2.5.
BerryWorld heeft een licentieovereenkomst (hierna: de Licentieovereenkomst) gesloten met NewCo (ook met betrekking tot de Licentieovereenkomst zal de voorzieningenrechter in het vervolg van dit vonnis BerryNaiz als partij voor NewCo aanduiden). BerryWorld heeft de Licentieovereenkomst op 1 februari 2017 ondertekend en BerryNaiz op 9 februari 20171. In de Licentieovereenkomst is – onder meer – het volgende opgenomen:
a. WHEREAS Mountain Blue Orchards Pty Ltd, a company under the laws and regulations of Australia, with its registered office in Lismore, Australia, hereinafter also referred to as: ‘MBO’, is developer and owner of a number of blueberry varieties, hereinafter referred to as ‘The MBO Varieties’, for which varieties MBO has applied and has been granted plant breeders’ rights in a number of countries throughout the world and further holds all (other) intellectual and industrial property rights in respect of The MBO Varieties;
WHEREAS
BWEU (BerryWorld, voorzieningenrechter) has been granted by MBO a non-transferable and exclusive principle license right for the propagation, planting and growing of plants and for the commercial production and harvesting of fruits of The MBO Varieties in Europe (except Russia) and North Africa on the one hand, and for sale and delivery of fruits of The MBO Varieties in all countries of the world (except North America and Australia) on the other hand, with the right to have these acts also carried out by others through sub-license rights;
WHEREAS
BWEU has agreed with Fall Creek at Lowell, USA (hereinafter referred to as: 'Fall Creek') that Fall Creek shall commercially propagate plants of The MBO Varieties for the benefit of commercial fruit growers;
WHEREAS
Licensee (BerryNaiz, voorzieningenrechter) wishes to obtain a license for the planting and growing of plants and for the commercial production and harvesting of fruits of The MBO Varieties and BWEU is willing for that purpose to grant to Licensee sub-license rights, such under the terms, stipulations and conditions as hereinafter agreed.
NOW THEREFORE THE PARTIES HAVE AGREED AS FOLLOWS:
1. BWEU hereby grants a NON-EXCLUSIVE and NON-TRANSFERABLE license to Licensee, who accepts such License, for the planting and growing of plants and for the commercial production and harvesting of fruits of The MBO Varieties, only and exclusively on the parcels of land and cultivation sites in Morocco belonging to Licensee as mentioned in Annex I, and only making use of plants of The MBO Varieties which exclusively have been obtained either from Fall Creek directly or through BWEU from Fall Creek. Each time Licensee starts the planting and growing of plants and the commercial production and harvesting of fruits of The MBO Varieties on a new and/or other parcel of land and cultivation site belonging to the company of Licensee, and BWEU has given its prior written consent thereto, a new Annex needs to be executed designating these new and/or other parcel(s) of land/cultivation site(s).
2. Propagation, sale and/or delivery by Licensee to third parties of parental-, propagation- and other plant material, also including but not limited to fully grown plants of The MBO Varieties, is not allowed and strictly forbidden. Licensee further agrees to not use The MBO Varieties for the purpose of breeding new varieties, nor to have the license rights executed by third parties.
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4. Licensee undertakes to BWEU to exclusively sell and deliver the produced and harvested fruits of The MBO Varieties to BWEU only and BWEU commits to buy from Licensee all its production of fruits of The MBO Varieties in each season while this agreement is in force. Licensee will have the fruits of The MBO Varieties delivered in the site designates by BWEU on paid transportation costs terms (DDP). After delivery, BWEU will be responsible for any circumstance that might affect the quality of the fruits of The MBO Varieties and/or their market price.
5. For the selling and delivery of The MBO Varieties exclusively to BWEU, Licensee is entitled to a payment of the fruit, based on an Account Sale (commission) basis. Licensee will be entitled to the amount of the selling/saleable value of the fruit after deduction of the cost incurred at BWEU, according to the following mechanism:
Net Sales value of fruit
Minus Rebate to customer
Minus Transport cost to customer
= FOB/FOT Sales value
Minus sales commission charge of 8%: base is FOB/FOT Sales value
Minus all other costs incurred in name of BWEU
= BWEU Purchase value DDP
Minus Production Royalty charge of 4%: base is BWEU's Purchase value DDP minus transport value from Licensees despatch to BWEU
= BWEU fruit return to Licensee
For this purpose and not until the last tray of fruits of each order of The MBO Varieties has been sold, BWEU will inform Licensee about the price(s) sold. Based on this, either Licensee will sent to BWEU an invoice for the amount due, or BWEU makes use of the system of reverse(d) billing. BWEU will pay the amounts not later than within 30 (thirty) days after the date that these amounts become due.
After 3 (in words: three) years, starting from the date of signing this license agreement, and only after prior consultation and agreement between the Parties Parties may decide that the produced and harvested fruits of each separate production and harvest of The MBO Varieties are allowed to be sold and delivered to the Licensee and/or on other costs terms for marketing its own production and harvest of The MBO Varieties. This also applies when Licensee is attached to a purchase organisation (PO), co-operative, etc., or is obligated to make its fruit available in any other way to any kind of (other) central sale and distribution organisation. Only in such case, BWEU hereby allows in advance the produced and harvested fruits of The MBO Varieties to be sold and delivered to other(s) than BWEU, but under the strict condition that such PO, co operative and/or (other) central sale and distribution organisation commits itself towards BWEU then to abide to the terms of this license agreement, and to clauses 4 and 5 of such in particular, and thus undertakes to BWEU to exclusively sell and deliver the produced and harvested fruits of The MBO Varieties to BWEU only. Such commitment is considered to be given by either initialling this page and clauses 4 and 5 inclusive or by signing this license agreement at the bottom, mentioning the full name and capacity of the signatory.
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PLANT BREEDERS’ RIGHTS/TRADE MARK RIGHTS
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8. Licensee shall inform BWEU immediately when any infringement becomes known to Licensee in respect of the plant breeders’ rights, trade mark rights and/or the execution of this agreement in respect of The MBO Varieties. Licensee shall take any actions reasonably necessary to aid and co-operate in the prosecution of any action brought by MBO with respect to infringement of MBO’s intellectual property rights in respect of The MBO Varieties at MBO’s expense.
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INITIAL VARIETY/DERIVED VARIETY/MUTANT
10. If Licensee has found, won, discovered, developed and/or bred any derived variety in one or more of The MBO Varieties as initial variety (including any sports or mutations), Licensee undertakes to immediately disclose and report this to BWEU, and if desired places at the disposal of BWEU or MBO sufficient plant material of this derived variety. BWEU and/or MBO should be able to examine the derived variety at their own company. This plant material of the derived variety and any associated intellectual property rights that constitute this derived variety will immediately become the exclusive property of MBO.
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BEGIN/TERM/END/CONSEQUENCES
13. This license agreement has been entered into and the license as described in article 1 has been granted for a period of 10 (…) years, starting from the date of signing this license agreement or an earlier date, on which already plants of The MBO Varieties have been disposed of to Licensee. (…)
APPLICABLE LAW/COMPETENT COURT/ETC.
22. This license agreement shall be exclusively governed by Dutch Law, on the understanding that as far as Community plant breeders’ rights are concerned, the EC Regulaion no. 2100/94 of the Council dated 27/07/1994 on Community plant variety rights, including the accompanying executory regulations, shall also apply. All disputes between Parties arising from this license agreement, shall be brought before the competent Dutch Court of The Hague, the Netherlands.
23. All previously made agreements between Parties concerning The MBO Varieties, if any, are cancelled with immediate effect after the joint signing of this license agreement. Therefore, with respect to The MBO Varieties no other agreements have been made between Parties or Parties have not agreed otherwise than the contents of this present license agreement, except for additional and/or other agreements made in writing between Parties at a later date.
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