Version No: 2021/1

(1) OZBREED GREEN LIFE PTY LTD ACN 641 503 479 of 14 Cupitts Lane, Clarendon NSW 2756, Australia (“Ozbreed”); and
(2) The Customer (OEA) identified in the form submitted on ozbreed.com.au By ticking the box, the Customer agrees to the following Terms and Conditions.

Recitals

Ozbreed is the owner of, or has the right to use and license, the intellectual property in the Plant Varieties and Trademarks identified in Table 2 and from the Date of Approval has agreed to grant to the Customer a non-exclusive right to use the Plant Varieties and Trademarks in connection with the Permitted Purposes on the basis set out in these terms and conditions.

OPERATIVE PART

Table 1 – Terms and Conditions Particulars

Item
1	Permitted Purpose	Customer (OEA): ☒ Grow ☒ Purchase Small Stock from Propagator Licensee (excluding Advanced Trees Range) ☒ Purchase stock from Grower Licensee (including Advanced Trees Range) NO PROPAGATION ALLOWED
2	Relationship Manager	Customer – as identified on the form submitted on www.ozbreed.com.au under “My Details” or “Relationship Manager (if different from owner listed in my details)”
3	Notice Details	Ozbreed Address: Email:	PO Box 1011, Richmond NSW 2753 Australia info@ozbreed.com.au
		Licensee	The email as identified on the form submitted on www.ozbreed.com.au under “My Details”

Table 2 – Plant Varieties

Item 1	Item 2	Item 3	Item 4	Item 5
Range	Plant Variety	Channel (who you can purchase from and size you can purchase stock in)	Territory	Pot Size (size you can sell)
Advanced Trees	Full list of plant varieties under this range available at www.ozbreed.com.au	P2: 175mm & above from C10	Australia	P2: 175mm & above
Emporium Elite Herbs	Full list of plant varieties under this range available at www.ozbreed.com.au	P5: Cells to 140mm pots from C11 P1: Tubes & above from C10	Australia	P1: Tubes & above
Emporium Exotics	Full list of plant varieties under this range available at www.ozbreed.com.au	P5: Cells to 140mm pots from C11 P1: Tubes & above from C10	Australia	P1: Tubes & above
Emporium Natives	Full list of plant varieties under this range available at www.ozbreed.com.au	P5: Cells to 140mm pots from C11 P1: Tubes & above from C10	Australia	P1: Tubes & above
Encore Azaleas	Full list of plant varieties under this range available at www.ozbreed.com.au	P5: Cells to 140mm pots from C11 P1: Tubes & above from C10	Australia	P1: Tubes & above
Hardy Exotic Plants	Full list of plant varieties under this range available at www.ozbreed.com.au	P5: Cells to 140mm pots from C11 P1: Tubes & above from C10	Australia	P1: Tubes & above
Native Shrubs & Ground Covers	Full list of plant varieties under this range available at www.ozbreed.com.au	P5: Cells to 140mm pots from C11 P1: Tubes & above from C10	Australia	P1: Tubes & above
Strappy Leaf Plants	Full list of plant varieties under this range available at www.ozbreed.com.au	P5: Cells to 140mm pots from C11 P1: Tubes & above from C10	Australia	P1: Tubes & above
Velvet Kangaroo Paws	Full list of plant varieties under this range available at www.ozbreed.com.au	P5: Cells to 140mm pots from C11 P1: Tubes & above from C10	Australia	P1: Tubes & above

Table 3 – Definitions of Channels, Permitted Purpose and Pot Size

Item 1 – Channel Definitions
Channel Code	Channel Name	Channel Definition
C10	Grower Licensees	Licensees of Ozbreed who grow and sell plants in size P1 and P2. Known as OGL’s in AUS. A list of OGL’s is available on the where to buy page of the Ozbreed website OR sent directly from Ozbreed periodically.
C11	Propagator Licensees	Licensees of Ozbreed who Propagate and sell small plants in a size P5. A list of PL’s is available on the where to buy page of the Ozbreed website OR sent directly from Ozbreed periodically.

Item 2 – Permitted Purpose Definitions
Permitted Purpose Name	Permitted Purpose Definition
Grow	Pot on plants into allowed size and grow until ready for sale.
Purchase Small Stock from Propagator Licensee (excluding Advanced Trees Range)	From a Propagator Licensee only in the Pot Size defined in Item 3 of Table 2 e.g., cells/plugs/tube stock. Includes deflasked Tissue Culture into cells/plugs/tube stock only.
Purchase stock from Grower Licensee (including Advanced Trees Range)	From a Grower Licensee only in the Pot Size defined in Item 3 of Table 2.
NO PROPAGATION ALLOWED (Propagate)	You are not allowed to take cuttings or divisions to multiply a plant.
NO PROPGATION ALLOWED (Tissue Culture)	You are not allowed to use micro propagation of plants in a laboratory (plantlets in vitro).

Item 3 – Pot Size Definitions
Pot Size Code	Pot Size Name	Pot Size Definition
P5	Cells to 140mm pots	Includes trays of joined plugs/cells, to tubes and 140mm pots, not including seedling/community/open trays. Relates to purchases from channel C11
P1	Tubes & above	Individual containers for a single plant ranging from small tubes to large growing bags. May or may not be grouped together in a carry tray. Not including trays of joined plugs/cells/punnets. Not including seedling/community/open trays that hold more than 1 plant. Relates to purchases from channel C10.
P2	175mm & above	Individual containers for a single plant ranging only from 175mm diameter/width to large growing bags. This includes measurements taken diagonally or straight across the top of the pot. Relates to purchases from channel C10

Provisions

THE PARTIES AGREE

1. Definitions and Interpretation

1.1 Definitions

In these terms and conditions:

(a) Channels means the approved channels for which the Customer is approved to purchase the Products from as defined in Item 1 of Table 3 and specified in Item 3 of Table 2.
(b) Control means, in relation to any body corporate, the ability of any person directly or indirectly to exercise effective control over the body corporate (including the ability to determine the outcome of decisions about the financial and operating and other policies of that body corporate) by virtue of the holding of voting shares, units or other interests in that body corporate or by any other means.
(c) Date of Approval means the date on which the Customer’s application submitted via www.ozbreed.com.au is approved by Ozbreed
(d) Insolvency Event means, in relation to a party, any one or more of the following events or circumstances:
- (i) being insolvent, under administration, in liquidation or having a receiver appointed;
- (ii) being in liquidation or provisional liquidation or under administration;
- (iii) having a controller or analogous person appointed to it or any of its property;
- (iv) being taken to have failed to comply with a statutory demand;
- (v) being unable to pay its debts or being otherwise insolvent;
- (vi) becoming an insolvent under administration;
- (vii) entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors;
- (viii) any analogous event or circumstance under the laws of any jurisdiction; or
- (ix) taking any step or being the subject of any action that is reasonably likely to result in any of the above occurring,
- (x) unless such event or circumstance occurs as part of a solvent reconstruction, amalgamation, compromise, arrangement, merger or consolidation approved by Ozbreed (which approval is not to be unreasonably withheld);
(e) Intellectual Property Rights means any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future, including copyright and neighbouring rights (including future copyright and moral rights), all rights in relation to inventions (including patents), registered and unregistered trademarks, plant breeder’s rights, sports and mutation of plants, business names, domain names, registered and unregistered designs, circuit layouts, confidential information and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
(f) Permitted Purpose means the permitted purpose for each of the Plant Varieties as defined in Item 2 of Table 3 and specified in Item 1 of Table 1.
(g) Plant Varieties means the plant breeder rights and trademarks set out in Item 2 of Table 2 and any and all intellectual and industrial property rights throughout the world whether vested or contingent in the Plant Varieties, including rights of any kind (whether registered or unregistered) in or relating to:
- (i) inventions, discoveries and novel designs, whether or not registered or registrable as patents, innovation patents (or any similar or analogous rights) or designs, including developments or improvements of equipment, technology, processes, methods or techniques;
- (ii) literary works, artistic works and any other works and subject matter in which copyright (including future copyright and rights in the nature of or analogous to copyright) may, or may upon creation of the works and subject matter, subsist anywhere in the world;
- (iii) trademarks and service marks, including goodwill in the business concerned in the relevant goods and/or services; and
- (iv) trade, business, company names or internet domain names,
- irrespective of when or where such thing is created or developed.
(h) Plant Varieties Standards means those standards and guidelines specified in Appendix 1.
(i) Pot Size means the minimum size of container used to purchase or grow the Product as defined in Item 3 of Table 3, and for minimum purchase size specified in Item 3 of Table 2, for minimum growing size specified in Item 5 of Table 2.
(j) Product means the plants deviated from the planting and growing of the Plant Varieties.
(k) Relationship Manager means the relationship manager of the customer as identified on the form submitted on www.ozbreed.com.au.
(l) Territory is the territory specified in Item 4 of Table 2.

1.2 Interpretation

In these terms and conditions unless the context requires otherwise:

- (a) headings are for convenience only and do not affect interpretation;
- (b) “person” includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership and a trust;
- (c) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation;
- (d) a reference to a document (including these terms and conditions) is to that document as varied, novated, ratified or replaced from time to time;
- (e) a reference to a statute includes its delegated legislation and a reference to a statute or delegated legislation or a provision of either includes consolidations, amendments, re-enactments or replacements;
- (f) a word importing the singular includes the plural (and vice versa), and a word indicating a gender includes every other gender;
- (g) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning; and
- (h) every obligation entered into by two or more parties binds them jointly and each of them severally;
- (i) “includes” in any form is not a word of limitation;
- (j) reference to any agreement or other document annexed to or referred to in these terms and conditions includes:
  - (i) any amendments to the terms and conditions; and
  - (ii) any documents in addition to or in substitution for the terms and conditions which has been approved in writing by the parties to these terms and conditions.

No term or provision of these terms and conditions shall be construed against a party on the basis that the terms and conditions or the term or provision in question was put forward or drafted by that party.

2. Grant of rights

2.1 Grant of rights

- (a) From the Date of approval, Ozbreed grants the Customer a non-exclusive, non-transferable right to use the Plant Varieties owned by Ozbreed within the Territory, solely for the Permitted Purpose, subject to these terms and conditions.
- (b) For clarity the right granted under clause 1(a):
  - (i) Does not include the right to propagate or multiply the Products
  - (ii) does not include the right to sublicense to third parties;
  - (iii) is personal to the Customer and is not transferable;
  - (iv) does not include the right to export or sell any Product outside of the Territory;
  - (v) does not confer on the Customer any right, title or interest, either legal or equitable, in the Plant Varieties; and
  - (vi) does not authorise the Customer to undertake any improvements to or in any way seek to vary or modify the characteristics of the Plant Varieties without the prior written consent of Ozbreed.

2.2 Customers Acknowledgments

Without limiting clause 2.1, the Customer acknowledges that:

(a) it has no right to use or to allow others to use the Plant Varieties or to use the Plant Varieties in connection with any purpose other than the Permitted Purpose;
(b) it does not have the right to propagate or multiply the Plant Varieties; and
(c) the Customer must not license or allow any other person to use the Plant Varieties.

3. Use

3.1 General Conditions of Use

- (a) The Customer must:
  - (i) use the Plant Varieties only in accordance with good business practice and in compliance with the standards and the guidelines specified by Ozbreed from time to time, including the Plant Varieties Standards as specified in Appendix 1;
  - (ii) comply with the Product Guidelines as specified in Appendix 2;
  - (iii) endeavour to create, promote and retain the goodwill in Ozbreed’s Plant Varieties;
  - (iv) grow the Product only at any address submitted via the form on www.ozbreed.com.au, and the Product can only be grown by the Customer at additional addresses if approved in writing by Ozbreed;
  - (v) use its best efforts to distribute, sell and promote the Products (that incorporates the Plant Varieties); or
  - (vi) comply, within a reasonable time, with all directions issued by Ozbreed regarding the manner of use of the Plant Varieties;
  - (vii) sell the Products that are only healthy and in good condition, and which are not subject to infection or infestation;
  - (viii) not do anything that will harm the reputation of Ozbreed or bring Ozbreed into disrepute; and
  - (ix) provide, at Ozbreed’s cost, all assistance reasonably requested by Ozbreed to protect Ozbreed’s rights in the Plant Varieties.
- (b) The Customer agrees to permit Ozbreed and its authorised representatives for that purpose to enter and remain in any premises occupied by or under the control of the Customer during the Customers usual business hours, and on 48 hours’ notice at all other times, to ensure that the Customer has complied and continues to comply with its obligations under these terms and conditions.
- (c) The Customer agrees not to apply for registration in the Territory of any trademarks identified in Item 2 of Table 2, business name or company name that incorporates signs, logos or words the same as, substantially identical or deceptively similar to such trademarks.
- (d) The Customer may only use the Plant Varieties in connection with the Permitted Purpose.
- (e) The Customer agrees to use its best efforts to comply with all time limits and any other requirements imposed on the Customer by these terms and conditions.
- (f) The Customer shall comply with all applicable laws, by-laws and regulations applicable to the exercise of the rights granted to it under these terms and conditions and in any part of the Territory.

4. Records and Accounts

4.1 The Customer must keep and maintain accurate records of:

(a) all Product purchased by the Customer;
(b) all Product sold, distributed or otherwise dealt with by the Customer.

4.2 Without limiting the generality of the foregoing, the records shall include details of the quantity of Products grown and sold together with details of to whom the Product was sold, and such other information as Ozbreed may request from time to time.

4.3 All records kept by the Customer pursuant to these terms and conditions shall be submitted to Ozbreed on request and shall be kept for a period of seven (7) years from the year to which they relate.

4.4 Access to Inspect Records

Ozbreed or any agent nominated by Ozbreed shall have the right, upon prior written notice to the Customer, at all times to enter the Customers premises or any premises under the Customers control to inspect, examine and audit all relevant documents, records and accounts of the Customer relating to:

(a) these terms and conditions;
(b) the growing, distribution and sale of the Product

5. Title And Registration of Intellectual Property

5.1 Protection of Ozbreed’s Title

The Customer acknowledges Ozbreed’s title to, and intellectual property in, the Plant Varieties and the validity of the Plant Varieties and undertakes not to take any action, or assist any person to take any action, which would or might:

(a) invalidate or put in dispute Ozbreed’s title or Intellectual Property Rights in the Plant Varieties; and
(b) oppose any application for registration of the Plant Varieties or invalidate any registration of the Plant Varieties.

5.2 Registration of Plant Varieties

The Customer must not register or attempt to register any of the Plant Varieties in its own name as proprietor.

5.3 Developed IP

(a) The Customer agrees that the ownership of any Intellectual Property Rights created by the Customer and/or Ozbreed in connection with the Plant Varieties (“Developed IP”) will vest in Ozbreed and Ozbreed grants to the Customer a revocable, limited and non-exclusive right to use the Developed IP for the Permitted Purposes as contemplated under these terms and conditions. The Customer will do everything necessary to perfect such vesting of all designs or technical specifications created for Ozbreed as part of these terms and conditions in favour of Ozbreed.
(b) Any information including all designs or technical specifications provided by or on behalf of Ozbreed to the Customer in connection with the Plant Varieties under these terms and conditions will remain the property of Ozbreed and the Customer agrees to keep this information secure at all times and ensure that such information will only be used for the purpose of these terms and conditions.
(c) To the extent necessary for Ozbreed to fully enjoy, utilise and exploit the Developed IP or the benefits of Plant Varieties, the Customer grants to Ozbreed a perpetual, royalty free, licence (including a right to grant sub-licences, assign and modify) to use and otherwise exploit all other intellectual property owned by the Customer, or that the Customer has a right to sub-licence.

5.4 Ownership

Ownership of any Intellectual Property Rights which may arise out of these terms and conditions must be determined as follows:

(a) except where provision is made to the contrary, ownership will vest in Ozbreed if Ozbreed and the Customer jointly create the intellectual property;
(b) where either party has existing intellectual property at the Date of Approval and the intellectual property is either modified for use, or used as it exists at that time, that party will retain all rights to the intellectual property;
(c) all information regarding Ozbreed gathered or collated under these terms and conditions or any obligations under these terms and conditions will belong to Ozbreed.

5.5 Documents

The parties must sign such documents and do all acts and things reasonably necessary to give effect to this clause 5.

6. Warranties

6.1 Customers Warranties

The Customer represents and warrants to Ozbreed that on the date of accepting these terms and conditions the following warranties are true and correct and not misleading:

(a) the Customer has made its own commercial assessment of the Plant Varieties and the commercial value of the rights granted under these terms and conditions;
(b) the Customer has obtained all authorisations, registrations, approvals or permits required by any governmental body or under any government legislation in connection with the Customer’s entry into and performance of these terms and conditions; and
(c) it has full legal capacity and power to enter into the transactions contemplated under these terms and conditions and to carry out its obligations under these terms and conditions.

Where the Customer is a corporation, the Customer further warrants and represents that:

(d) it is registered and validly existing under the laws of the jurisdiction in which it was incorporated; and
(e) all necessary or desirable corporate actions have been undertaken to authorise its acceptance of these terms and conditions and the carrying out of its obligations under these terms and conditions.

6.2 Ozbreed’s Warranties

Ozbreed represents and warrants to the Customer that the following warranties are true and correct and not misleading:

(a) Ozbreed has good legal and beneficial title to the Plant Varieties, free and clear of all charges, encumbrances, liens and interests;
(b) Ozbreed has the right to grant the rights granted under clause [2.1]; and
(c) the use by the Customer of the Plant Varieties will not infringe any other intellectual property rights of any person, nor give rise to payment by the Customer of any royalty to any third party (not including Channels as defined in Item 1 of Table 3 and specified in Item 3 of Table 2) or to any liability to pay compensation.

7. Confidentiality

7.1 Each party must:

(a) subject to clause 7.1(b), keep the Confidential Information of the other party secret and confidential at all times; and
(b) only disclose the Confidential Information of the other party to those of its officers, employees, advisers and subcontractors who need to have access to it for the purposes of the transactions contemplated under these terms and conditions and who have been made aware of the terms on which the Confidential Information of the other party has been disclosed.

7.2 Despite the provisions of clause 7.1, the Customer may disclose information if and to the extent that:

(a) such disclosure is required by law;
(b) the information is generally available in the public domain except where that is a result of a disclosure in breach of these terms and conditions; and
(c) the Customer can prove that it knew the information before it was disclosed to it by Ozbreed.

8. Termination

8.1 Termination by Ozbreed

Ozbreed may immediately terminate the rights conveyed in these terms and conditions by written notice to the Customer if:

(a) the Customer breaches these terms and conditions, and fails to remedy the breach within 30 days of notice from Ozbreed specifying the breach;
(b) the Customer commits an Insolvency Event; or
(c) sells or offers for sale any Product without the markings or labels prescribed by Ozbreed or without reference to the trademarks identified in Item 2 of Table 2;
(d) if the Customer does anything that materially damages or is likely to materially damage the brand or reputation of Ozbreed;
(e) subject to clause 10, there is a change of Control of the Customer or the Customer disposes of the whole or a substantial part of its operations or business, without the consent of Ozbreed.

8.2 Termination by Customer or Ozbreed

The Customer or Ozbreed may:

(a) terminate the rights conveyed in these terms and conditions any time, subject to the terminating party providing the other party with at least 30 days written notice.

9. Termination Consequences

9.1 Termination of rights

On termination of the rights conveyed in these terms and conditions:

(a) all rights granted to the Customer will terminate and all rights in and to the Plant Varieties will revert to Ozbreed without further action or notification by Ozbreed to the Customer or any other person;
(b) subject to clause 9.2 and the Customer not planning any new crops using the Plant Varieties, where Customer has at such time any harvested Product in its possession or where any Product has been planted but is not yet suitable for harvesting, the Customer shall be permitted to continue to sell such harvested Product and to grow such Product for the sole purpose of selling such Product to third parties as soon as possible;
(c) the Customer must hand over to Ozbreed all information, signs, data, stationery, manuals, instructions, notes, writings and other documents, concerning the Plant Varieties and the Products which are in its possession or control;
(d) each party must immediately cease using the other party’s Confidential Information and immediately return to the other party all Confidential Information of the other party or, if it is not capable of return, destroy it.

9.2 Sell off Period

(a) Where the rights conveyed in these terms and conditions are terminated, the Customer may continue to sell the Products that were in existence as at the termination date until all product is sold provided that all of the provisions of these terms and conditions applicable to the Customer’s use of any such Plant Varieties shall apply during such Sell-Off Period and the Customer’s right to use any such Plant Varieties shall be subject to the Customer’s continued compliance with such terms during the Sell-Off Period. Where the rights conveyed in these terms and conditions are terminated due to a breach by the Customer, the Customer has 30 days from notice of termination to sell or destroy all product.
(b) For the purposes of clause 9.2, the Customer must also allow Ozbreed (or Ozbreed’s nominee) access to the Customer’s Premises or any other growing location for the purposes of certifying that all Product has been sold or destroyed.

10. Limitation on Assignment, Sub-contracting and Change in Control

10.1 Assignment

(a) The Customer must not assign all or any of its rights given to it under these terms and conditions without the prior written consent of Ozbreed, which consent of Ozbreed;
- (i) may grant, and subject to certain conditions that may be reasonably required to be imposed by Ozbreed, including requiring the incoming Customer accept the terms and conditions of Ozbreed, or
- (ii) not grant,

in its absolute discretion.

(b) Ozbreed may at its discretion assign all or any of its rights under these terms and conditions.

10.2 Sub-contracting

(a) The Customer must not sub-contract to any third person any of its obligations under these terms and conditions without the prior written consent of Ozbreed, which consent may be given or withheld by Ozbreed in its absolute discretion.
(b) The Customer must ensure that any sub-contractor engaged by it complies with all obligations imposed on the Customer by these terms and conditions. The Customer will not, as a result of any sub-contracting arrangement, be relieved from the performance of any obligation under these terms and conditions and will be liable for all acts and omissions of a sub-contractor as though they were the actions of the Customer itself.

10.3 Change in Control

(a) The Customer must notify Ozbreed in writing of any proposed or impending change in Control of the Customer (or of the ultimate holding company of the Customer) of which it becomes aware and obtain Ozbreed’s prior written consent to such change in Control.
(b) In determining whether or not to provide its consent to a change in Control, Ozbreed may consider such information as it considers relevant or necessary, including:
- (i) compliance by the proposed owner with Ozbreed’s policies and standards;
- (ii) insurance coverage maintained by the proposed owner;
- (iii) the financial viability of the proposed owner; and
- (iv) the likely ability of the proposed owner to satisfy the requirements and the obligations of the Customer under these terms and conditions.
(c) If Ozbreed notifies the Customer that it does not consent to the proposed or impending change in Control, and the change in Control occurs notwithstanding, Ozbreed may, by notice in writing to the Customer, terminate these terms and conditions, such termination to take effect at any nominated time within the immediately succeeding 12 months.

11. Limitation of liability

11.1 Limitation

Subject to clause 11.3, Ozbreed is not liable for any loss or damage, however caused (including by the negligence of Ozbreed), suffered by the Customer in connection with these terms and conditions.

11.2 Seriousness or nature

For clarity, and without limiting clause 11.1, the parties agree that clause 11.1 is to apply in connection with a breach of these terms and conditions, anticipated breach of these terms and conditions and other conduct regardless of the seriousness or nature of that breach, anticipated breach or other conduct.

11.3 Competition and Consumer Act 2010 (Cth)

If the Competition and Consumer Act 2010 (Cth) or any other legislation implies a condition or warranty into these terms and conditions in respect of goods or services supplied, and Ozbreed’s liability for breach of that condition or warranty may not be excluded but may be limited, clause 11.1 does not apply to that liability and instead Ozbreed’s liability for such breach is limited to, in the case of a supply of goods, Ozbreed replacing the goods or supplying equivalent goods or repairing the goods, or in the case of a supply of services, Ozbreed supplying the services again or paying the cost of having the services supplied again.

12. Indemnity

12.1 Indemnity

The Customer is liable for, and indemnifies Ozbreed from and against, all loss or damage (including legal costs) incurred or suffered by Ozbreed however caused in connection with:

(a) any claim by the Customer against Ozbreed;
(b) any breach of these terms and conditions by the Customer;
(c) any unlawful or negligent act or omission of the Customer, its officers, employees or agents;
(d) any claim or threatened claim by a third party against Ozbreed in connection with any of the Products resulting from the Customers use of the Plant Varieties;
(e) any claim or threatened claim by a third party against Ozbreed in connection with the Customers use of the Plant Varieties;
(f) any act or omission of the Customer or any person acting or purporting to act on behalf of the Customer.

12.2 Continuing obligation

Each indemnity contained in these terms and conditions is a continuing obligation notwithstanding:

(a) any settlement of account; or
(b) the occurrence of any other thing,

and it is not necessary for Ozbreed to incur expense or make payment before enforcing or making a claim under an indemnity.

13. General

13.1 Notices

(a) All notices must be in writing (including electronic form) and sent to either the addresses for notices specified in Item 3 of Table 1 (or, if the recipient has notified a change of address, to that address), and in the case of electronic transmission to the email address specified in Item 3 of Table 1.
(b) Notices sent:
- (i) by hand are deemed to be received when delivered;
- (ii) by post to an address in Australia are deemed to be received 3 business days after posting;
- (iii) by post to an address outside Australia are deemed to be received 10 days after posting;
- (iv) sent by electronic transmission are deemed to be sent on the day of transmission of an electronic receipt from the recipient to the sender which indicates that the transmission was sent to the electronic address of the recipient.
(c) If any notice or document is delivered or deemed to be delivered:
- (i) after 5.00 pm in the place of receipt; or
- (ii) on a day which is a Saturday, Sunday or public holiday in the place of receipt;
it is taken as having been delivered at 9.00 am on the next day which is not a Saturday, Sunday or public holiday in that place.

13.2 No partnership or agency relationship

The parties agree that it is not their intention to create a relationship of partnership, agency or employment and nothing contained in these terms and conditions is to be deemed to constitute such a relationship between the parties. The Customer agrees that it will not hold itself out as, engage in any conduct or make any representation which may suggest to any person that the Customer is for any purposes, the agent, partner or employee of Ozbreed.

13.3 Continuation

Clauses 5, 6, 7, 9, 11 and 12 shall survive termination of these terms and conditions.

13.4 Further Assurance

Each party must execute any document and perform any action necessary to give full effect to these terms and conditions, whether before or after performance of these terms and conditions.

13.5 Prior Agreements

These terms and conditions supersede and replace any and all previous Plant Breeders Rights and Trademark Licence Agreements; Conditions of Sale of Plants for the Emporium Range; and Trademark Reseller and Finishing Grower Licence Agreement; between the parties.

13.6 Continuing Performance

(a) (Merger exclusion): The provisions of these terms and conditions do not merge with any action performed or document executed by any party for the purposes of performance of these terms and conditions.
(b) (Representation): Any representation or warranty in these terms and conditions survives the execution of any document for the purposes of, and continues after, performance of these terms and conditions.
(c) (Indemnity): Any indemnity agreed by any party under these terms and conditions:
- (i) constitutes a liability of that party separate and independent from any other liability of that party under these terms and conditions or any other agreement; and
- (ii) survives and continues after performance of these terms and conditions.

13.7 No Waiver

A failure, delay, relaxation or indulgence by a party in exercising any power or right conferred on the party by these terms and conditions does not operate as a waiver of the power or right. A single or partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or right under these terms and conditions. A waiver of a breach does not operate as a waiver of any other breach.

13.8 Severability

If any term or provision of these terms and conditions is held to be illegal, void or unenforceable (in whole or in part) in any jurisdiction, such term or provision or part of such term or provision will be deemed not to form part of these terms and conditions in that jurisdiction, but the validity and enforceability of the remainder of these terms and conditions in that jurisdiction and the validity and enforceability of that term or provision in any other jurisdiction will not be affected.

13.9 Remedies

The rights of a party under these terms and conditions are cumulative and not exclusive of any rights provided by law.

13.10 Governing Law and Jurisdiction

These terms and conditions are governed by and must be construed according to the law applying in the State of New South Wales, Australia.

13.11 Amendments

In the event that these terms and conditions are amended, Ozbreed will provide to the Customer 30 days’ written notice prior to any such amendments coming into effect.

13.12 Counterparts

These terms and conditions may be executed in any number of counterparts, all of which taken together are deemed to constitute one and the same document.

Appendix 1 – Plant Varieties Standards

1) The Customer agrees to use the Trademarks and botanical names correctly and in conjunction with the ™ or ® symbol as appropriate. The trademarks should always be in a different font, or size or style, so that the trademark is not confused with the botanical name or cultivar name. Where possible, the botanical name is always written in italics, with the genus having a capital letter and the species written in lower case. Where possible, the cultivar name is always written in capital letters, single quotation marks and not italicised. A symbol, or using the letters PBR must be written after the cultivar name (with a space between) if it is subject to protection under the PBR Act. For Example:

(a) Aussie Rambler™ Carpobrotus glaucescens ‘CAR10’ . Aussie Rambler is the trademark, Carpobrotus glaucescens is the botanical name (genus & species), ‘CAR10’ is the PBR name / variety name / cultivar name.
(b) Or if PBR does not apply Autumn Lilac™ Rhododendron hybrid
(c) Or if Trademark (™ or ®) does not apply either of these examples can be used: Lomandra longifolia ‘KATRINUS DELUXE’ OR Lomandra longifolia ‘Katrinus Deluxe’

2) If writing on plant lists, invoices and other documents (in a list), the full plant name has to be written in either of the following ways:

(a) Tanika® Lomandra longifolia ‘LM300’
(b) Or Lomandra longifolia ‘LM300’ Tanika®

3) If writing on websites, brochures and other marketing (in a body of text)

(a) The full plant name has to be written on the page once in one of the following ways. Tanika® Lomandra longifolia ‘LM300’ PBR or Tanika® Lomandra longifolia ‘LM300’ PBR (trademark doesn’t have to be bold if it’s a different colour or a different font/larger size)
(b) For the plant description or main body of text, the trademark must use the ™ or ®symbol in every instance
(c) For the main body of text the trademark cannot be used as a noun and should be used as an adjective to a noun. For example: Tanika® Lomandra is INSERT DESCRIPTION HERE (E.g. a green plant). Or The Tanika® plant is INSERT DESCRIPTION HERE (E.g. green).

Appendix 2 – Products Guidelines

Marketing

1) The Customer agrees to use the marketing materials available from Ozbreed, or if the Customer creates their own materials, they must adhere to the following conditions:

(a) When using logos provided by Ozbreed, these cannot be altered.
(b) When rewording from Ozbreed’s plant descriptions and marketing material, the Customer must ensure the product characteristics and/or uses are not misrepresented.
(c) Adhere to the standard set out in Appendix 1.
(d) If the Customer is unsure whether the material created complies they must obtain written approval from Ozbreed.

2) The Customer agrees to manage their own brand & product marketing and sales activity in their area and to their customers.

Protection of Intellectual Property Rights

3) The Customer agrees to:

(a) Notify and provide details to Ozbreed immediately upon becoming aware of any actual or suspected unauthorised re-potting, production, conditioning, reproduction, sale or offering for sale of the Products.
(b) Not sell any plants of the Product for delivery outside Australia’s border; or sell any plants of the Product to any person if it has reason to suspect or believe that such plants may be resold by that person or any other person outside Australia’s borders.

Supply of Product

4) All reasonable steps should be taken by the Customer to provide the specified Product as requested by their consumer. Products specified should not be substituted by another plant variety unless the Customer has exhausted all reasonable measures in trying to obtain the specified product ie from other Licensees of Ozbreed including Grower Licensees, Propagator Licensees, or Ozbreed itself.

Labelling Standard

5) For Production: Minimum labelling requirements for Production. Each batch of product grown by the Customer must be accompanied by:

(a) A Label with the Trademark and Variety name either applied to a pot, tray or stake, at the beginning and end of each batch of product or bay (2 labels minimum for multiple plants, more labels can be used throughout the batch),
(b) Or follow the requirements listed in point 6 and/or 7 below for dispatch.

6) For dispatch: Labelling requirements for dispatch. Each individual plant of the product sold by the Customer must be accompanied by at least one of the Authorised Product Identification Label options listed below:

(a) A Watermarked Pot Sticker Label supplied by a Propagator or Grower Licensee attached to the pot (if labelling with this option, please request labels at point of purchase), or
(b) A picture label supplied by Norwood Industries attached to the pot, plant or potting mix (these picture labels do not include a royalty component).

7) In exception to point 6, these labelling requirements for dispatch to only Landscape Specialists may apply. Landscape Specialists are typically larger trade customers with buying power and often doing business via tenders and/or larger contracts. Includes Landscape Contractors, Local Government & Authorities (does not include nurseries or retailers).

(a) A complete tray of tubes of the same product, only if sold as a whole tray, must be accompanied by this Authorised Product Identification Label: A Watermarked Pot Sticker Label supplied by a Propagator or Grower Licensee (minimum 1 attached to a complete tray).

Quality Control

8) The Customer agrees that the quality of Product sold shall be commensurate with and of no less quality than the reasonable quality standards established by Ozbreed and communicated to the Customer from time to time to maintain and protect the goodwill associated with the Trade Mark.

9) The Customer shall from time to time, at Ozbreed’s request, supply at its own cost random samples of the Product produced by the Customer to Ozbreed for inspection by Ozbreed.

10) Customer enquiries and complaints should be dealt with by the Customer in an appropriate and reasonable manner. If the Customer cannot resolve the issue Ozbreed can be contacted for advice, however the customer should not be forwarded onto Ozbreed directly.