Grower Agreement Terms and Conditions

2014 REPREVE RENEWABLES GROWER AGREEMENT TERMS AND CONDITIONS

The following are the standard terms and conditions applicable to the 2014 REPREVE RENEWABLES Grower Agreement.
1.1 Subject to Licenses.  The 2014 REPREVE RENEWABLES Grower Agreement (hereafter “Agreement”) is subject to and subordinate to the Mississippi State University (“MSU”) Amended and Restated License Agreement under date of April 15, 2010 (as amended from time to time). The Agreement is further subject to RR’s Technology License Agreement.
1.2 Government Rights.  The Licensed Products (defined under the Amended and Restated License Agreement) are subject to all applicable laws and regulations, including Public Laws 96-517 and 98-620, and implementing regulations including 35 USC §§200-211.  MSU, RR and/or GROWER agree to include a statement in any patent application fully identifying such government right; and GROWER acknowledges that the United States Government has the right to a worldwide, non-exclusive, royalty-free license to practice any Patent notwithstanding anything in the Agreement to the contrary.
1.3 Rhizomes.  GROWER shall not use the Rhizomes except as permitted by the Agreement to grow FREEDOM® Giant Miscanthus solely on and within the identified Production Acreage during the term of the Agreement.  FREEDOM is a registered trademark of MSU, used under license. GROWER acknowledges that the Rhizomes are subject to certain intellectual property rights of MSU. GROWER shall not propagate, reproduce, divide or otherwise multiply any Rhizomes or collect, distribute, sell, transfer or otherwise disseminate any Rhizomes to any person(s) and/or any other entity(s) whatsoever other than in accordance with the Agreement and with the prior written consent of RR.

2. Due Diligence

2.2 Use of Names, Product Name and Trademarks.  GROWER shall not use any names, logos, trademarks, or any other mark or image in connection with the crop or harvest of Freedom other than the Freedom® Trademark.  GROWER shall not claim any ownership rights to the Trademark.  The GROWER shall not use, promote, advertise, display, or otherwise commercialize the Trademark or any material utilizing or reproducing it in such manner as will adversely affect any rights of ownership of RR and/or MSU.  The GROWER acknowledges that the Trademark will acquire valuable secondary meaning and goodwill with the public and the products bearing the Trademark will acquire a reputation of high quality.  Accordingly, the GROWER shall not use the Trademark in any manner whatsoever which, directly or indirectly, would derogate or detract from such reputation.

3. Indemnification

3.1 GROWER shall obtain and carry in full force and effect liability insurance which shall acceptable to and include RR as a named insured. Upon request, GROWER shall provide RR with a copy of the certificate of coverage.
3.2 RR MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, VALIDITY OF INTELLECTUAL PROPERTY RIGHTS CLAIMS, ISSUED OR PENDING, OR FOR THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER DISCOVERABLE OR NOT DISCOVERABLE. IN NO EVENT SHALL RR OR ANY OFFICERS, AGENTS OR EMPLOYEES THEREOF BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING ECONOMIC DAMAGE OR INJURY TO PROPERTY AND LOSS OF PROFITS, EXCEPT AS OTHERWISE SET FORTH IN THE AGREEMENT, REGARDLESS OF WHETHER RR SHALL BE ADVISED OF, SHALL OTHERWISE HAVE REASON TO KNOW, OR IN FACT SHALL KNOW OF THE POSSIBILITY THEREOF.

4. Assignment

4.1 The rights granted under the Agreement shall not be transferred or assigned in whole or in part by GROWER to any person whether voluntarily or involuntarily, by operation of law, or otherwise without the prior written approval of RR.  Without limiting the foregoing, in the event GROWER sells, leases or otherwise transfers any or all its interest in and to the Production Acreage to any third party, GROWER shall provide at least thirty (30) days prior written notice to RR, and the rights granted under the Agreement will not transfer to such third party without the prior written approval of RR. Moreover, upon any unauthorized sale, lease or other transfer of all or any interest in and to any of the Production Acreage, RR shall have the right to destroy or dig up and remove the any and all Rhizomes located thereon or therein. The Agreement and these Terms and Conditions shall be binding upon the respective successors, legal representatives and assignees of RR and GROWER and the permitted assignees of GROWER.

5.  MISCELLANEOUS PROVISIONS

5.1 Governing Laws.  The Agreement and these Terms and Conditions shall be construed, governed, interpreted, and applied in accordance with the laws of the State of North Carolina without regard to its choice of law or conflicts of law rules or principles. GROWER hereby consents to adjudication of any dispute, including the validity of any patent licensed hereunder, between RR and GROWER by the judicial court system in the State of North Carolina and further acknowledges jurisdiction of such disputes to be subject to the “long-arm statutory jurisdiction” of the North Carolina court system.  In the event RR is required to hire an attorney to enforce any of the terms set forth in the Agreement (including under these Terms and Conditions), GROWER shall pay RR’s reasonable attorneys’ fees as allowed by law.
5.2 Severability.  The provisions of the Agreement and these Terms and Conditions are severable, and in the event that any provisions shall be determined to be invalid or unenforceable by a state court in North Carolina, such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions hereof or thereof.
5.3 No Waiver.  The failure of either party to assert a right hereunder or to insist upon compliance with any provision of the Agreement or these Terms and Conditions shall not constitute a waiver of that right or excuse a similar subsequent failure to perform any such term or condition by the other party.
5.4 Export Controls.  GROWER hereby agrees that it shall not sell, transfer, export or re-export any harvested product or related information in any form, or any direct products of such information, except in compliance with all applicable laws, including the export laws of U.S. government agencies and any regulations thereunder, and will not sell, transfer, export or re-export any such harvested product or information to any persons or any entities with regard to which there exist grounds to suspect or believe that they are violating such laws.  GROWER shall be solely responsible for obtaining all licenses, permits or authorizations required from the U. S. and any other governmental entity for any such export or re-export.
5.5 Carbon Credits.  GROWER agrees and hereby grants RR the right to a portion of the carbon credits which may be generated or created by the harvested products grown on any Production Acreage. RR may, in its discretion, make efforts to qualify the Production Acreage for eligible carbon and like credits.  Any carbon credits so generated or created shall be divided between RR and GROWER with RR receiving sixty percent (60%) of such credits and GROWER receiving forty percent (40%), after reimbursement to RR for any costs it incurs for qualifying and maintaining qualification of the GROWER’s Production Acreage.  GROWER and RR agree to work cooperatively to secure the transfer of these credits and to realize their monetary value.
5.6 Ownership and Use of Production Acreage; Liens.  GROWER represents and warrants that there are no liens or encumbrances on the Production Acreage except as approved in writing by RR. GROWER shall, at all times, keep the Production Acreage, all Rhizomes and any harvested materials therefrom free and clear from any and all voluntary and involuntary liens, security interests, and encumbrances, except as approved in writing by RR.
5.7 Inspection by RR.  GROWER shall allow authorized representatives or agents of RR, or its designee, access to the Production Acreage and growing crops to inspect its compliance with the terms of the Agreement and these Terms and Conditions (including without limitation the quality control requirements) during normal business hours.
5.8 Entire Agreement.  The parties hereto acknowledge that the Agreement, the Technology Agreement and these Terms and Conditions together with any exhibits, schedules or other attachments specified herein, sets forth the entire agreement and understanding of the parties hereto as to the subject matter hereof, and shall not be subject to any change or modification except by the execution of a written instrument subscribed to by the parties hereto.  Accordingly, it supersedes all prior agreements or understandings, written or oral, among the parties.