Variety licence
Introduction
A. Elders Rural Services Australia Ltd ACN 004 045 121 of Level 10, 80 Grenfell Street, Adelaide, South Australia (“Elders”) has the rights (which in some instances, include rights under the Plant Breeders’ Rights Act 1994) to produce and distribute the Seeds.
B. By acquiring Seed from Elders, you agree to be bound by the terms of this licence (including the Schedule).
Operative provisions
1. Grant of Licence
1.1 Elders grants you a non-exclusive license to:
(a) Plant the Seed to produce grain or fodder on a farm exclusively occupied by you;
(b) produce grain or fodder on a farm exclusively occupied by you using Retained Seed; and
(c) Sell grain or fodder of the Varieties, other than for the purposes of propagation.
1.2 You must not Sell any Grain for use as Propagating Material without Elders’ express written consent.
2. Declaration of production of Harvested Material
2.1 On or before 31 March each year, Elders will provide you with a notice requiring you to provide information relating to your production of Harvested Material for the previous twelve month period. You must accurately complete and return the notice as directed by Elders.
2.2 If you do not receive a notice as contemplated by clause 2.1 by 31 March, by 30 April of that same year you must provide to Elders in writing the following information relating to the previous twelve month period:
(a) your name and address;
(b) the varieties and quantities of Harvested Material you have produced;
(c) the varieties and quantities of Harvested Material Sold by you, and the name of each purchaser;
(d) the varieties and quantities of Retained Seed;
(e) the varieties and quantities of Harvested Material that has been or is intended to be Consumed;
(f) the varieties and quantities of Harvested Material that are stored or warehoused for future sale; and
(g) the total End Point Royalty you have calculated as due to Elders in relation to the Harvested Material; and
(h) any other information as Elders may reasonably require you to provide.
3. Disclosure of information
3.1 You agree that:
(a) Elders may share information you provide to Elders pursuant to clause 2 of this Licence Seed (which, for the avoidance of doubt, may include personal information) with:
(i) any Authorised Distributor;
(ii) any EPR Collector;
(iii) any entity Elders appoints as its agent to collect End Point Royalties; and
(iv) any entity that stores, warehouses, accumulates conditions, purchases, Sells or otherwise deals with the Seed or Harvested Material that you produce.
3.2 You further agree that the entities listed in clause 3.1(a)(i) to (iv) may share information they collect relating to you, the Harvested Material or any of the information described in clause 2.2(a) – (h) with Elders and with each other.
4. Payment of End Point Royalty
4.1 You must pay to Elders, by 30 April each year, (or by such later time as notified to you in writing by Elders where clause 2.1 applies) the End Point Royalty (and any applicable GST) as set out in the Schedule for each tonne of Harvested Material Sold or Consumed by you, less any quantity of Retained Seed, in the previous twelve-month period.
4.2 Where clause 5 does not apply, Elders will, upon receipt of the information required to be provided by you under clause 2, issue a tax invoice to you for the End Point Royalty payable by you.
4.3 Elders reserves the right to charge interest at a rate equal to the Small Business Variable Small Overdraft Indicator Lending Rate published by the Reserve Bank of Australia from time to time plus 3%, calculated daily, for any amounts that are due but unpaid by you for a period of more than 30 days.
5. Royalties deducted by EPR Collector
5.1 If you Sell Harvested Material to an EPR Collector, you agree that the EPR Collector will:
(a) deduct End Point Royalties (including GST) in relation to the Harvested Material Sold from the Sale price to be paid by the EPR Collector to you for that Harvested Material;
(b) pay the sums deducted under clause 5.1(a) to Elders in or towards satisfaction of your obligations under this licence to pay the End Point Royalty with respect to the Harvested Material, and;
(c) provide Details to us.
5.2 Elders will require the EPR Collector to issue a tax invoice to you for the amount of End Point Royalty (including GST) deducted and paid to Elders in accordance with this clause.
6. Other obligations
6.1 You must:
(a) make sure that anything you do in accordance with this licence complies with all applicable laws;
(b) promptly notify us if you become aware of any unauthorised propagation, production, reproduction, sale or use of any grain or fodder of the Varieties;
(c) allow purchasers of any Harvested Material to provide us and any of the entities listed in clause 3.1(a)(i) to (iv) with all information relating to you and the sale of your Harvested Material; and
(d) if you plan to sell any property on which Seed or Retained Seed has been planted:
(i) notify us and provide details of the purchaser;
(ii) make sure that it is a condition of sale that the purchaser takes over your obligations under this licence; and
(iii) pay or have paid all EPRs due on any Harvested Material that is on the property at the date of sale.
7. Records and Samples
7.1 You must:
(a) maintain written records containing sufficient detail to enable all End Point Royalties to be easily and accurately determined;
(b) within 30 days after receiving a request from us, make the records referred to in clause 7.1(a) available to Elders or an auditor appointed by Elders;
(c) upon giving reasonable notice permit Elders or any agent nominated by Elders to enter the your premises or any premises occupied by you during normal business hours to inspect and audit all relevant records, and pay all audit fees (on an indemnity basis) where the audit report indicates that you have underpaid, under-estimated or under-calculated any End Point Royalties by more than five per cent (5%) and also pay the full amount of any shortfall (inclusive of any GST or other taxes owing on such amount); and
(d) keep records maintained in accordance with clause 7.1(a) for a period of 7 years from the date you Sell any Harvested Material.
7.2 If any audit shows that you have overpaid Elders by more than 5%, Elders will credit the overpayment you have made against future payments.
7.3 You agree that Elders or its nominated agent may collect samples of your plants and/or grain for the purpose of examining and verifying the variety of those plants or grain:
(a) from any property occupied by you upon giving you reasonable prior notice; or
(b) from any other location, without any prior notice to you.
8. Warranty and limitation of liability
8.1 Elders does not exclude or limit the application of any provision of any applicable legislation or other regulation (including the Competition and Consumer Act 2010 (Cth)) where to do so would contravene that legislation or cause any part of these terms to be void, and nothing in these terms is to be interpreted as doing so.
8.2 Elders warrants that:
(a) it is authorised to provide you with this licence; and
(b) the Seed you buy from Elders or an Authorised Distributor will be unencumbered.
8.3 Subject to clause 8.1, to the extent permitted by law Elders excludes the following from these terms:
(a) all conditions, warranties, guarantees and terms implied by statute, general law, international convention or custom except any implied term, condition, guarantee or warranty the exclusion of which would contravene any statute or cause this clause to be void (“Non-excludable condition”);
(b) all liability to you for direct, consequential or indirect loss or damages arising out of or in connection with these terms even if Elders knew they were possible, or they were otherwise reasonably foreseeable and including without limitation, loss or profits and damage suffered as a result of claims by any third person; and
(c) all liability to you in negligence for acts or omissions of Elders or its Related Entities, their employees, agents and contractors arising out of or in connection with these terms.
8.4 To the fullest extent permitted by law, the liability of Elders or its Related Entities to you for breach of any Non-excludable Condition which is applicable is limited to any one of the following, at the option of Elders or its Related Entities:
(a) in the case of goods – replacement of the goods or the supply of equivalent goods, repair of the goods, payment of the cost of replacing the goods or acquiring equivalent goods, or payment of the costs of having the goods repaired;
(b) in the case of services – the supply of the services again or payment of the cost of having the services supplied again.
8.5 Except as provided in clause 8.4, to the fullest extent permitted by law:
(a) Elders (and its Related Entities, past and present officers, employees and agents) has no liability or obligation to you or any other person arising (directly or indirectly) out of, or in connection with, the matters referred to in clause 8.3;
(b) You represent and warrant to Elders that you are relying, and will continue to rely, upon your own skill and judgement in relation to the quality of goods and services, and their fitness for any purpose that may be required and not upon any conduct or representation of Elders or any its officers, employees and agents; and
(c) You release and forever discharge Elders (and its Related Entities, past and present officers, employees and agents) for each matter referred to in clause 8.3 of these terms and agree to indemnify and keep indemnified Elders (and each of its Related Entities, past and present officers, employees and agents) from any loss arising out of:
(i) any of the matters referred to in clause 8.3;
(ii) your wrongful or negligent Use of any Seed, Retained Seed or Harvested Material; and;
(iii) your breach of this licence.
9. Dispute Resolution
9.1 Unless a party has complied with clauses 9.2, 9.3 and 9.4 that party may not commence court proceedings relating to any dispute under this licence, except where that party seeks urgent interlocutory relief.
9.2 If there is a dispute under this licence, the parties will negotiate in good faith to resolve the dispute in a spirit of goodwill and compromise.
9.3 If there is dispute under this licence that is not resolved in accordance with clause 9.2, either party may give written notice to the other party stating that it is a notice under this clause 9 and specifying the dispute.
9.4 If the dispute is not settled by agreement within 10 Business Days after the notice referred to in clause 9.3 is given, the parties will appoint a mediator and will seek in good faith to settle the dispute through mediation. If the parties are unable to agree upon a mediator within 10 Business Days after the expiration of the initial 10 Business Days referred to in this clause 9.4 the mediator will be one appointed by the Resolution Institute (South Australia).
10. Term
This licence takes effect from the date on which you accept or Use any Seed and, subject to clause 11, continues in relation to each Licensed Variety until it is terminated by the variety owner and/or licensee.
11. Termination
11.1Either of us may end this licence immediately by giving notice to the other if the other:
(a) breaches any provision of this licence and fails to fix the breach within 30 days after receiving notice asking it to do so; or
(b) breaches a provision of this licence where that breach cannot be fixed.
11.2Elders may end this licence immediately by giving notice to you if you are unable to pay any of your debts (including EPRs) as and when they become due.
11.3This licence terminates automatically with respect to a particular Licensed Variety if we lose the right to grant the license in respect of that Licensed Variety.
12. Consequences of Termination
12.1At the end of this licence:
(a) you no longer have the rights granted to you under clause 1;
(b) you must pay the EPR Collector or us any amounts outstanding;
(c) you must destroy all Seed;
(d) subject to clause 12.2, you must promptly Sell or destroy all Harvested Material or Retained Seed;
(e) you may grow out any crop planted at the end of this licence and Sell or Consume the Harvested Material from that crop and must pay EPR on that Harvested Material, but you must not plant any new crops using the Harvested Material;
(f) the following clauses continue, along with any other clause intended to continue after this licence ends: clauses 7.1, 7.3, 8.1, 8.3, 8.4, 8.5, 9, 13, 14.1, 14.2, 15 and this clause; and
(g) accrued rights and remedies are not affected.
12.2Clauses 2 to 5 of this licence continue to apply to any Harvested Material you Sell in accordance with clause 12.1(d). You must not Sell any Retained Seed without Elders’ prior written consent (which may be given in its sole and absolute discretion, and may be given subject to you paying Elders a fee).
13. Notices
13.1Any notices under this licence must be in writing and must be given in accordance with clauses 13.2 and 13.3.
13.2A notice given in accordance with this clause will be deemed received:
(a) if left at the recipient’s address, on the date of delivery;
(b) if sent by prepaid post, 10 days after the date of posting unless it is in fact received earlier, in which case, on the date of receipt;
(c) if sent by email, on the same Business Day on which the email is sent or if sent before 5.00PM (ACST), on the following Business Day (provided no message is generated indicating that the email was unable to be sent); or
(d) when posted to our website and/or posted to the Variety Central website (www.varietycentral.com.au).
13.3Only matters of a general nature relating to more than one grower will be the subject of a notice given in the manner described in 13.2(d) above.
14. Miscellaneous
14.1 Privacy
You consent to Elders providing personal information about you collected by us (which may include your name and address) to any Authorised Distributor and any entity that stores, warehouses, accumulates, conditions, purchases or Sells the Harvested Material that you produce or any EPR Collector for the purpose of exercising our rights and performing our obligations under this licence and to assist you and any of the aforementioned entities in this clause in the appropriate storage, segregation and marketing of the Varieties. You also acknowledge and agree that you have read and agree to Elders’ Privacy Policy (available at www.elders.com.au or on request to Elders).
14.2 Governing law and jurisdiction
This licence is governed by and must be construed according to the laws of South Australia, Australia. The parties irrevocably submit to the non-exclusive jurisdiction of the courts of South Australia or to the Adelaide registry of the Federal Court of Australia to resolve all disputes arising in connection with this licence.
14.3 Severability
If any provision of this licence is held to be invalid or unenforceable for any reason, it will be severable, and will not affect the remaining provisions of this licence.
14.4 Amendment
No addition or variation to this licence is of any force or effect unless all Elders agrees to that addition or variation in writing in accordance with section 127 of the Corporations Act 2001.
14.5 No waiver
No failure to exercise nor any delay in exercising any right relating to this licence operates as a waiver. A single or partial exercise of any right does not preclude any other or further exercise of that right.
14.6 Assignment
You must not dispose of or encumber any right under this licence without Elders’ prior written agreement in accordance with section 127 of the Corporations Act 2001. Elders may assign its rights under this licence to a related body corporate (as that term is defined in the Corporations Act 2001).
15. Definitions
In this licence, the following terms have the following meanings:
15.1 Authorised Distributor means us, or a distributor authorised by us to Sell Seed to you.
15.2 Business Day means a day on which banks are open for business in Adelaide, South Australia, other than a Saturday, Sunday or public holiday in that city.
15.3 Consume means to use Seed so that it cannot be further propagated.
15.4 Details means details of the Licensed Varieties, details of the Sale/purchase of Seed and Harvested Material, your name, your address, and details of your business or company (including ABN and CBH and/or NGR number).
15.5 End Point Royalty or EPR means the royalty payable by you in accordance with clause 4 and the Schedule.
15.6 EPR Collector means us, or any third party with whom we have entered into an EPR collection arrangement.
15.7 Essentially Derived Variety has the meaning given to it in the PBR Act, namely, a plant variety (as defined in the PBR Act) is taken to be an essentially derived variety of another Plant Variety if:
(a) it is predominantly derived from that other Plant Variety; and
(b) it retains the essential characteristics (as defined in the PBR Act) that result from the genotype or combination of genotypes of that other variety, and;
(c) it does not exhibit any important (as distinct from cosmetic) features that differentiate it from that other variety.
15.8 Harvested Material means the grain or fodder from crops of the Licensed Varieties grown from Seed or Retained Seed.
15.9 Licensed Varieties means the varieties listed in the Schedule.
15.10 PBR means plant breeder’s rights as defined in the PBR Act.
15.11 PBR Act means the Plant Breeder’s Rights Act 1994 (Cth) as amended from time to time.
15.12 Propagating Material has the meaning given to it in the PBR Act.
15.13 Retained Seed means grain retained and used by you for the purpose of producing more grain or fodder as permitted by clause 1.1(b).
15.14 Seed means seed of the Licensed Varieties, but does not include Retained Seed.
15.15 Sell has the meaning given to it in the PBR Act, namely it includes letting on hire and exchanging by way of barter and ‘Sale’ and ‘Sold’ have equivalent meanings
15.16 Use means to plant, grow, Sell, or Consume.
Schedule
Item 1 Licensed Varieties and applicable End Point Royalties: