EXHIBIT 10.4
Project # ▇▇-▇▇▇▇▇▇▇
WESTERN MICHIGAN UNIVERSITY
PROJECT AGREEMENT
This agreement, effective August 15, 2003 by and between The Board of
Trustees of Western Michigan University (hereinafter known as "WMU") and Altair
Nanomaterials, Inc. (hereinafter known as "Altair"). WMU is a constitutional
body corporate organized and existing under the constitution of the State of
Michigan, with offices in the city of Kalamazoo, Michigan. Altair is organized
and existing under the laws of the State of Nevada, with offices at ▇▇▇ ▇▇▇▇▇▇
▇▇▇, ▇▇▇▇, ▇▇ ▇▇▇▇▇.
Section 1. EMPLOYMENT OF ALTAIR AND RELATIONSHIP OF PARTIES. WMU hereby
agrees to engage Altair to perform the services herein set forth. The parties
are independent organizations with respect to the subject matter of this
agreement. The employees of one party will not be deemed to be employees of the
other party. Neither party will be, nor will be deemed to be, an agent or
partner of the other party for any purpose whatsoever.
Section 2. SCOPE OF SERVICES. Altair shall provide the necessary
facilities, services and personnel to carry out the "Design, Synthesis, and
Characterization of Nanosensors for Chemical, Biological, and Radiological
Agents" which is attached hereto and made part of this agreement as Appendix A.
All work shall be performed in a professional fashion to the highest academic
and professional standards. Altair's duties and obligations shall also include
complying with all provisions, regulations, and requirements as set forth in the
signed copy of the new Grant No. DE-FG02-▇▇▇▇▇▇▇▇▇, Amendment No. A000, together
with the August 14, 2003 cover letter to ▇▇▇▇ ▇▇▇▇▇▇▇ from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
DOE Contract Specialist (collectively "▇▇▇ ▇▇▇▇▇"), which documents are
incorporated into this agreement by reference, and also providing all reports,
information, and materials necessary to WMU in a timely fashion in order to
assure that WMU is able to perform its duties under this ▇▇▇ ▇▇▇▇▇ in a timely,
comprehensive, and satisfactory manner. It is also specifically noted that the
▇▇▇ ▇▇▇▇▇ includes standard DOE Financial Assistance Rules (10 CFR Part 600), a
special provision for penalty if reporting is late, and Intellectual Property
Provisions (FAR 52.227-1, 52.227-2, 52.227-14, 52.227-16, 52.227-23, DEAR
952.227-9 and 952.227-11), all of which are included as duties of Altair under
this subcontract and are incorporated herein by reference. The above referenced
requirements are collectively referred to hereafter as "compliance
requirements."
Altair shall also coordinate with and perform necessary services with the
University of Nevada, Reno ("UNR") to ensure that all of Altair's and UNR's
duties under both of their subcontracts with WMU are performed timely pursuant
to this ▇▇▇ ▇▇▇▇▇. The subcontract between WMU and UNR is also incorporated by
reference into this agreement.
Section 3. PERSONNEL. Altair represents that it has or will secure at
its own expense all personnel required to perform the services, obligations, and
duties set forth in this agreement.
Section 4. TIME OF PERFORMANCE. This agreement shall be effective August
15, 2003 and shall continue 24 months through August 14, 2005 unless terminated
earlier pursuant to the provisions of this agreement. Compliance requirements
and record requirements shall survive termination of this agreement.
Section 5. SCHEDULE OF CHARGES. WMU agrees to pay Altair for services
performed in accordance with the budget in Appendix B. Within ten (10) days
after the end of each month, Altair will ▇▇▇▇ WMU for actual expenses incurred
during that month. Request for reimbursement will be done via "WMU Subcontractor
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Expense Report" form (Appendix C). Approval by ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ will be
required prior to payment. WMU will make reasonable effort to reimburse Altair
within 15 days of receipt of billing. Deviations in excess of ten percent (10%)
on any line item category will require prior approval of WMU.
Section 6. BUDGET LIMITATIONS. It is expressly agreed to and understood
that in no event will total compensation and reimbursement, if any, to be paid
to Altair exceed Three Hundred Thousand Fifty-Six Five Hundred Dollars
($356,500).
Section 7. FEDERAL FUNDS. This project is being supported 100% with
federal funds, from the U. S. Department of Energy, CFDA #81.049 entitled Basic
Energy Science.
Section 8. LIABILITY. To the extent permitted by law and the ▇▇▇ ▇▇▇▇▇,
each party to this agreement will be responsible for its own actions and must
seek its own legal representation and bear its own costs, including judgments,
in any litigation which may arise from its action during the performance of this
agreement. It is specifically understood and agreed that neither party will
indemnify the other party in such litigation. WMU expressly reserves all of its
rights and immunities as provided by law and contract.
Section 9. TERMINATION OF AGREEMENT FOR CAUSE. If through any cause
Altair shall fail to fulfill in proper manner its obligations under this
agreement, or if Altair or WMU shall violate any of the covenants,
understandings or stipulations of this agreement, the aggrieved party shall give
written notice of the perceived failure or violation to the other party. If the
violation is not cured within 15 days after the date of the notice, the
aggrieved party shall thereupon have the right to terminate this agreement by
giving written notice to the other party of such termination and specifying the
effective date thereof. Such notice must be delivered 15 days before the
effective date. In the event that such cause for termination shall lie with
Altair, all facets of the project must be taken to a logical stopping point, a
fiscal and technical report prepared, and Altair shall be entitled to receive
just and equitable compensation for any work performed on the project. Should
the cause of termination lie with WMU, the amount of additional work to be
carried out by Altair shall be subject to negotiation by all parties.
Section 10. RECORDS. Altair shall maintain all books, documents, papers,
accounting records and/or other evidence pertaining to costs incurred for a
period of at least five years from the date of final payment under this
agreement. For purposes of controlling and reporting on the receipt and
disbursement of funds under this agreement, Altair accounting records shall be
structured so that transactions are easily and readily identifiable. In
particular, a "Documentation of Personal Services" form (Appendix D) shall be
completed for each employee or contractor paid under this agreement. Such
materials shall be readily available during the agreement and retention period
for inspection, audit and/or duplication at all reasonable times by authorized
representatives of WMU. Altair shall send regular summary personnel service
reports regarding the above to WMU while it is providing services under this
agreement. The above referenced requirements are collectively referred to
hereafter as "record requirements."
Section 11. ADDITIONAL RESPONSIBILITIES OF ALTAIR. All of the services
performed under this agreement shall be in full compliance with the requirements
of the prime award (attached as Appendix E). Altair shall provide readily
available access to all materials, information, and records to authorized
representatives of WMU.
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In the event that an expense for which Altair has been reimbursed is
disallowed, Altair shall promptly repay WMU.
Section 12. DISSEMINATION OF INFORMATION AND INTELLECTUAL PROPERTY
RIGHTS. News releases pertaining to this agreement or the services, data, or
project to which it relates will not be made without prior written WMU approval.
No results of the project are to be released without prior written WMU approval.
Except as required otherwise by the ▇▇▇ ▇▇▇▇▇ or agreed to otherwise by
WMU after August 14, 2003: A) any intellectual property (including, but not
limited to, patents, trademarks, brand names and copyrights) owned by a party
prior to August 14, 2003 or developed by a party pursuant to an activity not
governed by this agreement, will remain the sole property of that party; B) any
intellectual property developed solely by a party in performing the activities
under this agreement shall remain the sole property of the developing party; and
C) if during this agreement the parties develop any intellectual property
jointly, each shall be entitled to thereafter use and benefit from such jointly
developed property without any accounting to the other joint developers.
Altair also recognizes and agrees that WMU's intellectual property
policy will apply as to the rights of WMU and any of its employees, students,
and contractors (except for Altair) working on any project or program funded by
this ▇▇▇ ▇▇▇▇▇. Upon request of the other party, Altair and WMU agree to execute
documents involving the assignment and/or acknowledgement of rights arising from
this agreement which are consistent with the terms of this section and each
party's rights.
To perform this Agreement, it may be necessary for a party to disclose
to the other party information of a confidential or proprietary nature
("Confidential Information"). Except as required otherwise by the ▇▇▇ ▇▇▇▇▇, the
parties acknowledge that they have entered into a separate "Mutual Disclosure
and Confidentiality Agreement" effective October 26, 2002, and the terms of
which are incorporated by reference into this agreement. The provisions of this
Section shall survive any termination of this agreement.
Section 13. EQUAL EMPLOYMENT OPPORTUNITY. There shall be no
discrimination against any employee who is employed in the work covered by this
contract, or against any applicant for such employment, because of race, gender,
height, weight, color, religion, age, sexual orientation, marital status,
veteran status, handicap, or national origin. This provision shall include, but
not be limited to, the following: employment, upgrading, demotion or transfer,
recruitment or recruitment advertising, layoff or termination, rates of pay or
other forms of compensation, and selection for training, including
apprenticeship.
Section 14. MICHIGAN LAW. The law of the State of Michigan shall apply
exclusively to every aspect of all disputes arising in connection with this
agreement. By execution of this agreement, Altair submits itself to the personal
jurisdiction of the federal and state courts of Michigan. However, in case of
dispute, WMU and Altair agree to first discuss and negotiate any disputes or
claims prior to seeking arbitration, litigation, or other formal adjudication
process. If WMU and Altair cannot settle such dispute or claim by themselves
within thirty (30) days, or longer time as agreed by WMU and Altair, after the
claim or dispute arises, WMU and Altair shall make good faith efforts to agree
on an alternate dispute resolution (ADR) process. If WMU and Altair cannot agree
on an ADR process within thirty (30) additional days, each party shall have all
rights afforded to them by law and equity, except as otherwise limited by this
agreement.
Section 15. NO ASSIGNMENT. This agreement may not be assigned or
otherwise transferred in whole or in part by Altair without the prior written
consent of WMU. Any assignment made without such written consent will be void.
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Section 16. AMENDMENTS. This agreement constitutes the complete
understanding of the parties hereto and any amendments to the agreement must be
agreed to in writing and signed by both parties.
Section 17. SUBRECIPIENT MONITORING. A Subcontractor receiving Federal
financial assistance in excess of $500,000 during the fiscal year shall arrange
for an audit by an independent accountant in order to ascertain the
effectiveness of the Subcontractor's financial management systems and internal
procedures established to meet the terms of the subcontract agreement.
1. If the Subcontractor is an organization subject to the uniform
administrative requirements of OMB Circulars A-110 or A-102 and
arranges for audits that comply with OMB Circulars ▇-▇▇▇, ▇-▇▇▇,
▇-▇▇ or equivalent guidelines, the Subcontractor shall provide
Western Michigan University with a letter stating that an audit
has been completed and there were no findings, or if there were
findings, a reporting package as identified in OMB Circular A-133,
subpart C, .320, paragraph C, within thirty (30) days of issuance.
2. The Subcontractor will permit auditors (as defined in the OMB
Circulars) to have access to the records and financial statements
as necessary to comply with the appropriate OMB Circulars and this
Article.
3. The Letter of Reporting Package should be sent to: Western
Michigan University c/o ▇▇▇▇▇ ▇▇▇▇, Manager Office of Grants and
Contracts 240W Walwood Hall MS 5425 Kalamazoo, Michigan 49008-5425
Failure to comply with the terms of this Article may lead to Subcontract
termination in accordance with Section 9 SIGNED ON BEHALF OF WMU
/s/ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ Date: October 3, 2003
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▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Date: October 3, 2003
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Assistant Treasurer
and Associate Vice President for Business
(▇▇▇) ▇▇▇-▇▇▇▇
SIGNED ON BEHALF OF ALTAIR
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Date: October 3, 2003
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Vice President
for Business Development
(▇▇▇) ▇▇▇-▇▇▇▇