Partnership in bulding farm profits
PASTURE PRODUCTION LICENSE AGREEMENT
AN AGREEMENT made the day of 200
BETWEEN: PRISTINE FORAGE TECHNOLOGIES PTY LTD ACN 102 988 401 of 1 Kingston Avenue, Daw Park SA 5041 (hereinafter called ?Pristine?) of the one part
AND: To the party set forth in Item 1 of the Schedule hereto (hereafter called ?the Licensee?) of the other part
WHEREAS Pristine is the owner or is entitled on behalf of the owner to grant the licences and rights hereinafter set forth to the Licensee in relation to the Variety which is protected under the Plant Breeders Rights Act (hereinafter called ?the Variety?), and in relation to membership of the Pristine Client Network and associated intellectual property and technology.
AND WHEREAS Pristine wishes to grant the Licensee the licences and rights on the terms and conditions hereinafter appearing.
NOW THIS AGREEMENT WITNESSETH as follows:-
Article 1 ? Definitions
1.1 Pristine Client Network means those persons to whom Pristine is supplying licenses, rights, benefits, information and advice in accordance with the terms and conditions of this Agreement.
1.2 Property means the real property which is owned or occupied by the Licensee upon which it is intended that the Variety will be planted.
1.3 Variety means the variety xxxxxxxx as defined and protected under the Plant Breeder?s Rights Act.
1.4 Seed Production means growing the Variety for the purpose of, or with the intention of, or with the capability of, harvesting seed of the Variety.
1.5 GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999.
1.6 Year means calendar year.
Article 2 ? License and Network Membership
2.1 Pristine hereby grants the Licensee the right to produce seed of the Variety for sowing on the Property of the Licensee only, and to grow plants of the Variety for pasture, forage or seed production on the Property of the Licensee only for the term of this Agreement and whilst the Licensee performs and observes its obligations under this Agreement.
2.2 Pristine hereby grants the Licensee membership of the Pristine Client Network and to access all information, technologies, assistance, privileges, rights and benefits made available to Pristine Client Network members for the term of this Agreement and whilst the Licensee performs and observes its obligations under this Agreement.
2.3 Pristine will make available to the Licensee details of member services, benefits, information and technology by way of access to a service web site accessible to Pristine Client Network members only.
Article 3 ? License Fees
3.1 Commencing in the Year after the date of signature of the Licensee to this Agreement, in consideration of the grant of the licences, membership and rights set forth in Article 2 hereof the Licensee shall pay to Pristine the fee calculated in accordance with this Article 3 and Items 2 and 3 of the Schedule hereto.
3.2 The Licensee acknowledges and agrees that the total fee for a Year shall be calculated from the area of the Property in hectares on which the Licensee has sown or is growing the Variety for agricultural production in said Year multiplied by an annual fee per hectare.
3.3 The annual fee per hectare (exclusive of GST) is as calculated in Item 2 of the Schedule attached hereto as adjusted for inflationary factors as defined in Item 3 of the Schedule attached hereto.
3.4 An area shall be deemed to be sown with or growing the Variety in any Year if the area is managed as one area, and:
(a) More than 40% by number of the legume plants growing on the area in that Year are plants of the Variety or collectively of the Variety and other varieties, the rights to which are owned under the Plant Breeders Rights Act by Pristine, or
(b) More than 20% of the total number of plants growing on the area in that Year are plants of the Variety or collectively of the Variety and other varieties, the rights to which are owned under the Plant Breeders Rights Act by Pristine.
3.5 Pristine shall be entitled to charge one fee only in relation to each area in any Year irrespective of the number of varieties sown on the area.
3.6 In each Year, Pristine undertakes to supply self-assessment forms for the Licensee to calculate the annual fee due for the said Year.
3.7 On or before the 31st day of August in each Year the Licensee undertakes to lodge with Pristine per a completed self-assessment form in the form supplied by Pristine, a signed declaration of the area in hectares of Variety use in that said Year as defined under Article 3.4 together with a first fee instalment of $3.00 (plus GST) per hectare of Variety use.
3.8 On or before the 28th day of February in the year following said Year, the Licensee undertakes to lodge with Pristine per a completed self-assessment form in the form supplied by Pristine, a signed declaration of the annual fee that was applicable to the Property in the said Year, together with the calculated balance of the annual fee due for the said Year.
3.9 The Licensee acknowledges that Pristine will be entitled to charge interest at the rate of one (1) per centum per month on any fee or other moneys being payable under this Agreement if not paid within thirty (30) days of being due and payable.
3.10 The Licensee acknowledges and agrees that it shall be lawful for Pristine or any person or persons authorised by Pristine or by any such persons to monitor the Property by means of data obtained from satellite imagery, plane overflight or any other form of remote sensing mechanism and to enter upon the Property without notice at all reasonable times to ascertain whether the information supplied by the Licensee is correct and that the Licensee has paid the correct fee.
3.11 In the event that the inspection should disclose an understatement of the area sown with or growing the Variety as defined under Article 3.4, the Licensee shall pay within fourteen (14) days the amount of the fee calculated on the actual area sown with or growing the Variety.
Article 4 ? Assignment
4.1 The Licensee shall not be entitled to assign the benefit of this Agreement or any rights granted or to be granted hereunder without the consent in writing of Pristine first had and obtained provided always that consent shall not be unreasonably withheld if the Licensee is not in breach of this Agreement and the proposed assignee proves to the reasonable satisfaction of Pristine that it is a respectable responsible and solvent person capable of adequately performing and observing the terms and conditions of this Agreement.
4.2 In the event that Pristine does not consent to the assignment of this Agreement prior to the completion of any sale or the grant of any lease or license for any part of the Property by the Licensee, the Licensee hereby undertakes and agrees to destroy any crop of the Variety that could be used for Seed Production on that part of the Property which is subject of the sale, lease or license by the Licensee.
Article 5 ? Term and Termination
5.1 The term of this Agreement is 20 years from the date of signature to this Agreement by the Licensee, unless terminated earlier as per this Article.
5.2 If either party shall fail to observe or perform any of the promises, agreements or undertakings herein contained and on its part to be observed or performed, and where such breach is remediable fails to remedy any such breach within thirty (30) days of a notice from the other party so to do, then the aggrieved party may forthwith (or where it has given a notice as aforementioned, on the expiry thereof unremedied) give a written notice declaring that this Agreement is terminated forthwith or at such future date as it may designate.
5.3 If the Licensee ceases production of the Variety, or if the area of the Property on which the Variety is grown falls to a level less than one half of the estimated area sown to the Variety in the year of purchase of the Variety, Pristine may by written notice terminate this Agreement as from such date as it shall specify, not being a date earlier than thirty (30) days after the dispatch of such notice.
5.4 Pristine may by notice in writing forthwith terminate this Agreement if the Licensee is placed in receivership goes into liquidation or makes an assignment for the benefit of or enters into an arrangement or composition with its creditors or becomes subject to any form of insolvency administration or any of its directors is convicted of any offence involving fraud deception or dishonesty.
5.5 Any termination of this Agreement shall be without prejudice to the rights of either party against the other which may have occurred up to the date of termination.
5.6 Upon termination, the Licensee undertakes and agrees to cease all Seed Production of the Variety on the Property, to return all stock of seed of the Variety held by the Licensee to Pristine forthwith and to destroy any seed crops of the Variety that could be used for Seed Production.
5.7 Notwithstanding termination of this Agreement, the Licensee acknowledges and agrees that it shall be lawful for Pristine or any person or persons authorised by Pristine or by any such persons to enter upon the Property without notice at all reasonable times after termination of this Agreement to ascertain whether the Licensee has complied with the requirements of Article 5 Clause 6 or any other requirements relating to this Agreement.
Article 6 ? Miscellaneous
6.1 It is agreed and declared that Pristine and the Licensee are not partners or agents of each other, that neither party has authority to bind the other by contract, declaration, admission, or other statement, that each party is entitled to make that situation known to any affected party and that neither is entitled to pledge the credit or the guarantee of the other.
6.2 Any notice, demand, certification or other communication under this Agreement shall be given in writing and in the English language.
(a) In addition to any means authorised by law any communications may be given by:
(i) being personally served on a party;
(ii) being left at a party?s current address for service; or
(iii) being sent to the party?s current address for service by pre-paid ordinary mail.
(b) The initial addresses for service are as specified in this Agreement. A party may from time to time change its addresses for service by notice to the other party.
(c) A communication given by post shall be deemed received on the third business day after posting.
6.3 If it is held by a court that:
(a) any part of this agreement is or would be void, voidable, illegal or unenforceable; or
(b) the application of any part of this agreement to any person, entity or circumstance shall be or become invalid or unenforceable;
unless any part of this agreement were severed from this Agreement, then that part of the agreement shall be severable and not affect the continued operation of the remaining terms of this Agreement.
6.4 This Agreement shall be construed in accordance with and governed by the Laws of South Australia.
SCHEDULE
Item 1: Name and Address of Licensee
(Name) ____________________________________________________________
(ABN) ____________________________________________________________
(Address) ____________________________________________________________
______________________________________________________________________
(Phone)_______________________ (E-mail) _________________________________
Item 2: The Annual Fee*
The annual fee* per hectare sown with or growing the Variety as defined in Article 3, Clause 4 is set at the rate of $2.00 per 100mm of rainfall on the Property in the year. Annual rainfall on the Property is calculated from records of the Australian Government through the Bureau of Meteorology for the nearest comparable geographical location to the Property, or at the sole discretion of Pristine, from records kept and maintained by the Licensee. Pristine reserves the right to accept or reject any farm-based rainfall calculations. (For example, if rainfall is 343mm, the annual fee per hectare is $6.86. If it is 486mm, the annual fee per hectare is $9.72.)
*NB. The annual fee is GST exclusive.
Item 3: Fee Adjustment for Inflation
The annual fee shall be reviewed annually on the anniversary of the date of commencement of this Agreement during the term hereof and any renewal hereof for the period from such review date until the next review date or the expiry of the then current term or any extension thereof when the annual fee current at the review date shall be increased to the amount arrived at by multiplying the annual fee current immediately prior to the date of review by a fraction the NUMERATOR whereof shall be the All Groups Consumer Price Index number for the Commonwealth of Australia calculated on base year 1989-1990 as prepared by the Australian Bureau of Statistics for the quarter year expiring immediately before the date of review and the DENOMINATOR shall be the All Groups Consumer Price Index Number for the Commonwealth of Australia calculated on base year 1989-1990 as prepared by the Australian Bureau of Statistics for the same quarter year expiring immediately before one year prior to the date of review PROVIDED FURTHER that if the said Index is not current on both dates or is calculated from different base years or if any dispute arises between the parties as to the calculation of the increase, the fraction to be applied shall be such fraction representing the rise in the cost of living in the City of Adelaide between the two dates and shall be certified by the Officer in Charge of the Adelaide Office of the Australian Bureau of Statistics or some other person appointed by him for the purpose of giving such certificate and acting upon information prepared by the Australian Bureau of Statistics who in so certifying shall be deemed to be acting as an expert and not as an arbitrator AND pending such calculation of such increased annual fee the Licensee shall continue to pay on account of the annual fee ultimately calculated to be payable the annual fee at the rate current immediately prior to the date of review and the balance thereof upon calculation thereof.
IN WITNESS WHEREOF this License Agreement was executed on the date first given above.
SIGNED under a written authority for and on behalf of
PRISTINE FORAGE TECHNOLOGIES
_____________________________________
(Name) ______________________
SIGNED for and on behalf of
THE LICENSEE
_____________________________________
(Name)_______________________
DATED 2007
