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Schedule 2 – Draft Contract

Exclusive Marketing License AgreementMungbean Pipeline

Grains Research & Development Corporation

and

[Insert Licensee Name]

Table of Contents

1. INTERPRETATION 3

2. TERM 5

3. PRECEDENCE 6

4. GRANT OF LICENCE 6

5. COMMERCIALISATION 6

6. SPECIAL CONDITIONS 6

7. minimum performance requirements 6

8. Acknowledgements 6

9. SUBLICENSING and Subcontracting 7

10. CHARGES 7

11. INTELLECTUAL PROPERTY 7

12. CONFIDENTIALITY 8

13. RECORDS 9

14. REPORTS 9

15. WARRANTIES 9

16. INDEMNITIES 11

17. INSURANCE 11

18. AUDIT 12

19. Auditor-General and Privacy Commissioner 12

20. Privacy 13

21. Goods and services tax 13

22. TERMINATION 14

23. DISPUTE RESOLUTION 16

24. NOTICES 16

25. GENERAL 16

SCHEDULE 1 – AGREEMENT DETAILS 20

SCHEDULE 2 – CHARGES 24

SCHEDULE 3 – COMMERCIALISATION REPORT TEMPLATE 25

REOI – NMIP – Document 2 of 5 2 of 25

THIS AGREEMENT is made the ________________day of March 2018.

BETWEEN

GRAINS RESEARCH AND DEVELOPMENT CORPORATION (ABN 55 611 233 291) of Level 4, East Building, 4 National Circuit, Barton, Australian Capital Territory 2600 (GRDC)

AND

[Insert Licensee Name] (ABN XX XXX XXX XXX), having its registered office at [Insert address] (Licensee)

RECITALS

A. The GRDC and the Queensland Department of Agriculture and Fisheries (QDAF) are co-owners of Lines developed in the National Mungbean Improvement Program (NMIP) under GRDC Project Code DAQ00212.

B. To support commercialisation, the Co-owners wish to appoint an exclusive commercial partner to support the NMIP for the duration of the current program (DAQ00212), in the development and testing of Lines, and to commercialise Lines that are selected for commercial release as Varieties.

C. QDAF have granted the GRDC a licence to Commercialise Variety/ies developed under DAQ00212.

D. GRDC grants a licence to the Licensee to Commercialise Variety/ies developed under DAQ00212 under the terms of this Agreement.

THE PARTIES AGREE AS FOLLOWS:

1. INTERPRETATION

1.1 The following definitions apply in this Agreement:

Agreement means this agreement including its schedules, annexures and attachments.

Business Day means any day other than a Saturday, Sunday or public holiday in the Australian Capital Territory.

Charges has the meaning given in SCHEDULE 2.

Claim means a claim by a third party to Intellectual Property rights in the Variety or a claim that a third party is infringing the Intellectual Property rights in the Variety.

Commencement Date has the meaning given in Item 1 of SCHEDULE 1.

Commercialisation has the meaning given in Item 6 of SCHEDULE 1 and Commercialise has a corresponding meaning.

Commercialisation Activities has the meaning given in Item 7 of SCHEDULE 1.


Commercialisation Report means a report described in Item 9 of SCHEDULE 1 in the form of SCHEDULE 3.

Confidential Information means any information of a Party which the other Party knows or ought reasonably to know is confidential.

Co-owner/s has the meaning given in Recital A.

End Date has the meaning given in Item 2 of SCHEDULE 1.

Force Majeure Event means any:

(a) pandemic, fire, flood, earthquake, elements of nature or act of God;

(b) riot, civil disorder, war, terrorist act, rebellion, revolution, governmental act or omission, strike or labour force disruption; or

(c) other similar cause beyond the reasonable control of a Party,

but in each case only if and to the extent that:

(d) the event could not have been reasonably forseen at the Commencement Date;

(e) the affected Party is without fault; and

(f) the event could not have been prevented by reasonable precautions and cannot reasonably be circumvented.

Intellectual Property or IP means means all intellectual property rights, or rights of a similar nature recognised at law anywhere in the world, including:

(a) inventions, patents, plant breeder’s rights, trade secrets, copyright, rights in circuit layouts, registered designs, trade marks, confidential information, and know how;

(b) any application or right to apply for registration of any of the rights referred to in clause (a), or to take action for infringement of, any such rights,

but excludes moral rights and similar non-assignable personal rights of any person.

Licence has the meaning given in Item 4 of SCHEDULE 1.

Lines has the meaning given in Item 3 of SCHEDULE 1

Loss means liability, loss, damage, costs and expenses (including the costs of the investigation, defence and settlement of any relevant claim or demand) and any legal costs and expenses in relation thereto on a solicitor and own client basis.

Minimum Performance Requirements means the minimum performance requirements set out in Item 9 of SCHEDULE 1.

Party means either the GRDC or Licensee and their respective lawful successors and assigns.

Personnel means the officers, employees, agents, advisers and contractors of a Party (other than the other Party or its Personnel), and in the case of:


a) the Licensee includes any Subcontractors and their officers, employees, agents, advisers and contractors; and

b) the GRDC, for the purposes of clause 16, includes the Co-owners and their officers, employees, agents, advisers and contractors.

PBR means plant breeder’s rights granted under the Plant Breeder’s Rights Act 1994 (Cth).

Reporting Period has the meaning given in Item 8 of SCHEDULE 1.

Special Conditions means the special conditions in Item 15 of SCHEDULE 1.

Subcontract means a contract entered into by or on behalf of the Licensee merely for the purposes of outsourcing functions or activities, under which the subcontractor is not authorised to exercise Intellectual Property rights in the Variety for its own purposes or benefit, but only on behalf of, and for the benefit of, the Licensee. Subcontractor has a corresponding meaning.

Term has the meaning given in clause 2.1.

Territory has the meaning given in Item 5 of SCHEDULE 1.

Variety/ies means a plant variety or varieties granted PBR

1.2 In this Agreement unless the context otherwise requires:

(a) the singular includes the plural and vice versa;

(b) a reference to a person includes a body politic, body corporate or a partnership;

(c) a reference to a Party includes that Party’s executors, administrators, substitutes, successors and permitted assigns;

(d) where an expression is defined, another part of speech or grammatical form has a corresponding meaning;

(e) a reference to any organisation, committee or body includes a reference to any successor of that organisation, committee or body;

(f) a reference to any legislation or regulation includes a reference to any amendment, modification or replacement to that legislation or regulation which may be made from time to time;

(g) the word 'includes' in any form is not a word of limitation; and

(h) headings are for convenience only and do not affect interpretation.

2. TERM

2.1 This Agreement commences on the Commencement Date and continues in force until the End Date, unless terminated earlier in accordance with its terms (Term).

Option to extend


2.2 GRDC may, within 3 months of the End Date, agree in writing to extend the Term of this Agreement for another 5 years.

3. PRECEDENCE

3.1 If there is any inconsistency between the terms of this Agreement, the terms higher in the following list have precedence to the extent of the inconsistency:

(a) the Special Conditions;

(b) the terms in SCHEDULE 1 other than the Special Conditions;

(c) SCHEDULE 2;

(d) SCHEDULE 3; and

(e) clauses 1 to 25 inclusive of this Agreement.

4. GRANT OF LICENCE

4.1 Subject to this Agreement, including the obligation to pay Charges, the GRDC grants the Licence to the Licensee.

5. COMMERCIALISATION

5.1 The Licensee must undertake Commercialisation Activities:

(a) in an efficient, effective, ethical and economical manner; and

(b) in compliance with this Agreement and all applicable laws.

6. SPECIAL CONDITIONS

6.1 Each Party must comply with the Special Conditions which are applicable to that Party.

7. MINIMUM PERFORMANCE REQUIREMENTS

7.1 The Licensee must meet all the Minimum Performance Requirements set out in Item 9 of SCHEDULE 1.

7.2 Except if due to a Force Majeure Event, if the Licensee fails to achieve any of the Minimum Performance Requirements, then the GRDC may, but is not obliged to, take the action specified in Item 10 of SCHEDULE 1 in respect of the applicable failure.

7.3 The Licensee must notify GRDC as soon as possible if it will not be able to meet the Minimum Performance Requirements, outlining the remedial action the Licensee will take to address the failure.

8. ACKNOWLEDGEMENTS

8.1 The Licensee must comply with the acknowledgement requirements in Item 11 of SCHEDULE.


9. SUBLICENSING AND SUBCONTRACTING

9.1 The Licensee may enter into Subcontracts, but may not grant any other sublicences to exercise Intellectual Property rights in the Variety/ies.

9.2 The Licensee acknowledges and agrees that when Subcontracting, it:

(a) must provide details of all Subcontracts to the GRDC on request;

(b) must take all reasonable steps, at its own expense, including taking enforcement action where appropriate, to ensure that its Subcontractors:

(i) comply with their obligations under their respective Subcontracts; and

(ii) do not engage in any act or omission that may prejudice the GRDC's rights or interests in the Variety/ies; and

(c) remains liable under this Agreement for any act or omission of any such Subcontractor which gives rise to a breach of the Licensee’s obligations under this Agreement.

10. CHARGES

10.1 In consideration for the Licence, the Licensee must pay to the GRDC the Charges in accordance with SCHEDULE 2.

10.2 The Licensee must, within 31 days of the end of a Reporting Period or as otherwise agreed by the GRDC, issue to the GRDC a statement detailing the amount of Charges payable to the GRDC for that Reporting Period calculated by the Licensee in accordance with SCHEDULE 2. The statement may either be in the Commercialisation Report or may be provided separately.

10.3 The Licensee must provide such substantiating evidence of the amount of the Charges as the GRDC may reasonably require.

10.4 Following the receipt by the GRDC of the statement described in clause 10.2, the GRDC must issue to the Licensee a correctly-rendered tax invoice for the amount due and owing to the GRDC.

10.5 The Licensee must pay all correctly-rendered tax invoices issued by the GRDC in full within 30 days of receipt in accordance with SCHEDULE 2 and any additional payment details set out in the tax invoice.

11. INTELLECTUAL PROPERTY

Ownership

11.1 The Parties acknowledge and agree that nothing in this Agreement assigns or transfers ownership of any of the Intellectual Property rights in the Variety/ies to any other person (including the Licensee).

11.2 The Licensee acknowledges that the GRDC and other Co-owners:

(a) own the Intellectual Property rights in the Lines and Variety/ies; and


(b) retain the right to use and exploit, and permit the the use and exploitation of, the Variety/ies and Intellectual Property rights in the Variety/ies for the purposes of research development, breeding and evaluation and to sublicence those rights.

Protection of Intellectual Property

11.3 The Parties must take such steps set out in in this clause 11, for the protection of Intellectual Property.

11.4 Each Party must immediately notify the other Party if it becomes aware of:

(a) any apparent challenge to the ownership of the Variety/ies or the Licensee's right to use any of the Variety/ies;

(b) any Claim by any third party to any rights in the Variety/ies; and

(c) any actual, suspected or anticipated infringement of the Variety/ies.

11.5 The Parties agree to discuss any matters notified under clause 11.4 and the appropriate response to such matters.

Costs Associated with Protection of Intellectual Property

11.6 The Licensor will arrange and pay the costs associated with the protection of the Intellectual Property. This includes preparation (including distinctness, uniformity and stability (DUS) trials and data), lodgement and annual fees associated with PBR registration, or other appropriate IP protection costs.

11.7 The Licensor (or its nominee) will invoice the Licensee for these costs. The Licensee must pay the invoice in full within 30 days of receipt in accordance with the Payment details set out in SCHEDULE 2.

12. CONFIDENTIALITY

12.1 Except as may be necessary for a Party to exercise its rights or perform its obligations under this Agreement, neither Party may use or disclose the Confidential Information of the other Party and must use all reasonable endeavours to prevent the Confidential Information of the other Party being used by or disclosed to any third party, except with the other Party’s consent.

12.2 Each Party will ensure its officers, employees, agents and contractors (including any Subcontractors) comply with this clause 12.

12.3 This clause 12 does not apply to any information which:

(a) is required to be disclosed by law or to a Minister or the Parliament;

(b) is disclosed to a Party’s professional advisers in connection with the Party obtaining their advice and assistance; or

(c) is in the public domain other than as a result of a breach of obligations of confidentiality.


13. RECORDS

13.1 The Licensee must:

(a) ensure that it is able to substantiate all matters required to be included in reports it is required to provide under this Agreement, including by retaining relevant invoices and receipts;

(b) maintain records and books of account in relation to income and any other information reasonably required by the GRDC in relation to the Commercialisation of the Variety;

(c) ensure such records and books of account are accurate, complete and up to date and kept in a manner that permits them to be conveniently and properly audited;

(d) if requested by the GRDC in writing, provide within 14 days a copy of any such reports, documents, records, statements or any other information as reasonably required by the GRDC in connection with this Agreement; and

(e) retain the documents required of the Licensee under this clause 13.1 for at least 7 years after the end of the Term.

13.2 Each Party acknowledges that any information or documents provided to it under clause 13.1 might contain Confidential Information, including of or concerning a third party, and agrees not to use or disclose such information except in accordance with clause 12.

13.3 The Licensee acknowledges and agrees that the GRDC will be required to provide details of this Agreement, including reports provided under clause 14, and records and substantiating information provided by the Licensee for the purposes of this Agreement, to the Co-Owners, and nothing in this Agreement is intended to, or must be considered to limit or prevent this. The GRDC must identify to the Co-Owners any such records or information as being Confidential Information of the Licensee, and ensure that its agreement with the Co-Owners requires the Co-Owners to protect the confidentiality of the records and information provided to the Co-Owners by the GRDC on terms which are equivalent to the confidentiality requirements of this Agreement.

14. REPORTS

14.1 The Licensee must provide the Commercialisation Report to the GRDC, in the manner and form required in SCHEDULE 3 by the due date set out in Item 12 in SCHEDULE 1.

14.2 If Item 12 in SCHEDULE 1 states that the Licensee must provide any report other than the Commercialisation Report, then that report must be provided to the GRDC as set out in Item 12 in SCHEDULE 1.

15. WARRANTIES

Reciprocal warranties

15.1 Each Party warrants to the other Party that:

(a) it has the power and authority to enter into, and perform the obligations under, this Agreement;


(b) this Agreement when executed, will constitute legal, valid and binding obligations on the Party, in accordance with the terms of the Agreement; and

(c) the execution and performance of its obligations under this Agreement will not result in the Party breaching any agreement or instrument to which it is a Party.

Licensee warranties

15.2 The Licensee warrants that:

(a) it has the necessary experience, skill, knowledge, expertise and competence to Commercialise the Variety/ies in the manner and as contemplated by this Agreement;

(b) it has disclosed in writing to the GRDC all matters relevant to the Licensee’s commercial and financial capacity that could adversely affect the Licensee's ability to perform any of its obligations under this Agreement; and

(c) in Commercialising the Variety/ies, it will not:

(i) bring the GRDC and the other Co-owners into disrepute;

(ii) knowingly breach any relevant laws or regulations; or

(iii) knowingly infringe the legal rights of any person,

provided that, with respect to any patent rights, the Licensee will not be in breach of this warranty if it has taken all reasonable steps to ensure that it is not infringing the rights of any third party patent applicant or patent owner which can be identified from a reasonable search.

Licensee acknowledgement

15.3 The Licensee acknowledges that the Lines, Variety/ies and any assistance, documentation and other information supplied by the GRDC and other Co-Owners in relation to the Variety/ies are 'as is' and neither the GRDC nor the other Co-Owners warrant or represent:

(a) the suitability, fitness, accuracy, sufficiency, currency or relevance of the Lines or Variety/ies, assistance, documentation or information for the purposes of Commercialisation;

(b) that the use of the Lines or Variety/ies by the Licensee or its Subcontractors or any person on their behalf will not infringe the Intellectual Property or other rights of any person; or

(c) that any of the Lines will be released as Varieties.

15.4 To the extent permitted by law, except as expressly set out in this Agreement in writing:

(a) the GRDC and the other Co-Owners expressly disclaim all warranties and representations in relation to the Variety/ies and in relation to any assistance, documentation and other information supplied by the GRDC and the other Co-Owners in relation to the Variety/ies; and

(b) the Licensees and its Subcontractors and persons acting on their behalf exercise rights in the Variety/ies and use any assistance, documentation and other information


supplied by the GRDC and the other Co-Owners in relation to the Variety/ies, entirely at their own risk.

15.5 The Licensee acknowledges that it has:

(a) received no warranties or representations from the Co-Owners in relation to the Variety/ies; and

(b) no rights against the Co-Owners in relation to the Variety/ies,

and irrevocably releases the Co-Owners from any or all liability in relation to the Licensee’s use of the Variety/ies. The GRDC holds the rights of the Co-Owners under this clause 15 on trust and may enforce the release on the Co-Owners’ behalf.

16. INDEMNITIES

Licensee Indemnity

16.1 The Licensee indemnifies the GRDC and the GRDC’s Personnel against any Loss arising out of or as a consequence of:

(a) a material breach of the Agreement by the Licensee; or

(b) the Commercialisation of the Variety by or on behalf of the Licensee (including Loss arising from damage to property or death or illness of, or personal injury to, any person, as a consequence of the Commercialisation of the Variety/ies),

except to the extent that the Loss is caused by an unlawful or negligent act or omission of the GRDC or the GRDC’s Personnel.

16.2 The GRDC must use reasonable endeavours to mitigate any Loss in relation to which indemnification is sought under clause 16.1.

GRDC Indemnity

16.3 The GRDC indemnifies the Licensee and Licensee Personnel against any Loss arising out of or as a consequence of a material breach of this Agreement by the GRDC, except to the extent that the Loss is caused by an unlawful or negligent act or omission of the Licensee or Licensee Personnel.

16.4 The Licensee will use reasonable endeavours to mitigate any Loss in relation to which indemnification is sought under clause 16.3.

Rights on trust

16.5 Each Party holds the rights of its Personnel under this clause 16 on trust and may enforce those rights on behalf of its Personnel.

17. INSURANCE

17.1 The Licensee must, from the Commencement Date, have and maintain the insurance policies set out in Item 13 of SCHEDULE 1 on terms approved by the GRDC (whose approval must not be unreasonably withheld).


17.2 The Licensee must ensure that each of its Subcontractors are insured as required by clause 17.1 as if they were the Licensee.

18. AUDIT

18.1 The GRDC may, during the Term, arrange for the Commercialisation Activities to be inspected and, during the Term and for up to 7 years after the end of the Term, arrange for accounts and other documents maintained by the Licensee in relation to this Agreement to be inspected and copies made, at reasonable times during ordinary business hours. For clarity, this includes rights for the GRDC or its nominees:

(a) to inspect Commercialisation Activities being carried out in connection with this Agreement or Subcontract;

(b) to inspect and copy any records or documents required to be kept or maintained by the Licensee under this Agreement or a Subcontractor under a Subcontract; and

(c) to inspect and copy all other documents evidencing the Charges, including (if necessary to audit the Charges) records evidencing collection, receipt and disbursement of all income received and costs incurred in connection with the Commercialisation of the Variety.

18.2 The Licensee must give all reasonable assistance to the GRDC and its nominees in relation to any such audit.

18.3 Any audit shall be at the expense of the GRDC unless it discloses any material breach of this Agreement or other error of substance in which case the GRDC may, by notice, require the Licensee to reimburse the GRDC for the cost of the audit. An accounting error in excess of 5% or a shortfall in payment of Charges to the GRDC will be considered to be an error of substance.

18.4 If an audit:

(a) discloses a failure to make payment to the GRDC as required by this Agreement, the GRDC may by notice in writing require the Licensee to immediately make such payment together with payment of interest on that amount calculated at the commercial overdraft rate of the Commonwealth Bank of Australia applicable at the time of, and specified in, the notice from the GRDC; or

(b) identifies any overpayment to the GRDC, on demand from the Licensee, the GRDC will promptly pay the amount of the overpayment to the Licensee.

19. AUDITOR-GENERAL AND PRIVACY COMMISSIONER

19.1 The rights of the GRDC to conduct audits under clause 18 apply equally to the Auditor-General or a delegate of the Auditor-General, or the Privacy Commissioner or a delegate of the Privacy Commissioner, for the purpose of performing the Auditor-General’s or Privacy Commissioner’s statutory functions or powers.

19.2 The Licensee must do all things necessary to comply with the Auditor-General’s or his or her delegate’s or the Privacy Commissioner’s or his or her delegate’s requirements, notified under clause 18, provided such requirements are legally enforceable and within the power of the Auditor-General, the Privacy Commissioner, or his or her respective delegate.


19.3 The Licensee must ensure that any Subcontract entered into for the purpose of this Agreement contains an equivalent clause granting the rights specified in this clause 19.

19.4 Nothing in this Agreement reduces, limits or restricts in any way any function, power, right or entitlement of the Auditor-General or a delegate of the Auditor-General or the Privacy Commissioner or a delegate of the Privacy Commissioner. The rights of the GRDC under this Agreement are in addition to any other power, right or entitlement of the Auditor-General or a delegate of the Auditor-General or the Privacy Commissioner or a delegate of the Privacy Commissioner.

20. PRIVACY

20.1 In this clause 20, agency, Australian Privacy Principle and personal information have the meanings given in the Privacy Act 1988 (Cth) (Privacy Act).

20.2 Each Party must comply with the Privacy Act in respect of all personal information that it collects, uses, holds or discloses, whether by itself directly or through another person.

20.3 Neither Party may use personal information provided to it by the other Party in performing this Agreement except to exercise its rights or perform its obligations under this Agreement and must comply with all of the providing Party’s reasonable directions in respect of that personal information, provided such directions are not contrary to the Privacy Act.

20.4 Neither Party must do anything to place the other Party in breach of the other Party’s obligations under the Privacy Act.

20.5 Neither Party may do an act, or engage in a practice, that would breach an Australian Privacy Principle if done or engaged in by an agency.

20.6 Each Party must notify the other Party immediately if it becomes aware that it has breached or may have breached of any of its obligations under this clause 20.

20.7 The Licensee must ensure that its Subcontracts contain equivalent provisions to this clause 20.

21. GOODS AND SERVICES TAX

21.1 For the purposes of this clause 21:

(a) unless otherwise stated, terms that have a defined meaning in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act) have the same meaning as in the GST Act;

(b) in addition to its meaning in the GST Act, the term ‘GST’ includes any notional liability to pay GST;

(c) the term ‘consideration’ takes its ordinary meaning, rather than its defined meaning in the GST Act; and

(d) if a supply is treated as a periodic or progressive supply under the GST Act, each periodic or progressive component of the supply will be treated as if it is a separate supply.


21.2 Unless otherwise stated, all consideration to be paid or provided under or in connection with this Agreement is expressed exclusive of GST.

21.3 If GST applies to a supply made under or in connection with this Agreement, for consideration that is not stated to include GST, the recipient must pay to the supplier an additional amount equal to the GST payable on the supply (GST Amount). The GST Amount is payable at the same time that the first part of the consideration for the supply is to be provided. However, this clause 21.3 will not apply if the GST on the supply is reverse charged and payable by the recipient.

21.4 Notwithstanding any other provision of this Agreement, the recipient need not pay the GST Amount until it has received from the supplier a tax invoice or adjustment note (as the case may be).

21.5 If an adjustment event arises in respect of a supply to which clause 21.3 applies, the GST Amount must be adjusted to reflect the adjustment event and a payment must be made by the supplier to the recipient, or by the recipient to the supplier, as the case may be.

21.6 If a Party is entitled to be reimbursed or indemnified for a cost or expense under or in connection with this Agreement, the amount to be reimbursed must be reduced to the extent that the Party (or the representative member for a GST group of which that Party is a member) is entitled to an input tax credit for the cost or expense.

21.7 Unless otherwise stated, if an amount payable under or in connection with this Agreement is to be calculated by reference to:

(a) the consideration to be received for a supply; or

(b) the consideration to be provided for an acquisition;

(c) then, for the purposes of that calculation, the consideration is to be reduced to the extent that it includes any amount on account of GST (regardless of whether the amount is separately identified or included as part of the consideration).

21.8 This clause 21 will survive the termination or expiry of this Agreement.

22. TERMINATION

Termination for Default

22.1 Either Party may immediately terminate this Agreement by written notice to the other Party if the other Party:

(a) breaches any provision of this Agreement and the breach continues unremedied for 28 days after the defaulting Party has been served with written notice of the breach; or

(b) breaches a material provision of this Agreement which is not capable of remedy.

22.2 The GRDC may immediately terminate this Agreement by written notice to the Licensee if:

(a) the Licensee is presumed insolvent within the meaning of section 459C(2) of the Corporations Act 2001 (Cth), is placed into liquidation, has an administrator or a receiver or manager or other form of insolvency administrator appointed or a


mortgagee takes possession of any substantial asset(s) of the Licensee or if any proceedings are issued or an event occurs intended to lead to any of these, or similar, consequences;

(b) the Licensee ceases to carry on business in the normal course;

(c) the Licensee experiences a Force Majuere Event which prevents Commercialisation occurring for more than 40 Business Days, as described in clause 25.11;

(d) the Licensee’s Commercialisation of the Variety/ies is contrary to law or brings the GRDC or Co-owners into disrepute; or

(e) one or more of the Minimum Performance Requirements have not been satisfied and Item 10 of SCHEDULE 1 permits the GRDC to terminate this Agreement for a failure to satisfy the Minimum Performance Requirements.

Termination by election

22.3 The Licensee may terminate this Agreement for any reason by giving six months’ written notice to the GRDC, but must reimburse the GRDC for the GRDC’s reasonable costs incurred as a result of the termination.

Common law rights preserved

22.4 Nothing in this Agreement limits a Party’s rights at common law to terminate this Agreement.

Consequences of termination

22.5 If this Agreement is terminated (whether in accordance with this clause 22 or in accordance with any other clause of this Agreement which permits termination):

(a) subject to clause 22.5(b), the Licensee must cease Commercialising the Variety/ies;

(b) the Licensee may Commercialise the Variety/ies in accordance with the contractual terms applicable to orders with customers which are binding and enforceable on the Licensee as at the date of termination, except if termination has occurred in accordance with clause 22.2(d);

(c) the Licensee must continue to provide to the GRDC Commercialisation Reports and pay any Charges due for the Commercialisation of the Variety/ies;

(d) termination does not affect the enforceability of any rights or obligations accrued under this Agreement which survive termination; and

(e) ownership of Intellectual Property is not affected.

23. DISPUTE RESOLUTION

23.1 If any dispute arises out of or in connection with this Agreement, the Parties must first, before commencing any legal action, attempt to resolve the dispute through discussions between the Parties’ senior officers. If the dispute is not resolved by the Parties within 20 Business Days of the commencement of those discussions, the Parties must refer the dispute to the Australian Disputes Centre (ADC) for mediation in accordance with the Mediation Guidelines of ADC.


23.2 Nothing in clause 23.1 prevents a Party from seeking urgent interlocutory relief.

24. NOTICES

24.1 All notices given for the purposes of this Agreement must be in writing, signed by the Party giving the notice, and delivered, sent by pre-paid post or transmitted by email to the other Party using the contact details set out in Item 14 of SCHEDULE 1.

24.2 A notice will be deemed to have been received:

(a) if delivered by hand, on the day of delivery (or the next Business Day if the day of delivery is not a Business Day);

(b) if sent by post, five Business Days after being sent; or

(c) if sent by email, the next Busines Day after the sender receives a confirmation of receipt from the intended recipient's computer demonstrating that the email has been received.

25. GENERAL

Survival

25.1 Any term which, expressly or by its nature, is intended to survive expiry or termination of this Agreement will survive expiry or termination of this Agreement, including clauses concerning interpretation, reports, audits, warranties, indemnities, confidentiality, GST, consequences of termination, dispute resolution and survival.

Relationship

25.2 This Agreement does not create any partnership, agency or trust relationship or confer on either Party the authority to bind the other Party in any way.

Further actions

25.3 The Parties must cooperate with each other and execute any document reasonably required by a Party to give effect to this Agreement, including in connection with:

(a) registration, protection or enforcement of the Variety/ies; and

(b) Commercialisation of the Variety/ies.

Assignment

25.4 Subject to clause 25.5, neither Party may assign or otherwise deal with any of its rights under this Agreement, without the prior written consent of the other (which consent must not be unreasonably withheld or delayed).

25.5 The Licensee acknowledges and agrees that the GRDC may transfer its rights and obligations under this Agreement to one or both of the Co-owners by written notice to the Licensee.

Variation

25.6 Except as permitted by this Agreement, this Agreement may not be varied except in writing and signed by both Parties.


Construction

25.7 This Agreement (or any term of it) is not to be construed to the disadvantage of one Party for the reason that that Party was responsible for its preparation or seeks to rely on it.

Entire agreement

25.8 This Agreement constitutes the entire Agreement between the Parties as to its subject matter.

Counterparts

25.9 This Agreement may be signed in counterparts. If so, the signed copies together constitute one document.

Governing law and jurisdiction

25.10 This Agreement is governed by the laws in force in the Australian Capital Territory and the Parties submit to the non-exclusive jurisdiction of the courts of that Territory and any courts that may hear appeals from those courts.

Force Majeure Event

25.11 A Party will not be liable for its inability to perform its obligations under this Agreement as a result of a Force Majeure Event. If a Force Majeure Event occurs, the Party experiencing it will notify the other Party of the occurrence and expected duration of that event. The Party experiencing the Force Majeure Event must use all reasonable endeavours to overcome that Force Majeure Event and keep the other Party informed. If the Force Majeure Event prevents the Licensee from undertaking Commercialisation for a period of at least 40 consecutive Business Days, the GRDC may terminate this Agreement in accordance with clause 22.2(c) without compensation to the Licensee.

Waiver

25.12 A Party does not waive any rights under this Agreement except if the waiver is in writing and signed by the Party. A delay in exercising a right does not constitute a waiver.

Approval

25.13 By giving its approval or consent a Party does not make or give any warranty or representation as to any circumstance relating to the subject matter of the consent or approval.

Discretion in exercising rights

25.14 A Party may exercise a right or remedy or give or refuse its consent in any way it considers appropriate (including by imposing conditions), unless this Agreement expressly states otherwise.

Severance

25.15 Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will be severed to the extent necessary to make this Agreement valid and enforceable. The severance of a provision will not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.


EXECUTED BY THE PARTIES AS AN AGREEMENT

SIGNED for and on behalf of the GRAINS RESEARCH AND DEVELOPMENT CORPORATION by an authorised delegate in the presence of:

Signature of Delegate

Signature of Witness Full name (print)

Name of witness (print) Date

SIGNED for and behalf of Licensee Name By its duly authorised representative* in the presence of:

Signature of witness Signature of authorised representative*

Name of witness (print) Name of authorised representative (print)

Date Date

*By signing this agreement, the authorised representative represents and warrants that he/she is duly authorised to execute this document on behalf of the Licensee.


SCHEDULE 1 – AGREEMENT DETAILS

Item Topic Details

1. Commencement Date The last date this Agreement is signed by a Party.

2. End Date 10 years from the Commencement Date.

3. Lines Mungbean fixed lines, selected at the adsolute discretion of the NMIP (the National Mungbean Improvement Program), for advanced regional evaluation prior to 30 June 2020.

4. Licence An exclusive Licence to Commercialise the Variety/ies in the Territory for the Term, but only as expressly permitted in this Agreement.

5. Territory Australia

6. Commercialisation in relation to the Variety/ies, includes, without limitation:

(a) to manufacture, sell, hire or otherwise exploit the Variety/ies for commercial gain;

(b) if a product or process incorporates or is derived from the Variety/ies, to use, sell, hire or otherwise use the product or process for commercial gain;

(c) if a service uses the Variety/ies, to provide that service for commercial gain; or

(d) the Commercialisation Activities.

7. Commercialisation Activities

(a) bulk up Lines from 20kg pure seed in target production regions

(b) report to breeding program relevant field observations on Lines during bulk up phase that support final selection for registration as a variety

(c) produce or reproduce propagating material of the Variety/ies (for example, by growing) to meet evidenced demand;

(d) condition the material for the purpose of propagation;

(e) offer the material for sale (including marketing the Variety/ies);

(f) sell the material;

(g) stock the material for the purposes described in paragraphs (a), (b), (c) and (d);

(h) Variety/ies promotion and performance;

(i) estimate seed production, retail sales and grain production targets; and

(j) Royalty collection and Owner Royalty distributions.

8. Reporting Period The 12 month period from 1 July to 30 June each year.


Item Topic Details

9. Minimum Performance Requirements

1. Advancedment and Evaluation of Lines:o Bulk up and evaluation of the Lines in target production areas

2. Submission of Commercialisation Reports (in the form of SCHEDULE 3 for EPR or non EPR royalties as appropriate) covering the subject matters described in paragraphs 3-6 below, for each Reporting Period. Reports must be submitted even if zero royalties are payable.

3. Propagating material of the Variety/ies to meet evidenced demand:o Inspection and reporting on propagation of the Variety/ies o A best-estimate forecast of commercial area planted ando Reporting on seed quality testing.

4. Variety Promotion and Performance:o Offering the Variety for sale, including marketing the Variety/ieso Distribution of marketing materials for the Variety/ieso Feedback pertaining to maximum Variety/ies adoption

obtained through industry networking and field days ando Feedback from qualified agronomists and advisors on

Variety/ies performance.

5. Royalty Collection:o Sell the Variety/ieso Thorough reporting on the success-rate of seed Variety/ies

licensing, o Formal review of retail sales advice return rate and compliance

rateo Capture and reporting on royalty collectiono Continual expansion of the Licensee’s Collection Marketer

capabilities o Timely distribution of royalties.

6. Seed Production, Retail Sales and Grain Production Targets:o Stock the Variety/ies for the purposes described in points 2-4

aboveo Annual review of seed production, seed sales and commodity

targetso Reporting of end user market feedback

Expected and Minimum Targets for seed sales and declared grain delivery figures for the Variety/ies for the first 5 years of commercialisation.

YearExpected Target

Following EOI expected target area of xxxha and xx% EPR compliance

Seed sales (mt) Declared grain delivered (mt)

2018201920202021


Item Topic Details

20222023

YearMinimum Target

Only achieving ~half target area of xxxha and xx% EPR compliance

Seed sales (mt) Declared grain delivered (mt)

201820192020202120222023

7. Annual Progress Discussions: The Licensee shall participate in annual discussions with the Co-owners to discuss the Commercialisation Report, Commercialisation Activities, and the potential selection of Lines for registration as Varieties. GRDC will provide 30 days notice to the Licensee to attend the discussion.

8. Maximum Adoption Plan (MAP):The Licensee must provide evidence of bringing varieties to market and ensuring wide adoption. The MAP for each new Variety must be provided in the format provided by the GRDC. Licensing of any new Variety will be subject to the completion of the MAP to the satisfaction of the GRDC.

10. Actions the GRDC may take for failure to achieve Minimum Performance Requirements

If the Licensee does not submit the Commercialisation Reports on time and to the satisfaction of GRDC, the Licensee must submit a written remediation plan (within 30 days of the Commercialisation Report due date) for GRDC’s approval.

GRDC will notify the Licensee of the approved remediation plan. If the Licensee does not implement and comply with the remediation plan GRDC may terminate the Agreement in accordance with clause 22.2(e).

11.C

Acknowledgement Requirements

Prominently acknowledge the Australian National Mungbean Improvement Program and each of the Program members (GRDC and QDAF) in any public-facing materials, media, interviews, industry events or other promotional or public statements about a Variety/ies and any new varieties developed using or incorporating a Variety/ies.

Comply with any specific acknowledgement requirements which GRDC and the other Co-owners may issue.

12. Reports By 30 June each year, the Licensee must provide a Commercialisation Report addressing the activities for the previous Reporting Period.


Item Topic Details

13.

Insurance Public liability: not less than $A20million per event and $A1million in the aggregate in any 12 month policy period.

Products liability: not less than $A20million per event and $A1million in the aggregate in any 12 month policy period.

Workers' compensation as required by law.

14. Address for Notices GRDC: Licensing Manager

Postal: PO Box 5367, Kingston, ACT, 2604 Australia

Email: [email protected]

Licensee:Enter Details

15.Special Conditions Not applicable


mailto:[email protected]

SCHEDULE 2 – CHARGES

Charges

In this Agreement, the ‘Charges’ comprise the following:

Upfront Licence Fee: TBA

Annual License Fee: TBA

Marketer Management Fees: TBA

Owner Royalty Return = TBA

Payment details

The Licensee must pay the Charges in accordance with clause 10 by electronic funds transfer to the bank account set out below or as otherwise notified by the GRDC to the Licensee from time to time.

Commonwealth BankAccount Name: Grains Research and Development CorporationBSB: 062-910Account Number: 00801252

Please email details of payment transferred prior to or the same day that the EFT is lodged.

Email: [email protected]


mailto:[email protected]

SCHEDULE 3 – COMMERCIALISATION REPORT TEMPLATE

COMMERCIALISATION REPORT FROM APPROVED LICENSEE

Commercialisation Report for [insert Income Period]Submitted: [date]

Commercialisation Activities

1. Report on progress of Commercialisation Activities

[insert ]

2. Report on propagating material of the Variety to meet evidenced demand

(a) Inspection and reporting on propagating the Variety to meet evidenced demand [insert]

(b) A best-estimate forecast of commercial area planted [insert]

(c) Reporting on seed quality testing [insert]

3. Report on Variety promotion and performance

(a) Offering the Variety for sale, including marketing the Variety [insert]

(b) Distribution of marketing materials for the Variety [insert]

(c) Feedback pertaining to maximum variety adoption obtained through industry networking and field days

[insert]

(d) Feedback from qualified agronomists and advisors on variety performance [insert]

4. IP challenges, claims and Reporting

(a) Total number of apparent challenges to the ownership of the Variety or the Licensee's right to use any of the Variety

[insert]

(b) Total number of any claim by any third party to any rights in the Variety

[insert]


(c) Total number of any actual, suspected or anticipated infringement of the Variety

[insert]

5. Royalty Reporting

(a) Seed Royalty Reporting Template

Collection category

Seed sold (kg)

Seed sales price ($/kg)

Total seed

sales ($)

Breeder share of

seed sales (%)

Breeder Royalty

($)

Variety A

Variety B

Total

(b) End Point Royalty Reporting Template

Collection category

Harvested grain

reported (t)

EPR applied

($/t)

Total EPR ($)

Breeder share of EPR (%)

Breeder Royalty

($)

Variety A

Variety B

Total

6. Seed Production, Retail Sales and Grain Production Targets Reporting

a. Expected and Minimum Targets for seed sales or declared grain delivery figures for the variety for the first 5 years of commercialisation

b. Annual review of seed production, seed sales and commodity targetsc. Reporting of end user market feedback

7. Other Comments [insert]

Signed: Authorised Person Licensee


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