polytechnique shall have
a perpetual paid-up non-exclusive license to use such improvements for
the purposes set forth in section 2.3 once adequate patent protection
is filed for.
SECTION VI - PATENTS
6.1 Licensor shall, at the reasonable request of Licensee, diligently file
and prosecute applications for the Patents for the strongest protection
reasonably available, maintain the Patents in force and transmit
promptly to the Licensee a copy of all applications, Patents and
official communications to and from any Patent Office as soon as
received. Licensee shall bear the fees and disbursements for the
preparation, filing, prosecution and maintenance of such applications
and Patents.
6.2 In the event Licensor refuses to file or prosecute a patent application
when requested by Licensee pursuant to section 6.1, intends not to file
or prosecute an application prior to a statutory or other deadline,
intends not to maintain a patent in force when so requested by Licensee
pursuant to Section 6.1 or fails to do any of the above, Licensor must
notify Licensee at least thirty (30) days prior to such deadline, and
Licensee may, in the name of the Licensor, file or prosecute such
application or maintain such Patent.
SECTION VII - INFRINGEMENT
7.1 Licensee agrees to notify Licensor, in writing, of any acts of
infringement or violation of the Patents immediately after any such
acts are brought to its attention or it has otherwise acquired
knowledge thereof. The parties agree to consult with each other as to
how to respond to each infringement or violation of the Patents. If the
parties jointly conclude that legal action should be taken with respect
to such infringement or violation, Licensor and Licensee shall promptly
and diligently prosecute such action. In such event, each shall pay the
following proportion of all costs and expenses and receive the same
proportion of all recoveries and awards with respect to said action:
Licensor: 5%
Licensee: 95%
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7.2 In the event Licensee advises Licensor that it will not participate in
such legal action, the Licensor shall be free to prosecute such action
as Licensor may deem advisable and in that connection, Licensee shall
assist Licensor in all reasonable ways and at all reasonable times, and
Licensor shall have the right to use the name of Licensee as a party to
the proceedings, either solely or jointly with Licensor's own name,
provided that Licensor shall pay all costs and expenses and in such an
event, Licensor shall be entitled to receive all recoveries and awards
in connection with such proceedings.
7.3 In the event Licensor advises Licensee that it will not participate in
such legal action, the Licensee shall be free to prosecute such action
as Licensee may deem advisable and in that connection, Licensor shall
assist Licensee in all reasonable ways and at all reasonable times, and
Licensee shall have the right to use the name of Licensor as a party to
the proceedings, either solely or jointly with Licensee's own name,
provided that Licensee shall pay all costs and expenses and in such an
event, Licensee shall be entitled to receive all recoveries and awards
in connection with such proceedings.
7.4 In the event that any suit, action, or other proceeding shall be
brought against Licensee involving any claim of patent infringement
based upon Licensee's manufacture and/or use, or sale of any Product:
7.4.1 Licensee shall promptly send to Licensor a copy of all proceedings
which have been served in such suit, action or other proceeding;
7.4.2 in the defence of any such claim, Licensor will cooperate fully with
Licensee, and will, from time to time, make available to Licensee all
relevant records, papers, information, samples, specimens and other
similar material;
7.4.3 should such suit, action or other proceeding relate to any Product
produced, sold or distributed by Licensee or method used by any user
thereof embodying or using the Patents or the Know-How and should
independent patent counsel acceptable to Licensor and to Licensee be of
the opinion that such Product or method constitute a clear infringement
of one or more of the claims mentioned in such suit, action or other
proceeding which has not been settled to the full exoneration of
Licensee six (6) months after the date of service thereof upon the
Licensee, Licensee shall have, as its sole recourse, the right to
terminate this Agreement upon written notice to Licensor.
7.5 Licensee and Licensor agree not to contest the ownership or validity of
the Patents either directly or indirectly in any way whatsoever.
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SECTION VIII - MAINTENANCE OF STANDARDS
8.1 All Products shall be manufactured, sold and advertised in compliance
with all applicable governmental laws, rules and regulations as well as
those of applicable certification agencies such as CSA and UL. Licensee
shall cause truthful and accurate labelling regarding the care,
maintenance and use of the Products, where applicable, to be affixed to
such Products.
SECTION IX - SUB-LICENSE AND ASSIGNMENT
9.1 Licensee shall not sub-license the rights and license granted pursuant
to the terms of this Agreement, except under the following conditions:
9.2 such sub-license shall terminate not later than on the date of
termination of this Agreement, whenever and for whatever cause such
agreement may be terminated;
9.2.1 Licensee will remain liable for the payment of the full royalty
required to be paid hereunder, aggregating all of the gross sales of
Licensee and such sub-licensees;
9.2.2 such sub-license shall require the sub-licensee to comply with all of
the terms, covenants and provisions of this Agreement other than the
payment of royalties of fees to Licensor as if it was the Licensee
under this Agreement;
9.2.3 save as other wise specified herein, Licensee will remain responsible
for the performance of all the terms, covenants and provisions of this
Agreement.
9.3 Licensee shall not have the right to assign the rights and license
granted pursuant to this Agreement, without the consent of Licensor,
which consent may not be unreasonably withheld. However, Licensor's
consent shall not be required if such assignment is made in the context
of a corporate reorganization and Licensor remains jointly and
severally responsible for the performance of all the terms, covenants
and provisions of this agreemently such assignee.
SECTION X - TERM OF AGREEMENT
10.1 The Effective Date of this Agreement and its obligations shall be the
day following the last closing of the proposed issue of up to US
$5,000,000 special warrants by private placement as specified in the
confidential information memorandum dated October 23, 1998. In the
event such closing does not occur prior to May 31, 1999, Licensor shall
have no further obligations under this Agreement which shall then be
deemed to never have existed.
10.2 This Agreement shall endure and continue in force and effect from the
Effective Date until October 10, 2017 unless previously terminated in
accordance with the provisions of this Agreement.
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SECTION XI - TERMINATION
11.1 The occurrence of any one or more of the Following events shall
constitute a default under this Agreement.
11.1.1 if any payment on account of the royalty is not made on due day;
11.1.2 Licensee institutes proceedings seeking relief under a bankruptcy law
or any similar law, or consents to entry of an order for relief against
it in any bankruptcy or insolvency proceeding or similar proceeding, or
files a petition for or consent or answer consenting to reorganization
or other relief under any bankruptcy act or other similar law, or
consents to the filing against it of any petition for the appointment
of a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of it or of any substantial part of its property, or
makes an assignment or a proposal for the benefit of creditors, or
admits in writing its inability to pay its debts as they become due, or
takes any action in furtherance of the foregoing;
11.1.3 the calling of a meeting of creditors, appointment of a committee of
creditors or liquidating agents, or offering of a composition or
extension to creditors by, for or of Licensee;
11.1.4 if Licensee or Licensor breaches materially any other provision of this
Agreement.
11.2 In the event of a default specified in sub-paragraph 11.1.1 which is
not corrected within thirty (30) days of written notice of such
default, Licensor thereafter shall have the right to immediately
terminate this Agreement. In the event of defaults specified in
sub-paragraph 11.1.2. or 11.1.3, Licensor will have the right to
immediately terminate this Agreement without notice.
11.3 In the event of a default specified in sub-paragraph 11.1.4 which is
not corrected within sixty (60) days of receipt of written notice
specifying the respect in which the defaulting party has breached this
Agreement, the other party shall have the right to immediately
terminate this Agreement.
11.4 No assignee for the benefit of creditors, receiver, liquidator,
sequestrator, trustee in bankruptcy, sheriff or any other officer of
the court or official charged with taking over custody of Licensee's
assets or business shall have any right to continue to use the Patents
or the Know-How.
11.5 Termination of this Agreement shall not release Licensee from any
payments or obligations due and payable or accrued to Licensor or
rescind any payment made or paid by Licensee
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to Licensor hereunder prior to the time such termination becomes
effective nor release Licensee from those obligations hereunder which
survive termination.
11.6 Furthermore, termination of this Agreement prior to the expiration of
its term shall be without prejudice to any other rights which Licensor
may have against Licensee, including, without limitation, damages for
breach to the extent that same may be recoverable.
11.7 In the event of the expiration or termination of this Agreement for any
reason, the Licensee and all allowed sub-licensees shall cease all use
of the Patents and the Know-How. Notwithstanding the foregoing, the
Licensee and its allowed sub-licensees shall the right:
11.7.1 for a period not exceeding three (3) months from the date of expiration
or termination, to complete the manufacture of Product components,
accessories and supplies which are in the process of manufacture at the
date of expiration or termination;
11.7.2 for a period not exceeding three (3) months from the date of expiration
or termination, to sell Products or parts thereof which are in its
possession, custody or control at the date of expiration or termination
or are made under the authority of section 11.7.1; and
11.7.3 complete the performance of services relating to Products if such
services were contracted for prior to the date of expiration or
termination.
SECTION XII - REPRESENTATIONS AND WARRANTIES OF THE LICENSOR
12.1 Licensor hereby represents and warrants unto Licensee that:
12.1.1 it is the owner of all rights, title, property, benefit and interest in
and to the Patents[ ] and that it has every legal right to enter into
this Agreement and to perform the terms and conditions hereof or its
part to be performed, fee of any encumbrances whatsoever;
12.1.2 it has made proper application in Canada for the Patent under No.
2,218,273 and in the US under No. 08/948,511.
12.1.3 it has entered no relationship or agreement, written or oral, expressed
or implied, inconsistent with the provisions of this Agreement except
for the license with QPS referred to in section 2.1;
12.1.4 Licensor has not received any notice that the manufacture, sale or use
any part of the Product by Licensee will constitute an infringement of
any patents or other proprietary rights owned by any third party;
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12.1.5 Licensor has made no investigations as to the matters set forth in
sub-paragraph 12.1.4 Licensee agrees that Licensor will not be charged
with constructive knowledge of any such infringement.
SECTION XIII - INDEMNIFICATION
13.1 Licensee shall indemnify and save and hold harmless Licensor from any
liabilities, claims, causes of action, suits, damages and expenses
(including reasonable attorney's fees and expenses) which Licensor is
or becomes liable for, or may incur, or be compelled to pay or pay by
reason of any acts, whether of omission or commission, that may be
committed or suffered by Licensee or any of its servants, agents or
employees in connection with Licensee's performance under the terms of
this Agreement or arising out of the use of any part of the Products
manufactured by or on behalf of or sold by Licensee. Licensee and/or
its sub-contractors and allowed sub-licensees shall assume all warranty
obligations to their customers in respect of such Products, and
Licensor shall have no liability either to Licensee, any allowed
sub-licensee or their respective customers in respect of such warranty
obligations.
SECTION XIV - ARBITRATION
14.1 Any dispute arising out of the present agreement shall be submitted to
the determination of a single arbitrator to be appointed in accordance
with provisions of the Quebec Code of Civil Procedure and his
determination of such matter shall be final and binding on both parties
and shall not be subject to appeal by either party. The fees and
expenses of the arbitrator, shall be borne equally by the parties.
SECTION XV - NOTICES
15.1 Any notice, demand, consent or other communication to be given in
connection with this Agreement (collectively and individually the
"Notice") shall be in writing and addressed to its addressee at the
address stated above or such addresses as a party may specify from time
to time by Notice.
15.2 Notices may be delivered by hand, overnight courier service (e.g.,
FEDEX, DHL) registered or certified mail or fax and shall be deemed to
have been received as follows:
15.2.1 If delivered by hand: at the time of delivery to a person
who appears reasonably to be in
charge.
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15.2.2 If sent by fax: at the time of
confirmed transmission provided a
confirmation copy is sent by airmail
or registered or certified mail
within twenty-four (24) hours after
the transmission.
15.2.3 If sent by registered or certified mail or by overnight courier service:
at the time of delivery or of
attempted delivery in the case
delivery cannot be completed due to
no fault of the sender.
15.3 If the time of such deemed receipt as provided in paragraph 15.2 hereof
is not during the customary hours of business, the Notice shall be
deemed to have been received at 10:00 a.m. at the place of delivery on
the first customary day of business thereafter.
SECTION XVI - GENERAL PROVISIONS
16.1 Interpretation. The parties hereto hereby declare that it is their
intention that the provisions of the Agreement apply fairly and without
detriment to the interest of any of them. [ ] Any inconsistency which
may exist between any terms and conditions of this document and that of
any related agreement shall be resolved in favour of the terms and
conditions of this document, unless such related agreement contains a
specific mention that such terms and conditions are not applicable.
16.2 Preamble. The preamble to this Agreement forms an integral part hereof.
16.3 Headings. Headings are for reference purposes and do not in any way
affect interpretation of this Agreement.
16.4 Entire Agreement. This Agreement and the memorandum referred to in
section 10.1 set forth the entire Agreement and understanding between
the parties with respect to the subject matter of this Agreement and
merges, supersedes and cancels all prior discussions, representations,
inducements, promises, undertakings, understandings, agreements or
otherwise, whether oral, in writing or otherwise, between the parties
with respect to such subject matter. Without limiting the generality of
the foregoing, no oral explanation or oral information provided by the
parties hereto, or any of them, shall alter the meaning or
interpretation of this Agreement. There are no statements, terms,
conditions, undertakings, representation, warranties or collateral
agreements still in force or effect which have not been embodied in
this Agreement. This Agreement may be altered, modified or amended only
by a written document signed by all the parties.
16.5 Further Agreements and Actions. The parties agree to cooperate with
each other and execute and deliver such further or other documents and
assurances and do such other acts as may, from time to time, reasonably
be required or deemed useful by the other party to protect the
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Patents or to effectively carry out or better evidence or perfect the
full intent and meaning of this Agreement or to otherwise give effect
to the provisions of this Agreement the party requesting any such act
shall reimburse the other party complying with such request for the
full cost of perform such act. Licensee agrees to assume all reasonable
costs relating thereto.
16.6 Independent Contractors. Each party is an independent contractor and
does not have any power (nor will it represent itself as having any
power) to in any way enter into commitments or contracts, assume
obligations, give any warranties, make any representation or incur
liability of any kind in the name of the other party or on behalf of
the other party or to otherwise bind or obligate the other or to assume
or create any expressed or implied obligation or responsibility on
behalf of the other or in the other's name. Nothing in this Agreement
shall construed to create a relationship of partners, joint venturers,
fiduciaries, master-servant, agency or other similar relationship
between the parties.
16.7 Waiver in Writing. No waiver of any breach of any term or provision
hereof shall be effective or binding unless made in writing and signed
by the party purporting to give the same and, unless other wise
provided, shall be limited to the specific breach waived.
16.8 Use of name. Licensee undertakes not to use the name of Polyvalor,
Ecole Polytechnique, McGill or any of their faculties or affiliates in
any brochure, catalogue, advertisement, notice, memorandum, prospectus
or other communications unless required by law or regulatory
authorities having jurisdiction without having previously obtained the
written consent of such person(s) which shall not be unreasonably
withheld.
16.9 Successors & Assigns. Subject to the provisions of section IX, this
Agreement shall enure to the benefit of and be binding upon the heirs,
executors, administrators, successors and permitted assigns of the
parties.
16.10 Applicable Law. This Agreement shall be governed, construed and
enforced in accordance with the laws in force in the Province of Quebec
and those of Canada applicable therein except for Patent matters which
shall be governed by the laws of the relevant country. Any disputes
arising under this Agreement, shall be subject to the exclusive
jurisdiction of the Courts of the Province of Quebec and both parties
hereby irrevocably attorn to the jurisdiction of the Courts of such
province.
16.11 Language. This Agreement has been drafted in the English language at
the request of the parties. A la demande des parties, cette convention
a ete redigee en langue anglaise.
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IN WITNESS WHEREOF, the parties have signed.
EXECUTED AT MONTREAL, QUEBEC, this __ day of __, 1998.
POLYVALOR INC.
Per: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President Directeul-General
XXXXXX UNIVERSITY
Per: /s/ Alex Nauarre
----------------------------------------
Name: Alex Nauarre
Title: Director
LUMENON INNOVATIVE LIGHTWAVE
TECHNOLOGIES INC.
Per: /s/ Najafi /s/ X. Xxxxxxx
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Name: Najafi X. Xxxxxxx
Title: President Vice President
