General Terms and Conditions for Research Collaborations and/or Research Services
In these General Terms and any associated Research Agreement, the capitalized words shall have the following meanings:
1.1 “Arising Intellectual Property” or “Arising IP” means Intellectual Property invented, developed and/or acquired, or being invented, developed and/or acquired as a result of the activities in the performance of the PC Work or, in the case of a Collaboration, Intellectual Property invented, developed and/or acquired, or being invented, developed and/or acquired as a result of the activities in the performance of the collaborative project of which the PC Work forms a part. Arising IP does not include PC Methods or Background Intellectual Property;
1.2 “Budget” means the amount to be paid by Client to PC for performance of PC Work, as set out in Item 3 of a Statement of Work;
1.3 “Client” means the client specified in a Statement of Work or Sample Submission Form;
1.4 “Client Materials” means the materials provided by Client to PC for performance of the PC Work;
1.5 “Collaboration” means activities which are defined as collaborative in a Statement of Work;
1.6 “Commercial License” means a written agreement containing a royalty-bearing license to use Arising Intellectual Property for commerce and for profit;
1.7 “Confidential Information” means all oral, written or machine readable information and data disclosed by one Party to the other Party that:
a) If disclosed in tangible form is clearly marked “CONFIDENTIAL” at the time of disclosure; or
b) If disclosed orally, is identified as confidential or proprietary at the time of disclosure. Disclosing Party will summarize in a tangible format information and data which is disclosed orally, clearly mark it as “CONFIDENTIAL” and deliver it to the receiving Party within fifteen (15) days of the original disclosure;
except Confidential Information does not include information or data that:
a) is disclosed by a third party, acting independently, who delivers such information without obligation of confidentiality;
b) is already in the possession of the receiving Party without restriction and prior to disclosure of that specific information hereunder;
c) is already in the public domain or, after disclosure, is published or otherwise becomes part of the public domain through no fault of the receiving Party;
d) is disclosed in accordance with the order of a court or regulatory body of competent jurisdiction and, where lawfully permitted to do so, the receiving Party has provided the disclosing Party with notice of the required disclosure and has cooperated reasonably, at the disclosing Party’s expense, in the disclosing Party’s efforts to prevent or limit such disclosure; or
e) is developed independently by the receiving Party as demonstrated by competent evidence;
1.8 “Force Majeure” means any event which is unavoidable or beyond the reasonable control of PC including an act of god, an act of public enemy, war, riot or other civil commotion, sabotage, insurrection, authority of law, fire, storm, flood, earthquake, strike, lockout, shortage of labour, work slowdown, unavailability of key personnel, damage or malfunction or failure of equipment, third party non-performance, reduction or termination of Genome funding, or the act or failure to act of any government or regulatory authority;
1.9 “Genome” means Genome Alberta, Genome British Columbia or Genome Canada, or any combination of them, or all of them;
1.10 “Intellectual Property” means any and all knowledge, know-how, technique, technology, technical information, invention, concept, trade secret, formula, development, computer software (including source code and related documentation), industrial design, process, pattern, machine, device, prototype, manufacture, composition of material, compilation of information, data, database, specifications, plant variety, topography, strain, culture, nucleic acid sequence, organism or other intellectual property including (i) any Canadian, United States or foreign patents and/or patent applications and the claims of all continuations, extensions, divisions, substitutions or additions, to such patents and patent applications where said claims are directed to subject matter specifically described in such Canadian, United States or foreign patents and/or patent applications; (ii) Canadian, United States or foreign patents issued from the applications referred to in (i); or (iii) any reissues and re-examinations of United States, Canadian or foreign patents described in (i) and (ii); (iv) copyrights or (v) any rights to apply for registration or protection under any statutory proceedings available for those purposes;
1.11 “Negotiation Period” means ninety (90) days following Client’s exercise of the option as set out in section 10.2 or such other period as may be agreed in writing between the Parties for negotiation of a Commercial License;
1.12 “Output” means an output identified in the Statement of Work that PC shall provide to Client in relation to PC Work, including but not limited to any identified deliverables, except that Output does not include any PC Background Intellectual Property or any PC Methods;
1.13 “Option Period” means sixty (60) days or such other period of time specified in the Statement of Work within which an option to negotiate a Commercial License may be exercised;
1.14 “Party” means individually Client or PC, and “Parties” means together Client and PC;
1.15 “PC” means the University of Victoria, represented by its UVic Genome BC Proteomics Centre, a research unit of the University of Victoria;
1.16 “PC Background Intellectual Property” or “PC Background IP” means Intellectual Property owned, acquired or licensed by PC which is not Arising Intellectual Property or PC Methods;
1.17 “PC Methods” means any tools, techniques or methodologies used by PC in performing PC Work, and any enhancements or improvements thereto developed by or on behalf of PC with respect thereto whether as part of the PC Work or otherwise;
1.18 “PC Work” means the scientific work to be performed by PC for Client as described in a Statement of Work or Sample Submission Form as applicable;
1.19 “Prime Rate” means a rate of interest per annum equal to the prime commercial lending rate charged by the Royal Bank of Canada to its best customers in Vancouver, British Columbia, in effect from time to time;
1.20 “Related Persons” means every PC officer, governor, employee, faculty member, adjunct faculty, post-doctoral fellow, student, contractor, or agent, including employees of faculty members performing PC Work;
1.21 “Research Agreement” means an agreement entered into between the University of Victoria and Client governing research work to be performed by PC in collaboration with or as a service to Client, and which incorporates these General Terms;
1.22 “Research Data” means the raw data resulting from PC Work and any analysis or interpretation of such data performed by PC as part of PC Work;
1.23 “Sample Submission Form” means a completed document using the form available online at http://www.proteincentre.com/services/order, which Client must complete and submit to PC for any Client samples provided to PC in relation to PC Work;
1.24 “Scholarly Publication” shall mean any authored work created specifically for publication in a scientific journal or other scientific outlet; for presentation at a scientific conference or professional meeting; or as part of a student thesis or other requirement of an academic program;
1.25 “Statement of Work” means a completed document using the form available online at http://www.proteincentre.com/sow describing the activities to be conducted by PC in support of Client’s research project and the amount to be paid to the PC for conduct of the work;
1.26 “Terms” means the terms and conditions set out in this document as well as any additional terms and conditions set out in a Statement of Work or Sample Submission Form, and
1.27 “UA” means University of Alberta.
Any capitalized terms used in this Schedule and not defined in this section or elsewhere in this Schedule shall have the meaning set out in an executed Statement of Work or Sample Submission Form as applicable.
2. PC WORK
2.1 PC shall perform the PC Work.
2.2 The start and completion date for commencement of PC Work shall be determined between Client and PC, based on equipment and personnel availability and PC work prioritization as required by Genome.
2.3 Client must notify PC in writing within ten (10) working days of receipt of Output if the Output is not acceptable. If PC does not receive such notice, the Output shall be deemed to have been accepted by Client.
2.4 Where the PC Work is governed by a Statement of Work, the cost per unit set out in the Statement of Work has been determined based on information provided by Client to PC. If such information is inaccurate or incomplete or, if Client fails to provide Client Materials to PC in accordance with timelines set out in a Statement of Work, PC may revise the schedule to perform the PC Work and the Budget to reflect any increase in costs incurred by PC as a result of such delay or misinformation, and Client agrees to pay such increased Budget amount.
3.1 Client agrees to pay PC within 30 days of the date of an invoice for completed PC Work. PC shall issue invoices on an ongoing basis for completed activities, but not more frequently than monthly.
3.2 Any amount not paid by Client when due will bear interest at an annual rate equal to the Prime Rate in effect on the date payment was due plus 2% per annum or the highest rate permitted by law, whichever is lower, from the date payment was due until it is paid, and the interest will accrue and be payable without the necessity of any demand for it being made.
3.3 Unless otherwise specified in a Statement of Work or Sample Submission Form, all references to money are to Canadian dollars.
4. CLIENT MATERIALS
4.1 Client, at its own cost and expense, must make shipping arrangements for any Client Materials and Outputs in accordance with any PC rules and any applicable law or regulation including any applicable import, export, customs, health and safety law or regulations or handling procedures and protocols in effect from time to time. Client is responsible for obtaining any and all permits, licenses or permissions that may be required by regulatory authorities to ship and deliver Client Materials and Outputs to and from PC and for PC to accept delivery of Client Materials and for client to accept delivery of Outputs and Client Materials, including but not limited to appropriate certification or approval regarding biological materials.
4.2 Client represents and warrants :
a) it has the right to provide Client Materials to PC for PC’s use under a Research Agreement;
b) Client Materials were collected lawfully with all necessary consents and approvals;
c) the collection, use and disclosure of Client Materials by PC pursuant to the terms of a Research Agreement will not violate the rights of any third party; and
d) Client Materials were collected in accordance with all applicable requirements of the Tri-Council Policy Statement on Ethical Conduct for Research Involving Humans, the policies and guidelines of the Canadian Council on Animal Care, Health Canada’s Laboratory Biosafety Guidelines, and the requirements, policies and guidelines of any other similar body having jurisdiction, in force from time to time, including review by an institutional review board where applicable, and copies of such institutional review board certification forms or approvals shall be made available to PC at PC’s request and may be provided by PC to any third party in relation to a regulatory inspection, or to Genome.
4.3 Client agrees to consult with PC in advance of providing PC with Client Materials, or Client or third party Intellectual Property that is not freely available for use or that may limit PC’s ability to use, commercialize or publish Intellectual Property arising from PC Work.
4.4 EXCEPTING ONLY CLIENT MATERIALS WHOSE CHARACTERISTICS HAVE BEEN EXPRESSLY DISCLOSED TO PC IN WRITING AND HAVE BEEN ACCEPTED FOR DELIVERY BY PC, IN NO CIRCUMSTANCE WILL CLIENT SUBMIT CLIENT MATERIALS TO PC WHICH ARE RADIOACTIVE, WHICH CONTAIN LIVE BIOLOGICAL AGENTS OR WHICH OTHERWISE PRESENT ANY HEALTH OR ENVIRONMENTAL RISKS OR WHICH COULD CAUSE DIRECT OR INDIRECT DAMAGE OR HARM TO PC, ANY RELATED PERSONS OR ANY PROPERTY BELONGING TO PC OR ANY RELATED PERSONS.
5.1 Each Party maintains the sole and absolute discretion to determine what, if any, of its Confidential Information it will disclose to the other Party.
5.2 The receiving Party shall hold the disclosing Party’s Confidential Information in confidence and protect it with at least the same degree of care as it uses to protect its own confidential information, but not less than a reasonable degree of care.
5.3 The receiving Party may only use the disclosing Party’s Confidential Information to perform the obligations set out in the applicable Research Agreement, and not for any other purpose unless otherwise agreed in writing.
5.4 Disclosure of the Confidential Information by the disclosing Party will not be construed as granting to the receiving Party a license of any Intellectual Property relating to the Confidential Information in respect of which the disclosing Party or any officer, director, employee, affiliate, partner, successor, assign or Related Person now has or may in the future have any right, title or interest.
5.5 The confidentiality obligations set out herein shall cease to apply five (5) years after the expiration or termination of the Research Agreement.
6. DISCLAIMER OF WARRANTY
6.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUTPUTS WILL BE PROVIDED TO CLIENT ON AN "AS IS” BASIS. CLIENT AGREES THAT NEITHER PC NOR ANY RELATED PERSON MAKES, HAS MADE, OR IS AUTHORIZED TO MAKE ANY REPRESENTATIONS OR EXTEND ANY WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO PC WORK, OUTPUTS, RESEARCH DATA OR ANY OTHER MATTER TOUCHED UPON IN A RESEARCH AGREEMENT, NOR HAS CLIENT RELIED UPON ANY SUCH REPRESENTATIONS OR WARRANTIES. NEITHER PC NOR ANY RELATED PERSON MAKES, HAS MADE, OR IS AUTHORIZED TO MAKE ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS OF OUTPUTS OR RESEARCH DATA FOR A PARTICULAR PURPOSE, OR OTHERWISE REPRESENT OR WARRANT THAT USE OF OUTPUTS OR RESEARCH DATA WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK OR OTHER RIGHTS. CLIENT AGREES THAT PC WORK IS OF AN EXPERIMENTAL AND EXPLORATORY NATURE, THAT NO PARTICULAR RESULTS CAN BE GUARANTEED, AND THAT IT HAS BEEN ADVISED BY PC TO UNDERTAKE ITS OWN DUE DILIGENCE WITH RESPECT TO ANY AND ALL USE OF OUTPUTS OR OTHER INTELLECTUAL PROPERTY, MATERIALS OR RESEARCH DATA ARISING FROM THE RESEARCH AGREEMENT.
7. LIMITATION OF LIABILITY AND FORCE MAJEURE
7.1 IN NO EVENT SHALL PC’s LIABILITY ARISING OUT OF OR IN CONNECTION WITH A RESEARCH AGREEMENT EXCEED, IN THE AGGREGATE, THE TOTAL FEES PAID BY CLIENT TO PC FOR PERFORMANCE OF THE PC WORK UNDER SUCH RESEARCH AGREEMENT WHETHER SUCH LIABILITY IS BASED ON AN ACTION IN CONTRACT, WARRANTY, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE.
7.2 NOTWITHSTANDING ANY OTHER PROVISION OF A RESEARCH AGREEMENT, IN NO EVENT WILL PC OR ANY RELATED PERSON BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND), ARISING OUT OF OR RELATED TO THE RESEARCH AGREEMENT, OR ANY USE OF OR INABILITY TO USE OUTPUTS, OR OTHER INTELLECTUAL PROPERTY, MATERIALS OR RESEARCH DATA, EVEN IF PC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES.
7.3 PC shall be excused from its obligations to Client if it is prevented or delayed in such performance by an event of Force Majeure. So far as reasonably possible, PC will take reasonable steps to remedy the event of Force Majeure; provided, however, that nothing contained in this section shall require PC to settle any labour dispute or to test the constitutionality of any provincial, federal, state or local law or regulation. If PC is affected by an event of Force Majeure it shall give prompt written notice to Client of the event in and shall also furnish prompt notice when the event of Force Majeure has ended. Failure to provide notice shall not preclude a Party from relying on the existence of an event of Force Majeure.
8.1 All use of the Outputs and Research Data is to be at the Client’s risk and the Client agrees to undertake all necessary due diligence prior to any use of such Outputs and Research Data. Client shall indemnify and hold harmless PC, Related Persons and its and their successors and assigns (collectively the “PC Indemnitee”) from and against any and all losses, liabilities, damages (including direct, indirect, special, incidental, punitive or consequential damages), fines, penalties, claims, actions, costs and expenses (including reasonable lawyer’s fees) (“Claims”) of any kind or nature incurred by or asserted against a PC Indemnitee resulting or arising, directly or indirectly, out of the use by Client, or anyone for whom Client is in law responsible or any of its or their successors or assigns, of Outputs or Research Data.
The foregoing indemnity and hold harmless provision will apply to anything done or not done in connection with a Research Agreement and by whomsoever done, regardless of fault or negligence.
8.2 Section 8.1 will not have application to the use of the Outputs or Research Data by Client for research and academic purposes if Client is a not for profit entity.
9. PC FUNDER REQUIREMENTS
9.1 Client acknowledges that PC has certain obligations to Genome for all work conducted at PC that is supported in whole or in part by Genome funds, including provision of information to Genome and third party members of scientific advisory boards; involvement of Genome and UA in certain aspects of decision-making; and compliance with Genome policies.
9.2 Client agrees to cooperate in providing PC with any information as may be reasonably requested by PC to meet its obligations to Genome or UA, including but not limited to notification of any publications, presentations, patent filings, or other outcomes of the PC Work.
9.3 Client agrees that any information provided by Client to PC may be provided by PC to Genome, UA or to third parties in accordance with the Genome requirements provided that PC shall provide Client with notice of the required disclosure of Client Confidential Information and shall, at Client’s request, pursue with Genome or UA appropriate measures to limit disclosure and/or provide protection to Client’s Confidential Information.
9.4 Client acknowledges that, unless otherwise agreed, any information provided by PC to Genome may be disclosed by Genome without notice to PC or Client.
10. GENOME CANADA POLICIES
10.1 Client acknowledges that any data, reagents or other materials developed as part of PC Work must be handled in compliance with Genome Canada’s Data Release and Resource Sharing Policy as amended from time to time (available from Genome Canada: http://www.genomecanada.ca) and, where Client is owner of Outputs subject to such policy, Client agrees to adhere to such policy.
10.2 Client acknowledges that any publications arising from PC Work must be handled in compliance with Genome Canada’s Policy on Access to Research Publications as amended from time to time (available from Genome Canada: http://www.genomecanada.ca).
11. COMPLIANCE WITH LAWS
11.1 Client agrees to comply with all laws, regulations, bylaws and ordinances, whether federal, state, provincial, county, municipal or otherwise, applicable to any use of the Outputs or Research Data.
12. OWNERSHIP AND LICENSING
12.1 If a Statement of Work identifies PC’s involvement in Project as a Collaboration, the following terms apply:
12.1.1 Client retains all right, title and interest in and to Client Materials and no right, title or interest in such Client Materials is transferred to PC except to the extent necessary to perform the PC Work.
12.1.2 PC retains all right, title and interest in and to any and all PC Methods and PC Background Intellectual Property and no right, title or interest in such is transferred to Client except as expressly set out in the Research Agreement.
12.1.3 All right, title and interest in and to Outputs shall vest in PC, and, subject to the General Terms, including article 5 (confidentiality), article 6 (disclaimer of warranty), section 7.1 (limitation of liability), and article 8 (indemnity), and any additional applicable terms of the Research Agreement, PC hereby grants Client a non-exclusive, royalty-free, non-transferrable license to use, make, copy, distribute, translate, practice, and reproduce Outputs for non-commercial research and academic purposes.
12.1.4 Copyright in any Scholarly Publication arising from or incorporating Research Data or other aspects of the work performed under the Research Agreement shall vest in the Party whose employees, students or other research personnel participated in authoring the Scholarly Publication or in the author of such Scholarly Publication if the policies of the Party employing the author so provide.
12.1.5 All right, title and interest in and to any Arising Intellectual Property developed solely by or on behalf of PC shall vest in PC. All right, title and interest in and to any Arising Intellectual Property developed solely by or on behalf of Client shall vest in Client. Subject to the General Terms, including article 5 (confidentiality), article 6 (disclaimer of warranty), section 7.1 (limitation of liability), and article 8 (indemnity), and any additional applicable terms of the Research Agreement, each of PC and Client hereby grant the other a royalty-free, non-transferrable license to use, make, copy, distribute, translate, practice, and reproduce its Arising Intellectual Property for non-commercial research and academic purposes. If Arising Intellectual Property is developed jointly by or on behalf of PC and Client, such Arising Intellectual Property shall be jointly owned. Each of the joint owners shall be entitled to use such jointly owned Intellectual Property for internal non-commercial research and academic purposes. Neither joint owner may license or use jointly owned Arising Intellectual Property for commercial purposes without the agreement of the other joint owner. Should a joint owner wish to pursue commercial use or licensing of jointly owned Arising Intellectual Property, they shall advise the other owner and the Parties shall negotiate in good faith a shared use agreement providing for the sharing of expenses and revenue based on the inventive contribution of the Parties to the Arising Intellectual Property in question and the role and contribution of the respective Parties to the protection and commercialization of such Intellectual Property.
12.2 If a Statement of Work includes an option for a commercial license, then the following terms and conditions shall apply.
12.2.1 PC hereby grants Client an option (the “Option”), exercisable during the Option Period, to negotiate in good faith with PC a Commercial License, it being agreed that the Commercial License will be in the standard form of license agreement then adopted by PC.
12.2.2 The Commercial License will be exclusive or non-exclusive as identified in the Statement of Work provided that any exclusivity shall not prohibit or limit the ability of PC or its researchers to use such Arising Intellectual Property for non-commercial research and academic purposes.
12.2.3 Client may exercise the Option at any time during the Option Period by delivering written notice to PC. Upon receipt of the notice described in this section, PC will enter into good faith negotiations with Client.
12.2.4 If at the end of the Negotiation Period PC and Client have not executed a written agreement to give effect to the Commercial License, the Option and any right of exclusivity granted to Client in accordance with the Option will cease, absolutely.
12.2.5 If the Research Agreement is terminated by PC for cause or Client does not deliver to PC notice of the exercise of the Option prior to the end of the Option Period, the Option set out herein will terminate, absolutely.
12.3 If a Statement of Work identifies PC’s involvement in Project as a fee-for-service arrangement, the following terms apply:
12.3.1 Client retains all right, title and interest in and to Client Materials and no right, title or interest in such Client Materials is transferred to PC except to the extent necessary to perform the PC Work.
12.3.2 PC retains all right, title and interest in and to any and all PC Methods and PC Background IP and no right, title or interest in such is provided to Client except as expressly set out in the Research Agreement.
12.3.3 All right, title and interest in and to Outputs shall vest in Client, and Client hereby grants PC a non-exclusive, royalty-free, perpetual license to use, make, copy, distribute, translate, practice, and reproduce Outputs for non-commercial research and academic purposes, including research projects that are sponsored by any third party, subject to the confidentiality requirements of the Research Agreement.
12.3.4 If Research Data is not an Output, all right, title and interest in and to Research Data shall vest in PC.
12.3.5 Copyright in any Scholarly Publication arising from or incorporating Research Data or other aspects of the work performed under the Research Agreement shall vest in the Party whose employees, students or other research personnel participated in authoring the Scholarly Publication or in the author of such Scholarly Publication if the policies of the Party employing the author so provide.
12.3.6 All right, title and interest in any other Intellectual Property developed by or on behalf of PC shall vest in PC.
12.4 For clarity, the provisions of this article 12 apply only to PC activities governed by a Research Agreement and do not extend to any other work performed by PC for Client or for a third party, or to any Background Intellectual Property.
13.1 Subject to the requirements set out in this Agreement, neither Party shall be restricted from publishing, presenting or otherwise disclosing accounts of the work pertaining to this Agreement or the Research Data.
13.2 The Parties agree to acknowledge each other’s contributions and, as applicable, those of Genome Canada, Genome BC, Genome Alberta and the Metabolomics Innovation Centre in all publications arising from or relating to this Agreement, and to cooperatively determine authorship of Scholarly Publications in a manner consistent with the rules and procedures ordinarily governing academic publications.
13.3 The Parties agree to consult with each other prior to disseminating Outputs, Intellectual Property, or Research Results.
13.4 If a proposed publication, presentation or other form of disclosure (together, “Disclosure”) will include Outputs or Intellectual Property owned by the other Party, or the publishing Party has received Confidential Information from the other Party, there shall be a Disclosure review process as follows.
13.4.1 The publishing Party shall provide the other Party with a copy of Disclosure at least ninety (90) days in advance of the intended publication or presentation of Disclosure. In cases where Client is the publishing Party, and an executed Statement of Work identifies the Project as a metabolomics Collaboration, Client agrees that PC may provide disclosure to Genome Alberta and the University of Alberta for review if appropriate.
13.4.2 The publishing Party shall be free to proceed with Disclosure if the other Party does not object in writing within sixty (60) days of receipt of Disclosure.
13.4.3 The reviewing Party may object to Disclosure on the basis that Disclosure includes the reviewing Party’s Confidential Information or discloses patentable subject matter or other potentially commercially valuable intellectual property owned by the reviewing Party.
13.4.4 If an objection is made within the specified time period, the publishing Party shall as applicable either remove the other Party’s Confidential Information prior to publication or presentation of Disclosure, or delay publication or presentation for up to ninety (90) days for the owning Party to pursue patent or other protection of the owning Party’s intellectual property.
13.4.5 The Parties agree that if circumstances require a shorter timeline for review than the timeline set out above, they will cooperate reasonably to accelerate the review process.
14. TERM AND TERMINATION
14.1 A Research Agreement comes into effect on the date of execution and shall expire on the date of conclusion of PC Work unless terminated earlier as set out herein.
14.2 PC may, at its option and in its sole direction, terminate a Research Agreement if PC determines in its sole discretion that PC Work cannot be delivered in a manner which PC considers in its sole discretion economical, ethical, legal or practicable.
14.3 PC may, at its option and in its sole direction, terminate a Research Agreement immediately in the event of:
a) Client failing to pay any sums due under the Research Agreement and such failure continuing for 10 days following the receipt of notice of the same;
b) the assertion against Client by a third party of any claim of product liability relating to Client Materials;
c) the violation by Client or anyone for whom Client is in law responsible of the intellectual property rights of either PC or any Related Persons;
d) a material breach by Client, in the use of any Outputs or Research Data, of any laws, regulations, bylaws or ordinances, whether federal, state, provincial, county, municipal or otherwise, applicable to such use;
e) conduct on the part of Client or anyone for whom Client is in law responsible which is of such a serious and substantial nature that, as determined in the sole discretion of PC, continuation of the Research Agreement would injure the reputation of PC or any Related Persons; or
f) Client becomes insolvent in whole or in part, or makes any assignment of property for the benefit of creditors; is placed in bankruptcy or liquidation, or takes the benefit of any legislation relating to bankruptcy or insolvency, or attempts to do so, or a receiver, trustee or liquidator is appointed for the Client’s property or any part of such property or if a writ of execution or seizure is issued against the Client and such writ is not removed within 30 days of written notification from PC.
14.4 PC may terminate any license to Client arising under a Research Agreement if Client fails to submit any required payment to PC. This right to terminate shall not be exercised until Client has received notice from PC that the payment is overdue and has been allowed sixty (60) days from the effective date of that notice to submit the payment.
14.5 Notwithstanding termination of a Research Agreement for any reason, Client will remain liable to pay to PC any sum due and owing thereunder, and for that purpose Client covenants and agrees that the obligations arising under parts 2, 3 and 7 of these General Terms will survive any such termination, howsoever caused.
15. GENERAL PROVISIONS
15.1 Interpretation. The headings appearing in these General Terms and in a Research Agreement are included for reference only and as a matter of convenience and in no way define, limit or enlarge the scope of any provision, and must not be used for interpretation purposes.
15.2 Meaning of Including. The words “include”, “includes” or “including” mean “include without limitation”, “includes without limitation” and “including without limitation”, respectively, and the words following “include”, “includes” or “including” shall not be considered to set forth an exhaustive list.
15.3 Governing Law. The Research Agreement shall be construed, and the rights of the Parties shall be governed and enforced, in accordance with the laws of British Columbia (without regard to any conflict of laws principles) and in accordance with any laws of Canada applicable therein. The Parties irrevocably agree that any legal action, suit, or proceeding arising out of or in any way in connection with the Research Agreement shall be instituted or brought in the Supreme Court of British Columbia, and by execution and delivery of a Research Agreement, the Parties irrevocably accept and submit to, for themselves and in respect of their respective property, generally and unconditionally, the exclusive jurisdiction of such court, and to all proceedings in such court. The Parties further agree that final judgment against either of them in any such legal action, suit or proceeding shall be conclusive and may be enforced in any other jurisdiction, within or outside Canada, by suit on the judgment in accordance with the rules and procedures of such other jurisdiction, and a certified copy of such final judgment shall be conclusive evidence of the fact and the amount of liability.
15.4 Severability. The provisions of a Research Agreement will each be severable in that if any provision in the Research Agreement is determined to be invalid or unenforceable under any controlling body of law, that will not affect the validity or enforceability of the remaining provisions of that Research Agreement.
15.5 Notices. Any notices required under a Research Agreement will be sufficient if given in writing and delivered in person, by registered mail or by facsimile transmission and any such notice will be deemed to have been duly given upon delivery if delivered in person or by registered mail, and on the day following transmission if given by facsimile. Notices to Client shall be delivered to the address or facsimile number identified in a duly executed Statement of Work or Sample Submission Form, and notices to PC shall be delivered to the address or facsimile number below. Each Party may change its address or facsimile by written notice to the other Party.
For notices to PC regarding legal or administrative matters:
Office of Research Services, att: Contracts
University of Victoria
Administrative Services Building, Room B202
3800 Finnerty Road (Ring Road)
Victoria, BC, Canada V8P 5C2
Fax: 250-721-8960 (mark Att: Contracts)
For notices to PC regarding financial matters:
UVic GBC Proteomics Centre
#3101-4464 Markham Street
Victoria, BC, Canada V8Z 7X8
Sandy Bligh, Director
University of Victoria
Room B115, Administrative Services Building
3800 Finnerty Road (Ring Road)
Victoria, BC, Canada V8P 5C2
For notices to PC regarding scientific, technical, or Project management matters:
Dr. Christoph Borchers
UVic GBC Proteomics Centre
#3101-4464 Markham Street
Victoria, BC, Canada V8Z 7X8
15.6 Independent Parties. Nothing contained in a Research Agreement shall be construed as establishing a partnership or joint venture between the Parties, and it is agreed that no provision contained herein shall be deemed to create any relationship between the Parties other than the relationship of independent Parties contracting for services.
15.7 Waiver. No provision of a Research Agreement and no breach by either Party of any such provision will be deemed to have been waived by a Party unless such waiver is in writing signed by such Party. The written waiver of any breach of any provision of a Research Agreement will not be deemed a waiver of any subsequent breach of the same or any other provision of such Research Agreement.
15.8 Entire Agreement. Upon execution, the Research Agreement constitutes and contains the entire agreement of Parties with respect to the subject matter therein, and supersedes any prior understandings or written or oral agreements between them respecting the subject matter of that Research Agreement.
15.9 Amendment. No modification of a Research Agreement will be binding, unless in writing and signed by authorized signatories of both Parties.
15.10 No Assignment. Client may not sell, assign, encumber, license or otherwise transfer any of its rights, duties or obligations under a Research Agreement without the express written consent of PC. A duly executed Research Agreement will enure to the benefit of and be binding upon the Parties and their respective heirs, successors, executors, personal representatives and permitted assigns.
15.11 Surviving Terms. All terms of a Research Agreement which by their nature have continuing effect shall survive the termination or expiration of the Research Agreement.
15.12 Counterparts. A Research Agreement may be executed in counterparts either through original or facsimile or other electronic transmission of signatures, which together shall form an agreement. An executed copy of the Research Agreement delivered by facsimile or electronic copy shall constitute valid execution and delivery of the Research Agreement.
15.13 Use Of Name. Notwithstanding anything in these General Terms or in a Research Agreement, either Party may disclose the identity of the other, the title of the Project, the name of the PC principal investigator, the Project term and the amount of funding being provided for the Project. Except as provided by the foregoing, no Party may use the others logo or name, nor the name of any member of the other Party's staff, in any publicity, advertising, or news release without the prior written approval of an authorized representative of such Party.
15.14 Additional Terms. If a schedule is attached to a Research Agreement setting out additional terms in relation to the PC Work, the additional terms set out in that schedule shall apply to such Research Agreement.