Provision Language
7.0 REPORTS & QUALITY CONTROL
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7.9 Annual Meeting. The Company shall, on the 121st day of each calendar year, during the term of the License Agreement and any renewal, meet with Canada to provide a progress report on the activities carried out by the Company under the License Agreement.
16.0 ALTERNATE DISPUTE RESOLUTION (ADR)
16.1 Negotiations
16.1.1 INFORMAL NEGOTIATIONS. If a Dispute arises between the Parties , then: within 6 months from when the allegedly aggrieved Party knows or should know of the Dispute , the contact individuals in Article 20.1 (Notice) shall,
16.1.1.1 contact their counterpart, and attempt bona fide efforts to diligently resolve the Dispute through amicable negotiations;
16.1.1.2 provide full, frank and timely disclosure of all relevant facts, information and documents to facilitate those negotiations;
16.1.1.3 resolve the Dispute within 7 days; 16.1.1.4 reduce the Dispute to writing, and if the contact persons cannot agree on the wording of the Dispute , both contact persons shall submit to each other their written version of the Dispute.
16.1.2 FORMAL NEGOTIATIONS If the Parties are unable to resolve the Dispute within fourteen (14) calendar days from the receipt by the other Party of the written version of the Dispute , then within the following thirty (30) days the Dispute shall be referred to the Chief Public Health Officer, on behalf of Canada, and to the CEO, on behalf of the Company (or their directly reporting designates), to negotiate a resolution.
16.1.2.1 These individuals may not delegate, substitute or direct, surrogates for them at these negotiations.
16.1.2.2 These individuals shall meet in person to negotiate and the Parties shall bear their own costs.
16.1.2.3 Unless otherwise agreed, the meetings shall alternate between Company, HQ, and Canada, HQ, commencing in Ottawa, Ontario, for the first meeting for the first Dispute . There shall be one meeting only per Dispute , which meeting shall not exceed one (1) business day in length.
16.1.2.4 The Parties may bring no more than two consultants to a meeting. The two consultants shall not have a right of audience or otherwise to negotiate the Dispute.
16.2 Mediation. If, within thirty (30) days following the close of the meeting under paragraph 16.1.2 (Formal Negotiations), the Parties have not succeeded in negotiating a resolution, then the Parties shall jointly submit the Dispute to mediation.
16.3 Skip Mediation – Direct to Arbitration. If the Parties cannot agree to jointly submit the Dispute to mediation, then either Party may submit the Dispute to binding arbitration.
16.4 Mediation Process. The Parties shall:
16.4.1 APPOINTMENT OF MEDIATOR appoint a mutually acceptable mediator with sixty (60) days from the close of the formal negotiation meeting under sub-paragraph 16.1.2 (Formal Negotiations);
16.4.2 GOOD FAITH EFFORTS participate in good faith in the mediation and negotiations related thereto;
16.4.3 EMPOWERED REPRESENTATIVES representatives sent to the mediation shall be empowered or have sufficient delegated authority to resolve, compromise, negotiate or settle the Dispute submitted to mediation, without seeking further instructions or approvals from any superiors or committees / corporate structures, unless the nature, seriousness or financial quantum of the Dispute by law or corporate policies or practices requires approval from the respective corporate or government structure. In such event, such approval shall be obtained within five (5) business days of the proffer of any settlement offer;
16.4.4 COSTS bear the costs of the mediation equally, except that each Party shall bear its own personal costs of the mediation;
16.4.5 FULL DISCLOSURE a full, frank and timely manner all relevant facts, information and documents to facilitate the mediation; and
16.4.6 LOCATION The mediation shall take place in the city that was not the site of the formal negotiations for the Dispute.
16.5 Unsuccessful Mediation – Remit to Arbitration. The Dispute shall be referred to binding arbitration by either or both Parties if the Parties are not successful in resolving the Dispute through mediation.
16.6 Arbitration – Structure. After negotiation (and if applicable, mediation), any subsisting Dispute between the Parties , shall be referred to arbitration by a written submission signed by either Canada or the Company.
16.6.1 FORUM LAWS / PROCEDURAL RULES The arbitration tribunal shall be governed by the UN Commercial Arbitration Code, referred to in the Commercial Arbitration Act, R.S.C. 1985, c.C-34.6 (“Code”).
16.6.2 NUMBER OF ARBITRATORS The arbitration tribunal shall consist of one arbitrator chosen by the Parties.
16.6.3 ISSUE BEFORE ARBITRATOR The scope of the arbitration shall be limited to the resolution of the Dispute submitted to arbitration.
16.6.4 APPLICABLE SUBSTANTIVE LAW The arbitration tribunal shall decide the Dispute (including limitations, set-off claims) in accordance with the laws in force in the Province of Ontario and any applicable federal laws.
16.6.5 NO EQUITY The arbitration tribunal shall not be authorized to decide ex aequo et bono or as amiable compositeur.
16.6.6 ARBITRAL INTERIM ORDERS Subject to subparagraph 16.6.5 (No Equity) the arbitration tribunal shall have all the powers of a court at law or in equity, including the power to make interim orders, orders of injunction (either mandatory or prohibitory), rectification, expungement and orders for interest. However in no case will the final decision breach the strictures of subparagraph 16.6.5 (No Equity).
16.6.7 LOCATION The proceedings shall take place in the city that was not the site of the mediation (or if there was no mediation, in the city that was not the site of the negotiation meeting), unless the Parties agree otherwise.
16.6.8 LANGUAGE The language used in the proceedings shall be English.
16.6.9 NOTICES All written communication shall be delivered to the Parties hereto in the manner provided for in Article 20.1 (Notice).
16.6.10 COSTS The costs of the tribunal’s fees and expenses shall be shared equally by the Parties . The Parties shall bear their own costs except that the losing Party shall pay all costs, fees, levies and Taxes arising from and necessitated by the enforcement of the arbitration tribunal’s award, including, without limitation, registration enforcement charges or other judicial levies.
16.7 Emergencies / Judicial Jurisdiction. The Parties are not precluded from bringing an application to a Court having jurisdiction for interim or interlocutory relief, in law or in equity, including, without limitation, injunctive relief, if such relief is urgently required to preserve the rights or property of either or both of the Parties , pending the final determination of those rights in a subsequent arbitral proceeding as contemplated in this Article.
16.8 Final & Binding. Subject to the Code, the Parties hereto agree that the award and determination of the arbitration tribunal shall be:
16.8.1 final and binding on both Parties;
16.8.2 without right of appeal;
16.8.3 the exclusive remedy between the Parties, regarding any claims, counterclaims, issues or accountings presented or pled to the arbitration tribunal, and the judgment upon the award rendered by the arbitration tribunal may be entered in any Court having jurisdiction thereof or having jurisdiction over either of the Parties.
16.9 Arbitral Decision Deadline. The arbitration tribunal retainer shall contain the obligation that the arbitration tribunal render a written decision with reasons within thirty (30) days from the close of the hearing or submission of written argument.
16.9.1 If the facts and law are either too complicated or voluminous to allow a properly considered decision within thirty (30) days, then the decision shall be rendered in not less than one hundred and eighty (180) days, but the arbitrator shall notify the Parties of the longer decision period by not later than the close of final arguments.
16.10 Power to Settle. The Parties’ representatives at any arbitration throughout the arbitration shall be empowered or have sufficient delegated authority to resolve, compromise, negotiate or settle the Dispute submitted to arbitration, without seeking further instructions or approvals from any superiors or committees / corporate structures. The representatives shall either be the same persons as in paragraph 16.1.2 (Formal Negotiations) or their immediate subordinates.
16.10.1 Notwithstanding the foregoing, if the nature, seriousness or financial quantum of the Dispute in law or corporate policies/practices requires approval from the Board of Directors, or the Chief Public Health Officer, as the case may be, then, such approval shall be obtained within five (5) business days of the proffer of any settlement offer.
16.10.2 If applicable, the arbitration tribunal shall withhold its final decision until the Parties have ceased negotiating a settlement.
16.11 Adjournment to Empower Representative. Breach of paragraph 16.10 (Power to Settle), shall entitle the other Party to seek an adjournment of the arbitration proceedings, to give the breaching Party time to appoint a duly empowered representative within the thirty (30) days. All costs directly traceable to such delay, including arbitration tribunal costs and the non- breaching Party’s costs, shall be paid forthwith by the breaching Party.
16.12 Deemed Abandonment. Failure of the breaching Party to appoint such a representative within the thirty (30) day period shall be deemed a withdrawal or abandonment of the Dispute by the breaching Party and the arbitrator shall render a formal decision, finding in favour of the non-breaching Party.
16.13 General ADR Conditions.
16.13.1 NO LITIGATION If either Party has submitted the Dispute to court, which Dispute should properly have been submitted for resolution by arbitration, then the court filing Party shall discontinue the court proceedings forthwith, upon notice from the other Party, and both Parties shall remit the Dispute to arbitration hereunder.
16.13.2 OBLIGATIONS DURING ALTERNATE DISPUTE RESOLUTION (ADR) During the progress of ADR, the Parties hereto shall continue to diligently perform their obligations under the License Agreement.
16.13.3 PRIVILEGE Neither Party shall be required to disclose documents that are privileged or created in contemplation of litigation. If a Party does disclose such a document during ADR, that disclosure shall not be construed as a waiver of any privilege unless the disclosing Party so elects in writing.
16.13.4 CONFIDENTIALITY The Parties shall keep confidential the existence of the proceeding under this article, and any element of the ADR (including, without limitation, all conduct, statements, promises, offers, views, pleadings, briefs, documents, testimonies, identity of witnesses, submissions, awards and opinions, whether oral or written), made in the course of the ADR, except as may be lawfully required in judicial or regulatory proceedings relating to the arbitration or otherwise. Without limiting the generality of the foregoing, and for greater clarity, neither Party may make any publicly accessible statements / publications nor any shareholder or press announcements concerning any element of the ADR beyond the fact of the ADR.
16.13.5 ADR DISCLOSURES NOT ADMISSIBLE IN SUBSEQUENT PROCEEDINGS Subject to subparagraph 16.13.6 (Normally Admissible Evidence), all conduct, statements, promises, offers, views and opinions, whether oral or written, made in the course of the ADR by either Party , or the mediator or arbitrator, are not discoverable or admissible for any purposes, including impeachment, in any subsequent litigation or other proceedings involving the Parties.
16.13.6 NORMALLY ADMISSIBLE EVIDENCE Evidence that would otherwise be discoverable or admissible and was not created for an ADR, is not excluded from discovery or admission solely as a result of its use in the ADR.
16.14 Limitation. All Disputes must be submitted to ADR within one (1) year from the time of the facts giving rise to the Dispute . Failure to submit the Dispute within the one (1) year period means a loss of all rights to submit the Dispute to ADR or litigation.
16.15 Material Breach. The failure, neglect or unwillingness of a Party to use or diligently participate in and prosecute a Dispute through ADR is a material breach of the License Agreement.
17.0 INTENT AND INTERPRETATION
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17.17 Forum Conveniens & Applicable Laws. Subject to Article 16 (ADR) any Dispute , shall be governed firstly by applicable Canadian Federal laws, and secondly by the laws of the Province of Ontario. The Parties expressly exclude from the License Agreement:
17.17.1 application of the United Nations Convention on Contracts for the International Sale of Goods;
17.17.2 International Sales of Goods Act; and
17.17.3 any conflict of laws, venue, forum non-conveniens, rules or principles which might refer Disputes to the laws of another jurisdiction.
17.18 Attornment. The License Agreement shall be governed by and construed in accordance with the laws in force in the Province of Ontario, Canada and shall be treated in all respect as an Ontario, Canada contract. Subject to Article 16 (Alternate Dispute Resolution (ADR)) the Parties irrevocably and unconditionally attorn to and submit to the exclusive jurisdiction of the courts of Ontario, Canada and all courts competent to hear appeals therefrom with respect to any Dispute now or hereinafter arising under the License Agreement . The Parties waive any right each may have to object to an action being brought in those courts including, without limitation, by claiming that the action has been brought in an inconvenient forum or that those courts do not have jurisdiction.
17.19 USA Jury Trial. If the License Agreement or any aspect of it becomes a subject of judicial proceedings whether in contract, tort, equity or otherwise, in the United States of America despite the ADR article and Forum Conveniens (paragraph 17.17), then the Company irrevocably waives any and all rights it has to a trial by jury in the United States. The Company agrees and consents that due to the technical and legal nature, including cross jurisdictional issues of the License Agreement or any aspect thereof, any such proceedings will be heard before a judge sitting alone.
17.20 USA Jury Trial / Treble Damages Addendum. For greater clarity, the Company waives any right to a trial by jury of any claim, demand action or caution of action
17.20.1 arising under the License Agreement; or
17.20.2 in any way connect with or related or incidental to the dealings of the Parties in respect of the License Agreement or any other agreements or the transactions related hereto or thereto in each case whether now existing or hereafter;
17.20.3 whether in contract, tort, equity or otherwise. The Company agrees and consents that any such claim, demand, action or cause of action shall be decided by a court without a jury. Canada may file an original counterpart of the License Agreement with the court as written evidence of the consent of the Parties to the waiver of their right to a trial by jury. In addition, the Company irrevocably waives any rights to triple/treble damages or punitive damages under U.S. or any other law.