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MITACS INTERNSHIP AGREEMENT

Elevate Internship Program

BETWEEN:

THE UNIVERSITY OF MANITOBA

(the “University”)

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(“Sponsor”)

WHEREAS:

A.  The Parties wish to participate in the MITACS Elevate Internship Program and plan to submit a grant application entitled “” to MITACS for research funding;

B.  The MITACS Elevate Fellowship Program is a unique postdoctoral fellowship (“PDF”) program that supports PDFs working applied research working on applied research projects with Canadian companies while completing a training program aimed at developing the professional skills required for their future careers. The program is designed as a partnership between the PDFs, their Academic Supervisors and industrial partners. These partnerships give the industrial partner the benefit of working with advanced researchers and the PDF the opportunity to experience research in an industrial setting.

C.  All MITACS Elevate PDF supported projects consist of a $57,000 per year award for two (2) years in support of the research project. This award will include an annual contribution of $25,000 from an industrial partner collaborating with the PDF and a mandatory R&D management training curriculum from MITACS for the PDF.

D.  The Intern and Academic Supervisor will collaborate with the Sponsor to

E.  The Parties each have proprietary knowledge and information relating to the activities to be undertaken pursuant to the MITACS Elevate Internship Program;

F.  During activities undertaken pursuant to the MITACS Elevate Internship Program a Party may disclose to another certain information deemed to be confidential in nature; and

G.  The Parties wish to establish and define their respective rights, obligations and interests with respect to the Project.

NOW THEREFORE, for and in consideration of the foregoing and the mutual promises and covenants contained herein, the Parties agree as follows:

1.  Definitions

Whenever the words and expressions which follow appear in this Agreement, they shall be interpreted according to the definitions given hereafter unless implicitly or explicitly expressed otherwise in the text.

1.1  “Academic Supervisor” means the academic supervisor of an Intern, which in this case is ;

1.2  “Background Intellectual Property” means Intellectual Property belonging to University or Sponsor prior to the commencement of this Agreement.

1.3  “Confidential Information” means any and all non-public information disclosed by the Parties, which the Parties believe to be confidential and/or proprietary, whether provided in oral, written, graphic or other form, including without limitation, any clinical data, technical data, protocol, studies, or Know-how, ideas, invention(s), designs, schematics, drawings, formulas, data, product development plans, strategies, forecasts and other technical, engineering, manufacturing, product, marketing, servicing, contracts, personnel, pricing or finances relating to the Parties.

“Confidential Information” does not include information that:

  1. is in the possession of the Receiving Party at the time of disclosure as shown by the Receiving Party’s files and records immediately prior to the time of disclosure;
  1. prior to or after the time of disclosure, becomes part of the public knowledge, not as a result of any inaction or action of the Receiving Party;
  1. is approved by the Disclosing Party, in writing, for release;
  1. was received by the Receiving Party from a third party having a legal right to disclose it without restriction and was not subject to an obligation of confidentiality owed to the third party at the time of disclosure;
  1. is developed by or for the Receiving Party independently of and without reference to disclosures hereunder, as shown by written records; or
  1. the Receiving Party is compelled to disclose in response to a valid order of any governmental agency, court or other quasi-judicial or regulatory body of competent jurisdiction, provided however, that the Receiving Party shall, as promptly and as reasonably possible, give notice to the other party of the requirement so that the other party may contest the requirement to provide such Confidential Information.

1.4  “Foreground Intellectual Property” means any Intellectual Property arising directly or indirectly from the Project;

1.5  “Intern” means , the graduate student or post-doctoral fellow (“PDF”) participating in MITACS ELEVATE,

1.6  “Intellectual Property” (“IP”) means any new and useful art, invention, discovery, innovation, process, product, formulae, software, manufacture or composition of matter, or any new and useful improvement in any art, invention, discovery, innovation, process, product, formulae, software, manufacture or composition of matter, and any industrial and/or intellectual property rights and all such other rights which may be or are statutorily protected or capable of being protected under statute;

1.7  “Know-how” means unpatented technical information (including, without limitation, information relating to inventions, discoveries, concepts, methodologies, models, research, development and testing procedures, the results of experiments, tests and trials, manufacturing processes, techniques and specifications, quality control data, analyses, reports and submissions) that is not in the public domain;

1.8  “MITACS Elevate” means postdoctoral fellowship program that supports PDFs working on applied research projects with Canadian companies and may be either an;

  1. Strategic Fellowship Program (“SFP”), the PDF will spend their first year working on a project with their Academic Supervisor while seeking a suitable Sponsor to enable then to switch to the IFP by the end of year one; or
  1. Industrial Fellowship Program (“IFP”), the PDF will work on a joint project with a Sponsor.

1.9  “Party or Parties” means individually University or Sponsor and collectively the “Parties”;

1.10  “Project” means the activities undertaken as part of the MITACS ELEVATE as stipulated in the grant application, as more particularly described in paragraph B;

1.11  “Third Party Intellectual Property Rights” means the Intellectual Property rights, domestic or foreign, of any third party;

1.12  “Results” means all information, Know-how, results, inventions, software and other Intellectual Property identified or first reduced to practice or writing in the course of the Project; and

2. Confidentiality

2.1 The Parties shall maintain in confidence the Confidential Information disclosed by either and received from the other either prior to the execution of this Agreement or hereafter. The Receiving Party agrees not to use the Confidential Information disclosed to it by the Disclosing Party for its own use or for any purpose except to carry out discussions concerning the Permitted Purpose, and if agreed to by the Parties in writing, the undertaking thereof. Each Party shall notify the other Party in writing immediately upon becoming aware of the occurrence of an unauthorized release or other breach of this Agreement.

2.2. The Receiving Party will not disclose such Confidential Information to third parties or to the directors, officers, employees, auditors or financial or legal advisers of the Receiving Party or those of its affiliates (“Representatives”), except to those Representatives who have a need to know such Confidential Information solely for the purposes of carrying out the discussions regarding the Permitted Purpose and/or negotiating the terms of a definitive agreement with the Disclosing Party and only to the extent necessary for such purposes, and only to such Representatives who have previously been made aware of the terms of this Agreement;

2.3. The Receiving Party agrees to take all necessary and appropriate steps to keep confidential and protect the Disclosing Party's Confidential Information in order to prevent it from falling into the public domain or the possession of unauthorized persons, including, without limitation, those steps that the Receiving Party takes to protect the confidentiality of its own confidential information which steps shall be no less than those required to satisfy a reasonable standard of care.

2.4 In the event that a protective order is not obtained and the Receiving Party is nonetheless, in the opinion of its counsel, required by law, government or judicial order, or stock exchange listing standard, to disclose any Confidential Information, disclosure may be made only as to that portion of the Confidential Information which the Receiving Party is advised in writing by counsel is legally required to be disclosed. Disclosures made under this paragraph shall not otherwise exempt the disclosed Confidential Information from protection under this Agreement. The Receiving Party has the burden of proving the foregoing exceptions and must notify the Disclosing Party within five (5) business days from the time of disclosure upon such exceptions.

2.5. The Parties agree to be responsible for any breach of the provisions of this Agreement by their respective Representatives. The Receiving Party agrees to notify the Disclosing Party in writing of any misuse or misappropriation of such Confidential Information of the Disclosing Party of which the receiving Party becomes aware of and agrees to cooperate with the Disclosing Party in every reasonable way to help the Disclosing Party regain possession of the Confidential Information and prevent its future unauthorized use.

2.6 Upon termination of this Agreement and in the absence of any further written agreement between the Parties, each Party shall cease all use of the Confidential Information disclosed to it hereunder, and shall upon written request of the Disclosing Party, promptly (no longer than thirty (30) days) return or destroy all Confidential Information in its legal files to determine any continuing obligations hereunder. If the Confidential Information is returned, it will be accompanied by all copies of such documentation, except for documentation which must be retained by the Receiving Party to comply with governmental regulations or for archival purposes. If the Confidential Information is destroyed, the Receiving Party shall provide the Disclosing Party confirmation of destruction. The Receiving Party may retain one copy of the Disclosing Party’s Confidential Information for regulatory and risk management purposes provided that such copy is securely maintained in a secure location at the Receiving Party’s principal place of business or by the Receiving Party’s legal counsel. No use of such Confidential Information is permitted except as expressly provided in this Agreement, and the Receiving Party agrees not to rely upon, in any manner, Confidential Information except as expressly authorized by this Agreement. No grant of any of the Disclosing Party's intellectual property rights, including any license implied or otherwise, is given or intended to be given.

3. Ownership and Use of Intellectual Property & Other Results

3.1 This Agreement does not affect the ownership of any Background Intellectual Property or any other technology, design, work, invention, software, data, technique, Know-how, or materials that are not Results. All Background Intellectual Property will remain the property of the party that contributes it to the Project (or its licensors). No licence to use any Background Intellectual Property is granted or implied by this Agreement except the rights expressly granted in this Agreement.

3.2 Where a Party’s Background Intellectual Property is required in order to proceed with the Project, each Party hereby grants the other a royalty-free, non-exclusive licence to use its Background Intellectual Property for the purpose of carrying out the Project, but for no other purpose. Neither Party may grant any sub-licence to use the other's Background Intellectual Property except that the Sponsor may allow its Affiliates and any person working for or on behalf of the Sponsor or any Affiliates to use the University's Background Intellectual Property exclusively for the purpose of carrying out the Project.

3.3 Foreground Intellectual Property first created or reduced to practice by the Intern or the Academic Supervisor in the undertaking of the Project as part of the MITACS Elevate Fellowship Program will be disclosed to the Sponsor and assigned by the Intern or Academic Supervisor as the case may be to the University and will be assigned by the University to the Sponsor in exchange for an annual royalty:

a)  the Parties agree that if the Foreground Intellectual Property and/or the Results lead to a new Product or service, the Sponsor will pay to the University an annual royalty of 3% on the gross sales of the new Product or service that is derived from the Intellectual Property in the Results for the duration of its protected lifespan;

b)  the Parties further agree that if the Foreground Intellectual Property and/or the Results lead to process improvements and/or efficiencies that result in increased Product yield, the Sponsor will pay to the University an annual royalty of 3% on the derived income directly attributable to the Intellectual Property in the Results for the duration of its protected lifespan.

3.4 Copyright in materials produced by the Intern or the Academic Supervisor in the undertaking or Results of the Project will be owned in accordance with and subject to the provisions of the Publication and Copyright section of this Agreement;

3.5 Results first identified, created, or reduced to practice by the Sponsor or an employee or other individual participating in the Project through the Sponsor will be owned by the Sponsor, the employee or other individual in accordance with applicable law and any agreement between the Sponsor Organization and such employee or other individual;

3.6 The University shall ensure that the Academic Supervisor and the Intern will avoid the use in the Project of Intellectual Property that is known to them to be owned by a third party and not authorized for use in the Project. In the event that any such Third Party Intellectual Property is advertently or unavoidably used in the Project, upon acquiring personal knowledge of such use, any participant in the Project shall promptly notify the other participants thereof and refrain from any further use.;

3.7 The Sponsor hereby grants to each of the University, the Intern and the Academic Supervisor a royalty-free, non-exclusive, perpetual, irrevocable license to use the Foreground Intellectual Property and any other Results owned by the Sponsor, any of its employees or other individual participating in the Project through the Sponsor, for the purpose of undertaking the Project and for research, scholarly publication, education or other non-commercial use.

4. Publications and Copyright

4.1 Subject to compliance with the requirements of this section, the University is not restricted from presenting, publishing or otherwise disseminating the Results of any research relating to the Project (including without limitation the Foreground Intellectual Property) at symposia, professional meetings or for academic evaluation or other academic purposes (including, without limitation, publishing thesis, course reports, journal articles or other academic publications) provided that the University will submit to the Sponsor, a copy of any proposed publication containing the Results of the Project or any Foreground Intellectual Property at least thirty (30) days in advance of the proposed publication date. The Sponsor may, within fifteen (15) days following receipt of a copy of the proposed publication require by written notice to the University, the Academic Supervisor and the Intern that the proposed publication date be delayed, for a period of not greater than sixty (60) days, so as to permit the Sponsor to make application to register a patent with respect to the Foreground Intellectual Property or may request that any Confidential Information of the Sponsor be removed. Failing receipt of such notice in the time and manner provided, the University, the Academic Supervisor and the Intern will be free to publish the proposed publication without further notice to the Sponsor.