-1-
MITACS INTERNSHIP AGREEMENT
Accelerate Internship Program
BETWEEN:
THE UNIVERSITY OF MANITOBA
(the “University”)
- and -
(“Sponsor”)
WHEREAS:
A.
The Parties wish to participate in the MITACS Accelerate Internship Program and plan to
submit a grant application entitled “
” to MITACS for research funding;
B.
The MITACS Accelerate Internship Program connects Manitoba businesses with
University researchers in all disciplines who have advanced levels of expertise in areas
that address vital research opportunities. It partners graduate students interns and
postdoctoral fellow Interns and their Academic Supervisor with companies, hospitals,
government agencies and not-for-profit organizations. These connections help partners
utilize new tools, technologies and methodologies to address issues that are vital to an
organization’s success. Sponsor Organizations benefit from the power of advanced
research while Interns and Academic Supervisors benefit from new research
opportunities. All MITACS Accelerate supported projects are funded in four-month
periods. Project funding comes to the University from MITACS and includes:
i.
the Sponsor Organization funds of $7,500
ii.
MITACS matching funds of $7,500
C.
The Intern and Academic Supervisor will collaborate with the Sponsor to
D.
The Parties each have proprietary knowledge and information relating to the activities to
be undertaken pursuant to the MITACS Accelerate Internship Program;
E.
During activities undertaken pursuant to the MITACS Accelerate Internship Program a
Party may disclose to another certain information deemed to be confidential in nature;
and
1469803\1\48031.1
-2-
F.
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:
1469803\1\48031.1
i.
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;
ii.
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;
iii.
is approved by the Disclosing Party, in writing, for release;
iv.
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;
v.
is developed by or for the Receiving Party independently of and without
reference to disclosures hereunder, as shown by written records; or
vi.
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
-3-
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 ACCELERATE,
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 Accelerate” means a research-based internship program used to support
research involving Interns, their Academic Supervisors, and 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 ACCELERATE or
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.
1469803\1\48031.1
-4-
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.
1469803\1\48031.1
-5-
3.
Ownership and Use of Intellectual Property & Other Results
3.1
This Agreement does not affect the ownership of any in any Background Intellectual
Property or in 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 Accelerate
Internship 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.;
1469803\1\48031.1
-6-
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.
4.2
Copyright in any publication or presentation material will owned by the author in
accordance with the University’s applicable policies and collective agreements,
excluding any software code and related technical documentation created as part of the
Project, which shall be Foreground Intellectual Property. The moral rights of the author
shall not be affected.
4.3
Notwithstanding anything else in this Agreement, and for the purposes of clarity, the
Parties acknowledge and agreement that the Intern shall own copyright in his/her thesis
and that no delay may be imposed with respect to the Intern’s graduation or
dissemination of the thesis.
5.
Publicity
5.1
Neither Party will, without consent of the other Party, use the name of the other Party or
any of its Representatives in any publicity, news release or advertising relating to this
Agreement or the subject matter hereof, disclose to any other person the fact that
Confidential Information of the other Party has been disclosed under this Internship
Agreement, that discussions or negotiations are taking place between the Parties, or any
of the terms, conditions, status or other facts with respect thereto, except as required by
law and then only with prior notice as soon as possible to the other Party.
1469803\1\48031.1
-7-
6.
Representation and Warranty and Indemnity
6.1
Sponsor acknowledges that the Project is experimental and exploratory in nature and
that no promise is made by the University, the Intern or by the Academic Supervisor with
respect to the achievement of any particular results, desired or otherwise, in a given
Project. The Sponsor agrees to undertake its own due diligence prior to any use of
the Foreground Intellectual Property and/or Results. No warranty or representation
is given by the University, the Intern or by the Academic Supervisor with respect to the
Foreground Intellectual Property or the Results including, without limitation, any implied
warranties as to merchantability, fitness for a particular purpose or of non-infringement.
The University expressly disclaims all obligations and liabilities for damages of any kind
or nature whatsoever including, but not limited to, direct, indirect, special, incidental,
punitive and consequential damages, solicitors’ and experts' fees, and court costs (even
if they have been advised of the possibility of such damages, fees or costs), arising out
of or in connection with the Project or any use in any manner whatsoever of any Results
or Foreground Intellectual Property.
6.2
The Sponsor will hold harmless and indemnify University, its Board of Governors,
executives, faculty, staff, employees, agents, students, successors and assigns
(including without limitation, the Academic Supervisor and the Intern) from and against
any and all claims, demands or judgments, including all associated legal fees, expenses
and disbursements actually incurred, on a solicitor and own client basis, from or arising
out of the use by the Sponsor, or anyone for whom the Sponsor is in law responsible or
any of their successors or assigns, of the Foreground Intellectual Property or the Results
of the Project, including without limitation any damages of any kind or nature whatsoever
(including but not limited to direct, indirect, special, incidental, punitive or consequential),
losses of any kind or nature (including without limitation loss of revenues, profits,
savings, business, data or records) or costs arising in any manner whatsoever (including
arising from or incidental to any product liability or other lawsuit, claim, demand or other
action brought), directly or indirectly, from or out of any use whatsoever of Foreground
Intellectual Property or the Results.
7. Term and Termination
7.1
Either Party may terminate this Agreement with immediate effect by giving notice to the
other Party if:
1469803\1\48031.1
i.
there is a material breach or non-compliance by the other Party of some
obligation, undertaking, representation, warranty or payment contained in this
Agreement, if such default is not remedied within thirty (30) days of receipt of
written notice to that effect;
ii.
the other Party becomes insolvent, or if an order is made or a resolution is
passed for its winding up (expect voluntarily for the purpose of solvent
amalgamation or reconstruction), or if an administrator, administrative
receiver or receiver is appointed over the whole or any part of the other
Party's assets, or if the other Party makes any arrangement with its creditors.
-8-
iii.
Default on the Party of the other Party caused by a force majeure, where
such default lasts for more than six (6) months.
For greater certainty, the unavailability of the Intern or the Intern’s failure to fulfill his or
her obligations pursuant to the Project are matters beyond the control of University. In
the event this occurs, the Sponsor may elect to terminate the Project but shall have no
recourse or remedy against University or the Academic Supervisor.
7.2
University shall also be able to terminate this Agreement in its discretion and without
penalty or compensation to Sponsor, in the event that the Academic Supervisor leaves
the employment of University, becomes permanently disabled or passes away. In such a
case, the Parties will attempt in good faith to identify another Academic Supervisor at the
University. Should the Parties be unable to identify a mutually acceptable replacement,
University shall be able to terminate this Agreement under this Section.
7.3
Upon receipt by either Party of a notice of termination under this section 7 or expiry of
the delay within which default may be cured under section 7.1, the University will make
all reasonable efforts to stop work on the Project and limit further expense of the Funds,
provided that University shall have the right to disburse any sum of money committed at
the time of termination. Sponsor shall pay to MITACS all expenses reasonably incurred,
committed to, or made in relation to the Project up to and including the date of receipt of
a notice of termination or expiry of the delay within which default could be cured under
section 7.1, and shall pay for all costs and fees related to the termination of the
Agreement.
7.4
This Agreement shall be effective as of the date signed by the last Party and shall end
on
, unless earlier terminated in accordance with the provisions herein.
8.
Miscellaneous
8.1
ENTIRE AGREEMENT: The preamble and the recitals set out above are incorporated
and form an integral part of this Agreement. These terms are the entire Agreement
between the Parties with respect to the subject matter hereof and supersede all prior or
contemporaneous agreements, understandings or terms of the Parties, and there are no
warranties, representations or other agreements between the Parties in connection with
the subject matter of the terms except as specifically set forth herein. The parties confirm
the truth and accuracy of the recitals set out in the preamble.
8.2
RELATIONSHIP OF THE PARTIES: Nothing in this Agreement shall constitute or
create, or be deemed to constitute or create, a partnership, joint venture or similar
relationship, or the relationship of principal and agent or employer and employee
between any of the parties hereto. None of the Parties hereto, nor any of their
employees or agents, shall have any power, authority or right to obligate or bind the
other Parties in any manner whatsoever. For the purposes of clarity, the Parties
acknowledge that during the course of the Project, the Intern remains a student/PDF of
University. Moreover the Intern is not an employee, agent or representative of University.
The Intern does not become an employee of the Sponsor and with the exception of a
Non-Disclosure Agreement, will not sign any agreements with the Sponsor.
1469803\1\48031.1
-9-
8.3
SEVERABILITY: If any provision of this Agreement is held to be invalid or
unenforceable, that provision shall be severed from this Agreement and the other
provisions shall remain in full force.
8.4
LAWS AND REGULATIONS: The University and Sponsor must comply with all
applicable federal, state and local laws and regulations in connection with its activities
pursuant to this Agreement.
8.5
ASSIGNMENT: This Agreement shall not be assignable or transferable and shall ensure
the benefit of and be binding upon the Parties hereto. Neither Party may assign or
transfer any or all of its rights or its duties or obligations hereunder.
8.6
FORCE MAJURE: No Party or Project participant will be responsible to the others for
non-performance or delay in performance occasioned by any cause beyond its control,
including, without limitation, acts or omissions of the other party, acts of civil or military
authority, strikes, lockouts, embargoes, insurrections or Acts of God. If any such delay
occurs, any applicable time period shall be automatically extended for a period equal to
the time lost provided that the party affected gives the other party prompt notice of such
delay and makes reasonable efforts to correct the reason for the delay. For greater
certainty, the unavailability of the Intern or the Intern’s failure to fulfill his or her
obligations pursuant to the Project are matters beyond the control of University. In the
event this occurs, the Sponsor may elect to terminate the Project but shall have no
recourse or remedy against University or the Academic Supervisor.
8.7
NOTICE: Any notice or communication to be given to the University in connection to this
Agreement shall be delivered or sent by prepaid courier or registered mail, or by
facsimile transmission to the respective addresses as set out below:
Dr. Darren Fast
The University of Manitoba
Technology Transfer Office
Room 631 Drake Centre
181 Freedman Crescent
Winnipeg, MB R3T 5V4
Telephone: (204) 474-6200
Fax: (204) 261-3475
with a copy to:
Barbara Crutchley
The University of Manitoba
540 Machray Hall
Winnipeg, MB R3T 2N2
Telephone: (204) 474-8418
Fax: (204) 261-0325
Email: research@umanitoba.ca
8.8
AMENDMENTS: This Agreement may only be amended or altered in any of its
provisions by the mutual agreement of the Parties hereto, such amendments or
1469803\1\48031.1
- 10 -
alterations to become effective when reduced to writing and signed by all the Parties
hereto.
8.9
GOVERNING LAW: This Agreement will be construed and enforced in accordance with,
and the rights of the parties hereto will be governed by, the laws of the Province of
Manitoba and the laws of Canada applicable therein. Any and all disputes arising under
this Agreement, whether as to interpretation, performance or otherwise, will be subject to
the exclusive jurisdiction of the courts of the Province of Manitoba and each of the
parties hereto hereby irrevocably attorns to the exclusive jurisdiction of the courts of
such Province.
8.10
CO-OPERATION: Each of the Parties undertakes to, do, execute, acknowledge and
deliver or cause to be done, executed, acknowledged or delivered all such further acts,
deeds, documents, instruments, assignments, transfers, conveyances, powers of
attorney and assurances as may be reasonably necessary or desirable to effect the
purposes of this Agreement and to carry out its provisions.
8.11
WAIVER: Failure to enforce any provision of this Agreement shall not constitute a waiver
of any term hereof, unless such intent is explicitly set forth in writing and signed by the
Party so waiving. No waiver of any provision of this Agreement shall constitute a waiver
of any other provision(s) or of the same provision on another occasion.
8.12
SURVIVAL: Notwithstanding the foregoing, the provisions of Sections 3, 45 and, and
Subsections 7.3, 8.12, will survive the end or other termination of this Agreement.
8.13
COUNTERPARTS: This Agreement may be executed in any number of counterparts
and by different parties in separate counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together shall constitute one and the
same agreement. Delivery by facsimile or by electronic transmission in portable
document format (PDF) of an executed counterpart of this Agreement is as effective as
delivery of an originally executed counterpart of this Agreement.
SIGNED for and on behalf of the University:
SIGNED for and on behalf of the Sponsor:
Name
Name
Position
Position
Signature
Signature
1469803\1\48031.1
- 11 -
READ AND UNDERSTOOD:
_______________________
Academic Supervisor
_______________________
Date
_______________________
Intern
_______________________
Date
S:\Legal\LEGAL OFFICE\Precedents\Website Documents\Signing Policy\MITACS Accelerate Internship Agreement Template January 2015.docx
1469803\1\48031.1