種類：ライセンス・販売代理契約（Licence and Distribution Agreement）
締結先：Bedrocan Canada Inc.とBedrocan Beheer BV
Amended and Restated Licence and Distribution Agreement
The private limited liability company Bedrocan Beheer BV, with its registered office and principal place of business at ***, in this matter duly represented by its Directors ***, hereinafter referred to as “Bedrocan Beheer”,
Bedrocan Canada Inc., a corporation incorporated under the laws of the Province
of Ontario, with its registered office at 250A Eglinton Avenue East, P.O Box 89589, Toronto ON M4P 3E7, in this matter duly represented by its ***, hereinafter referred to as “Bedrocan Canada”,
(hereinafter collectively referred to as the “Parties” and each a “Party”)
• Bedrocan Beheer cultivates (produces) and sells cannabis1 for medical and scientific purposes;
• Bedrocan Beheer is authorized to cultivate cannabis by the Dutch government, represented by the Office for Medicinal Cannabis (OMC)2;
• Bedrocan Beheer possesses knowledge and experience regarding the cultivation of cannabis such as manufacturing secrets and commercialization of cannabis;
• Bedrocan Beheer further possesses certain standardised types of cannabis in several varieties which can be used to cultivate cannabis;
• Under the conditions referred to hereinafter, Bedrocan Beheer wishes to make its knowledge and experience and the standardised types of cannabis available to Bedrocan Canada in order to enable Bedrocan Canada to produce and market identical products, as are produced by the other Bedrocan Beheer production facilities, in the widest sense of the word for the benefit of a profitable exploitation of Bedrocan Beheer products in Canada;
• Bedrocan Canada will also act as a distributor for Bedrocan Beheer products that are ready to use for the Canadian market and Bedrocan Beheer will grant to Bedrocan Canada the exclusive right to sell and distribute Bedrocan Beheer’s products in Canada.
• The Parties entered into a license and distribution agreement for the territory of Canada dated February 21, 2014 in connection with the foregoing (the “Original Agreement”).
implementing the Single Convention on Narcotic Drugs. It is also responsible for overseeing the production of cannabis for medicinal and scientific purposes. See: www.cannabisbureau.nl/en/
• The Parties wish to amend and restate the Original Agreement in accordance with, and the Original Agreement will be superseded by, the terms hereof.
1 Cannabis sativa
2 Since 1 January 2001 the OMC has been the government agency responsible for
Declare to have agreed as follows:
Article 1 – Definitions
For the purpose of this Agreement, the following terms shall have the meaning set
this amended and restated licence and distribution agreement between Bedrocan Beheer and Bedrocan Canada, consisting of these terms and conditions, and all schedules and exhibits attached thereto.
b) “Bedrocan Products”:
Imported Bedrocan Products, and the cannabis flos or cannabis flos granulate (dried female flowers of the species cannabis sativa L.) cultivated from the Licensed Product (as defined below) and processed by Bedrocan Canada, and in each case in turn marketed and sold by Bedrocan Canada in the Licensed Territory (as defined below) or exported by Bedrocan Canada pursuant to the terms of this Agreement.
c) “Commercialization Rights”:
the Product Commercialization Rights and the Trademark Commercialization Rights, collectively.
d) “Confidential Information”:
subject to Section 13.4, any information of whatever nature disclosed by either of the Parties (a “Disclosing Party”) to the other Party (a “Receiving Party”), whether in writing or in electronic form or pursuant to discussions between the Parties, or which can be obtained by examination, testing, visual inspection or analysis, including, without limitation, growing information, details of new trials, scientific, business or financial data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, sample reports, models, customer lists, price lists, studies, findings, computer software, inventions or ideas or any other information that is marked as confidential or otherwise by its nature ought reasonably to be considered confidential; and analyses, concepts, compilations, studies and other material prepared by or in possession or control of the Receiving Party which contain or otherwise reflect or are generated from any such information as is specified in this definition.
e) “Imported Bedrocan Products”:
the produced cannabis flos or cannabis flos granulate (dried female flowers of the species cannabis sativa L.) which is cultivated and processed by Bedrocan Beheer outside of the Licensed Territory (as defined below) and supplied in such form to Bedrocan Canada.
f) “Licensed Know-How”:
know-how, knowledge and experience and other Confidential Information (including software) of Bedrocan Beheer regarding the cultivation, processing and commercialization of cannabis required to permit the cultivation, processing, marketing, sale and other exploitation of the Licensed Product an essential part of which is specified in Schedule II.
g) “Licensed Product”:
standardised types of cannabis in several varieties (including seed, cuttings, divisions, tissue culture) which can be used as propagating material to cultivate cannabis made available by Bedrocan Beheer to its licensees from time to time, including the varieties listed in Schedule I attached to this Agreement.
h) “Licensed Territory”:
i) “Production Year” of Bedrocan Canada:
the period starting on the day of first sales of locally produced cannabis by Bedrocan Canada and ending on December 31 of the calendar year following the calendar year in which such day of first sale occurs (the “First Production Year”), and each calendar year thereafter.
j) “Sub-Licensed Territories”:
South America (and any one or more of the countries thereof), and any other territory(ies) agreed by the Parties after the date of this Agreement in accordance with Section 3.1, and “Sub-Licensed Territory” means any such individual territory.
the registered and unregistered word and figurative trademarks regarding the names “Bedrocan”, “Bedrobinol”, “Bedica”, “Bediol”, “Bedropuur” and “Bedrolite”, including the trade/business name “Bedrocan”, as specified in Schedule
Article 2 – Grant of license
2.1 Bedrocan Beheer grants and Bedrocan Canada accepts an exclusive license to
(a) use the Licensed Know-How and Licensed Product for the cultivation, processing, marketing, sale and other commercialization of cannabis (the “Product Commercialization Rights”) in the Licensed Territory and (b) sub-license or otherwise make available the right to use the Product Commercialization Rights in the Sub-Licensed Territories to one or more third parties (each, an “Authorized Sub-Licensee” (as further described herein)). Each Authorized Sub-Licensee shall be unaffiliated with Bedrocan Canada, and any of its principals, shareholders, directors, advisors and/orany other related person, incorporated or otherwise. This exclusive license includes the obligation for Bedrocan Beheer not to use or otherwise exploit the Licensed Know-How and Licensed Product, or otherwise market, sell or commercialize cannabis in the Licensed Territory or the Sub-Licensed Territories. For greater certainty, (a) neither Bedrocan BV, Bedrocan Beheer BV nor its owners, principals or affiliates will, directly or indirectly, operate in any way regarding the production and sale of cannabis (dried marihuana), or have an interest in, or any other commercial relationship with, any business that competes with Bedrocan Canada, in the Licensed Territory, or with any Authorized Sub-Licensee in the Sub-Licensed Territories during, the term of this Agreement, and (b) Bedrocan Beheer shall continue to have the exclusive right to arrange for the due registration in any of the Sub-Licensed Territories, or Licensed Territory, of the intellectual property rights in and to the Licensed Know-How, Licensed Product and Trademarks (the “IP Rights”) including the trade name and brand used in relation to the Bedrocan Products, in its name. Bedrocan Canada shall, upon request of Bedrocan Beheer provide assistance in this respect, and shall use reasonable commercial efforts to impose such obligation to each Authorized Sub-Licensee.
2.2 Bedrocan Beheer grants and Bedrocan Canada accepts an exclusive licence to
(a) use the Trademarks (the “Trademark Commercialization Rights”) in the Licensed Territory, and (b) sub-license or otherwise make available the right to use the Trademark Commercialization Rights in the Sub-Licensed Territories to any Authorized
2.3 Subject to Section 4.2 and Schedule V, Bedrocan Beheer grants and Bedrocan Canada accepts the exclusive right to market, sell, and otherwise commercialize the Imported Bedrocan Products in the Licensed Territory.
2.4 Bedrocan Canada agrees that it shall use the Licensed Product and Licensed
Know-How, and market, sell and commercialize the Bedrocan Products, in conformity with all applicable Canadian laws and regulations and shall use reasonable commercial efforts to ensure that each sub-license agreement with Authorized Sub- Licensees (each, a “Sub-License Agreement”) includes a comparable covenant of the Authorized Sub-Licensee in respect of the laws and regulations of the applicable Sub-Licensed Territory. Bedrocan Canada shall not sell or otherwise transfer (except to Authorized Sub-Licensees pursuant to Sub-License Agreements) any genetic material comprising the Licensed Product without the prior written consent of Bedrocan Beheer, such consent not to be unreasonably withheld.
2.5 For greater certainty, Bedrocan Canada shall have the exclusive authority, but not the obligation, to enter into one or more Sub-License Agreements in the Sub- Licensed Territories with one or more third parties and enter into any such Sub- License Agreement, without Bedrocan Beheer being a party thereto. Bedrocan Canada shall use reasonable commercial efforts to pursue opportunities to appoint Authorized Sub-Licensees in the Sub-Licensed Territories. In the event that Bedrocan Beheer identifies a suitable prospective sub-licensee in a Sub-Licensed Territory (a “Prospective Party”), Bedrocan Beheer shall provide notice of such Prospective Party to Bedrocan Canada. In the event that Bedrocan Canada fails to use reasonable commercial efforts to pursue such Prospective Party so identified by Bedrocan Beheer during the *** period following such notice, Bedrocan Beheer shall thereafter be authorized, on *** prior written notice to Bedrocan Canada, to pursue such Prospective Party and, in the event that Bedrocan Beheer enters into a license agreement directly with such Prospective Party in respect of such Sub- Licensed Territory, Bedrocan Beheer shall not have any obligations to account to Bedrocan Canada for any license fees (including any lump sum payments received on execution of any such license agreement), remuneration, credits, or other compensation in cash or in kind, dividends, or other distributions or amounts
actually received by Bedrocan Beheer (“Bedrocan Beheer Receipts”) from such Prospective Party in respect of such Sub-Licensed Territory, *** In addition, in the event that Bedrocan Canada uses reasonable commercial efforts to pursue a Prospective Party (identified by Bedrocan Canada, Bedrocan Beheer or otherwise) but fails to enter into a definitive Sub-License Agreement with such Prospective Party within *** after Bedrocan Canada first initiates formal discussions with such Prospective Party in respect of a Sub-License Agreement, Bedrocan Beheer shall be authorized, on *** prior written notice to Bedrocan Canada, to pursue such Prospective Party and, in the event that Bedrocan Beheer enters into a license agreement directly with such Prospective Party in respect of such Sub-Licensed Territory, Bedrocan Beheer shall pay to Bedrocan Canada an amount equal to 50% of all Bedrocan Beheer Receipts actually received by Bedrocan Beheer from such Prospective Party, and the provisions of Schedule V of this Agreement shall apply mutatis mutandis to the calculation and payment of any such Bedrocan Beheer Receipts by Bedrocan Beheer to Bedrocan Canada pursuant to the foregoing.
2.6 Each of Bedrocan Canada and Bedrocan Beheer shall contract separately with, and/or otherwise acknowledge or confirm by issuance of one or more letters of comfort issued to, Authorized Sub-Licensees with respect to their respective rights and obligations in respect of Authorized Sub-Licensees contemplated in or under this Agreement, with Bedrocan Canada’s rights and obligations in respect of Authorized Sub-Licensees reflected in a Sub-License Agreement and with Bedrocan Beheer’s rights and obligations in respect of Authorized Sub-Licensees reflected in one or more separate agreements and/or other acknowledgements or letters of comfort executed by Bedrocan Beheer (as the case may be, a “Beheer Document). For greater certainty, each of Bedrocan Canada and Bedrocan Beheer (as the case may be, the “first Party”) shall not be liable to the other Party under this Agreement, and such other Party shall have no recourse against the first Party under this Agreement, in the event of a breach by an Authorized Sub-Licensee of its obligations under its Sub-License Agreement or Beheer Document, as the case may be, with such first Party, except where such breach by the Authorized Sub-Licensee arises directly from a breach by such first Party of its obligations under this Agreement.
Article 3 – Rights and obligations of Bedrocan Canada and Bedrocan Beheer
3.1 In the event that Bedrocan Beheer proposes to grant any of the Commercialization Rights to any person or entity in respect of the United States (the “US Commercialization Rights”), Bedrocan Beheer shall provide notice thereof to Bedrocan Canada and, for a period of *** following such notice, Bedrocan Canada shall have the exclusive right to acquire such rights from Bedrocan Beheer. Upon receipt of such notice, the Parties shall negotiate in good faith with respect to a grant of the US Commercialization Rights from Bedrocan Beheer to Bedrocan Canada, on such terms and conditions as the Parties may agree. If the Parties have not agreed on the terms and conditions for a grant of the US Commercialization Rights following expiration of the *** period, Bedrocan Beheer shall be permitted to grant the US Commercialization Rights to a third party ***.
3.2 Bedrocan Canada is not allowed to buy or sell cannabis (products) from or to any other source named in the (proposed) Marihuana for Medical Purpose Regulation without the written approval of Bedrocan Beheer.
3.3 Varieties created by Bedrocan Canada or bought from other sources other than Bedrocan Beheer (and cultivated, processed, marketed, sold or otherwise commercialized by Bedrocan Canada) with the written approval of Bedrocan Beheer are deemed to be coming from Bedrocan Beheer and treated as Licensed Products.
3.4 Bedrocan Canada is not allowed to market, sell, or otherwise commercialize the Licensed Product, Licensed Know-How and Bedrocan Products (including Imported Bedrocan Products) to third parties for purposes other than the medical use of cannabis– including, but not limited to, scientific research – without the written approval of Bedrocan Beheer. Notwithstanding the foregoing, Bedrocan Canada shall be permitted to market, sell, or otherwise commercialize the Licensed Product, Licensed Know-How and Bedrocan Products (including Imported Bedrocan Products) to third parties for legal non-medical purposes (the “Non-Medical Products”) with the written approval of Bedrocan Beheer, such approval not to be unreasonably withheld, provided that Bedrocan Canada does not use any of the Trademarks or
associate the Non-Medical Products with the name “Bedrocan”.
3.5 No plant species other than cannabis shall be grown by Bedrocan Canada without the written approval of Bedrocan Beheer.
3.6 All Bedrocan Beheer products to be marketed, sold or otherwise commercialized (a) in the Licensed Territory, shall be supplied only to Bedrocan Canada, and (b) in the Sub-Licensed Territories, shall be supplied only to the applicable Authorized Sub-Licensee.
3.7 All intellectual property developed by Bedrocan Canada or its Authorized Sub-Licensees which is not related to cultivating, drying or grinding cannabis, will be fully owned by Bedrocan Canada or Authorized Sub-Licensee, as the case may be, and shall be shared with Bedrocan Beheer (and Bedrocan Canada, if applicable) and its affiliates on terms and conditions mutually agreed upon by the Parties and Authorized Sub-Licensee, as applicable, including, without limitation, any associated fees. All intellectual property developed by either of the Parties related to cultivating, drying or grinding cannabis shall be owned by Bedrocan Beheer and, for no additional consideration, (a) if developed by Bedrocan Canada, upon creation shall be deemed to be Licensed Know-How under this Agreement; and (b) if developed by Bedrocan Beheer, upon creation shall be made available by Bedrocan Beheer to Bedrocan Canada and shall be deemed to be Licensed Know-How under this Agreement. Bedrocan Canada shall include a comparable provision in each Sub-License Agreement with respect to such intellectual property developed by an Authorized Sub-Licensee in relation to cultivating, drying or grinding cannabis, recognizing the exclusive authority of Bedrocan Beheer to arrange for the due registration of the IP Rights in its name.
3.8 Any material change with respect to Bedrocan Canada’s process for cultivating, drying and grinding cannabis shall be subject to Bedrocan Beheer’s approval (such
approval not to be unreasonably withheld).
3.9 Bedrocan Canada shall hold the right to export any Bedrocan Product produced in the Licensed Territory; provided that, any such export of Bedrocan Products produced by Bedrocan Canada to territories outside the Licensed Territory or Sub-Licensed Territories require the written approval of Bedrocan Beheer for each separate deal made by Bedrocan Canada (This is to ensure Bedrocan Canada is not in conflict with any of Bedrocan Beheer’s (and its affiliates’) facilities in other territories).
3.10 Bedrocan Beheer shall use reasonable commercial efforts to satisfy all of its obligations to Bedrocan Canada set out in Schedule IV. In addition, each of Bedrocan Beheer and Bedrocan Canada shall use reasonable commercial efforts to satisfy all of its respective obligations to Authorized Sub-Licensees as set out in
3.11 Bedrocan Beheer hereby provides to Bedrocan Canada a performance guarantee on the minimum production yield and quality standards on the Licensed Products specified in Schedule IV and ***. The guaranteed minimum production shall be calculated in each Production Year by taking the aggregate number of all harvested plants in that Production Year multiplied by the minimum yield per plant as per Schedule IV. If the actual production yield is less than the guaranteed minimum production, the License Fee for such Production Year shall be reduced by the production shortfall multiplied by the average cost of production for such Production Year. The average cost of production shall be the actual costs of production (including production labour, raw materials, utilities and production overhead but excluding administration and distribution costs) divided by the guaranteed minimum production. The reduction of the License Fee will not exceed the Licensee Fee before the reduction. If any of the THC,
CBD or CBN levels per batch vary by more than *** of the specified standards in Schedule IV (e.g. an increase of THC by *** for “Var. Bedrocan” from ***), the batch will not be sold by Bedrocan Canada (or applicable Authorized Sub-Licensee) and will be excluded from the actual production yield, unless otherwise agreed by the parties. The License Fee will be adjusted accordingly to reflect a reduction in the actual production yield.
3.12 Bedrocan Canada shall apply for all necessary licenses required under the Marihuana for Medical Purposes Regulations. Bedrocan Canada shall fulfill all import requirements for the Licensed Territory for the Imported Bedrocan Products. Bedrocan Canada shall procure that a comparable provision is included in each Sub-License Agreement with respect to the Authorized Sub-Licensee’s compliance with any and all applicable laws, regulations, ordinances, and other guidelines or rules of any governmental entity or authority regulating cannabis or marijuana in the applicable Sub-Licensed Territory.
Article 4 – Duration
4.1 This Agreement, including the rights granted under Article 2, shall be for an indefinite period. The duration of any Sub-License Agreement shall be limited to a maximum period of fifteen (15) years, or such shorter period, as may be determined by Bedrocan Canada as sub-licensor, and shall so automatically lapse, ***.
4.2 The Parties acknowledge that Bedrocan Canada’s license under Section 2.3 with respect to Imported Bedrocan Products is subject to termination by Bedrocan Beheer if the authorization of Bedrocan Beheer to cultivate cannabis is revoked by the Dutch government, represented by the Office for Medicinal Cannabis (OMC). In that case, Bedrocan Beheer shall no longer be obliged to deliver the Imported Bedrocan Products to Bedrocan Canada.
Article 5 – Marketing
5.1 The Parties shall cooperate regarding the promotion of Bedrocan Canada and its products, within the Licensed Territory.
5.2 Marketing costs shall be borne by Bedrocan Canada, unless agreed otherwise by the Parties.
5.3 Bedrocan Beheer shall provide a co-op marketing contribution to Bedrocan Canada on the Imported Bedrocan Products through the Dutch Office of Medicinal Cannabis (OMC; Ministry of Health) as follows: Bedrocan Beheer shall contribute a onetime contribution, for co-marketing purposes, of *** of Imported Bedrocan Product sold in the Licensed Territory. For greater certainty, Bedrocan Beheer shall have no obligations to provide a co-op marketing contribution to any Authorized Sub-Licensee.
5.4 The Parties shall give each other access to all marketing and branding materials (developed and to be developed) such as lay outs and drawings regarding the house style, brands, website, printed materials and the Bedrocan Mission and Vision statement. Bedrocan Canada shall be solely responsible to provide any and all such marketing and branding materials to Authorized Sub-Licensees and Bedrocan Beheer shall have no obligations to provide any such materials to such Authorized Sub-Licensees.
5.5 The Parties shall share any and all results of market research and/or research on patient monitoring results, but for greater certainty shall not have any obligations to share any such market research or patient monitoring results with Authorized Sub-Licensees. For greater certainty, neither of the Parties shall be obligated to conduct any such research.
Article 6 – Transfer of rights
6.1 All intellectual property or other rights to the Licensed Product, Licensed Know-How and Bedrocan Beheer’s Confidential Information made available to Bedrocan Canada on the basis of this Agreement shall remain exclusively vested in Bedrocan Beheer.
6.2 Subject to the right of Bedrocan Canada to sub-license or otherwise make available Commercialization Rights to Authorized Sub-Licensees pursuant to Article 2 of this Agreement, the rights and obligations of Bedrocan Canada under this Agreement may not be assigned to a third party by Bedrocan Canada without the prior written approval of Bedrocan Beheer; provided that, upon notice by Bedrocan Canada to Bedrocan Beheer, Bedrocan Canada shall be permitted to assign its rights and obligations under this Agreement, without Bedrocan Beheer’s approval, to any of Bedrocan Canada’s affiliates, subsidiaries, shareholders or related parties, or to a third party purchaser of substantially all of Bedrocan Canada’s assets or shares.
6.3 Subject to the right of Bedrocan Canada to sub-license or otherwise make available Commercialization Rights to Authorized Sub-Licensees pursuant to Article 2 of this Agreement, Bedrocan Canada is not allowed to otherwise sublicense any of the rights granted in this Agreement except upon written approval of Bedrocan Beheer, which approval shall be given at the sole discretion of Bedrocan Beheer, acting reasonably.
Article 7 – Licence Fee and other price agreements
7.1 In consideration of the rights granted by Bedrocan Beheer to Bedrocan Canada, Bedrocan Canada shall pay an annual license fee (the “License Fee”) and sublicensing fee (the “Sub-Licensing Fee”) as more particularly described in Schedule
V. In addition, each Party shall reimburse the other Party for Reimbursable Sub-License Costs as more particularly described in Schedule V.
7.2 The Licence Fee and Sub-Licensing Fee (collectively the “Fees”) payable by Bedrocan Canada to Bedrocan Beheer for the granted rights, as well as any other price and payment terms and conditions (including the reimbursement of Reimbursable
Sub-License Costs), are further specified in Schedule V.
7.3 Bedrocan Beheer shall provide Bedrocan Canada, with the services of a production manager employed by Bedrocan Beheer, who shall provide such services in Bedrocan Canada’s facility in the Licensed Territory (as the case may be, the “Production Facility”), for a period of 2 years. Bedrocan Beheer shall be directly responsible for paying all costs related to the production manager for such 2 year period from the time such production manager commences working in the Production Facility, including, without limitation, the production manager’s compensation, transportation costs, living expenses, and all other benefits provided by Bedrocan Beheer. Bedrocan Canada, shall reimburse Bedrocan Beheer, on a monthly basis, for any such costs agreed to by the Parties. For greater certainty, the production manager shall at all times remain an employee of (and the sole responsibility of) Bedrocan Beheer, and not Bedrocan Canada. Notwithstanding the foregoing, Bedrocan Beheer shall provide, from its offices, any necessary training and/or further education of any Authorized Sub-Licensee, and any of its designees, in the interest of the fulfillment by each Authorized Sub-Licensee of its right to use the Commercialization Rights. Bedrocan Beheer may, however, conduct, directly or indirectly, on-site audits at the premises of any Authorized Sub-Licensee. Bedrocan Beheer shall carry all of the on-site costs of such training at its offices, and including any lodging costs of any such representative of an Authorized Sub-Licensee. For greater certainty, any other costs, such as travel costs, shall be arranged between Bedrocan Canada and each Authorized Sub-Licensee. This shall be extended to Bedrocan Beheer in the event that it is desired that any on-site training and further education is required in each Sub-Licensed Territory, by or on behalf of Bedrocan Beheer, provided that Bedrocan Canada shall use reasonable commercial efforts to include in each Sub-License Agreement a provision requiring the Authorized Sub-Licensee to reimburse Bedrocan Beheer in full for all costs incurred by Bedrocan Beheer in connection with the provision of any on-site training and further education; ***.
Article 8 – Accounting
Bedrocan Canada undertakes and agrees:
a) To keep proper records and books of accounts and to make such entries therein as may be necessary to enable the amount of the Fees to be ascertained.
Bedrocan Canada shall within reasonable time following the request of rocan Beheer or in any event within three (3) months of the end of each financial year of Bedrocan Canada deliver to Bedrocan Beheer a statement from Bedrocan Canada’s accountant based on the books and records of Bedrocan Canada stating that the amount of the Fees in the preceding financial year is correct and represents the total Fees due and payable to Bedrocan Beheer pursuant to the terms and conditions of this Agreement.
b) To permit Bedrocan Beheer or its duly authorised representatives upon reasonable notice and at Bedrocan Beheer’s expense to audit and inspect and take copies or extracts from relevant records or accounts and to give them such further information as they may reasonably require to enable the amount of the Fees to be verified.
c) Bedrocan Beheer shall have the right to challenge the amount of the Fees calculated by Bedrocan Canada’s accountant upon written notice to Bedrocan Canada, in accordance with this Agreement, *** from receipt of the Fees calculation (the “Objection Notice”). If Bedrocan Beheer does not deliver an Objection Notice in accordance with this Agreement within the specified time period, the amount of the Fees calculated by Bedrocan Canada’s accountant shall be deemed final. In the event that Bedrocan Beheer delivers an Objection Notice within the specified time period, the Parties shall act in good faith, through mutual consultation and negotiation, for the settlement of any disagreement and shall attempt to reach an agreement on the calculation of the amount of the Fees. If no agreement is reached by the Parties within *** from the date of the Objection Notice, the dispute shall be adjudicated by an adjudicator appointed by the mutual agreement of the parties (the “Adjudicator”). If the parties cannot agree on the Adjudicator within *** from the date of the Objection Notice, the dispute shall be adjudicated by KPMG LLP, provided that they are not the auditor of Bedrocan Canada or Bedrocan Beheer. The Adjudicator shall make a final decision on the basis of the books and records submitted to them by both Parties, it being understood that such decision shall be binding upon the Parties. The costs of the Adjudicator shall be borne by the Parties equally.
d) For greater certainty, the provisions of this article shall specifically apply to the
Article 9 – Standards of quality (ISO 9001)
9.1 Bedrocan Canada shall use reasonable commercial efforts to maintain the quality management standards as set out in the ISO 9001 principles. Bedrocan Canada shall procure to include a comparable provision in each Sub-License Agreement.
9.2 Bedrocan Canada undertakes and agrees to permit Bedrocan Beheer or its duly authorised representatives to enter into and inspect the facilities where the Licensed Product and Licensed Know-How are used at all reasonable times during normal business hours, upon reasonable notice to Bedrocan Canada and at Bedrocan Beheer’s expense in order to i) determine whether the Licensed Product, Licensed Know-How and Trademarks are being used in accordance with this Agreement, and
ii) examine whether the quality management standards of ISO 9001 are being followed. Bedrocan Canada shall use reasonable commercial efforts to include a comparable provision in each Sub-License Agreement. In the event that, following one or more audits of an Authorized Sub-Licensee’s facilities, Bedrocan Beheer determines, acting reasonably and in consultation with Bedrocan Canada, that such Authorized Sub-Licensee has failed to comply, in any material respect, with one or more such ISO 9001 standards, Bedrocan Beheer shall so advise Bedrocan Canada and Bedrocan Canada shall thereafter work with such Authorised Sub-Licensee to correct any such failure(s), provided that if Bedrocan Canada, acting reasonably and in consultation with Bedrocan Beheer, determines that such Authorized Sub-Licensee is or will be unable to correct any such failure(s), Bedrocan Canada shall terminate the applicable Sub-License Agreement.
Article 10 – Delivery
10.1 The Parties shall co-operate with each other and execute and deliver to the other such instruments and documents and take such other action as may be reasonably requested from time to time in order to carry out and confirm the rights and the intended purpose of this Agreement.
Article 11 – Use of Trademarks and product names
11.1 Unless agreed otherwise, Bedrocan Canada undertakes to use the Trademarks and names of all Bedrocan Products, as supplied by Bedrocan Beheer, in all of Bedrocan Canada’s communications. Bedrocan Canada also undertakes to make consistent use of the “Bedrocan” figurative mark and trademarks that are or will be registered in Canada, and the domain name www.bedrocan.ca, registered by Bedrocan Beheer in Canada and, where necessary, the domain name www.bedrocan.com, registered by Bedrocan Beheer. Bedrocan Canada shall procure to include a comparable provision in each Sub-License Agreement.
11.2 Bedrocan Canada shall use reasonable commercial efforts to maintain the good name and reputation of Bedrocan Beheer and its affiliates worldwide, especially within the Licensed Territory, in accordance with the Bedrocan Mission and Vision statement. Bedrocan Canada shall procure to include a comparable provision in each Sub-License Agreement.
11.3 Bedrocan Canada is not allowed to register any of the Trademarks outside the Territory without the written permission of Bedrocan Beheer. Bedrocan Canada shall procure to include a comparable provision in each Sub-License Agreement.
Article 12 – Liability
12.1 Subject, for greater certainty, to any provision of a Sub-License Agreement agreed to by a Party in relation to any Authorized Sub-Licensee, each Party’s total liability under this Agreement shall be limited to compensation for direct damage, including any liability for death or physical injury, under this Agreement up to a maximum aggregate amount ***
(i) to a Party in connection with any claims that the use of such Party’s intellectual property licensed under this Agreement by the other Party, or under a Sub-License Agreement by an Authorized Sub-Licensee, infringes the intellectual property rights of a third party, or (ii) to Bedrocan Beheer for any acts or omissions of the Bedrocan Beheer production manager.
12.3 Direct damages are exclusively understood as:
a) The reasonable costs made in determining the cause and extent of the damage;
b) The reasonable costs incurred in prevention or limitation of the damage, to the degree that the claiming Party (the “Claiming Party”) can demonstrate that these costs have led to the limitation of the damage.
12.4 The liability of the non-Claiming Party (the “Liable Party”) for indirect damage, including consequential damage, loss of profit, loss of savings, mutilated and/or lost data, delays, losses, damage as a result of a failure of the Claiming Party to provide the required information or assistance, damage through corporate inactivity and/or claims from third parties against such Claiming Party, is expressly rejected.
12.5 The Liable Party’s liability exists solely when the Claiming Party immediately and appropriately notifies the Liable Party of the deficiency in writing, proposing therein a reasonable time period for correction of the deficiency and the Liable Party then culpably fails to meet the aforesaid obligations. The notification of deficiency ought to be as detailed a description of the deficiency as possible so that the Liable Party is able to react adequately.
12.6 The condition for the existence of any right to compensation is always that the Claiming Party notifies the Liable Party in writing by registered mail within *** after the damage came into existence and takes the necessary measures to limit the damage as much as possible.
12.7 Bedrocan Beheer shall protect and indemnify Bedrocan Canada from any claims alleging that the Licensed Product or Licensed Know-How violates a copyright or other intellectual property right valid in The Netherlands. Bedrocan Beheer shall pay the damages, expenses, and court costs that Bedrocan Canada is ordered to pay by the final court ruling, provided that Bedrocan Canada:
a) notifies Bedrocan Beheer immediately, but no later than within *** after Bedrocan Canada becomes aware of the infringement or could have become aware of the infringement, in writing of the existence of the allegation of infringement; and
b) gives the case completely over to Bedrocan Beheer, including all negotiations and arrangements that might lead to a settlement. In case of any such allegation or possible allegation, Bedrocan Beheer reserves the right to obtain a license or sub license on the Bedrocan Product in question or to change or replace the Bedrocan Product in such a way that the Bedrocan Product will no longer infringe a copyright valid in The Netherlands. Bedrocan Beheer shall provide a *** in a Beheer Document.
Article 13 – Confidentiality and competition
13.1 The Parties shall hold in confidence all Licensed Know-How and Confidential Information received from each other and not divulge the Licensed Know-How or the Disclosing Party’s Confidential Information to any person, including any of its employees, save for employees directly involved with the parties implementing this
Agreement and for Authorized Sub-Licensees.
13.2 Within *** after the termination of this Agreement, for whatever reason, the recipient of a Disclosing Party’s Confidential Information shall return such Confidential Information to the Disclosing Party or at the discretion of the Disclosing Party, destroy such Confidential Information, and shall not retain copies,
samples or excerpts thereof.
13.3 The Parties agree that the following information shall, for the purpose of this Agreement, not be considered to be Confidential Information:
a) information known to the recipient prior to the date that it was received from
the Disclosing Party; or
b) information known to the public or generally available to the public prior to
the date that it was disclosed by the Disclosing Party; or
c) information which becomes known to the public or becomes generally available
to the public subsequent to the date that it was disclosed by the Disclosing Party,
through no act or failure to act on the part of the recipient of such information; or
d) information which the Disclosing Party, in writing, authorises the recipient to
disclose. Bedrocan Canada shall procure that comparable confidentiality provisions in each Sub-License Agreement shall be included.
13.4 For greater certainty, if Bedrocan Beheer develops varieties, strains, know-how or other findings in connection with the subject matter of this Agreement, they shall be offered first to Bedrocan Canada for the Licensed Territory and Sub-Licensed Territories, and upon acceptance thereof by Bedrocan Canada, shall constitute Licensed Product or Licensed Know-How, as the case may be, on and subject to the terms of this Agreement. The Parties agree now that future products would come to form part of the license granted in this Agreement, if Bedrocan Canada agrees.
13.5 For a period of *** following the date of the first sale by Bedrocan Canada of Imported Bedrocan Products in the Licensed Territory, Bedrocan Canada shall not market, sell or commercialize products which are the same or similar to Bedrocan Beheer products (the “Competing Products”) or have an interest in a company that markets, sells or commercializes the Competing Products, in each case, without the approval of Bedrocan Beheer, unless this Agreement is terminated by Bedrocan Canada during such *** period due to a breach of this Agreement by Bedrocan Beheer. Bedrocan Canada shall procure to include a comparable provision in each Sub-License Agreement.
Article 14 – Trademark and plant breeders’ rights and product improvements
14.1 The Parties undertake to take reasonable care to inform each other of any claims or potential claims that each party becomes aware of with respect to the Bedrocan Products, Imported Bedrocan Products, Licensed Know-How, Licensed Product or Trademarks in the Licensed Territory or any Sub-Licensed Territory. 14.2 Any costs that are incurred after signing this Agreement in connection with protecting and/or maintaining the intellectual property protection of Licensed Products, Licensed Know-How and Trademarks (a) in Canada, shall be borne by Bedrocan Beheer, and (b) in any Sub-Licensed Territory, shall be shared equally by Bedrocan Beheer and Bedrocan Canada. Bedrocan Canada shall cooperate fully with Bedrocan Beheer if it becomes aware of any infringement or illegal use by any third party of the Licensed Products, Licensed Know-How or Trademarks.
Article 15 – Termination of the Agreement
15.1 Either of the Parties shall only be authorised to terminate this Agreement as a result of an attributable failure to perform any term of this Agreement if the other Party, following written notice of default providing as many details as possible and setting a reasonable term of not less than *** in which the breach can be remedied, fails to meet its obligations arising from this Agreement.
15.2 Either of the Parties shall be entitled to terminate the Agreement in part or in full, with immediate effect, in writing without notice of default if the other Party is granted a moratorium of payments, provisionally or otherwise, if a winding-up petition is filed in respect of the other Party, if the other Party’s company is wound up or terminated for reasons other than a merger, reconstruction or reorganization of such Party.
15.3 Termination of this Agreement due to essential non-compliance as aforementioned must take place by means of a registered letter delivered from the terminating Party to the other Party and setting out the reason for termination in accordance with this Agreement.
15.4 Bedrocan Canada shall procure to include a comparable termination provision in each Sub-License Agreement.
15.5 In the event of a termination of this Agreement for any reason in accordance with its terms, Bedrocan Beheer shall provide notice thereof (the “Sub-License Termination Notice”) to each Authorized Sub-Licensee as soon as possible and in any event within *** following the effective date of such termination. Each Sub-License Agreement shall include a provision whereby, upon delivery of any such Sub-License Termination Notice:
a) if the applicable Authorized Sub-Licensee is not then in default of its Sub-License Agreement, then, as of the effective date of any such termination of this Agreement, all but not less than all of Bedrocan Canada’s rights and obligations under such Sub-License Agreement shall be automatically assigned to Bedrocan Beheer, and Bedrocan Beheer shall automatically assume all such rights and obligations, and the applicable Authorized Sub-Licensee shall provide its irrevocable and unconditional consent to such any assignment and assumption, with the effect that, as of the effective date of any such termination of this Agreement, Bedrocan Beheer shall be the direct licensor and such Authorized Sub-Licensee shall be the direct licensee of the Commercialization Rights in respect of the applicable Sub-Licensed Territory under the terms of the Sub-License Agreement; and b) where the applicable Authorized Sub-Licensee is then in default of its Sub-License Agreement, then Bedrocan Behher shall have the right, exercisable upon subsequent notice by Bedrocan Beheer to the applicable Authorized Sub-Licensee within *** following delivery of the Sub-License Termination Notice, to require that, as of the effective date of any such termination of this Agreement, all but not less than all of Bedrocan Canada’s rights and obligations under such Sub-License Agreement shall be automatically assigned to Bedrocan Beheer, and Bedrocan Beheer shall automatically assume all such rights and obligations, and the applicable Authorized Sub-Licensee shall provide its irrevocable and unconditional consent to such any assignment and assumption, with the effect that, as of the effective date of any such termination of this Agreement, Bedrocan Beheer shall be the direct licensor and such Authorized Sub-Licensee shall be the direct licensee of the Commercialization Rights in respect of the applicable Sub-Licensed Territory under the terms of the Sub-License Agreement.
Article 16 – Consequences of termination
16.1 All rights granted by this Agreement including the right of Bedrocan Canada to use or sub-license the Licensed Product and Licensed Know-How shall end on termination of this Agreement. On termination of this Agreement, Bedrocan Canada agrees to promptly discontinue all use of the Licensed Product and Licensed Know-How and, at the discretion of Bedrocan Beheer, destroy the Licensed Product and Licensed Know-How, and shall not retain copies, samples or excerpts thereof.
16.2 Notwithstanding the foregoing, Bedrocan Canada shall have the right to fill existing orders and sell off existing Bedrocan Products in stock, provided, however, the sell-off period shall not exceed *** from the date of termination.
16.3 Notwithstanding any such termination of this Agreement, the following provisions shall survive such termination: Articles 12, 16 and 17, and Sections 13.1,
13.2, 13.3 and 15.5.
16.4 Bedrocan Canada shall use reasonable commercial efforts to include a comparable termination provision in each Sub-License Agreement, provided that, subject to Section 15.5, each Sub-License Agreement shall terminate on any termination of this Agreement.
Article 17 – Disputes and applicable law
17.1 All disputes arising in connection with the present contract, or further contracts resulting there from, shall be finally settled in accordance with the Arbitration Rules of the ***. The arbitral tribunal shall be composed of one arbitrator. The place of arbitration shall be ***. The arbitral procedure shall be conducted in the English language.
17.2 To this Agreement the laws of *** shall apply.
Article 18 – Force Majeure
18.1 If, as a consequence of any event beyond the reasonable control of Bedrocan Beheer (“Force Majeure”), Bedrocan Beheer is prevented from fulfilling its obligations to Bedrocan Canada under this Agreement, such obligations shall be suspended for the duration of the event of Force Majeure. Bedrocan Beheer shall notify Bedrocan Canada of any (foreseeable) event of Force Majeure as soon as possible.
Thus agreed, prepared and signed in duplicate in …
December 18, 2014
Bedrocan Canada Inc.
Bedrocan Beheer BV
The products licensed to Bedrocan Canada Inc. are the living genetics of:
Cannabis sativa L. Variety BedrocanR
Cannabis sativa L. Variety BedrobinolR
Cannabis sativa L. Variety BediolR
Cannabis sativa L. Variety BedropuurR
Cannabis sativa L. Variety BedicaR
Cannabis sativa L. Variety BedroliteR
Any other cannabis variety developed or to be developed by Bedrocan Beheer BV
in The Netherlands or any of its’ affiliated companies now or anytime in the future.
All aforementioned trademarks are all registered with the Benelux Office for Intellectual
Property (see attachment).
Registration of all aforementioned trademarks is in process with the Canadian Intellectual
Property Office (see attachment).
Additional Terms and Obligations
Additional Obligations of Bedrocan Beheer to Bedrocan Canada
1. Bedrocan Beheer shall assist in construction and all product production planning
of Bedrocan Canada for the production site.
2. Bedrocan Beheer shall assist in planning of the domestic production facility, including site selection, financing and construction requirements with implementation that will trigger once an agreed objective is met.
3. Bedrocan Beheer shall assist in the funding and development of a sales and
marketing plan for Bedrocan Canada.
4. Due to other contracts and agreements of Bedrocan Beheer (including with
***), all R&D activities of Bedrocan Beheer with regard to developing a
registered medicine (inhalation device and dosage unit) cannot and will not be
shared with Bedrocan Canada.
5. Within the framework of ***, Bedrocan Beheer will work together with
the Bedrocan Beheer licensed companies on connecting them to *** once a developed product is ready to go to market, with the aim to license these companies for the (whole) sale of those products in their territory. Bedrocan Canada is not allowed to sell any raw material produced under the license granted pursuant to this Agreement for development and/or production of registered medicines without the approval of Bedrocan Beheer.
6. Bedrocan Canada shall be allowed to perform clinical trials with the Licensed
Products and licensed raw materials under guidance of Bedrocan Beheer. Bedrocan
Beheer will contribute to these trials financially, based on a certain percentage
of the License Fee paid by Bedrocan Canada to Bedrocan Beheer.
7. If required, Bedrocan Beheer will agree to produce other “new” varieties to
serve customers in the Licensed Territory according to marketed taste and
preferences based on general available and accepted genetics in the regular
Additional Obligations of Bedrocan Beheer and Bedrocan Canada to Authorized
Yield and Quality Standards