Cymra Pharmacy

Terms & Conditions

NOW THEREFORE, in consideration of the foregoing and the mutual covenants, terms, and conditions set out herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1.1 Definitions

"Applicable Law" means any Australian:

statute, law (including common and civil law), code, ordinance, rule, regulation or by-law (zoning or otherwise);
any judgment, order, writ, injunction, decision, ruling, decree or award;
any regulatory policy, practice, protocol, guideline or directive;
any rule or regulation of any stock exchange on which the securities of such Party or its Affiliates are listed or traded; or
any franchise, licence, qualification, authorisation, consent, exemption, waiver, right, permit or other approval, in each case, of any Governmental Authority and having the force of law, binding on or affecting the Party referred to in the context in which the term is used or binding on or affecting the property of such Party, all of the foregoing as may exist as of the Execution Date or as may be implemented, revised or modified from time to time after the Execution Date.

"Confidential Information" means, with respect to a Party, certain information about its business affairs, goods and services (including any Forecasts), confidential information and materials comprising or relating to Intellectual Property Rights, know-how, trade secrets, third-party confidential information, including Personal Information, and other sensitive or proprietary information. Such information, as well as the terms and conditions of this Terms and Conditions, whether oral or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” constitutes Confidential Information hereunder. For greater certainty, Confidential Information of the Purchaser includes compositions of direct materials, compositions and specifications, and processes for transforming direct materials into Products, irrespective of whether such compositions, or containers therefor, specifications or processes comprise markings. Confidential Information does not include information that, at the time of disclosure:

is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of section C by the receiving party or any of its Representatives;
is or becomes available to the receiving party on a non-confidential basis from a third-party source, provided that, to the receiving party's knowledge, such third party is not and was not prohibited from disclosing such Confidential Information;
was known by or in the possession of the receiving party or its representatives before being disclosed by or on behalf of the disclosing party;
was or is independently developed by the receiving party; or
is required to be disclosed under Applicable Law.

Each party may have Confidential Information that it may wish to disclose to the other party

"Durable Life" means the anticipated amount of time that an unopened Product, when stored under appropriate conditions, will retain its freshness, taste, value or any other qualities identified by Cymra Life Sciences Limited.

"Durable Life Date" means, for all medical cannabis Products, the earlier of the "best before" date printed on Product packaging, if applicable, or another stability period reasonably established by Cymra Life Sciences Limited.

"Intellectual Property Rights" means any industrial and intellectual property rights (including applications for such rights) whether conferred by statute, at common law or in equity, including, but not limited to all copyrights and similar rights that may subsist in works or other subject matter, rights in relation to inventions (including all patents and patent applications), rights in relation to know-how, trade secrets and confidential information, rights in relation to designs (whether or not registrable), rights in relation to plant varieties, rights in relation to registered and unregistered trade marks and business names, rights in relation to circuit layouts, and other rights as defined by Article 2 of the Convention of July 1967 establishing the World Intellectual Property Organisation as may exist anywhere in the world.

"Execution Date" is the date on which the Terms and Conditions have been accepted by the pharmacy filling in the application form at https://pharmacy.cymra.com.au/

"Governmental Authority" shall mean any federal, state, local government, department, commission, board, bureau, agency, official or other regulatory, administrative or governmental authority.

"Marks" means all trade names, trademarks, service marks, logos, designs, identifications, decals, artwork and other symbols and devices relating to Cymra Life Sciences Limited or its products or services.

"Products" All products sold by Cymra Life Sciences Limited.

"Qualified Patient/s" means those patients who are (a) listed on or approved to receive the Products under the Special Access Scheme, Authorized Prescriber scheme, or any equivalent federal scheme, and (b) permitted to receive the Products under any applicable state/territory rules.

"Cymra Life Sciences Limited IP" means Cymra Life Sciences Limited's exclusive right, title and interest in and to all Intellectual Property Rights pertaining to the Products, including without limitation, Product specifications, whether patentable or not.

A. Pharmacy OBLIGATIONS

Pharmacy must provide Cymra Life Sciences Limited with a valid Australian Business Number and applicable documentation under the Special Access Scheme, Authorised Prescriber authorization, or equivalent scheme under federal legislation (“Federal Authorization”), as well as state/territory approval if required.
Pharmacy shall remain fully responsible for charging and remitting all sales, excise, and other applicable taxes on Pharmacy’s sale of the Products as required by Applicable Laws.
Pharmacy will make Products and any associated documentation and instructions for use available only to Qualified Patients who provide a valid medical authorization and only in accordance with any direction or instruction provided by Cymra Life Sciences Limited. For the avoidance of doubt, Pharmacy must not supply Products or any associated materials to any person or organisation that is not a Qualified Patient or contrary to any instruction or direction provided by Cymra Life Sciences Limited.
Pharmacy shall at all times comply with all Applicable Laws relating to this Terms and Conditions and the Products, including, without limitation, obtaining and maintaining all requisite licences and permits to resell the Products to Qualified Patients directly or through registered mail (as applicable), and complying with instructions provided by the relevant prescribing doctor under the applicable Federal Authorization, as well as any applicable state/territory rules.
Pharmacy agrees to make best efforts to obtain and sell all Products prior to the expiration of their Durable Life. If, despite the best efforts of Pharmacy, certain Products that are not sold before the Durable Life Date, such Products shall be returned to Cymra Life Sciences Limited or discarded pursuant to Cymra Life Sciences Limited’s instructions, and Cymra Life Sciences Limited shall issue a credit to Pharmacy for the retail value of such Products.
Pharmacy agrees to adhere to all storage instructions provided by Cymra Life Sciences Limited, but in any event, to employ storage consistent with industry best practices and in accordance with any Applicable Laws.
Pharmacy agrees to give prompt written notice to Cymra Life Sciences Limited of any consumer or safety complaints or issues that may arise from or are related to this Terms and Conditions and/or the Products, and shall, in every reasonable manner, deal appropriately with such complaints including in accordance with any instructions or directions provided by Cymra Life Sciences Limited.
Cymra Life Sciences Limited reserves the right to require that Pharmacy should immediately cease supply of the Products and/or change or discontinue use of any Marks for any reason, in Cymra Life Sciences Limited’s sole discretion and Pharmacy must comply with such direction.
During the term of this Terms and Conditions and for a period of two (2) years thereafter, Pharmacy shall, at its own expense, maintain and carry insurance with commercially reasonable liability limits, and in any event no less than the types and amounts required by Applicable Laws. Upon Cymra Life Sciences Limited's request, Pharmacy shall provide Cymra Life Sciences Limited with a certificate of insurance from Pharmacy's insurer evidencing the insurance coverage. Except where prohibited by law, Pharmacy shall require its insurer to waive all rights of subrogation against Cymra Life Sciences Limited's insurers and Cymra Life Sciences Limited.

B. INTELLECTUAL PROPERTY

Pharmacy acknowledges and agrees that nothing in this Terms and Conditions gives the Pharmacy any right or entitlement to ownership of the Cymra Life Sciences Limited IP, and that, except to the extent strictly necessary for it to perform its obligations under this Terms and Conditions, it must not modify, adapt or use any of the Cymra Life Sciences Limited IP. Pharmacy will not have any legal or equitable claim or right to any part of the Cymra Life Sciences Limited IP, except as provided for in this Terms and Conditions.
Pharmacy shall not at any time during or after the term of this Terms and Conditions take any act impairing the Cymra Life Sciences Limited IP or do anything that may otherwise adversely affect the Cymra Life Sciences Limited IP, including without limitation:
1. causing to create or purporting to create any Intellectual Property Rights based on developments or derivations from the Products;
2. infringing, or permitting or authorising the infringement of, the Cymra Life Sciences Limited IP;
3. infringing, or permitting or authorising the infringement of any Moral Rights related to the Products or the Cymra Life Sciences Limited IP; or
4. challenging, disputing or otherwise contesting, or assisting others in challenging, disputing, or otherwise contesting the validity, enforceability or ownership by Cymra Life Sciences Limited of the Cymra Life Sciences Limited IP.
Pharmacy shall promptly notify Cymra Life Sciences Limited of any infringement or suspected infringement of the Cymra Life Sciences Limited IP of which it becomes aware. Pharmacy shall promptly notify Cymra Life Sciences Limited of any claims or objections that the Cymra Life Sciences Limited IP will infringe the proprietary rights of another person, and shall provide all reasonable assistance in connection with the defence of any such third party claim or objection.
All Marks shall remain the sole property of Cymra Life Sciences Limited or its licensor(s).
Cymra Life Sciences Limited hereby grants to Pharmacy a non-exclusive, limited, non- sublicensable and non-transferable right to use the Marks solely for distributing, and selling the Products.
Except as expressly provided herein, Pharmacy is not licensed or otherwise authorised to use the Products or the Marks in any way, and no use of the Products or Marks may be undertaken by Pharmacy without prior written consent by Cymra Life Sciences Limited. Pharmacy agrees that it will not sell any products that infringe the Marks, and further agrees that it will not sell or display any product that attempts to “knock off,” imitate, or is otherwise similar enough to the Products or the Marks that there is likelihood of confusion in the consumer’s mind.

C. CONFIDENTIALITY AND PRIVACY

Each party must: (a) protect and preserve the confidential nature and secrecy of the other party's Confidential Information; (b) not disclose the other party's Confidential Information without that party's prior written consent; and (c) not use the Confidential Information of the other party for any reason or purpose except as directed by Cymra Life Sciences Limited.
Disclosure by either party will only be made where it is needed for the purpose of discharging an obligation under this Terms and Conditions or where required by law, any governmental or regulatory authority or by a court of competent jurisdiction.

D. ORDERS, RETURNS, PRICES, PAYMENT, DISTRIBUTION

The prices for the Products will be those listed on a quotation or shown on the website https://pharmacy.cymra.com.au/ Prices shall exclude GST. Pharmacy shall submit orders for the Products in a format requested by Cymra Life Sciences Limited (“Purchase Order”). Prior to Cymra Life Sciences Limited’s acceptance of a Purchase Order, Cymra Life Sciences Limited reserves the exclusive right to change the prices or availability of the Products at any time, in its sole discretion.
After submission, all Purchase Orders are subject to acceptance and confirmation of inventory by Cymra Life Sciences Limited, who may accept and fill orders in its sole discretion. Pharmacy may cancel a Purchase Order at any time prior to delivery.
Pharmacy must immediately inspect all Products received and give written notice of any defect or shortage to Cymra Life Sciences Limited within two (2) business days. Failure to inform Cymra Life Sciences Limited will be considered acceptance of shipment by Pharmacy. Any alleged defective Products are subject to Cymra Life Sciences Limited’s inspection and confirmation of defect in its discretion. Pharmacy shall allow Cymra Life Sciences Limited access or use its best endeavours to procure such access at any time to Pharmacy's premises or Products for this purpose.
Other Product returns will be evaluated and approved by Cymra Life Sciences Limited, in its discretion and on a case by case basis and subject to any Applicable Laws which cannot be excluded. Any approved returns will be given a credit to be used against future orders.
Pharmacy will store the Products in accordance with Cymra Life Sciences Limited’s instructions and with Applicable Laws.
Title to and property in the Products shall transfer to Pharmacy upon payment in full of the applicable purchase price.
Risk of loss shall transfer to Pharmacy upon delivery of the Products.
Subject to any Applicable Laws which cannot be excluded, Cymra Life Sciences Limited shall have no obligation to replace or refund any non-defective items. Courtesy returns for non-defective items, if any, are subject to a restocking fee.
All invoices are due according to approved payment terms in an applicable Purchase Order, which unless otherwise specified, shall be Net 7 days from delivery to Pharmacy. Any payments due hereunder which are not paid on the date such payments are due shall bear interest at a rate equivalent to the lesser of 1% per month and the maximum allowable legal rate, calculated on the number of days such payment is delinquent. This section shall not limit any other remedies available to Cymra Life Sciences Limited.
Pharmacy shall distribute the Products to Qualified Patients through registered mail, in compliance with Applicable Laws. For clarity, Pharmacy is solely responsible for ensuring that the Product(s) are dispensed and distributed in compliance with Applicable Law, including any requirements applicable to Schedule 4 and Schedule 8 medicines.
Pharmacy may charge Qualified Patients a dispensing fee of up to 10% of the retail value of Product(s) dispensed. Any other expenses incurred by Pharmacy in distributing Products to Qualified Patients may be passed through to Qualified Patients at cost.

E. WARRANTY; INDEMNIFICATION; DISCLAIMER; LIMITATION OF LIABILITY

Cymra Life Sciences Limited warrants that all Products supplied hereunder shall conform to the product specifications as described in the applicable Purchase Order.
Pharmacy warrants that:
1. it will supply the Products only to Qualified Patients and in accordance with Applicable Laws;
2. it has all permits and licences necessary under any Applicable Laws for the performance of its obligations under this Terms and Conditions
Pharmacy agrees to indemnify, defend and hold harmless Cymra Life Sciences Limited, its parent and related companies, and all of their respective directors, officers, employees, agents and representatives, with respect to any claim, loss, expense (including reasonable legal fees) or liability, arising out of or resulting from breach by Pharmacy of any representation, warranty or obligation under this Terms and Conditions or the negligence or willful misconduct of Pharmacy, its employees or agents, heirs, successors, and assigns; provided, however, such indemnification shall not include any claims arising from injury or damage to the extent caused by the willful misconduct or gross negligence of Cymra Life Sciences Limited.
Except as otherwise specifically warranted herein, and subject to any applicable laws which cannot be excluded, Cymra Life Sciences Limited makes no warranty whatsoever with respect to the products, including any (a) warranty of merchantability; (b) warranty of fitness for a particular purpose; or (c) warranty against infringement of intellectual property rights of a third party; whether arising by law, course of dealing, course of performance, usage of trade or otherwise.
Pharmacy, on behalf of itself and its heirs, successors, and assigns, hereby agrees to hold harmless Cymra Life Sciences Limited, its officers, agents and representatives, from any and all claims, injuries, damages, losses or suits, arising out of or in connection with the products or Pharmacy’s sale of the products.
In no event shall Cymra Life Sciences Limited be liable for any consequential, indirect, incidental, special, exemplary, or punitive damages, lost profits or revenues or diminution in value, arising out of or relating to any breach of these terms, whether or not the possibility of such damages has been disclosed in advance by Pharmacy or could have been reasonably foreseen by Pharmacy, regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
In no event shall Cymra Life Sciences Limited's aggregate liability arising out of or related to this Terms and Conditions, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the total of the amounts paid to Cymra Life Sciences Limited for the products sold hereunder.

F. Term and termination

This Terms and Conditions shall be effective as of the effective date and shall continue for a period of three (3) years unless earlier terminated as set forth below.
Either party may terminate the Terms and Conditions without cause at any time upon ninety (90) days written notice to the other party. Cymra Life Sciences Limited may terminate this Terms and Conditions for cause immediately upon notice to Pharmacy (a) in the event of a breach by Pharmacy of any representation, warranty or obligation under this Terms and Conditions or the negligence or willful misconduct of Pharmacy, its employees or agents; (b) in the event of a change in laws or regulations, or a communication from a regulatory authority, which renders it impossible or impracticable for Cymra Life Sciences Limited to continue supplying medical cannabis in the territory; or (c) if Pharmacy becomes insolvent or files, or has filed against it, a petition for voluntary or involuntary bankruptcy or under any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property, or is generally unable to pay its debts as they become due (each, a termination for “cause”).
Upon expiration or termination of this Terms and Conditions for any reason, Pharmacy shall immediately cease any use or display of the marks. Upon termination of this Terms and Conditions by Cymra Life Sciences Limited without cause, Pharmacy shall be entitled to thirty (30) days’ sell-off to qualified patients of any remaining products currently in its possession or under an open purchase order. Upon termination of this Terms and Conditions by Pharmacy with or without cause, or by Cymra Life Sciences Limited with cause, Pharmacy shall immediately cease any sale or display of the products, and all remaining payments owing hereunder shall become immediately due and payable.
Sections b (intellectual property), c (confidentiality and privacy, e (indemnification; disclaimer; limitation of liability), f (term and termination) and g (miscellaneous) shall survive expiration or termination of this Terms and Conditions.
Termination of the Terms and Conditions for any reason will be without prejudice to the rights and remedies of either party: (a) accrued up to and including the date of such termination; or (b) that survive termination.

G. Miscellaneous

Pharmacy must not assign, sublicense, novate or otherwise transfer its rights and obligations under the Terms and Conditions to any third party, except with the prior written consent of Cymra Life Sciences Limited. Any such assignment, sublicense or transfer in contravention of this provision will be null and void. This Terms and Conditions shall inure to the benefit and be binding upon the parties hereto, and their respective successors and permitted assigns.
No alteration or variation of the Terms and Conditions will be binding on Cymra Life Sciences Limited unless in writing and executed by Cymra Life Sciences Limited and Pharmacy.
For clarity, nothing in this Terms and Conditions precludes Cymra Life Sciences Limited from distributing its products through any other pharmacy in the Territory.
Nothing herein shall be construed to create a joint venture or partnership between the parties hereto or an employer/employee relationship. Pharmacy expressly acknowledges that it is an independent contractor of Cymra Life Sciences Limited. Neither party shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, Terms and Conditions or undertaking with any third party.
Cymra Life Sciences Limited does not offer medical advice. Any information accessed through Cymra Life Sciences Limited’s website, social media, pages, or informational materials, is for informational purposes only, is not intended to be a substitute for medical advice, diagnosis, or treatment, and is not intended to cover all possible uses, directions, precautions, or adverse effects. Pharmacy should always advise its customers to consult a qualified health care provider if they have any questions about a medical condition. To the maximum extent permitted by law Cymra Life Sciences Limited will not be liable for any loss, claim or damage arising from, or in connection with, reliance on such information.
This Terms and Conditions shall be construed and interpreted and the rights of the parties determined in accordance with the local laws of Australia, without regard to its conflict of law rules. Unless otherwise agreed upon in writing by the parties, any legal action or proceeding between Cymra Life Sciences Limited and Pharmacy for any purpose concerning this Terms and Conditions or the parties’ obligations hereunder shall be subject to the exclusive jurisdiction of and venue in any competent court within the State of New South Wales and the parties hereby consent to the personal and exclusive jurisdiction and venue of such courts. To the fullest extent permitted by law, each party hereby waives any right to a trial by jury in connection with any action hereunder.
If a dispute arises, each party agrees that it will endeavour to resolve the dispute in good faith and will not commence any legal proceedings or take any other action in relation to such dispute without first attempting to resolve it.
In the event that any provision of this Terms and Conditions or any obligation or grant of rights by either party is found to be invalid or unenforceable pursuant to a judicial decree or decision, the remainder of this Terms and Conditions shall remain valid and enforceable according to its terms.
Any waiver or failure to enforce any provision of this Terms and Conditions on one occasion shall not constitute a waiver of any other provision or of such provision on any other occasion.
The prevailing party in a suit, action or proceeding between the parties relating to this Terms and Conditions will be entitled to recover its reasonable and documented legal fees and court costs, in addition to any other relief that such party may be awarded.
All notices pursuant to the Terms and Conditions shall be in writing, addressed as set forth below (or to such other address that may be designated by the receiving party in accordance with this Section)