Germplasm License Agreement for "Line Ten" between Her Majesty the Queen in Right of Canada (Licensor) and Company Canada Inc. (Licensee)

 

For Line Ten With Company Canada Inc.

BETWEEN:

HER MAJESTY THE QUEEN IN RIGHT OF CANADA
(Licensor)

AND:

Company Canada Inc.
(Licensee)

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GERMPLASM LICENSE AGREEMENT
LINE Ten

BETWEEN: HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by the Minister of Agriculture and Agri-Food ("CANADA")

AND: COMPANY CANADA INC., carrying on business under the name of "Seed Company", of Unit 3 - 75 Scurvy Road, Grainfield, Manitoba,
(hereafter known as the LICENSEE),

 

INTRODUCTION

A. WHEREAS the Agriculture and Agri-Food Canada Research Centre, Saskatoon, Saskatchewan, has developed the high oil line of Brassica napus known as Ten hereafter known as "Line Ten";

B. Line Ten has been tested in Canada and other countries;

C. CANADA licenses Line Ten and grants the right to license the VARIETY to canola industry clients for the benefit of the canola industry in western Canada and for the creation of value for the LICENSEE;

D. Breeder seed is available to the Licensee;

E. CANADA wishes to have Line Ten used in a breeding program by the LICENSEE and the resultant Variety(s) propagated and marketed as a commercial Variety in the LICENSED TERRITORY; and

F. CANADA has a mandate to assist canola industry representatives improve the varieties of canola available to producers and consumers of canola.

NOW THEREFORE in consideration of the premises, the terms and conditions hereinafter contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each party, the parties hereto covenant and agree as follows:

 

1. DEFINITIONS

"LICENSE AGREEMENT" means this agreement which includes attached appendices and refers to the whole of this agreement, not to any particular section or portion thereof.

"LICENSED TERRITORY" means the World.

"PBR" means Plant Breeders' Rights.

"PBRO" means the Plant Breeders' Rights Office in Canada or the equivalent in other countries within the LICENSED TERRITORY.

1.5 "VARIETY" means Line Ten, a line developed by AAFC' s Saskatoon Research Centre, as identified in Appendix "A", which when combined in a Licensee breeding program produces a germplasm product which may be grown, produced, developed, marketed, retailed, sold, as a result of the breeding program and which then becomes commonly known as a " VARIETY" .

1.6 "BREEDER SEED and CERTIFIED SEED" have the meaning prescribed in the regulations and procedures for the production of Pedigree Seed Crop, Circular No. 6-94 of the Canadian Seed Growers' Association (CSGA). Grade standards for all classes shall be as defined under Schedule A of Regulations made pursuant to the Seeds Act. The purity of BREEDER SEED will be at least equivalent to Foundation No. 1 Seed.

1.7 "SOLD or SALE" means the commercial or retail sales of VARIETY to customers, without discount, rebate or incentive.

1.8 "Party" means either CANADA or LICENSEE, "Parties" means both.

1.9 "Line Ten" means the AAFC wholly owned line of B. napus germplasm licensed to the LICENSEE for use in the breeding program of the LICENSEE in order to create a VARIETY or VARIETIES. (Described in Appendix A, attached)

 

2. GRANT OF BASIC LICENCE

Grant

2.1 Subject to the provision of this LICENSE AGREEMENT, CANADA hereby grants to the LICENSEE a non-exclusive royalty-bearing, fixed term licence to use Line Ten in a LICENSEE breeding program and to produce, market, sell the resulting VARIETY in the LICENSED TERRITORY.

Sublicensing

2.2

2.2.1 Line Ten

The LICENSEE shall not have the right to grant written royalty-bearing sub-licenses within the LICENSED TERRITORY for the use or purposes of Line Ten. If the LICENSEE wishes to sub-license, the LICENSEE must consult with CANADA and obtain the right to grant a sub-license according to terms agreed to both Parties.

2.2.2 VARIETY

The LICENSEE will be granted the right to sub-license the VARIETY which is a product of this License. The LICENSEE shall pass on all obligations of this License to the sub-licensee, especially the requirement of royalties paid for Line Ten inclusion in any VARIETY sold by the sub-licensee.

 

3. TERM OF THE LICENSE AGREEMENT

The LICENSE AGREEMENT shall remain in force for ten (10) years from the date of signing of the LICENSE AGREEMENT, unless terminated pursuant to the provisions of paragraph 16 (Termination). At any time prior to the expiration of this period, CANADA may, with the concurrence of the LICENSEE, and as long as the LICENSEE is not in breach of this LICENSE AGREEMENT, extend this period for one or more successive five (5) year terms.

 

4. OWNERSHIP

4.1 The LICENSEE agrees that Line Ten, its creation, discovery, development and every matter relating thereto, forming part thereof and arising therefrom are vested in and are the sole property of CANADA.

4.2 Ownership and all rights to, related to, connected with or arising out of the foregoing, including but without limiting the generality of the foregoing, patent rights and copyright in and the right to produce and publish or cause to be produced and published all information material and documents, and the right pursuant to the Plant Breeders' Right Act to issue a license, are vested in and are the sole property of CANADA.

4.3 It is agreed that CANADA is the sole owner of Line Ten and has the right pursuant to the Plant Breeders' Right Act to issue a license. The LICENSEE shall have no rights in and to the foregoing except as may be expressly granted hereunder and the LICENSEE shall not apply for any patent or other right and shall not divulge or disclose, without the prior written consent of CANADA, any information, material or documents concerning same or make available in any way or use Line Ten except as expressly provided in this LICENCE AGREEMENT, mainly to use the Line Ten in a breeding program of the LICENSEE to produce a VARIETY OR VARIETIES for the use of the LICENSEE.

 

5. RELEASE OF MATERIAL

The Minister agrees for the term of this LICENSE AGREEMENT to maintain a supply of Breeder seed of Line Ten and further agrees to provide the LICENSEE, from time to time, with new Breeder seed of Line Ten for a fee established by the Seed Multiplication Unit of Agriculture and Agri-Food Canada, Indian Head, Saskatchewan.

 

6. LINE Ten

6.1 CANADA makes no warranties expressed or implied on merchantability or fitness for any or a particular purpose for Line Ten provided to the LICENSEE pursuant to this agreement.

6.2 The LICENSEE agrees that CANADA makes all best efforts to identify the significant characteristics of the Line Tenand that CANADA makes no representation that all the characteristics, including those relating to disease, both favourable and unfavourable have been identified. The LICENSEE agrees to accept CANADA'S best efforts to identify the characteristics of the Line Ten covered by this LICENSE AGREEMENT. With respect to the Line Ten, the LICENSEE shall not hold CANADA liable for any claims resulting from the action or negligence of the LICENSEE.

 

7. PROTECTION

CANADA has PBR on the Line Ten. The LICENSEE agrees to the terms and conditions of PBR and agrees to abide and assist CANADA for the purposes of Article 16, Infringement.

 

8. FEES AND ROYALTIES

In consideration of the rights granted hereunder,

PBR Registration

8.1 The LICENSEE shall pay all costs of securing PBR for any VARIETY resulting from the use of Line Ten.

PBR Fees

8.2 The LICENSEE shall pay PBR application costs and the maintenance fees that may come due.

VARIETY Registration Fees

8.3 The LICENSEE shall pay for VARIETY registration costs and the maintenance fees that may come due during the term of this LICENSE AGREEMENT.

8.4 Royalty Rate

The LICENSEE shall pay to CANADA a royalty of 3.5 cents per pound of certified seed resulting from the use of the Line Ten in the LICENSEE breeding program, sold by the LICENSEE for domestic sales and sold for export sales . The royalty shall be paid by the LICENSEE to CANADA by August 1 of each calendar year.

Mode of Payment to Canada

8.5 Royalties collected by the LICENSEE shall be paid to CANADA not later than August 1^st of each calendar year with respect to sales effected up to April 30^th of the current year.

8.6 Cheques for the payment of royalties shall be in Canadian funds and made payable to the "Receiver General for Canada". They shall be sent to:

Financial Clerk,
Agriculture and Agri-Food Canada
Research Centre
107 Science Place
Saskatoon, Saskatchewan
S7N 0X2

8.7 Each cheque shall be accompanied by a statement bearing the Financial Coding of this LICENSE AGREEMENT and the VARIETY name/identification, and showing the period covered, the total sales, the royalty applicable and the total royalty paid.

Payments to CANADA after Termination

8.8 The LICENSEE shall pay to CANADA any royalties, annual royalties due and payable pursuant hereto beyond the termination of the LICENSE AGREEMENT in accordance with paragraph 17 (Termination).

 

9. REPORTS

9.1 The LICENSEE shall on or before the 30th day of July of each calendar year during the term hereof and any renewal, submit to CANADA written reports as to the LICENSEE's activities with respect to the VARIETY during the preceding twelve months. Such reports shall contain:

9.1.1 a description of the steps taken by the LICENSEE to develop and market the VARIETY;

9.1.2 a description of the marketing conditions for the VARIETY;

9.1.3 an audited statement including the tonnage of the VARIETY sold by the LICENSEE, and amount of royalties payable;

9.1.4 an audited statement including the names and addresses of all sub-licenses to whom the VARIETY has been sub-LICENSED, a full account of all revenues generated by such sub-licenses, including the number of tonnes of VARIETY sold, and a calculation of the amount due to CANADA for the royalties stipulated herein; and

9.1.5 a remittance to CANADA payable to the Receiver General for CANADA of the amount of royalties so payable, such remittance to be clearly labelled with Canada's financial code .

 

10. RECORDS AND AUDIT

Access to Outside Records

10.1 The LICENSEE specifically authorizes Canadian Seed Growers Association (CSGA) or designate by CANADA to provide to CANADA any information it may have with respect to the production and sale of seed of the VARIETY by the LICENSEE.

Audit

10.2 The LICENSEE agrees, at the request of Canada, to permit an independent public accountant retained by CANADA to inspect all the aforementioned records in order to ascertain the accuracy of such royalties and reports. The auditing and verification provisions herein shall extend for 10 years following the expiry or earlier termination of this LICENSE AGREEMENT. In the event of any discrepancy uncovered by the audit in excess of 5% of the amount payable, the LICENSEE shall pay forthwith to CANADA both the cost of the audit as well as the discrepancy in funds. (Assuming the Licensee statement of payable is lower than what the audit shows is payable.) If the audit shows CANADA received more than is payable, CANADA shall forthwith pay the LICENSEE the amount due.

 

11. MEMBER INFORMATION

The parties agree that any document having information with respect to:

11.1 trade secrets of the LICENSEE;

11.2 financial, commercial, scientific or technical information that is confidential information supplied to CANADA by the LICENSEE and is treated consistently in a confidential manner by the LICENSEE;

11.3 information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, the LICENSEE;

11.4 information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of the LICENSEE;

will be treated as third party information as per Section 20 of the Access to Information Act. Any request for information will be subject to a notice to the LICENSEE as per Section 27 of the Access to Information Act.

 

12. WARRANTY

The LICENSEE

12.1 It is a fundamental condition of this agreement that the LICENSEE hereby expressly warrants and guarantees that it has the necessary knowledge, ability, facilities and resources to perform all of the obligations and undertakings to which it has agreed pursuant to this agreement.

Canada

12.2 CANADA makes no warranties, express or implied, of the merchantability, patentability, or fitness for a particular purpose of the Line Ten or it' s use for any purpose.

 

13. PRODUCT LIABILITY

Release Waiver

13.1 The LICENSEE releases CANADA and waives any cause of action the LICENSEE might have against CANADA, her employees, agents, servants, and officers arising from the production, marketing, sale and use of the Line Ten or the resulting product, the VARIETY by the LICENSEE or any third party.

Indemnity

13.2 Notwithstanding any other provision in the LICENSE AGREEMENT the LICENSEE shall indemnify and save harmless CANADA, her employees, agents, servants and officers from and against all demands, losses, damages (including economic loss) costs (including solicitor/own client costs) actions, suits or other proceedings, all in any manner, based upon, arising out of, related to or occasioned by or attributable to the production, marketing, sale and use of the Line Ten or the VARIETY by any party.

 

14. COMMERCIAL GENERAL LIABILITY INSURANCE

14.1 The LICENSEE shall ensure that a minimum, it maintains in force, throughout the duration of the licence, commercial general liability insurance for a limit of liability not less than $1,000,000 per accident, loss or occurrence.

 

15. INDEMNIFICATION

15.1 The LICENSEE shall indemnify and save harmless CANADA, its employees and agents from and against all claims, demands, losses, damages, costs (including solicitor and clients costs), actions, suits or other proceedings, all in any manner based upon, arising out of, related to, occasioned by or attributable to, any acts or conduct of the LICENSEE, its employees or agents, (whether by reason of negligence or otherwise) in the performance by the LICENSEE of the provisions of the LICENSE AGREEMENT or any activity undertaken or purported to be undertaken under the authority or pursuant to the terms of the LICENSE AGREEMENT. The LICENSEE shall not be liable for the negligence of CANADA, its employees or agents.

 

16. INFRINGEMENT

16.1 Subject to paragraph 15 (Indemnification) in the event of any threatened or actual suit against the LICENSEE in consequences of the exercise of the right and license granted herein, the LICENSEE shall promptly inform CANADA and the PARTIES will jointly decide on the steps to be taken in the circumstances.

16.2 It is understood and agreed that, with regard to the threatened litigation or litigation arising from the license granted herein, or infringement of the LICENSED rights by others, the PARTIES will at all times consult each other and give to one another free of charge information or advice that may be helpful for such purpose. However, neither PARTY shall bind or commit the other PARTY to any course of action that involves liability for legal costs, expenses or damages. Nonetheless, should the PARTIES fail to agree, within a reasonable time, as to any course of action jointly to be taken, either PARTY shall be at liberty to take or defend any proceedings alone at its own expense and shall be entitled to retain anything awarded to it by a court in excess of royalties owing to CANADA.

 

17. TERMINATION

By CANADA for Cause

17.1 The LICENSE AGREEMENT, at the option of CANADA, may be terminated forthwith by CANADA without compensation to the LICENSEE if:

17.1.1 The LICENSEE fails to provide their best efforts to commercialize the VARIETY;

17.1.2 The LICENSEE fails to make any payment provided for herein and does not make such payment within sixty (60) days;

17.1.3 The LICENSEE commits or permits a breach of any of the other terms and conditions herein contained and does not remedy such breach within ninety (90) days after being required in writing to do so by Canada;

17.1.4 The LICENSEE becomes bankrupt or insolvent, or has a receiving order made against it or has a receiver appointed to continue its operations, or passes a resolution for winding up, or takes the benefit of any statute for the time being in force relating to bankrupt or insolvent debtors of the orderly payment of debts; or

17.1.5 The LICENSEE assigns this agreement without the prior written consent of Canada, contrary to the provisions of paragraph 21.2 (Assignment).

Procedure

17.2 Early termination shall be effected by a notice that shall, as of the date stated therein, but subject to paragraph 17.3 (LICENSEE Duties on Termination) terminate the licence herein granted, together with all rights of the LICENSEE hereunder, without prejudice to the right of CANADA to sue for and recover any royalties or other sums due CANADA and without prejudice to the remedy of either PARTY in respect of any previous breach of the LICENSE AGREEMENT.

LICENSEE Duties on Termination

17.3 Upon termination or expiration of the LICENSE AGREEMENT, the LICENSEE shall, at its own cost;

17.3.1 Deliver a detailed statement to CANADA of the inventory of the LICENSED PRODUCT then existing but not sold by the LICENSEE as of the date of expiration or termination;

17.3.2 Provide CANADA or a designate of CANADA the right of first refusal to purchase from the LICENSEE any remaining seed stocks at fair market value; and

17.3.3 Pursuant to section 17.3.2, and subsequent to any exercise or waiving of this right, the LICENSEE shall dispose of any remaining pedigreed seed stocks as prescribed by Canada.

Surviving Obligations

17.4 The LICENSEE's obligations under paragraphs 8.8 (Payment to CANADA after Termination), 13.1 and 13.2 (Product Liability), 15 (Indemnification), and 17 (Termination) shall survive early termination or expiration of the AGREEMENT.

 

18. ARBITRATION

Arbitration

18.1 Any dispute or difference between the parties hereto arising under this LICENSE AGREEMENT which involves only a question of fact may be referred to an arbitration tribunal for an award and determination by written submission signed by either CANADA or the LICENSEE.

18.2 The parties hereto agree that the award and determination of the arbitration tribunal shall be final and binding on both parties hereto.

18.3 The arbitration tribunal shall be governed by the Commercial Arbitration Code referred to in the Commercial Arbitration Act, R.S.C. 1985, c. C-34.6.

Arbitration Tribunal

18.4 The arbitration tribunal shall consist of three (3) arbitrators, one (1) appointed by each of the parties hereto and the third appointed by the first two (2) arbitrators.

18.5 The arbitration tribunal shall decide the dispute or difference in accordance with the laws in force in the Province of Saskatchewan. The arbitration tribunal shall be authorized to decide ex aequo et bono or as amiable compositeur.

Proceedings

18.6 The proceedings shall take place in the Province of Saskatchewan, unless the parties hereto agree otherwise.

18.7 The language to be used in the proceedings is English, unless the parties hereto agree otherwise.

18.8 All written communication shall be delivered to the parties hereto in the manner provided for in Section 22.5.

Obligations During Arbitration

18.9 During the progress of arbitration, the parties hereto shall continue to perform their obligations under the LICENSE AGREEMENT.

 

19. OTHER LEGAL REQUIREMENTS

The LICENSEE shall obtain any other authorizations or permits which may be required in order for the LICENSEE to legally carry out all of its activities under this LICENSE AGREEMENT. Failure to do so shall be deemed a material breach of this license.

 

20. INTENT AND INTERPRETATION

Entire AGREEMENT

20.1 The LICENSE AGREEMENT constitutes the entire agreement between the PARTIES. The LICENSE AGREEMENT sets forth all representations forming part of or in any way affecting or relating to the LICENSE AGREEMENT. The PARTIES acknowledge that there are no representations either oral or written, between the LICENSEE and CANADA other than those expressly set out in the LICENSE AGREEMENT.

20.2 The LICENSE AGREEMENT supersedes and revokes all negotiations, arrangements, letters of intent, offers, proposals, brochures, representations and information conveyed, whether oral or in writing, between the PARTIES hereto or their respective representatives or any other person purporting to represent the LICENSEE or Canada. The PARTIES agree that:

20.2.1 none has been induced to enter into the LICENSE AGREEMENT by any representations not set forth in the LICENSE AGREEMENT;

20.2.2 none has relied on any such representations;

20.2.3 no such representations shall be used in the interpretation or construction of the LICENSE AGREEMENT;

20.3.4 no claims for any damages arising as a result of, or from, any such representations shall accrue to or be pursued by the PARTIES and no PARTY shall have any liability for any such claims; and

20.4.5 the LICENSEE has conducted its own due diligence examination and has satisfied itself of the full and plain disclosure of all the material facts.

Independent Legal Advice

20.3 It is acknowledged by the PARTIES that each has had legal advice to the full extent deemed necessary by each PARTY. Furthermore the PARTIES acknowledge that neither acted under any duress in negotiating, drafting and executing the LICENSE AGREEMENT.

No Adverse Presumption in Case of Ambiguity

20.4 There shall be no presumption that any ambiguity in the LICENSE AGREEMENT be resolved in favour of either of the PARTIES. For greater certainty, the contra proferentum rule shall not be applied in any interpretation of the LICENSE AGREEMENT.

Severability

20.5 If any part of the LICENSE AGREEMENT is declared or held invalid for any reason, the invalidity of that part will not affect the validity of the remainder which will continue in full force and effect and be construed as if the LICENSE AGREEMENT had been executed without the invalid portion. The intention of the PARTIES is that the LICENSE AGREEMENT would have been executed without reference to any portion which may, for any reason, be declared or held invalid.

Plurality and Gender

20.6 The LICENSE AGREEMENT will be for the benefit of and be binding upon the heirs, executors, administrators, successors, permitted assigns of the LICENSEE and other legal representatives, as the case may be, of each of the PARTIES. Every reference in the LICENSE AGREEMENT to any PARTY includes the heirs, executors, administrators, successors, permitted assigns and other legal representatives of the PARTY.

20.7 Reference to a PARTY will be read as if all required changes in the singular and plural and all grammatical changes rendered necessary by gender had been made.

Not a Joint Venture

20.8 The PARTIES expressly disclaim any intention to create a partnership, joint venture or joint enterprise.

20.9 The PARTIES acknowledge and agreed that:

20.9.1 nothing contained in the LICENSE AGREEMENT nor any acts of any PARTY shall constitute or be deemed to constitute the PARTIES as partners, joint venturers or principal and agent in any way or for any purpose;

20.9.2 no PARTY has the authority to act for or to assume any obligation or responsibility on behalf of any other PARTY; and

20.9.3 the relationship between the PARTIES is that of licensor and licensee.

Minister Not Fettered

20.10 Nothing in the LICENSE AGREEMENT shall derogate or otherwise fetter the ability of CANADA to regulate, administer, manage or otherwise deal with agriculture and all attendant matters thereto.

Federal Legislation

20.11 The reference in the LICENSE AGREEMENT to any Federal act or regulation includes any subsequent amendment, revision, substitution, consolidation to that act or regulation, notwithstanding that such amendment, revision or substitution occurred after the execution of the LICENSE AGREEMENT or may have a retroactive effect.

Right to Legislate

20.12 Nothing in the LICENSE AGREEMENT shall prohibit, restrict or affect the right or power of the Parliament of Canada to enact any laws whatsoever with respect to any area of law for which the Parliament of Canada has legislative jurisdiction, even if the enactment of any such law affects the LICENSE AGREEMENT, its interpretation or the rights of either PARTY.

No Implied Obligations

20.13 No implied terms or obligations of any kind by or on behalf of either of the PARTIES shall arise from anything in the LICENSE AGREEMENT. The express covenants and agreements herein contained and made by the PARTIES are the only covenants and agreements upon which any rights against either of the PARTIES may be founded.

Access to Information

20.14 Notwithstanding any provision to the contrary in the LICENSE AGREEMENT, the LICENSEE acknowledges that CANADA is subject to the Access to Information Act, R.S.C. 1985, c.A-1, and related acts and may be required to release, in whole or in part, the LICENSE AGREEMENT and any other information or documents in Canada's possession or control relating to the LICENSE AGREEMENT and the PARTIES.

Governing Law

20.15 The LICENSE AGREEMENT shall be governed firstly by applicable Federal laws, and secondly by the laws of the Province of Saskatchewan.

Contract Always Speaks

20.16 Where a matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to the LICENSE AGREEMENT according to its true spirit, intent and meaning.

Headings

20.17

20.17.1 All headings in the LICENSE AGREEMENT have been inserted as a matter of convenience and for reference only and in no way define, limit, enlarge, modify the scope or meaning of the LICENSE AGREEMENT or any of its provisions.

20.17.2 Any reference in the LICENSE AGREEMENT to an Article, paragraph, subparagraph will mean an Article, paragraph or subparagraph of the LICENSE AGREEMENT unless otherwise expressly provided.

Appendices

20.18 The document attached hereto as Appendix "A" forms an integral part of this LICENSE AGREEMENT as fully as if it were set forth herein in extenso, and consists of:

Appendix "A" - Description of the VARIETY

 

21. LEGAL RIGHTS

Amendments

21.1 No modification, or waiver of any provision of the LICENSE AGREEMENT will be inferred from anything done or omitted by either of the PARTIES except by an express amendment in writing duly executed by the PARTIES.

Assignment

21.2 The LICENSEE will not assign the whole or any part of the LICENSE AGREEMENT without the prior written consent of CANADA, which consent will not be unreasonably withheld.

21.2.1 It will not be unreasonable for CANADA to refuse to consent to any assignment, if it is foreseeable that the assignment might negatively affect CANADA in any way or derogate from the commercialization of the VARIETY.

21.2.2 Consent to any assignment will not be construed as consent to any other assignment.

21.2.3 Failure of the LICENSEE to obtain the prior written consent of CANADA to any assignment shall be deemed to be a breach of the LICENSE AGREEMENT.

No Third Party Rights

21.3 Nothing expressed or implied in the LICENSE AGREEMENT is intended to or shall be construed to confer on or give to any person, other than the PARTIES and their respective successors and permitted assigns, any rights or remedies under or by reason of the LICENSE AGREEMENT.

Waiver

21.4 No condoning, excusing or overlooking by either of the PARTIES of any default by the other PARTY at any time or times in performing or observing any of the PARTIES respective covenants will operate as a waiver of or otherwise affect the rights of the PARTIES in respect of any continuing or subsequent default. No waiver of these rights will be inferred from anything done or omitted by the PARTIES except by an express waiver in writing.

21.5 For greater clarity, the failure by either of the PARTIES or their authorized representatives, as the case may be, to require the fulfilment of these obligations, or to exercise any rights herein contained shall not constitute a waiver, a renunciation or a surrender of those obligations or rights.

Remedies Cumulative

21.6 All rights and remedies of the PARTIES are cumulative and are in addition to and do not exclude any other right or remedy provided in the LICENSE AGREEMENT or otherwise allowed by law.

Mutual Assistance

21.7 The PARTIES will at all times hereafter upon every reasonable request of the other make, do and execute or cause to be procured, made, done and executed, all such further acts, deeds and assurances for the carrying out of the terms, covenants and agreements of the LICENSE AGREEMENT according to the true intent and meaning of the LICENSE AGREEMENT.

 

22. GENERAL

Time is of the Essence

22.1 Time shall be of the essence in this LICENSE AGREEMENT.

No Bribes

22.2 The LICENSEE warrants that no bribe, gift, or other inducement has been paid, given, promised or offered to any Government official or employee for the obtaining of this LICENSE AGREEMENT.

No Share to Members of Parliament

22.3 Pursuant to the Parliament of Canada Act, R.S.C. 1985, c.P-1, no member of the House of Commons or Senate will be admitted to any share or part of the LICENSE AGREEMENT or to any benefit to arise from the LICENSE AGREEMENT.

Public Office Holders

22.4 It is a term of this LICENSE AGREEMENT that no former public office holder who is not in compliance with the post employment provisions of the Conflict of Interest and Post-Employment Code for Public Office Holders shall derive a direct benefit from this LICENSE AGREEMENT.

Notice

22.5 Wherever in this LICENSE AGREEMENT, it is required or permitted that notice or demand be given or served by either PARTY to or on the other PARTY, such notice or demand will be in writing and will be validly given or sufficiently communicated if forwarded by certified mail, priority post mail, telegram, telex or facsimile as follows:

The addresses for delivery are:

To the LICENSEE:

Howard Grain, General Manager
Company Canada Inc.
Unit 3 - 75 Scurvy Road
Grainfield, Manitoba
Telephone: (204) 489-4069
Facsimile: (204) 489-4769
Cellular: (204) 779-2990

To CANADA:

Dr. P. A. O'Sullivan, Director
Agriculture and Agri-Food Canada
Saskatoon Research Centre
107 Science Place
Saskatoon Saskatchewan S7N 0X2
Telephone: (306) 956-7211
Facsimile: (306) 956-7248

22.6 Notice will be deemed to have been delivered:

22.6.1 if delivered by hand, upon receipt;

22.6.2 if sent by electronic transmission, 48 hours after the time of transmission, excluding from the calculation weekends and public holidays;

22.6.3 if sent by certified mail, four (4) days after the mailing thereof, provided that if there is a postal strike or other disruption such notice will be delivered by hand or electronic transmission.

22.7 The PARTIES may change their respective addresses for delivery by delivering notice of change as provided in this paragraph.

 

IN WITNESS WHEREOF this LICENSE AGREEMENT has been executed by duly authorized representatives of the parties.

Done in duplicate and effective this ____________________ day of _________________, 2000.

- For CANADA:
__________________________ (Witness)	____________________________________ (Signature) P. A. O' Sullivan, Director Saskatoon Research Centre
- For the LICENSEE:
__________________________ (Witness)	____________________________________ (Signature) Howard Grain, General Manager Company Canada Inc.

FINANCIAL CODE:

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APPENDIX "A"

(to the License Agreement)

Description of Line Ten

 

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REPLY TO QUESTIONNAIRE WIPO/GRTKF/IC/Q.2

 

Question 13: Please state whether any Intellectual Property Rights have been obtained as a result of activities carried out pursuant to the contract.

Response: PBR exists on Line Ten. No other IP rights.

Question 20: Please state whether the contract in question has been challenged at law.

Response: No actions.

Question 21: Please share any practical advice that you may have arising out of the drafting, negotiation and conclusion of the contract in question, in particular, any advice relating to the intellectual property aspects of the contract.

Response:
Model Contracts/Clauses: AAFC uses templates for licenses. The attached agreement with this document is one example.

Question 22: Please share any "lessons learned" arising from your work in the field of contractual agreements for access to genetic resources and benefit-sharing.

Response:
NOTE: the royalties for germplasm vary according to the circumstances. The example you have received was a non-exclusive line used as a parent in a hybrid breeding program. The general rule of thumb is the parent is about one third of a potential royalty for the variety, and is lower when it's non-exclusive - generally about one half the exclusive royalty rate. Therefore, if the line was exclusive to the Company, 7 to 10 cents per pound of certified seed would be expected in a parent line with hybrid breeding.

Another way of looking at the royalty is 2.5% of retail price of the certified seed sold by the company for an exclusive license to the line (parent).

Royalty rates would also go higher if certain traits are of higher value to the Company. Rates will be somewhat lower when a Company has been involved in a collaborative research agreement to develop the germplasm. Crown IP is always owned by the Crown. The collaborative agreement does not grant the Company ownership of Crown IP. Overall, rates vary according to the circumstances. One has to be careful in stating rates for germplasm unless all the circumstances are factored into the royalty rate.

As a note, sign a confidentiality agreement with the Company before developing the license.

Also, a Material Transfer Agreement may be needed if there is an evaluation required of the line in the Company's breeding program so they can assess the results of crosses with the line.