Terms and Conditions - 2018 CSD Cotton Planting Seed Agreement

1. PURCHASE OF COTTON PLANTING SEED
  • 1.1. CSD hereby grants Grower a non-exclusive, limited licence for the term of this Agreement to purchase and to plant CSD cotton planting seeds ("CSD Seed") within Australia to produce a single cotton crop, in compliance with the terms and conditions of this Agreement.
  • 1.2. Grower must obtain from the relevant third parties, licences to use any third party technology embodied in or applied to the CSD Seed and must comply with any technology user or other agreements in respect of Grower's use of the third party technology.
  • 1.3. Grower must only produce a single cotton crop derived from CSD Seed. Any cotton-seeds produced from CSD Seed must not be sold (other than for stock feed or crushing) to anyone other than CSD and must not be caught, retained, conditioned or processed for the purposes of, or used for, planting subsequent commercial cotton crops without CSD’s prior written approval. Such approval will only be granted where CSD enters into a contract with Grower for the provision by Grower to CSD of professional seed increase and/or seed multiplication services.
  • 1.4. Grower must purchase CSD Seed from CSD or a duly appointed CSD agent ("Agent"). Each such purchase during the term of this Agreement will be governed by these Terms and Conditions, which will be incorporated into and form part of each such contract for the purchase of CSD Seed.
  • 1.5. As CSD produces CSD Seed to order, and employs just-in-time inventory management, orders for CSD Seed are irrevocable, once the order has been placed with CSD or an Agent and confirmed by CSD in writing to Grower (if the order was placed with CSD direct) or the Agent.
  • 1.6. Grower must pay CSD or its Agent for all CSD Seed purchased, in accordance with the applicable pricing packages and trading terms in the CSD Cotton Seed Program current at the time of purchase.
  • 1.7. If payment for CSD Seed is not made by Grower strictly in accordance with this Agreement:
    • (a) Grower must, if required by CSD, pay CSD interest on the overdue amount at the Indicator Lending Rate of Interest (or its successor as the base rate of interest charged on loans in excess of $100,000) from time to time charged by Westpac Banking Corporation plus 3%, calculated on a daily basis from and including the due date to and including the date of payment; and/or
    • (b) CSD may require cash on delivery on any or all future orders from Grower or any related entity.
  • 1.8. Grower consents to the provision by Monsanto Australia Ltd ("Monsanto") to CSD of the documents and information provided to Monsanto or Monsanto's Nominated TSP pursuant to the Technology User Agreements between Monsanto and Grower in respect of the Monsanto technology embodied in or applied to the CSD Seed, and authorises CSD to obtain that information from Monsanto.
2. GROWER LIMITATIONS
  • 2.1. Grower must not:
    • (a) sell, supply or transfer CSD Seed to any third party without CSD’s prior written approval;
    • (b) export from Australia any CSD Seed or sell, supply or transfer such seed to any party for use outside Australia for any purpose; or
    • (c) breed from or otherwise genetically manipulate CSD Seed or sell, supply or transfer CSD Seed to any party who intends or is likely to breed from or genetically manipulate such seed.
  • 2.2. Grower must comply with all applicable laws and regulations in relation to the storage and use of CSD Seed.
3. TRANSFER OF TITLE
  • 3.1. CSD Seed shall remain CSD’s sole and absolute property as legal and equitable owner until CSD or its Agent receives payment in full for the CSD Seed and for all other seed and other goods supplied by CSD or the CSD Seed is planted.
  • 3.2. Without limiting CSD’s other rights, if Grower does not pay CSD or its Agent in full for any CSD Seed, in compliance with CSD’s trading terms, or if Grower becomes bankrupt or goes into liquidation, or enters into any other form of insolvency administration, CSD may retake possession of any or all unplanted CSD Seed.
  • 3.3. CSD may register its interest with respect to CSD Seed supplied by CSD, pursuant to the provisions of the Personal Property Securities Act. Grower must promptly take all action required by CSD or its Agent from time to time to enable CSD's security interest in CSD Seed to be perfected under the Personal Properties Security Act and/or to enable the registration and/or maintenance of any such security interest under the Personal Properties Security Act and/or to enable or assist the enforcement by CSD of any such security interest.
4. WARRANTY & LIMITATION OF LIABILITY
  • 4.1. If CSD Seed as supplied by CSD does not comply with CSD's description of the seed or is not of acceptable quality (as defined in Section 54 of the Australian Consumer Law), CSD will at its option, either replace the seed or pay the cost of having the seed replaced.
  • 4.2. Except as expressly set out in this Agreement and subject to clause 4.6, all conditions, warranties and guarantees by CSD, express or implied, arising by virtue of statute or otherwise and whether as to the condition, description, suitability, merchantability, quality, or fitness for any purpose, of CSD Seed, or otherwise, are hereby expressly negatived and excluded and CSD shall not be liable for any loss or damage suffered by any person arising from the sale or use of CSD Seed, their characteristics, behaviour or performance, including without limitation, for any special, indirect, incidental or consequential loss or damage.
  • 4.3. Except as expressly set out in this Agreement, and subject to clause 4.7, all conditions, warranties and guarantees by Grower, express or implied, arising by virtue of statute or otherwise, and whether as to the performance of the Grower's obligations under this Agreement or otherwise, are hereby expressly negatived and excluded and Grower shall not be liable for any special, indirect, incidental or consequential loss or damage.
  • 4.4. Grower acknowledges and agrees that:
    • (a) CSD’s warranties are in respect of CSD Seed as supplied by CSD;
    • (b) CSD gives no warranties in respect of third party seed overtreatments of CSD Seed which have not been approved in writing by CSD;
    • (c) in particular, CSD gives no warranty that such third party seed overtreatments will not kill or damage CSD Seed or negatively impact on its germination rates or other performance;
    • (d) no third party overtreatments of CSD Seed have been approved by CSD;
    • (e) Grower will make and rely upon its own inquiries if it is considering applying or authorising the application of such unapproved third party seed overtreatments to CSD Seed, or buying CSD Seed that has had such third party seed overtreatments applied;
    • (f) Grower, by applying or authorising the application of such unapproved third party seed overtreatments to CSD Seed, or by purchasing CSD Seed that has had such third party seed overtreatments applied, accepts the risk that such third party seed overtreatments may kill or damage the seed or negatively impact on its germination rates or other performance.
  • In this clause, "third party seed overtreatments" means the application to CSD Seed of, or treatment of CSD Seed with, biological and/or chemical products not supplied by CSD, after the CSD Seed has been bagged or otherwise packaged by CSD, and "third party overtreatments of CSD seed" has a corresponding meaning.
  • 4.5. Grower acknowledges that the planting of cotton seed infected with fusarium wilt has been associated with crop yield reduction, the risk of crop failure and the contamination of soil and other material coming into contact with the infected seed. While CSD will take precautions to minimise the chances of any of the seed supplied to Grower being infected with fusarium wilt, Grower acknowledges the difficulties of managing and testing for the disease and further acknowledges and agrees that, subject to clause 4.6, CSD will not be liable to Grower or any third party in respect of any loss or damage (including consequential loss or damage) caused by such contamination.
  • 4.6. If any term, condition or warranty is implied into this Agreement by law, or if any guarantee in respect of CSD Seed or any other goods or services supplied by CSD under this Agreement is created by the Australian Consumer Law or other legislation, and those laws avoid or prohibit provisions in a contract excluding or modifying them, then the term, condition or warranty shall be deemed to be included in this Agreement, or the guarantee shall apply and shall not be excluded, restricted or modified, PROVIDED THAT CSD’s liability for a breach of any such term, condition or warranty, or for failure to comply with any such guarantee (other than a guarantee under sections 51, 52 or 53 of the Australian Consumer Law), including any economic or consequential loss or damage which Grower may sustain, will be limited at CSD’s option to:
    • (a) in the case of supply of goods, either replacing the goods or supplying equivalent goods or paying the cost of replacing the goods or acquiring equivalent goods;
    • (b) in the case of supply of services, either supplying the services again, or paying the cost of having the services performed again.
  • 4.7. If any term, condition or warranty is implied into this Agreement by law, or if any guarantee in respect of or any goods or services supplied by Grower under this Agreement is created by the Australian Consumer Law or other legislation, and those laws avoid or prohibit provisions in a contract excluding or modifying them, then the term, condition or warranty shall be deemed to be included in this Agreement, or the guarantee shall apply and shall not be excluded, restricted or modified, PROVIDED THAT Grower’s liability for a breach of any such term, condition or warranty, or for failure to comply with any such guarantee (other than a guarantee under sections 51, 52 or 53 of the Australian Consumer Law), including any economic or consequential loss or damage which CSD may sustain, will be limited at Grower’s option to:
    • (a) in the case of supply of goods, either replacing the goods or supplying equivalent goods or paying the cost of replacing the goods or acquiring equivalent goods;
    • (b) in the case of supply of services, either supplying the services again, or paying the cost of having the services performed again.
5. TERM
  • 5.1. This Agreement commences on the date of signing by the later to sign of Grower and CSD, and will continue for a period of 12 months unless earlier terminated in accordance with clause 6.
6. TERMINATION
  • 6.1. Either party may terminate this Agreement immediately by written notice to the other if the other party:
    • (a) breaches this Agreement and, if the breach is capable of remedy, fails to remedy the breach within 14 days of receiving written notice requiring it to do so;
    • (b) materially breaches this Agreement and the breach is not capable of remedy;
    • (c) becomes insolvent or ceases to carry on its business or stops or suspends payment of its debts or becomes unable to pay its debts as or when they fall due;
    • (d) becomes subject to voluntary or compulsory winding up proceedings;
    • (e) is placed under official management or has a receiver or a receiver and manager (or an officer with similar powers and duties) appointed in respect of its undertaking or any part of it;
    • (f) enters into an arrangement or composition with its creditors generally;
    • (g)enters into any other form of insolvency administration under the laws of any jurisdiction; or
    • (h) has assigned or purported to assign its rights and obligations under this Agreement in breach of Clause 9.7.
  • 6.2. On termination of this Agreement Grower must immediately:
    • (a) pay CSD all monies then owing to CSD or its Agent which have accrued up to the date of termination; and
    • (b) comply with all directions from the relevant third parties, pursuant to the technology user or other agreements between Grower and the third parties, with respect to the third parties' technology embodied in or applied to CSD Seed.
  • 6.3. The rights and obligations set out in Clauses 1.3, 1.6, 1.7, 1.8, 2.1, 4.1 to 4.7 inclusive, 7.1, 8.1, 8.2, 8.3, and 9.1 to 9.11 inclusive of this Agreement shall survive the expiration or termination of this Agreement.
7. PRIVACY
  • 7.1. CSD and Grower will each comply with the Privacy Act (1988 Cth) and the Australian Privacy Principles, each as amended from time to time, with respect to the handling of all personal information (as defined in the Privacy Act) in connection with this Agreement.
8. CONFIDENTIALITY
  • 8.1. Grower and CSD must each keep secret and confidential all information supplied by the other, must not disclose any of it to any third parties anywhere in the world, and must not make use of any such information for its own advantage or gain or the advantage or gain of any third party, Provided That each party may disclose and use such information to the extent necessary to perform its obligations and exercise its rights under and in accordance with the terms of this Agreement. These restrictions will continue to apply after the expiration or termination of this Agreement without limitation. These obligations do not apply to information which:
    • (a) was and can be demonstrated to be in the recipient's possession or known to the recipient prior to disclosure by the other party;
    • (b) is in or comes into the public domain otherwise through any act by the recipient or through any disclosure by any person acquiring the information from the recipient; or
    • (c) is disclosed to the recipient by a third party owing no obligation of confidence to the other party in respect thereof, and the disclosure to that third party did not constitute a breach of confidence.
  • 8.2. The obligations and restrictions in clause 8.1 will not prevent CSD from:
    • (a) using or disclosing aggregate information which it has compiled from information supplied to it by cotton growers, and which does not identify Grower or Grower's farm units;
    • (b) disclosing information to the Regional Extension Officers who are members of the Australian cotton industry’s joint extension program CottonInfo, for use by them in performance of their functions as members of CottonInfo; or
    • (c) disclosing the name, address, phone number and email address of Grower to Cotton Research and Development Corporation employees who are members of CottonInfo, for use by them for the limited purpose of communicating to Grower, news regarding CottonInfo and its activities, and research and other information generated or collated or distributed by CottonInfo.
  • 8.3. Nothing in Clause 8.1 will prevent the disclosure by a party of any of the other party’s information which is required to be disclosed in order to comply with any applicable law or legally binding order of any court, government, semi-government authority or administrative or judicial body, provided that the party:
    • (a) informs the other party in writing, with as much advance notice as possible, of the proposed disclosure, giving full details of the circumstances of the proposed disclosure and of the relevant information to be disclosed;
    • (b) gives the other party a reasonable opportunity to challenge the proposed disclosure in a court of law or other appropriate body;
    • (c) furnishes only that portion of the other party’s information which it is advised by written opinion of its legal counsel is legally required to be disclosed; and
    • (d) uses its best endeavours to obtain reliable assurances that confidential treatment will be accorded to the information to be disclosed.
9. GENERAL
  • 9.1. Grower and CSD hereby terminate (if it has not already expired or been terminated), with effect as of the date of this Agreement, any CSD Cotton Planting Seed Agreement between Grower and CSD which was in effect immediately prior to the date of this Agreement, and (if they have not already been terminated), hereby also terminate any obligations of Grower under Clauses 1.8, 1.9 and 7.2(b) of the CSD Cotton Planting Seed Agreement executed in 2016 which would otherwise have bound Grower upon termination or post-termination of that Agreement.
  • 9.2. Nothing contained in this Agreement is intended to, or shall operate to, create a partnership between the parties, or the relationship of employer and employee, or to authorise either party to act as agent for the other (other than as expressly provided for in this Agreement), and neither party shall have the authority to act in the name of or on behalf of the other, or otherwise to bind the other in any way, except as expressly provided for in this Agreement.
  • 9.3. Any notice, demand or other document under or relating to this Agreement will be sufficiently served if delivered personally to, or if sent by email, facsimile, or prepaid registered letter to, the party to be served at the address (including email address and facsimile number) of such party specified in this Agreement or at any other such address as may from time to time be notified in writing by such party to the other party. Any notice, demand or other document will be deemed to have been served at the time of delivery or at the time of despatch if sent by email (provided that the sender has not received an email transmission report which indicates that the email was not transmitted, or not transmitted in its entirety, to the email address of the addressee) or by facsimile (provided that the sender has received a facsimile transmission report which indicates that the facsimile was sent in its entirely to the facsimile number of the addressee) or on the third day after posting if sent by post.
  • 9.4. No variation of any of the provisions of this Agreement is binding unless in writing and signed by CSD and Grower.
  • 9.5. The fact that either party fails to do, or delays in doing, something it is entitled to do under this Agreement, does not amount to a waiver of any of that party's rights.
  • 9.6. Any provision of this Agreement which is invalid or unenforceable in any jurisdiction will be ineffective in that jurisdiction to the extent only of such invalidity or unenforceability and will be severed from and will not invalidate the remaining provisions of this Agreement.
  • 9.7. Neither party may sell, assign, transfer, charge or otherwise deal with any of its rights or obligations under this Agreement without the other party's prior written consent which will not be unreasonably withheld and which if granted may be granted subject to such reasonable terms and conditions as the consenting party may prescribe.
  • 9.8. Headings are for convenience only and shall not affect the interpretation of this Agreement.
  • 9.9. Where a word or phrase is given a defined meaning in this Agreement, other grammatical forms of that word or phrase have a corresponding meaning.
  • 9.10. This Agreement embodies the entire understanding and agreement between CSD and Grower as to the subject matter of this Agreement. All previous negotiations, understandings, representations, warranties, memoranda or commitments in relation to, or in any way affecting, the subject matter of this Agreement are merged in and superseded by this Agreement.
  • 9.11. This Agreement is governed by and must be construed in accordance with the laws of New South Wales. Both parties submit to the jurisdiction of the Courts of New South Wales.