Provision Language
1. Project
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1.2. Key Personnel. The Project will be performed by Afrigen under the direction of the Afrigen principal investigator (“Afrigen PI”) and with the participation of the other key individuals identified in Annexure 1 (collectively with the Afrigen PI, the “Key Personnel”). No substitution of Key Personnel will be permitted for the first six months of the Project, except as necessitated by the sudden illness, death or termination of employment of the employee, in which case such employee will be replaced with a mutually agreeable substitute. In the event the Afrigen PI becomes unavailable to continue with the Project, the parties will attempt to find a mutually acceptable substitute. In the event a mutually acceptable substitute is not found, the Agreement may be terminated in accordance with Section 11.
4. Reporting
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4.2. Submission and Revision.
(a) Before submitting any Report to MPP, Afrigen must ensure that the Report meets all applicable requirements for that Report.
(b) MPP shall, within ten (10) working days after submission of a Report (or such other period agreed in writing by the Parties), notify Afrigen that it either approves or rejects the Report. If MPP rejects the Deliverable, MPP shall supply Afrigen with its comments, including a list of the deficiencies, at the time of rejection.
(c) Afrigen shall, within ten (10) working days (or such other period agreed in writing by the Parties) of receipt of MPP’s comments, prepare a revised Report that addresses MPP’s comments and re-submit it to MPP for approval, in which event sub-Sections (a) and (b) above and this sub-Section (c) shall apply to that revised Report.
4.3. Approval. The Parties must repeat the process of Section 4.2, a maximum two (2) times in order for MPP to approve the Report. Without limiting MPP’s rights or remedies, if MPP does not approve the Report on the second repeat of Section 4.2, MPP may (a) terminate this Agreement, (b) grant Afrigen a new deadline in order to meet the applicable requirements, or (c) initiate the dispute resolution process provided for in Section 13.1(a). For the avoidance of doubt, the dispute resolution process shall not include 13.1(b). For the avoidance of doubt, no act or omission of MPP in connection with this Section constitutes deemed approval of a Report, and approval of a Report does not occur until MPP notifies Afrigen in writing that the Report has been approved. Upon acceptance of a Report by MPP, Afrigen will certify and sign the Report as complete and accurate, and provide MPP with a copy.
5. Delay and Suspension
5.1. Delays. If there is an actual or anticipated delay in the completion of an activity or deliverable of the Project within the timeframe specified in Annexure 1 of this Agreement, Afrigen undertakes to (a) promptly inform MPP in writing in case of such delay; and (ii) take all steps reasonably required by MPP to prevent, limit, or rectify such delay. Without limiting MPP’s other rights or remedies it may have against Afrigen in connection with the delay caused by Afrigen, MPP may specify a revised timeline for the completion an activity or deliverable of the Project.
5.2. Other Delays. To the extent that a delay is caused by MPP or at no fault of Afrigen, Afrigen will be entitled to a reasonable extension of time consistent with the duration of the delay for the completion of an activity or deliverable of the Project. Afrigen may request an extension of time for the completion of an activity or deliverable of the Project by submitting to MPP a written proposal to that effect, which must not be unreasonably withheld.
5.3. Resolution. The Parties shall in good faith agree on the way to resolve any delay under this Section 5. To the extent that the Parties cannot reach an agreement on an extension of time referred to in Section 5.2, the Parties shall resolve the dispute in accordance with the dispute resolution process set out in Section 13.1(a). For the avoidance of doubt, the dispute resolution process shall not include 13.1(b). If the Parties are unable to resolve such dispute in accordance with Section 13.1(a), any Party may terminate this Agreement.
13. Dispute Resolution
13.1. Escalation process. The Parties wish to facilitate the resolution of any dispute arising out of or relating to this Agreement including but not limited to the breach, termination, interpretation or validity thereof (a “Dispute”) in an expedient manner by mutual cooperation and agree to following the procedures to resolve any such Dispute, except where a Party seeks urgent interlocutory relief:
(a) The Parties must attempt to resolve any Dispute by negotiation using the following escalation procedure:
(i) Upon receiving a written notice by one Party to another of the details of the Dispute, the Parties’ contracting managers must first attempt to resolve such Dispute.
(ii) If the Parties’ contracting managers cannot resolve the Dispute within ten (10) working days of the written notice being given, they must refer the Dispute to the Parties’ respective executive officers (or their nominee) who must use their best efforts to resolve all issues escalated to them, in a way that attempts to preserve the relationship between the Parties, within ten (10) working days of the Dispute being referred to them.
(b) Unless otherwise specified in this Agreement, if the Parties cannot resolve the Dispute in accordance with the escalation procedure in (a) above within the timeframes specified, then the Dispute shall be referred to and finally determined by arbitration in accordance with the WIPO Arbitration Rules. The arbitral tribunal shall consist of three arbitrators. The place of arbitration shall be Geneva, Switzerland.