(NSERC Alliance-AI Advance Program) Agreement Number: [Record Number]
THIS INVESTMENT AGREEMENT DATED THE ## DAY OF MONTH 20##, BETWEEN:
A Provincial research and innovation corporation established pursuant to Section 6.1(3) of the Alberta Research and Innovation Act
- and -
1. The Applicant has been approved for an NSERC Alliance-AI Advance Program award;
2. In partnership with NSERC, the 2020/2021 NSERC Alliance-Alberta Innovates Advance Program supports researchers with promising discoveries at Alberta universities begin to advance their research towards the marketplace. Project funding helps to bridge the gap between academic research and technology validation, which could later lead to technology transfer and commercialization, in priority emerging technology areas for Alberta.
3. Such novel solution forms the basis of the Project titled “XXXXXXXX” as detailed in this Investment Agreement;
4. The Applicant intends to work on the Project but requires funding from Alberta Innovates and the Natural Sciences and Engineering Research Council (NSERC) to meet the funding requirements; and
5. Alberta Innovates has reviewed the Application and, on such basis, has approved funding for the Project.
NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
1.1 Terms and Conditions
The Investment is governed by the Terms and Conditions which form a part of this Investment Agreement. A copy of the Terms and Conditions are attached as Schedule A.
For ease of reference, a list of defined terms is included in Schedule B. ARTICLE 2 PROJECT START AND COMPLETION DATES
The Applicant agrees to undertake the Project as described in its Application, a copy of which is attached as Schedule C, including achieving the Milestones as required by Section 4.2 below.
2.2 Project Start Date
It is agreed between the Parties that the Project Start Date is <START DATE, YEAR>.
2.3 Project Completion Date
It is agreed between the Parties that the Project Completion Date is <END DATE, YEAR>. If the Project is not completed by such date then, subject to an amendment agreed to between the Parties, Alberta Innovates may elect to terminate this Investment Agreement. In such event, Alberta Innovates will notify the Applicant of its decision to terminate as soon as reasonably practical and shall advise the Applicant of the effective date of termination. Alberta Innovates will have no liability or obligation to reimburse the Applicant for any Project Costs incurred after the effective date of termination and may require the Applicant to return any portions of the Investment which were spent on Ineligible Expenses. Additionally, any portion of the Investment not used and accounted for in accordance with this Agreement as of the Project Completion Date or earlier termination is repayable by the Applicant to AI at AI’s request.
2.4 Effective Date of this Investment Agreement
The effective date of this Investment Agreement shall be the Project Start Date.
2.5 Term of this Investment Agreement
The Term of this Investment Agreement shall start on the Project Start Date and end on the later of: (i) the date Alberta Innovates pays the final portion of the Investment; (ii) the date the Project, as described in the Application, is completed; or (iii) the date Alberta Innovates communicates its receipt and acceptance of the Final Report to the Applicant.
3.1 Investment by Alberta Innovates
Subject to the Terms and Conditions of this Investment Agreement, Alberta Innovates agrees to provide the Applicant with a contribution to the Project (the “Investment”) not exceeding $ AMOUNT Canadian dollars in accordance with the payment schedule as set out in Schedule D. Notwithstanding the generality of the foregoing, Alberta Innovates reserves the right to withhold payment of any portion of the Investment if the Applicant incurs a debt to Alberta Innovates, or its affiliates Innotech Alberta Inc. or C-FER
Technologies (1999) Inc. related to or arising from project(s) involving the principal investigator identified in the Application.
If the total Project Costs decrease, Alberta Innovates may elect to adjust its Investment pro-rata in accordance with such decrease. Alberta Innovates shall pay the Investment to the Applicant in the amounts and at the times specified in Schedule D.
3.2 Milestone Payments
The Investment will be paid over time in accordance with the critical Milestones as set out in Schedule D. A Project must have two Milestones to be disbursed throughout the Term of this Investment Agreement, unless an extension is agreed to by the Parties. Upon completion of a Milestone, the Applicant is required to submit a Progress Report or Final Report (as the case may be) to Alberta Innovates. Milestones Generally
Milestones may overlap, but Alberta Innovates will not review more than one Progress Report or issue more than one payment per calendar month.
4.1 Terms and Conditions
All Milestone Payments are subject to the Terms and Conditions. Alberta Innovates will pay and deliver the Investment to the Applicant at the times identified in Schedule D upon completion of the particular Milestone, and Alberta Innovates’ written approval of the completed Progress Report or Final Report, as the case may be. Alberta Innovates may refuse to approve a Progress Report or Final Report, or request changes to such report, as determined in its sole discretion upon written notice to the Applicant advising of the reason for refusing approval and/or requesting a change.
4.2 Milestone, Reporting, and Payment Timelines
The Milestone, Reporting, and Payment Timelines are set out in Schedule D.
4.3 Reporting Obligations During the Project
Alberta Innovates is a Provincial (Crown) Corporation. It is owned by the Government of Alberta. One of Alberta Innovates primary mandates is to support the development and commercialization of new and innovative technologies for the benefit of Alberta and Albertans. In doing so, Alberta Innovates invests public dollars to support the projects it funds. For that reason, Alberta Innovates is required to report to the Government of Alberta on its use of grant funding, to ensure Alberta Innovates mission and mandate are being achieved.
Regular Applicant reporting is a requirement, both during the Term and afterward. Upon the completion of a Milestone (as set out in Schedule D) the Applicant is required to submit a Mid-project Presentation using electronic slides. This Mid-Project Presentation is required to be submitted within thirty (30) days of the
completion of the given Milestone, the date to be coordinated with NSERC and Alberta Innovates. If the Applicant does not provide a Progress Report as required, this will be considered a default and Alberta Innovates may withhold payment of any portion of the Investment associated with that Milestone.
For the final Milestone of the Project, the Applicant will provide Alberta Innovates with a Final Report within thirty (30) days of the Project Completion Date. All Report templates (both for Progress Reports and Final Reports) will be provided by Alberta Innovates. These templates will clearly differentiate between sections that are considered confidential (and can only be disclosed to the Government of Alberta but to no other party), versus portions that are considered non-confidential and can be disclosed in the public domain. For clarity, all Reports (both Progress Reports and the Final Report) may be disclosed to the Government of Alberta and NSERC in their entirety, on a strictly confidential basis.
The Final Report is intended to provide a high level summary of the Project. It allows Alberta Innovates to compare the actual results achieved to key performance indicators set at the outset of the Project, and to gauge whether the Project was successful. The Final Report may also be used to report to the Government of Alberta. Alberta Innovates will not publish the non-confidential portion of the Final Report in the public domain for six (6) months following the Project Completion Date. If this period is not sufficient for the Applicant to protect its Intellectual Property, or to publish its results in an academic journal or trade industry publication, the Applicant may request a further six (6) month extension. Alberta Innovates will not unreasonably withhold or delay its consent to such a request.
4.4 Annual Surveys
The Applicant further agrees to complete an annual survey in a format to be provided by Alberta Innovates, both during the Term of the Project and for five (5) years thereafter. The information contained within these surveys may be disclosed to third parties or published in the public domain without further notice to the Applicant, provided that prior to such disclosure Alberta Innovates will aggregate such information by removing any identifying particulars of the Applicant. All such information is deemed to be non-confidential for all of Alberta Innovates’ purposes and the Applicant agrees to provide such information when requested by Alberta Innovates for five (5) years after the Project Completion Date. Failure to complete the annual surveys may result in the Applicant being ineligible for future funding from Alberta Innovates.
5.1 Changes and Review Procedure
Alberta Innovates expects the Applicant to set reasonable Milestone start and completion dates, anticipating times during the Term of the Project when setbacks or unavoidable delays may occur. Should an unforeseen circumstance arise whereby it is not possible to meet the deliverables set out in a particular Milestone, the Applicant may request an amendment to the Investment Agreement by contacting Alberta Innovates’ representative set out in ARTICLE 6 below no later than two (2) weeks prior to the next Milestone completion date. Changes may include, but are not limited to, the following: (i) an increase or decrease in the Investment associated with a particular Milestone, or the Project as a whole; (ii) a proposed change in the scope of the Project; (iii) a delay in the completion of a Milestone, irrespective of any impact on the Project Completion Date; or (iv) any other changes as determined by Alberta Innovates. Upon review of the request, Alberta Innovates may, at its sole and unfettered discretion, approve, decline or request further information concerning the change. Should a change be approved by Alberta Innovates, the remainder of the Investment
Agreement shall remain in full force and effect unamended. Depending on the nature of the change, Alberta Innovates may require the Parties to execute an amendment to the Investment Agreement or by notice to all Parties that a new Milestone, Reporting & Payment Schedule D has been approved. If the requested change is declined, the Applicant may either elect to proceed with the Project as previously approved by Alberta Innovates or terminate the Investment Agreement, in which case no further payments from the Investment will be provided.
5.2 Cumulative Changes in Excess of Twelve Months
For clarity, any changes over the Term of the Project that result in more than a twelve (12) month extension from the original Project Completion Date will not be approved by Alberta Innovates. Should such changes delay the Project Completion Date for more than twelve (12) months from the initial Project Completion Date, all funding from Alberta Innovates shall cease on the day after the one year anniversary of the original Project Completion Date, unless otherwise approved by Alberta Innovates in writing.
Any notice or other communication regarding the matters contemplated by this Investment Agreement shall be delivered to the individuals listed below and must be in writing and delivered by courier, registered mail or email, as follows:
For Project Matters:
Name: Xxxx Xxxxx
Address: 000 Xxxx Xxxxx Xxxx, Xxxxxxxx, XX X0X 0X0 Phone: 000-000-0000
For Agreement Matters:
Name: Xxxx XxXxxxxx
Title: Senior Program Associate
Address: 000 Xxxx Xxxxx Xxxx, Xxxxxxxx, XX X0X 0X0 Phone: 000-000-0000
Please complete the following:
For Project Matters:
For Agreement Matters:
If the individual(s) named above is different than the Applicant Representative named in the Application, such person(s) must have the authority and permission to have access to the Application and any attachments, the Investment Agreement, and all future correspondence, forms and other documentation. The person(s) listed above is deemed the Applicant Representative on a go-forward basis.
A notice is deemed to be delivered and received on the date of delivery if delivered prior to 4:30 p.m. (MST time) on a Business Day and otherwise on the next Business Day.
A Party may change its address for service from time to time by notice given to the other Party in accordance with the foregoing provisions.
[The remainder of this page has been intentionally left blank. Signature pages follow]
[Name of Authorized Signatory Title]
[Name of Authorized Signatory Title]
[THIS SPACE LEFT INTENTIONALLY BLANK]
CONSENT AND ACKNOWLEDGEMENT TO BE BOUND TO THE INVESTMENT AGREEMENT BY THE APPLICANT:
The undersigned agrees to be bound by this Investment Agreement.
[APPLICANT – exactly as written on the first page]
Per: (printed name):
Position: I have authority to bind the company.
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SCHEDULE A – TERMS AND CONDITIONS
THE FOLLOWING LEGAL TERMS AND CONDITIONS ARE INCORPORATED INTO AND FORM PART OF THE INVESTMENT AGREEMENT. PLEASE REVIEW THESE TERMS CAREFULLY.
1. Conditions of Payment
Alberta Innovates’ obligation to pay the Investment, or any portion or instalment thereof , is conditional on:
(a) the Applicant at all times being in compliance with the Investment Agreement;
(b) the Project progressing as set out in Article 4 - MILESTONE, REPORTING AND PAYMENT TIMELINES above; (c) the Project being completed by the Project Completion Date;
(d) timely completion of all Reports as required.
2. Use of Sub-Contractors
It is understood that the Applicant may require the use of another entity as a Sub-Contractor in order to adequately complete the Project. Where such Sub-Contractors are utilized, a collaboration letter, contract or agreement between the Applicant and the Sub- Contractor(s) must be in place prior to the Applicant proceeding with the Milestone which requires assistance f rom the Sub-Contractor, and a copy of the same will be provided to Alberta Innovates upon request, and on a strictly conf idential basis. The Applicant shall be solely responsible for all work, acts, def aults any liabilities of any Sub-Contractor(s) so engaged and agree to release Alberta Innovates f rom all liability in respect of same.
3. Alberta Innovates’ Right to Terminate Funding
Notwithstanding any other term of this Investment Agreement, Alberta Innovates may terminate its obligations under this Investment Agreement immediately or at any time during the Term in the event the Government of Alberta at any time suspends, revokes, reduces or terminates f unding to Alberta Innovates. In such event this Investment Agreement shall terminate immediately subject to the obligation of the Applicant to provide a summary Report as set out below. Alberta Innovates will notif y the Applicant of such suspension as soon as is reasonably practicable.
Notwithstanding any other terms of this Investment Agreement, Alberta Innovates may terminate this Investment Agreement at any time without cause on thirty (30) days’ written notice to the Applicant, and Alberta Innovates’ obligation to make any f urther payments of the Investment shall cease upon delivery of such notice.
Alberta Innovates additionally has the right to unilaterally terminate the Investment for any Project that incurs a Def xxxx. Should Alberta Innovates elect to terminate this investment Agreement for any reason.
In the event of early termination as af oresaid, the Applicant will not be obligated to deliver the Final Report, but will provide to Alberta Innovates a Progress Report summarizing the outcomes of the Project up to the ef f ective date of such termination, such report to be delivered not later than ninety (90) days f rom the date of termination.
4. Termination of the Project for Delay
If the Applicant suspends or delays the Project for any reason whatsoever for a period in excess of one (1) year, or for periods which in the aggregate exceed twelve (12) months during the Term of the Project, then Alberta Innovates may terminate this Investment Agreement immediately upon notice to the Applicant, in which case Alberta Innovates will have no f urther payment obligation. If the Applicant terminates its part of the Project for any reason prior to the Project Completion Date, Alberta Innovates must be notified immediately. Nothing will excuse the Applicant f rom providing a Progress Report summarizing the outcomes of the Project up to such date of termination.
Upon receipt of notice of termination except for reason of Def xxxx, the Applicant shall be entitled to be reimbursed for actual costs legally incurred prior to the date of termination, including all direct costs incurred in winding down the Project, which such reasonable costs will include actual non-cancellable, legal commitments made by the Applicant, as conf irmed and approved by Alberta Innovates. The Applicant will use reasonable ef forts to ensure that any f inancial commitments made by the Applicant during this Investment Agreement which can be terminated immediately upon receipt of notice of termination to ensure the liabilities created pursuant to this Investment Agreement are reduced to a minimum.
5. Repayment of the Investment
Alberta Innovates has the right to require the Applicant to repay any portions of the Investment paid to the Applicant where:
(a) the Applicant f ails to comply with all reporting requirements set out in this Investment Agreement; (b) the Project is terminated by the Applicant prior to the Project Completion Date; or
(c) the Applicant incurs a Def xxxx.
In any of these instances, any amount of the Investment already advanced to the Applicant shall constitute a debt owed by the Applicant to Alberta Innovates on a dollar for dollar basis, together with interest, which shall accumulate f rom and af ter the date of notice of termination f rom Alberta Innovates at the prime rate for commercial loans f ixed by the Royal Bank of Canada at that date, plus 3%. Such debt plus accrued interest is due and payable within forty-five (45) days of Alberta Innovates delivering the notice of termination.
For clarity, Alberta Innovates will not require the Applicant to repay portions of the Investment where a Milestone could not be completed, or one of the desired outcomes of the Project was not achieved, despite the best ef forts of the Applicant. Alberta Innovates acknowledges that unf oreseen technical issues and other delays may occur which are outside the Applicant’s reasonable control, and for that reason the Applicant is offered the opportunity to request an amendment to this Investment Agreement, per the procedure set out in Article 5.1 above – Changes and Review Procedure. Alberta Innovates may however require the Applicant to repay all or a portion of the Investment in any of the circumstances listed above where there is evidence of misuse of the Investment, a serious breach or Def xxxx, or other egregious behaviour on the part of the Applicant, as determined by Alberta Innovates in its sole discretion.
6. Intellectual Property
Alberta Innovates makes no claim to any Intellectual Property generated as a result of its Investment in the Project. The Applicant acknowledges the importance to Alberta Innovates that any Intellectual Property that may be generated through the Project be used to the benef it of Alberta and Albertans. Ownership of any Intellectual Property developed through the Project will follow the practices of the Applicant and agreement(s) to which the Applicant is a party, and a copy of such agreement must be provided to Alberta Innovates as proof of compliance with this requirement upon request, and on a strictly conf idential basis.
7. Representations and Warranties
Alberta Innovates represents and warrants that:
(a) it is a Provincial research and innovation corporation established pursuant to the laws of Alberta and is in good standing under the laws of such jurisdiction;
(b) it has all necessary power and authority to enter into, deliver, and perf orm its obligations under this Investment Agreement and all necessary action has been taken to approve this Investment Agreement and the transactions contemplated herein; and
(c) the entering into and perf ormance of this Investment Agreement does not violate or breach any other agreement to which Alberta Innovates is a party, or any of its constating documents.
8. Representations of the Applicant
The Applicant represents and warrants that, both at the time of signing this Investment Agreement and throughout the Term:
(a) all inf ormation contained in the Application, together with any other documentation provided to Alberta Innovates in relation to the Project is accurate and complete, and will remain so in all material respects during the Term of this Investment Agreement;
(b) it has made f ull, true and plain disclosure of all f acts relevant to the Project and its commitments under this Investment Agreement and will comply with same throughout the term, including specif ically any ongoing disclosure and reporting obligations;
(c) it has all necessary power and authority to execute, deliver and perf orm its obligations under this Investment Agreement and all necessary action has been taken by it to approve this Investment Agreement and the transactions contemplated hereby;
(d) the entering into and perf ormance of this Investment Agreement does not violate or breach any other agreement to which it is a party or any of its constating documents, and that throughout the Project it will remain an eligible entity under the guidelines set out in the Program Guide;
(e) it will ensure that the individuals named in the Project who are employees or contractors of the Applicant will be assigned to or otherwise enabled to perf orm their respective roles in the Project;
(f ) it will complete the Project in accordance with Schedule D and the Application;
(g) it will only use the Investment solely for Eligible Expenses related to the Project; and
(h) it will not change the Project in any way f rom what is set out in the Application without the prior written consent of Alberta Innovates, which consent may be withheld for any reason.
9. Records, Reporting and Monitoring
During the Term and for a period of f ive (5) years thereaf ter, the Applicant shall maintain or cause to be maintained f ull, accurate and complete records of the activities conducted in f urtherance of, and the results achieved through the conduct of the Project, including without limitation full, accurate and complete records and books of account relating to the receipt and expenditure of the Investment. The Applicant acknowledges that certain records required to be maintained under this Investment Agreement may be subject to the protection and access provisions of the Freedom of Information and Protection of Privacy Act (Alberta) (FOIP). Alberta Innovates may, f rom time to time, upon reasonable prior notice to the Applicant, audit or examine the records or books of account to be maintained in accordance with this section. The costs of any such audit, examination or report shall be paid by Alberta Innovates unless such audit, examination or report reveals a breach of this Investment Agreement or a f ailure by the Applicant to maintain proper records as required by this section, in which case the costs shall be paid by the Applicant.
Alberta Innovates shall be entitled, at reasonable times and upon reasonable prior notice to the Applicant to have their authorized agents attend at the premises of the Applicant or the location where the Project is being carried out for the purposes of examining the f iles, documents, records and other assets pertaining to the Project, or to assess whether the Applicant is complying with the terms of this Investment Agreement. The Applicant agrees to provide Alberta Innovates’ authorized agents with all such assistance as may be reasonably required during such inspection. For clarity, such right of inspection shall be limited to the purpose of ascertaining whether this Investment Agreement has been complied with, and Alberta Innovates will not have any general right to obtain custody or copies of the records of the Applicant except as contemplated by this section.
The Applicant agrees to use Alberta Innovates’ standard form documents found on the Alberta Innovates Grants Management System (GMS) and other forms or reporting templates which may be provided by Alberta Innovates f rom time to time during the course of completing and reporting on the Project. Alberta Innovates may update or amend its standard forms f rom time to time without notice to the Applicant. Accordingly, the Applicant is encouraged to access the particular form f rom Alberta Innovates’ website at the time it is required in order to ensure the most current version of the form is used.
11. Publications and Public Messaging
All publications, presentations and public messages concerning the Investment, or the Project must acknowledge the contribution of Alberta Innovates, the Ministry of Jobs, Economy & Innovation and the Government of Alberta, where applicable, and be provided to Alberta Innovates in draf t form for review to ensure appropriate acknowledgement is included in accordance with this Section 11, such conf irmation to be received no later than ten (10) Business Days f rom the date of the request. Use of the f ull legal name ‘Alberta Innovates’ is required, rather than ‘AI’ or a similar acronym. Such approvals shall not be unreasonably withheld. Alberta Innovates’ f inancial support or investment in a Project in no way constitutes an endorsement of the Project or the Applicant, and any suggestion or statement that Alberta Innovates endorses or approves of a Project or a party involved in the Project is strictly prohibited and may result in termination of this Investment Agreement by Alberta Innovates.
12. Academic Publications
The Parties agree that it is part of the Applicant’s mission and policies to disseminate inf ormation and make it available for the purpose of scholarship, subject to the foregoing Section 11. Notwithstanding Section 11, the Applicant shall have the right to publish any Intellectual Property generated in the course of the Project in accordance with academic standards without restriction, provided the contributions of Alberta Innovates, the Ministry of Jobs, Economy & Innovation and the Government of Alberta are acknowledged in such academic publication. Such publications may include, but are not limited to, abstracts, or presentation to a journal, editor, meeting, seminar or other third party.
13. Non-Confidential Information and Publication of Non-Confidential Information
In accordance with ARTICLE 4, the Applicant acknowledges and agrees that, as a public body, Alberta Innovates is required to report on and promote the success of innovation initiatives within the Province of Alberta. Accordingly, Alberta Innovates may publish and/or disseminate in the public domain certain inf ormation about the Project contained in the Application, the Progress and Final Reports, and/or annual surveys, but only where such inf ormation is explicitly marked as ‘non-conf idential’. Alberta Innovates may also use and disclose the Final Report in accordance with the terms of ARTICLE 4.3.
14. Freedom of Information (FOIP)
Alberta Innovates is governed by FOIP. This means Alberta Innovates may be asked to disclose the inf ormation received under this Investment Agreement, or other inf ormation delivered to Alberta Innovates in relation to the Project, when an access request is made by anyone in the general public.
In the event an access request is received by Alberta Innovates, exceptions to disclosure within FOIP may apply. If an exception to disclosure applies, certain inf ormation may be withheld f rom disclosure. The Applicant is encouraged to f amiliarize itself with FOIP. Inf ormation regarding FOIP can be found at xxxx://xxx.xxxxxxxxxxxxxx.xx/xxxx/.
15. Liability and Indemnities
Alberta Innovates shall not be liable in any way whatsoever to the Applicant or any of its directors, officers, employees, agents, personal legal representatives and/or heirs for any losses, damages or claims, including but not limited to indirect, incidental, consequential, or special damages or any loss of profits, loss of business opportunity, loss of revenue, or any other loss or injury suf f ered or arising in any way whatsoever in the course of the Project, whether arising bef ore or af ter submitting an Application or entering into the Investment Agreement with Alberta Innovates.
The Applicant agrees to indemnif y, def end and hold harmless Alberta Innovates, its directors, officers, employees and agents against and f rom any and all third party claims, demands, actions and costs whatsoever (including legal costs on a solicitor and his own client f ull-indemnity basis) that may arise directly or indirectly out of any act or omission of the Applicant, or any of its directors, officers, employees, contractors, agents or legal representatives or the negligence or tortious act or willf ul misconduct of the Applicant or any of its directors, officers, employees, contractors, agents or legal representatives in relation to their obligations under this Investment Agreement.
This section will survive termination or expiry of this Investment Agreement.
The Applicant shall, at its own expense and without in any way limiting its liabilities herein, insure its operations under a contract of General Liability Insurance, in accordance with the Insurance Act (Alberta), in an amount of not less than $2,000,000 inclusive per occurrence, insuring against bodily or personal injury and property damage, including the loss of use thereof . Such insurance must be in place bef ore the signing of this Investment Agreement and shall be maintained during the Term. The Applicant acknowledges that no protection is available f rom Alberta Innovates for any third-party claims pursuant to the Project. The Applicant shall provide a certif icate of insurance when requested by Alberta Innovates. Where permitted by its constating documents and bylaws, the Applicant
may elect to self -insure its obligations under this section.
17. Dispute Resolution
In the event of any dispute regarding the interpretation of any provision of this Investment Agreement, the Parties agree to ref er the matter to joint discussion by senior officials of the Applicant and Alberta Innovates. If such senior officials cannot resolve a dispute, the Parties may agree to participate in mediation with a mutually acceptable mediator. Mediation will proceed on the following basis:
(a) if the Parties cannot agree on a mediator, they will ask the President or Executive Director of the Alberta Arbitration and Mediation Society to assist in the selection process;
(b) the Parties will share the cost of the mediator equally and bear their own costs incurred with respect to the mediation, including but not limited to any legal costs;
(c) no evidence of anything said or of any admission or communication made in the course of the mediation shall be admissible in any f urther legal proceedings, except with the consent of all Parties; and
(d) any resolution reached will be based on the f ull participation of an agreement between the Parties.
For clarity, nothing in this Investment Agreement shall abrogate Alberta Innovates’ rights to seek judicial or equitable relief or to enf orce the terms of this Investment Agreement in a court of law.
18. No Partnership, Joint Venture or Agency
Nothing in this Investment Agreement shall be deemed to create a partnership, joint venture, association, agency, trust, or employer- employee relationship and no Party shall be authorized to hold itself out or to act as the agent or employee of any other Party for any purpose whatsoever.
19. Governing Law
This Investment Agreement shall be governed by the laws of the Province of Alberta and the laws of Canada applicable therein and the Parties hereby irrevocably attorn to the exclusive jurisdiction of the courts of the Province of Alberta for all disputes arising under this Investment Agreement.
20. Interpretive Aids
All ref erences to the singular include the plural and vice versa and ref erences to one gender include both genders and gender-neutral parties, where applicable. Derivations of terms or expressions def ined herein shall have a corresponding meaning to the def ined term or expression. The headings, article and section ref erences appearing in this Investment Agreement are for convenience and ease of ref erence only and in no way def ine, limit or describe the scope or intent of this Investment Agreement or any part thereof . All of the provisions of this Investment Agreement shall be construed to be covenants and agreements as though the words specif ically expressing covenants or agreements were used in each separate provision hereof . All recitals and schedules to this Investment Agreement are expressly incorporated herein. Any ref erences to a statute include all applicable regulations, all amendments to that statute or applicable regulations and any statute or applicable regulation that supplements or replaces such statutes or
applicable regulations, as the case may be. All monetary ref erences are in lawf ul currency of Canada.
Alberta Innovates may assign its rights under this Investment Agreement to an ‘af f iliate’ (as that term is def ined in section 2(1) of the
Business Corporations Act (Alberta)) or successor entity on written notice to the Applicant.
22. General Terms and Conditions
A waiver of any provision of this Investment Agreement must be in writing and signed by the Party providing the waiver and is legally binding only in the specif ic instance and for the specif ic purpose for which it was given. The f ailure or delay of any Party to exercise any right under this Investment Agreement does not constitute a waiver of that right. No single or partial exercise of any right will preclude any other or f urther exercise of that right or the exercise of any other right, and no waiver of any of the provisions of this Investment Agreement will constitute a waiver of any other provision (whether or not similar).
If any provision of this Investment Agreement or its application to any Party or circumstance is determined by a court of competent jurisdiction to be illegal, invalid or unenf orceable, it will be inef f ective only to the extent of its illegality, invalidity or unenf orceability without af f ecting the validity or the enf orceability of the remaining provisions of this Investment Agreement and without af f ecting its application to the other Parties or circumstances.
This Investment Agreement does not and is not intended to conf er any rights or remedies upon any Person other than the Parties. Any third party is not entitled to rely on the provisions of any project document in any action, suit, proceeding, hearing or other forum.
This Investment Agreement, including all schedules hereto, constitutes the entire agreement between the Parties as they relate to the obligations of Alberta Innovates under the Program. This Investment Agreement supersedes all other understandings, agreements and representations with Alberta Innovates. There are no representations, warranties, terms, conditions, covenants or other understandings, express or implied, collateral, statutory or otherwise f rom Alberta Innovates that the Parties are relying on in entering into and completing the Project. The Parties hereto acknowledge and agree that: (i) each Party has read and understands the terms and provisions of this Investment Agreement, have had the opportunity to review same with their legal counsel, and any rule whereby an ambiguity is to be resolved against the draf ting Party does not apply in the interpretation of this Investment Agreement; and (ii) the terms and provisions of this Investment Agreement will be construed f airly as to all Parties hereto and not in f avour of or against any Party, regardless of which Party was generally responsible for the preparation of this Investment Agreement.
Each Party agrees to execute, acknowledge and deliver such f urther instructions, and to do all such other acts, as may be necessary or appropriate in order to carry out this Investment Agreement.
If any act is required by the terms of this Investment Agreement to be perf ormed on a day which is not a Business Day, the act will be valid if performed on the next succeeding Business Day.
This Investment Agreement may be executed in any number of counterparts and delivered via f acsimile or electronically in portable document format. Each such counterpart, when so executed and delivered, shall be deemed an original and all such counterparts, when taken together, shall constitute one and the same instrument.
This Investment Agreement may be modified or amended by mutual agreement of the Parties. Depending on the nature of the change, Alberta Innovates will determine if a formal amending agreement is necessary, or if updated Schedules can be circulated electronically without the need for a formal amendment.
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SCHEDULE B – DEFINED TERMS
FOR THE PURPOSES OF THIS AGREEMENT, THE FOLLOWING TERMS ARE DEFINED TO HAVE THE CORRESPONDING MEANING:
(a) “Applicant” means the entity identif ied on the f ront page of this Investment Agreement who completed and submitted an approved Application;
(b) “Applicant Representative” means the individual who is authorized to act on behalf of the Applicant; (c) “Application” means the application submitted by the Applicant, and attached as Schedule C;
(d) “Business Day” means any day other than a Saturday, Sunday, or statutory holiday in the Province of Alberta;
(e) “Default” means any one (1) or more of the following:
i any breach of an obligation or f ailure to perf orm or observe any provision on its part under the Investment Agreement or, made by the Applicant and any such breach or def xxxx continues for a period of ten (10) Business Days af ter receipt of written notice f rom Alberta Innovates specif ying such breach; or
ii f ailure by the Applicant to proceed with the Project, not carry out the Project, materially alter the Project without obtaining Alberta Innovates prior written permission as contemplated herein;
iii but provided that where Alberta Innovates gives notice of the occurrence of a Def xxxx and the Def xxxx is cured within ten
(10) Business Days, notice that the Def xxxx is no longer continuing will be given to Alberta Innovates by the Applicant immediately af ter the Applicant becomes aware that the Def xxxx has been cured, and Alberta Innovates will not terminate its Investment on the basis of that Def xxxx;
(i) “Eligible Expense” means:
i labour costs (gross wages or salaries incurred at reasonable market rates) for those individuals who are specif ically identif ied as perf orming the service which is directly attributable to the Project and thereby quantif iable or measurable, unless the Applicant is being reimbursed for such costs elsewhere. Accordingly, general overhead is not considered an Eligible Expense;
ii costs of materials, made at the lower of cost or f air market value, which can be specif ically identif ied and quantif ied as having been incurred in the perf ormance of the Project activities, and which are so identif ied and quantif ied consistently in the cost accounting practices of the Applicant;
iii acquisitions of property including capital improvements to f acility premises and capital equipment (but excluding land and buildings), made at the lower of cost or f air market value, that are critical to the perf ormance of the Project will be considered on a case by case basis upon submission to Alberta Innovates by the Applicant. The contribution will be pro-rated to the Project time f rame based on asset’s expected economic lif e, if purchased, at industry standard depreciation rates with any residual undepreciated value attributed to the economic lif e of the asset remaining af ter Project completion being an Ineligible Expense;
iv acquisitions of software or inf ormation databases, made at the lower of cost or f air market value, that are critical to the perf ormance of the Project will be considered. The cost of such technology will be pro-rated over the duration of the Project;
v basic prof essional services, f ees and disbursements, such as ongoing routine accounting, tax and legal business requirements and f inancing f ees, directly related to the Project;
vi cost of sub-contractors at f air market rates where the work of the sub-contractor(s) is directly related to the Project;
vii costs relating to travel (including mileage, airf are (lowest economy class/excursion or other promotional type of air f are must be sought at the time of booking) and accommodation and meals at reasonable rates;
viii additional direct operating costs (incurred at reasonable market rates), not f xxxxxx within the categories of labour and materials, but which can be specif ically identif ied and quantif ied as having been incurred, or to be incurred, in the perf ormance of the Project activities and which are so identif ied and quantif ied consistently by the Applicant’s cost accounting practices; and
ix any other cost which Alberta Innovates pre-approves in writing as an Eligible Expense.
(j) “Final Report” means the f inal report summarizing the outcomes of the Project, to be completed by the Applicant in the standard form no later than thirty (30) days af ter the Project Completion Date. The Final Report must provide accounting for all Project revenues and expenses, and include a concise summary of what the project has achieved, and compare the outcomes and
perf ormance of the Project with ref erence to the desired outcomes specif ied by Alberta Innovates, and the desired Project outcomes as stated in the Application and in this Investment Agreement;
(k) “Ineligible Expense” means any one (1) of the following:
i any cost that does not qualif y as an Eligible Expense;
ii any cost incurred prior to the Eff ective Date of this Investment Agreement, except where Alberta Innovates has provided written approval to include the cost as an Eligible Expense;
iii transactions between related parties; iv allowance for interest on debt;
v losses on investments, bad debts and expenses for collection charges; vi losses on other projects or activities not related to the Project;
vii f xxxx and penalties;
viii unreasonable compensation for Project labour; ix costs for professional training & development;
x Federal and Provincial income taxes, goods and services taxes;
xi costs related to land and buildings (for example, acquisitions, leases and/or leasehold improvements) not directly related to the Project;
xii depreciation and amortization charges;
xii advertising costs, except reasonable advertising of an industrial or institutional character placed in trade, technical or prof essional journals for the dissemination of inf ormation f or the industry or institution;
xiv costs associated with applying for government grants and programs;
xvi basic prof essional services, f ees and disbursements, such as ongoing routine accounting, tax and legal business requirements and f inancing f ees unless directly related to the Project;
xvii routine testing and maintenance;
xviii entertainment, hospitality, alcohol and gifts; and
xix any other costs deemed ineligible by Alberta Innovates;
(l) "Intellectual Property" means tangible or intangible property in which Intellectual Property Rights subsist and/or that is subject to Intellectual Property Rights including, without limitation, ideas, formulae, algorithms, concepts, techniques, processes, procedures, approaches, methodologies, plans, systems, research, inf ormation, documentation, data, data compilations, specif ications, requirements, designs, diagrams, inventions, technology, computer programs (including all related code), tools, products, knowledge, know-how and trade secrets;
(m) "Intellectual Property Rights" means:
i. any and all proprietary rights anywhere in the world provided under: patent law, copyright law, trademark law, design patent or industrial design law, semiconductor chip or mask work law, trade secret law, or any other statutory provision or common law principle that provides a right in either intellectual property or the expression or use of intellectual property; and
ii. any and all applications, registrations, licenses, sub-licenses, f ranchises, agreements or any other evidence of a right in any of the foregoing;
(n) “Investment” means the total amount of f unding granted by Alberta Innovates to an Applicant and governed by this Investment Agreement;
(o) “Investment Agreement” means this Investment Agreement between Alberta Innovates and the Applicant, including all schedules hereto;
(p) “Milestone” means a major segment of the Project activities for the purpose of monitoring and measuring the progress of the Project, concluding in every case, with a critical “go/no go” decision and “Milestones” mean all major segments of the Project activities which comprise the entire Project;
(q) “Milestone Payment(s)” means the portion of the Investment allocated to a Milestone as described in the Milestone, Reporting and Payment Schedule attached as Schedule D;
(r) “Milestone, Reporting and Payment Schedule” means the schedule of Milestone Payments as set out in Schedule D of this Investment Agreement;
(s) “Parties” means the Applicant and Alberta Innovates, and “Party” means any one (1) of them;
(t) “Person” means any individual, body corporate, partnership, sole proprietorship, joint venture, trust, unincorporated association, unincorporated organization, and any other entity or organization of any nature whatsoever. Unless the context otherwise requires, any ref erence to a Person includes its heirs, administrators, executors and other legal representatives, successors and permitted assigns;
(u) “Program” means the NSERC Alliance – AI Advance Program;
(v) “Program Guide” means the Program Guide for the program named in this Investment Agreement, a copy of which is available on the Alberta Innovates website.
(w) “Progress Report” means the report required by Alberta Innovates f rom the Applicant in the standard form, no later than thirty
(30) days af ter the completion of each Milestone. The report must provide accounting for all Project revenues and expenditures, a concise summary of what the Project has achieved, and the status of perf ormance of the Project addressing the specific outcomes in relation to the objectives of Alberta Innovates and the expected outcomes as stated in the Applicant’s Application and this Investment Agreement;
(x) “Project” means the scope of work to be perf ormed by the Applicant, as f irst described in the Application, and as set out in the Milestone, Reporting, and Payment Schedule attached as Schedule D;
(y) “Project Completion Date” means the date set out in Section 2.3 on which the Applicant anticipates completing the Project, understood to be the Milestone Completion Date of the last Milestone as indicated in Schedule D;
(z) “Project Costs” means all Eligible Expenses incurred during the course of the Project;
(aa) “Project Start Date” means the date set out in Section 2.2 on which the Applicant can start incurring Project Costs, understood to be the Milestone Start Date of the f irst Milestone as indicated in Schedule D;
(bb) “Sub-Contractor” means an entity or individual which provides services and/or products to the Applicant that are required to perf orm the Project;
(cc) “Term” means the Term of this Investment Agreement, as def ined in Article 2.5 of the main body above; and
(dd) “Terms and Conditions” means the terms and conditions governing this Investment Agreement, as set out in Schedule A.
The preceding def initions are not exhaustive and other def ined terms may be used throughout this Investment Agreement.