McMASTER BIOSCIENCES INCUBATION CENTRE HOST AGREEMENT B E T W E E N: MCMASTER UNIVERSITY, hereinafter referred to as the “University”; OF THE FIRST PART and PreMD Inc. hereinafter referred to as “PreMD”; OF THE SECOND PART
Exhibit
4.8
CONFIDENTIAL
McMASTER
BIOSCIENCES INCUBATION CENTRE HOST AGREEMENT
B
E T W E E N:
MCMASTER
UNIVERSITY,
hereinafter
referred to as the “University”; OF THE FIRST PART
and
hereinafter
referred to as “PreMD”;
OF THE SECOND PART
WHEREAS
the University has created the McMaster Biosciences Incubation Centre (“MBIC”)
in order to host certain incubator occupants for the purposes of fostering
a
conducive collective environment for bioscience research and
development.
AND
WHEREAS PreMD
wishes
to become a participant at the MBIC;
AND
WHEREAS the parties wish to set out the terms and conditions under which
the
University will make available space and services for PreMD
at the MBIC.
NOW
THEREFORE IN CONSIDERATION of the mutual covenants herein, the parties agree
as
follows:
FACILITY
SERVICES
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1.
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The
University will provide the following services in order to assist
PreMD
in the pursuit of PreMD’s
bioscience
research, development and related activities, which services may
be
described as below:
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(a)
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a
licence to use 915 square feet of contiguous functional laboratory
and 135
square feet of office space, designated as (the “PreMD
Licenced Space”), with space to accommodate up to six (6) staff of
PreMD
which
space is more specifically described in Schedule “A” hereto attached ,.
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(b)
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provide
those laboratory support services described in Schedule “B”.
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(c)
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to
provide telephone/fax wiring connections, data and internet connections
to
a central panel- (PreMD
will be responsible for making arrangements with service
providers);
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(d) the
opportunity to use shared reception, mail and other administration services
and
the use
of common boardroom and storage facilities;
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(e)
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access
to common areas adjacent to the PreMD
Licenced Space, including washrooms, lounges, first aid rooms and
other
such space owned or leased by the University consistent with access
granted to other MBIC occupants;
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(f)
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access
to University facilities and services, such as food services, photocopy
services and athletics under the same conditions, arrangements
and costs
as members of the general public;
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(g)
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the
option to purchase additional laboratory services at competitive
rates as
available to other occupants;
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(h)
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access
to local area network services for all office computers and in
the
conference/meeting room and related IT services and support consistent
with University / Computer Services Unit user charges and rates
which
shall be borne by PreMD;
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(i)
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normal
utilities and maintenance of the PreMD
Licenced Space at levels consistent with normal University office
use for
similar administrative areas; and
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| (j) |
access to proximate University
purchasing
services, meeting rooms, conference rooms, board rooms, videoconferencing,
university club, library and parking services under the same procedures
and arrangements and at the same cost as University departments
which
costs shall be borne by PreMD;
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In
consideration of the provision of the services above, PreMD
shall pay to the University during the term of this Agreement, those fees
described in Schedule “C” hereof.
HEALTH
AND SAFETY
2. Consistent
with its obligations as an employer, PreMD
shall:
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(a)
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be
responsible for demonstrating compliance with health and safety
legislative standards for all of its employees and visitors; including,
without limitation, compliance with all legislative requirements
and
McMaster University health and safety control programs specifically
related to biosafety, radioactive materials and radiation generating
devices and hazardous waste
management;
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(b)
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be
responsible for ensuring that all of its employees receive any
and all
relevant health, safety and emergency training. The University
may
provide, with remuneration from PreMD,
access to health and safety training and services, access to
crisis/emergency procedures training and access to ergonomic assessment
services;
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(c)
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the
University shall ensure that the PreMD
Space has all requisite safety equipment including: fire extinguishers,
hose access, smoke detectors, and first aid kits;
and
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(d)
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make
all remittances for and be responsible for all workplace safety
and
insurance claims involving PreMD
employees.
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INSURANCE
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3.
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PreMD
will obtain and maintain at its expense (and provide to the University
prior to the signing of this Agreement and annually thereafter)
certificates evidencing:
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| (a) | Directors' and Officers' Liability lnsurance; |
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(b)
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Professional
Liability Insurance for PreMD
personnel working in the Administrative
Centre
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(c)
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"All
Risks" insurance upon PreMD
property normally located within the Administrative
Centre;
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(d)
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Comprehensive
General Liability Insurance against bodily injury including death,
personal injury and property damage, also including liability assumed
by
contract, Tenant's legal liability and if applicable Non-Owned
Automobile
liability in an amount not less than Two Million Dollars ($2,000,000.00)
per occurrence and not less than Two Million Dollars ($2,000,000.00)
in
respect of injury or death to a single person and not less than
Five
Hundred Thousand Dollars ($500,000.00) in respect of any single
instance
of property damage and will add the University as an Additional
Insured.
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Copies
of these insurance policies will be forwarded by PreMD
to the Environmental and Occupational Health Support Services, University
Risk
Management Office.
The
insurance policies referred to in Sub-sections 5 (a), (b), (c) and (d) above
will:
(i)
contain a waiver of any right of subrogation or recourse by PreMD’s
insurer against the University and its employees and agents whether or not
any
loss is caused by the act, omission or negligence of the University or its
employees or agents; (ii) provide that PreMD will give the University thirty
(30) days' prior written notice of cancellation of, material alteration in,
or
lapse of, any of such policies; and (iii) provide that such policies will
not be
invalidated with respect to the interest of the University by reason of any
breach or violation by PreMD of any warranties, declarations, or conditions
contained in the policies.
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4. Consistent
with its obligations solely as a Licensor of the PreMD
Space, the University will maintain a policy of Comprehensive General Liability
insurance against bodily injury including death, personal injury and property
damage, also including liability assumed by contract, Tenant's legal liability
and Non-Owned Automobile liability in an amount not less than Five Million
Dollars ($5,000,000.00) per occurrence and not less than Two Million Dollars
($2,000,000.00) in respect of injury or death to a single person and not
less
than Five Hundred Thousand Dollars ($500,000.00) in respect of any single
instance of property damage and provide for cross-liability and severability
of
insurance, which means that each named insured on the policy can ▇▇▇ each
other
named insured under the terms of the policy.
INDEMNIFICATION
5. PreMD
will:
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a)
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indemnify
and save harmless the University, its board of governors, members
of its
senate, their respective committees, its employees, agents and
students
from any and all claims or demands of any kind whatsoever, including
the
costs of defending such claims or demands, arising out of or related
to
the provision of facilities or services described in this Agreement
save
and except for any such claims or demands arising or resulting
from the
negligence or misconduct of the University, its employees or agents;
and
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b)
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release
the University, its board of governors, members of its senate,
their
respective committees, its employees, agents and students from
any and all
claims or demands of any kind whatsoever arising out of or related
to the
provision of facilities or services described in this Agreement,
unless
and to the extent such claims arise out of the negligence or misconduct
of
the University, its employees or
agents.
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TERMINATION
| 6. |
This
Agreement may be terminated by either party upon six (6) months
notice in
writing to the other party or by mutual agreement between the parties.
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TERMS
OF AGREEMENT
| 7. |
This
Agreement shall come into force as of December 1, 2005
for a term of three years.
It will be reviewed by the parties annually and may be amended
from time
to time as both parties may agree in writing.
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| 8. |
The
parties hereto are not partners of one another for the purposes
of this
Agreement or otherwise and neither is authorized hereby or otherwise
to
bind the other in any manner
whatsoever.
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| 9. |
If
any provision of this Agreement or the application thereof to any
person
or circumstance shall, to any extent, be invalid or unenforceable,
the
remainder of this Agreement, or the application of such provision
to
persons or circumstances other than those as to which it is held
invalid
or unenforceable, shall not be affected thereby and each provision
of this
Agreement shall be valid and enforced to the fullest extent permitted
by
law and be independent of every other provision of this Agreement.
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| 10. |
Each
party hereto agrees from time to time, subsequent to the date hereof,
to
execute and deliver or cause to be executed and delivered to the
other
party hereto such instruments or further assurances as may, in
the
reasonable opinion of the other party, be necessary or desirable
to give
effect to the provisions of this Agreement.
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| 11. |
All
communications which may be or are required to be given by either
party to
the other herein shall (in the absence of any specific provision
to the
contrary) be in writing and delivered or sent by prepaid registered
mail
or by facsimile transmission (provided sender obtains evidence
or
verification of transmission receipt) to the other party at their
following respective addresses:
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If
to the University, at:
McMaster
University
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇
Attention: ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Office
of Vice-President, Research
McMaster
University
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇ Room 208
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax
No. ▇▇▇-▇▇▇-▇▇▇▇
5
If
to PreMD, at:
PreMD
Inc.
MDCL
Rm 5126
McMaster
University
▇▇▇▇
▇▇▇▇ ▇▇. ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Ph.D.
Executive
Vice-President, Clinical & Regulatory Affairs,
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇; Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email:
▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
If
any such communication is sent by prepaid registered mail, it shall, subject
to
the following sentence, be conclusively deemed to have been received on the
third Business Day following the mailing thereof and, if delivered or so
telecopied, it shall be conclusively deemed to have been received at the
time of
delivery or transmission. Notwithstanding the foregoing provisions with respect
to mailing, in the event that it may be reasonably anticipated that, due
to any
strike, lock-out or similar event involving an interruption in postal service,
any communication will not be received by the addressee by no later than
the
third Business Day following the mailing thereof, then the mailing of any
such
communication as aforesaid shall not be an effective means of sending the
same
but rather any communication must be sent by delivery or facsimile transmission.
Either party may from time to time change its address hereinbefore set forth
by
notice to the other of them in accordance with this section. As used here
in the
words "Business Day" mean the days of Monday to Friday, both inclusive, unless
such day is a statutory or civic holiday in Hamilton, Ontario.
12. No
party hereto shall be held responsible or liable or be deemed to be in default
or in breach of this Agreement for its delay, failure or inability to meet
any
of its obligations under this Agreement (other than any obligation to pay
money)
caused by or arising from any cause which is unavoidable or beyond the
reasonable control of such party, including war, warlike operations, terrorism,
riot, insurrection, orders of government, strikes, lockouts, quarantines,
disturbances or any act of God or other cause which frustrates the performance
of this Agreement.
13. This
Agreement and the rights and obligations and relations of the parties hereto
shall be governed by and construed in accordance with the laws of the Province
of Ontario and the federal laws of Canada applicable therein (but without
giving
consideration to any conflict of laws rules). The parties hereto agree that
the
Courts of Ontario shall have jurisdiction to entertain any action or other
legal
proceedings based on any provisions of this Agreement. Each party hereto
does
hereby attorn to the jurisdiction of the Courts of the Province of Ontario.
14. This
Agreement comprises the entire agreement between the two parties with respect
to
provision of services and facilities by the University to PreMD.
6
DISPUTE
RESOLUTION
15. The
University and PreMD
shall attempt in good faith to resolve any dispute arising out of or relating
to
this Agreement promptly by negotiations, as follows: Either party may give
the
other party written notice of any dispute not resolved in the normal course
of
business. Executives of both parties at levels one step above the personnel
who
have previously been involved in the dispute shall meet at a mutually acceptable
time and place within 10 days after delivery of such notice, and thereafter
as
often as they reasonably deem necessary, to exchange relevant information
and to
attempt to resolve the dispute. If the matter has not been resolved by these
persons within 30 days of the disputing party's notice, or if the parties
fail
to meet within 10 days, the dispute shall be referred to senior executives
of
both parties who have authority to settle the dispute and who shall likewise
meet to attempt to resolve the dispute. If the matter has not been resolved
within 30 days from the referral of the dispute to senior executives, or
if no
meeting of senior executives has taken place within 15 days after such referral,
the parties shall submit the dispute to arbitration by a single arbitrator
agreed to by the University and PreMD
or failing agreement to a panel of three arbitrators, one chosen by each
of the
University and PreMD
and one chosen by the first two so chosen. The arbitration shall be conducted
in
accordance with the provisions of the Arbitration Act, 1991 (Ontario) or
any
successor to that Act. The arbitration award shall be final and binding on
the
University and PreMD
without any right of appeal and shall deal with the question of costs of
the
arbitration.
Signed
this ‘17th’
day of ‘November’ 2005.
For
and on behalf of McMaster
University
by its duly authorized officers:
Signature:
“signed”_______________________
Name:
▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Vice
President Research and International Affairs
For
and on behalf of PreMD
by
its duly authorized officer(s):
Signature: “signed”______________________
Name:
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Title: Executive
Vice President
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SCHEDULE
“A”
Description
of Space
The
Licenced Space is located on the fifth floor of the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Centre
for
Learning and Discovery (MDCL). It consists of 915 square feet of contiguous
functional laboratory space (Room 5127) and 135 square feet of office space
(Room 5126). This represents a combined floor area of 1050 square
feet.
Laboratory
space includes rooms 5127 and 5126. In addition PreMD will be able to make
use
of common spaces such as the Board Room subject to availability and booking
with
the MBIC administrator and the kitchen.
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SCHEDULE
“B”
Laboratory
Equipment and Support Services
The
space will be equipped with the following:
Chemical
resistant laboratory benching
Fume
Hood (Bench mounted)
Vented
Acid Cabinet (under the fume hood)
Vented
Solvent Cabinet (under the fume hood)
Vented
Flamable Cabinet
Gas
Cylinder Straps
The
following electrical service will be available for equipment to be provided
by
the occupant:
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Incubator
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8A
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120V
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Biosafety
cabinet
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12A
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110V
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Milli-Q
Ultrapure Water System
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15A
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115V
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(1.7L/min
0.5 to 5.0 psi RO feed required)
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Laboratory
Glassware Washer
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20A
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220V
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Refrigerator
Upright (2)
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15A
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110V
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Freezer
-20degC
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15A
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110V
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Other
services that may be available to PreMD
on a “fee for service” basis (if capacity to offer these services exists at the
University) are:
Autoclave,
wash-up, histology, FACS, Bio bar Services, Central Supply Services, Health
Science Scientific Stores.
9
SCHEDULE
“C”
Fees
In
consideration of the provision of the services described in this agreement,
PreMD
shall pay to the University during the term of this Agreement, the following
fees:
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a)
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the
sum of $40.00 per annum, per square foot for Room 5127 (Wet Laboratory
Space) in equal monthly instalments of $3,050.00 payable in advance
on the
1st
day of each month;
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b)
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the
sum of $30.00 per annum, per square foot for Room 5126 (Office
Space) in
equal monthly instalments of $337.50 payable in advance on the
1st
day of each month;
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c)
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the
total monthly fee shall be $3,387.50 exclusive of Goods and Services
Tax
which, if applicable, shall be added
thereto.
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These
fees will remain in force for a period of one year. At the anniversary of
this
agreement the University may review the fees in light of changes to the cost
of
services and utilities. Any annual increase in fees will not exceed 5% of
the
fees paid.
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