Variety License Agreement

Variety License Agreement

by and between

[Name of LICENSOR], a company organised and existing under the laws of [Country] and having its registered office in [Town, Country] (hereinafter called "LICENSOR")

and

LICENSEE, a company organised and existing under the laws of (Country) and having its registered office in [Town, Country] (hereinafter called "LICENSEE").

WHEREAS, LICENSOR and LICENSEE desire to develop a collaboration within [Country] (hereinafter called "the Territory") in testing of new varieties of species according to EXHIBIT A (hereinafter called "the Varieties") and to exploit them commercially. LICENSEE shall have the exclusive rights to the Varieties in the Territory and LICENSOR shall have the right to distribute other varieties to other organisations inside the Territory.

NOW, THEREFORE, the parties hereto, intending to be legally bound, have agreed as follows:

1. Testing, registration and protection
   • LICENSOR will each year deliver the Varieties, if available, exclusively to LICENSEE within the Territory, and LICENSEE will test the Varieties at its own cost to evaluate their value with the aim to have them included in the official list or similar list of recommended varieties.
   • LICENSEE shall inform LICENSOR continuously of trial results and the parties shall jointly decide which Varieties will be selected for official trials.
   • LICENSEE shall arrange for submitting the Varieties to the official trials and to register them in the Territory in the official list and for plant breeders' rights or similar patent rights for the protection of new varieties in the name of [Name of LICENSOR].
   • LICENSEE shall pay all costs necessary for entering the Varieties into official trials and plant breeders' right trials and to maintain the entry of the Varieties in the official list and to maintain the grant of plant breeders' right, and shall not allow such entry or such right to lapse without LICENSOR's prior written consent.

2. Multiplication, marketing and export
   • LICENSEE has the exclusive right within the Territory to import seed of the Varieties for multiplication.
   • LICENSEE shall use its best efforts to promote the sale of commercial material of the Varieties within the Territory.
   • LICENSEE is not allowed to export any kind of seed outside the territory without the prior written consent of LICENSOR. LICENSOR agrees not to actively seek customers for export of certified seed inside the Territory.

3. Royalties and terms of payment
   • All seed produced and sold of LICENSOR's Varieties will be assessed with a royalty. The rate hereof shall be at the level relevant in the Territory.
   • “Seed” in this context includes also Farm Saved Seed and “royalty” includes also “Acreage fees” or any other fees that are linked to the use of the Varieties.
   • The payment of royalties shall be: one (1) month after the royalty has been collected by LICENSEE.
   • Each payment to LICENSOR shall be accompanied by a complete record over the sales of the Varieties during the sowing season in question.
   • LICENSEE shall keep its bookkeeping in such a way that control of sales and other information regarding royalty calculation can be made. LICENSOR has the right, by means of an authorised public accountant appointed by LICENSOR, to inspect the books of LICENSEE.

4. Use of rights
   • If LICENSEE does not want to make use of its rights to test, register, multiply or market any of the Varieties, according to Clauses 1 and 2, the variety in question is at LICENSOR's free disposal within the Territory.
   • In the event that LICENSEE has had costs for that variety according to Clause 1.3, LICENSOR shall reimburse LICENSEE for these costs in case LICENSOR elects to exercise its right to market the variety through other party.

5. Proprietary rights
   • The Varieties and the plant material supplied by LICENSOR and Varieties originating from this material are and shall remain the exclusive property of LICENSOR.
   • The trademark and name of "Licensor" belongs to LICENSOR as the exclusive owner.
   • Upon termination of this Agreement LICENSEE shall immediately cease to use any trademark and name of "Licensor".

6. Secrecy
   • The parties shall not during the validity of this Agreement and thereafter disclose to any third party any commercial, technical or other information of a confidential nature received or obtained from the other party.

7. Term of the Agreement

This Agreement shall become effective upon signature by both parties hereto and shall continue in effect until [Date]. The expiration of the Agreement on the said date requires a written notice of termination to the other party at least two (2) years in advance of said date. If this Agreement is not so terminated, it is automatically prolonged and continues for two (2) year periods thereafter, unless terminated by either party by giving the other written notice of termination at least six (6) months prior to the effective date of such termination.

8. Earlier termination

Without prejudice to any remedy either party may have against the other party for breach or non‑performance of this Agreement each party shall have the right to terminate this Agreement, with immediate effect, by written notice, in the event that:

1. The other party should violate any of its obligations under this Agreement, and should fail to discontinue and make good such violation within sixty (60) calendar days after receipt of written notice thereof from the complaining party; or
2. The other party should
   • enter into liquidation
   • become bankrupt or apply for juridical application in order to suspend payments, or
   • make a composition with its creditors, or
   • otherwise be found insolvent.

Without prejudice to any remedy LICENSOR may have against LICENSEE for breach or non‑performance of this Agreement, LICENSOR shall have the right to terminate this Agreement with immediate effect, by written notice, in the event that LICENSEE should sell or otherwise dispose of its assets, or part thereof, to a third party, or if there is a change in the effective financial control of LICENSEE, or in the event that LICENSEE does not comply in proper time, and for reason imputable to LICENSEE, to any payment according to Clause 3, and such  failure continues for more than thirty (30) calendar days.

9. Effect of termination
   • LICENSEE shall return immediately to LICENSOR all the Varieties and the plant material received, still in LICENSEE’s possession, which have not yet entered into official trials.
   • For the Varieties entered into the official list, LICENSEE shall continue to have the marketing rights and obligations under the applicable provisions of this Agreement for the lifetime of these Varieties, which provisions are intended to survive this Agreement.
   • The right in this paragraph shall not apply in the event LICENSOR terminates this Agreement according to Clause 8 in which case all rights to all Varieties shall be returned to LICENSOR.
   • In case of termination according to Clause 8 the following provisions shall be valid:
     • Sales and invoicing of seeds remaining at the end of this contract have to be made as “certified seed“ according to the conditions of this contract.
     • LICENSOR has the right to take over seed of higher qualities of its varieties, i. e. prebasic- and basic seed from LICENSEE at cost price.
   • Termination according to Clause 7 or Clause 8 shall not relieve any of the parties of its then outstanding and unfulfilled obligations or liability towards the other.
   • The parties hereby expressly agree that, in the event of any termination of this Agreement as provided herein, a party shall not be responsible or liable for the other parties costs related to the impact of such termination or conversion upon this party’s owners, partners, employees, business associates, customer or prospective customers, it being expressly understood by the parties that each is solely responsible for such costs and expenses of their own and that they shall indemnify and hold harmless the other party from the same, which provisions are intended to survive this Agreement.

10. Miscellaneous provisions
    • Force majeure ‑ Neither party shall be in default hereunder by reason of its delay in performance of, or failure to perform, any of its obligations hereunder, if such delay or failure is caused by strikes or other labour disturbance, acts of God or the public enemy, riots or other civil disturbances, fire, flood, interference by civil or military authorities, compliance with government laws, rules or regulations, delays in transportation, failure of suppliers, inability to secure necessary governmental priorities for materials, or any other circumstances beyond its control and without its fault or negligence.

If by reason of any above‑mentioned circumstances, the performance of this Agreement becomes impossible for more than twelve (12) consecutive months, either party shall be entitled to terminate this Agreement by written notice to the other party.

• Assignability ‑ This Agreement shall not be assignable in whole or in part by either party without the prior written consent of the other.
• Compulsory law ‑ The invalidity of any provision or obligation hereunder, or the contravention thereby of any law, rule or regulation of any state or federal government or agency, shall not relieve either party from its obligations under, nor deprive either party of the advantages of any other provision of this Agreement and the parties agree to endeavour to find an alternative solution to such invalid provision approaching as near as possible the contractual situation existing prior to such event. If the parties do not within sixty (60) days after both parties have learnt about the event reach an agreement on such a solution, LICENSOR has the right to terminate this Agreement, with immediate effect, by written notice thereof to LICENSEE.
• Earlier agreements - By this Agreement all earlier agreements between the parties are cancelled.
• Applicable law ‑ This Agreement shall be construed and shall take effect according to [Swiss] [Country of LICENSOR] substantive law, as such law shall from time to time be in effect, and such law shall also govern in the settlement, by arbitration, court proceedings or otherwise, of any and all disputes and differences which may arise hereunder.
• Goodwill - In the event of termination of the Agreement, neither party shall be entitled under law or otherwise to receive any payment from the other for actual, consequential, indirect, special or incidental damages, costs or expenses, whether foreseeable or unforeseeable (including, but not limited to, labor claims and loss of profits, investments or goodwill), any right to which the parties hereby waive and disclaim to the fullest extent permitted by law.
• Disputes ‑ If any dispute or difference should arise between the parties in relation to this Agreement, either party shall notify the other in writing and if they cannot settle it between them, it shall be finally settled, without recourse to the judicial courts, by arbitration in accordance with the Rules of Conciliation and Arbitration of the International Seed Federation.

The parties agree that any arbitration award shall be enforceable and either party may ask any competent court to confirm an arbitration award or otherwise provide that it shall be enforceable.

• Language ‑ This Agreement is made and signed in an English version. If there is a conflict between the English version and any translation made of this Agreement the English version shall rule.

IN WITNESS WHEREOF, the duly authorised representatives for and on behalf of the parties hereto have executed this Agreement in duplicate, each party taking one (1) copy, as of the day and year written below.

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