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Terms

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Introduction

These Terms and Conditions for Marketing and Branding (“Marketing and Branding Terms”), as applicable from time to time, set forth the general terms and conditions for marketing and branding of services (“Services”) provided by DNA Holding BV (“DNA”, “we”, “us”, “our”), to be marketed by a partner (“Partner”) in connection with resale, distribution or other collaboration with us under a partner agreement (the “Partner Agreement”)

Under these Marketing and Branding Terms and the Partner Agreement, the Partner is granted a limited right to use certain trademarks of DNA and its licensors, including, as specifically defined herein (collectively the “Trademarks”) strictly in accordance with said terms.

These Marketing and Branding Terms are an integrated part of the Partner Agreement, and are supplemented by other supplementary contract terms which form part of the Partner Agreement, including applicable contract terms of Spotify.

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Marketing and Branding of the Services

The Services are provided under brand names determined by DNA, which brand names constitute Trademarks of DNA and/or its licensors. The Partner acknowledges that DNA shall at all times retain ultimate discretion to determine the branding of the Services, and shall have the unfettered discretion to alter such branding and subsequently to alter, replace or remove one or more of the Trademarks forming part of such branding.

The Partner undertakes that it will only market the Services under the brand names determined by DNA. In no event may the Partner (i) market the Services under other brand names, or (ii) market the Services under the brand names determined by DNA in combination with any other trademark, trade name, domain name, word or symbol, “tag line”, “endorsement line” or “enhancing statement”, whether owned by the Partner or a third party, including co-branding, double-branding or other combinations. Any exceptions require prior express written approval from DNA.

When marketing the Services, the Partner shall only use approved marketing materials provided by DNA for such purpose.

The Partner may only use the brand names of the Services in print and online advertising and marketing materials specifically directed at marketing and resale of the Services. Use of the brand names of the Services on hardware or other equipment to be provided as part of the Services requires prior express written approval from DNA. In case of any such approval, all use shall be in compliance with the DNA Marketing Guidelines.

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Use of DNA trademarks

The Partner is granted a limited right to use the DNA’s trademark, for the sole purpose of marketing the Services in accordance with the Partner Agreement. All use of the DNA’s trademark shall be in accordance with the DNA Marketing Guidelines.

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Use of Partner trade names and trademarks

The Partner grants to DNA a right to use the Partner’s trade name and trademarks and refer to the Partner as a reference partner in customer listings and other marketing documentation and activities relating to the Services, provided that such use is in accordance with good business practice and in a manner to promote the reputation and goodwill of said Partner trade name and trademarks.

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Property rights and obligations of the Partner

DNA and its licensors are the exclusive owners of the Trademarks which may be used by the Partner hereunder. The Partner may only use such Trademarks in accordance with the restrictions and limitations set forth in these Marketing and Branding Terms. Neither these Marketing and Branding Terms nor the Partner’s use of such Trademarks shall convey to the Partner any right or title to said Trademarks or affect in any way the exclusive ownership of DNA and its licensors of said Trademarks and of any registrations thereof, and all use of such Trademarks and all goodwill arising therefrom shall be for the sole benefit of and on behalf of DNA and its licensors. No rights are assigned with respect to the said Trademarks.

The Partner acknowledges and undertakes to respect DNA and its licensors’ ownership to the Trademarks and the validity of the applications and registrations for the Trademarks. The Partner undertakes to preserve the value and validity of the Trademarks and will not commit any act which challenges DNA and its licensors’ ownership to or the validity of the Trademarks or which assists any other person in such act.

To this effect the Partner shall:

  • Only use the Trademarks in relation to marketing of the Services as permitted hereunder and strictly in accordance with these Marketing and Branding Terms, the Partner Agreement, the DNA Marketing Guidelines referred to herein and any other instructions provided by DNA from time to time;
  • Not use, register or seek to register any trademark, trade name, company name, domain name, or user name or user group or other identification means in social media sites (e.g. Facebook, LinkedIn, Twitter, Instagram), which is identical to or similar to any of the Trademarks or any other corporate trade mark of DNA or its licensors, or derivative thereof, whether alone or together with any other mark, name, word, logo or symbol,, whether during or after the term of the Partner Agreement, in any country throughout the world;
  • Not represent or act as agent for DNA or its licensors, and shall have no authority to act in the name of, or on behalf of, or enter into any agreement or other commitment on behalf of DNA or its licensors, or give any condition or warranty or make any representation on DNA’s or its licensors’ behalf; and
  • Not challenge the validity, scope of protection or ownership of DNA and its licensors to the Trademarks.
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Trademark infringements

The Partner shall notify DNA promptly upon becoming aware of any actual or suspected infringement of any Trademark, any action by any third party challenging any Trademark or any claim by any third party that use of a Trademark infringes any third party rights.

DNA and its licensors may, in their sole discretion and at their own expense, bring or cause to be brought any prosecution, lawsuit, action or proceeding for infringement, unauthorized use, interference or violation of/with any Trademark, and the Partner shall not be entitled to take any such actions against any third party unless it has received DNA’s prior written consent and the Parties have agreed on terms under which such action will be conducted. The Partner shall provide all information and assistance to DNA and its licensors in the event that DNA decides that proceedings should be commenced or defended. Any such proceedings shall be under DNA’s and its licensors’ control and any recovery obtained shall accrue solely to the benefit of DNA and its licensors.

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Limitation

The limitations of liability set forth in the Partner Agreement shall apply also to these Marketing and Branding Terms.

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Indemnification

The Partner agrees to indemnify, defend and hold DNA and its licensors, their respective affiliates, and their respective officers, directors, employees, agents, licensors, and suppliers harmless from and against all claims, liabilities, losses, expenses, damages, and costs, including but not limited to reasonable attorneys’ fees, resulting from a violation or breach of these Marketing and Branding Terms by the Partner.

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Term and termination

These Marketing and Branding Terms shall be valid during the term of the Partner Agreement. Immediately upon the termination or expiry of the Partner Agreement, the Partner shall (i) discontinue all use of the Trademarks, and (ii) at DNA’s option, destroy or return to DNA all marketing materials and other materials containing the Trademarks. Notwithstanding the foregoing, and provided that termination did not result from the Partner’s breach of these Marketing and Branding Terms or any provision of the Partner Agreement, DNA may in sole discretion by written authorization permit the Partner to continue using the Trademarks during a limited sell off-period, not to exceed ninety (90) days after termination or expiry of the Partner Agreement.

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Choice of law, dispute resolution

These Marketing and Branding Terms and any dispute or claim (whether contractual or otherwise) arising out of or in connection with it or its subject matter, shall be governed by and construed in accordance with International substantive law. The Parties irrevocably agree that the competent International and local courts of shall have exclusive jurisdiction to settle any dispute, controversy or claim arising out of or in connection with these Marketing and Branding Terms or a breach, termination or invalidity thereof.

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DISCLAIMER AND LIMITATION OF LIABILITY

You assume all responsibility, liability and risk with respect to your use of our Website and any information and materials contained on the Website, which is provided "as is" without warranties, representations or conditions of any kind, either express or implied, statutory, by usage of trade, course or dealing or otherwise with regard to information accessed from or via our Website, including without limitation, all content and materials, and functions and services provided on our Website, all of which are provided without warranty or condition of any kind, including but not limited to warranties or conditions concerning the availability, accuracy, completeness or usefulness of content or information, uninterrupted access, and any warranties or conditions of title, non-infringement, merchantability, merchantable quality or fitness for a particular purpose. We do not warrant that our Website or its functioning or the content and material of the services made available thereby will be timely, secure, uninterrupted or error-free, that defects will be corrected, or that our Website or the servers that make our Website available are free of viruses or other harmful components.

The use of our Website is at your sole risk and you assume full responsibility for any costs or losses associated with your use of our Website. We will not be liable for any damages of any kind related to the use of our Website.

In no event will we, or our affiliates, our or their respective content or service providers, or any of our or their respective directors, officers, agents, contractors, suppliers or employees be liable to you or any third party for any indirect, special, incidental, consequential, exemplary or punitive damages, losses or causes of action, or lost revenue, lost profits, lost business or sales, or any other type of damage, whether based in contract or tort (including negligence), strict liability or any other theory of law, arising from your use of, or the inability to use, or the performance or functionality of our Website, our products or any content or material or available on or through our Website, the cost of procurement of substitute goods, data, information or services, loss of data, errors, mistakes or inaccuracies in the materials on the Website, or any personal injury or property damage. These limitations shall apply even if we are advised of the possibility of such damages.

Certain jurisdictions do not allow limitation of liability or the exclusion or limitation of certain damages. In such jurisdictions, some or all of the above disclaimers, exclusions, or limitations, may not apply to you and our liability will be limited to the maximum extent permitted by law.

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INDEMNIFICATION

You agree to defend and indemnify us, and hold us and our affiliates harmless, and our and their respective directors, officers, agents, contractors, and employees against any losses, liabilities, claims, demands, threats, actions, proceedings, expenses (including reasonable attorney fees and court costs) in any way arising from, related to or in connection with your use of our Website including in connection with any products offered through our Website, your violation of the Terms or any applicable law or regulation, or the posting or transmission of any materials on or through the Website by you, including but not limited to, any third party claim that any information or materials provided by you infringe upon any third party proprietary rights.

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FORWARD-LOOKING INFORMATION

This Website and the documents found on this Website contain forward-looking statements. Often, but not always, forward-looking statements can be identified by the use of words such as "plans", "expects" or "does not expect", "is expected", "estimates", "intends", "anticipates" or "does not anticipate", or "believes", or variations of such words and phrases or state that certain actions, events or results "may", "could", "would", "might" or "will" be taken, occur or be achieved. Forward-looking statements involve known and unknown risks, uncertainties and other factors which may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements. Forward-looking statements are based on a number of assumptions which may prove to be incorrect. Although we have attempted to identify important factors that could cause actual actions, events or results to differ materially from those described in forward-looking statements, there may be other factors that cause actions, events or results not to be as anticipated, estimated or intended. There can be no assurance that forward-looking statements will prove to be accurate, as actual results and future events could differ materially from those anticipated in such statements. Accordingly, readers should not place undue reliance on forward-looking statements. For a sampling of risk factors associated with our business, please refer to "Part IV – Description of Risk Factors Associated with the Acquisition" in the Filing Statement of Canopy Growth Corporation. dated as of March 25, 2014 which may be found at www.SEDAR.com. Additional risk factors can be found in our other public filings including Management’s Discussion and Analysis which may also be found at www.SEDAR.com.

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ERRORS AND OMISSIONS

Please note that our Website may contain typographical errors or inaccuracies and may not be complete or current. We reserve the right to correct any errors, inaccuracies or omissions and to change or update information at any time, without prior notice (including after an order has been submitted). Such errors, inaccuracies or omissions may relate to product description, pricing, promotion and availability and we reserve the right to cancel or refuse any order placed based on incorrect pricing or availability information, to the extent permitted by applicable law.

We do not undertake to update, modify or clarify information on our Website, except as required by law.

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LINKS TO THIRD PARTY WEBSITES

Links from or to websites outside our Website are provided for convenience only. We do not review, endorse, approve or control, and are not responsible for any sites linked from or to our Website, the content of those sites, the third parties named therein, or their products and services. Linking to any other site is at your sole risk and we will not be responsible or liable for any damages in connection with linking. Tweed shall not be a party to any transaction between you and any third party including any third party advertising on our Website, and we shall not be liable for any losses or damages arising out of such interaction with any third party. Without limiting the foregoing, any link to a third party press release, media coverage, stock exchange website or analyst coverage should not be taken as an endorsement by us of the views, analysis or projections contained in such materials.

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NOT LEGAL OR MEDICAL ADVICE

Information provided on the Website including without limitation information regarding different strains of medical cannabis and their potential suitability for treating different diagnoses is provided for general information purposes only and does not constitute legal, medical, or other professional advice or an opinion of any kind. Users of the Website are advised to seek specific legal and/or medical advice by contacting a professional.

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FORWARD-LOOKING INFORMATION

This Website and the documents found on this Website contain forward-looking statements. Often, but not always, forward-looking statements can be identified by the use of words such as "plans", "expects" or "does not expect", "is expected", "estimates", "intends", "anticipates" or "does not anticipate", or "believes", or variations of such words and phrases or state that certain actions, events or results "may", "could", "would", "might" or "will" be taken, occur or be achieved. Forward-looking statements involve known and unknown risks, uncertainties and other factors which may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements. Forward-looking statements are based on a number of assumptions which may prove to be incorrect. Although we have attempted to identify important factors that could cause actual actions, events or results to differ materially from those described in forward-looking statements, there may be other factors that cause actions, events or results not to be as anticipated, estimated or intended. There can be no assurance that forward-looking statements will prove to be accurate, as actual results and future events could differ materially from those anticipated in such statements. Accordingly, readers should not place undue reliance on forward-looking statements. For a sampling of risk factors associated with our business, please refer to "Part IV – Description of Risk Factors Associated with the Acquisition" in the Filing Statement of Canopy Growth Corporation. dated as of March 25, 2014 which may be found at www.SEDAR.com. Additional risk factors can be found in our other public filings including Management’s Discussion and Analysis which may also be found at www.SEDAR.com.

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ENTIRE AGREEMENT

These Terms and any documents expressly referred to in them represent the entire agreement between you and us in relation to the subject matter of the Terms and supersede any prior agreement, understanding or arrangement between you and us, whether oral or in writing. Both you and we acknowledge that, in entering into these Terms, neither you nor we have relied on any representation, undertaking or promise given by the other or implied from anything said or written between you and us prior to such Terms, except as expressly stated in the Terms.

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WAIVER

Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. A waiver by us of any default will not constitute a waiver of any subsequent default. No waiver by us is effective unless it is communicated to you in writing.

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HEADINGS

Any headings and titles herein are for convenience only.

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SEVERABILITY

If any of the provisions of these Terms are determined by any competent authority to be invalid, unlawful or unenforceable, such provision will to that extent be severed from the remaining Terms, which will continue to be valid and enforceable to the fullest extent permitted by law.

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GOVERNING LAW

Any disputes arising out of or relating to the Terms, the Privacy Policy, use of our Website, or our products or services offered on our Website will be resolved in accordance with the laws of the Province of Ontario without regard to its conflict of law rules. Any disputes, actions or proceedings relating to the Terms or your access to or use of our Website must be brought before the courts of the Province of Ontario in the City of Smiths Falls, Ontario and you irrevocably consent to the exclusive jurisdiction and venue of such courts.

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