Australian National Botanic Gardens
|Note: This model agreement has been prepared for illustrative purposes in connection with the Botanic Garden Pilot Project on Access to Genetic Resources and Benefit-sharing. The language of this draft agreement is appropriate to certain circumstances and to English law only. Consequently, no person should rely on the language of this draft without first consulting his or her own legal adviser.|
An AGREEMENT made the day of One thousand nine hundred and ninety nine between [Participating Garden] ("[PG]") and [Partner Institution] ("[Partner]").
[PG] is a [corporate description], whose mission is [mission statement];
In pursuit of this mission, [PG] exchanges Biological Material with other research institutes worldwide;
In its work, [PG] intends to honour the letter and spirit of the 1992 Convention on Biological Diversity, the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (including the relevant implementing European Community Regulations), and other regional, national and subnational laws and policies concerning biodiversity;
[PG] and [Partner] may establish a joint collecting and conservation programme and may instigate collaborative research projects relating to the collection, study and conservation of plant biodiversity; and
[Partner] is interested in providing [PG] with certain Biological Materials;
NOW THEREFORE IT IS HEREBY AGREED AS FOLLOWS:
1. In this Agreement the following expressions shall have the following meanings:
1.1 "Biological material" includes, but is not limited to, plants, plant parts or propagation material (such as seeds, cuttings, roots, bulbs, corms or leaves), fungi or other fungal material, and any other material of plant, animal, fungal, microbial or other origin and the genetic resources contained therein;
1.2 "Commercialise" and "Commercialisation" means the use or exploitation of genetic resources, their progeny or Derivatives, with the object of, or resulting in, financial gain, and includes but is not limited to the following activities: sale, applying for, obtaining or transferring intellectual property rights or other tangible or intangible rights by sale or licence or in any other manner, commencement of product development, conducting market research, and seeking pre-market approval;
1.3 "Derivatives" include, but are not limited to, modified or unmodified extracts and any compounds or chemical structures based on or derived from genetic resources and their progeny, including analogues;
1.4 "Genetic Resources" mean any material of plant, animal, fungal, microbial or other origin containing functional units of heredity of actual or potential value;
1.5 "Material" shall mean the plant, animal, microbial or fungal biological material transferred from time to time under this Agreement;
1.6 "Third Party" shall mean any person other than [PG] and [Partner].
2.1 In consideration of the undertaking by [PG] in clause 3.1, below, [Partner] will transfer to [PG] the Material listed in each "Notification of Material Transferred under the Material Acquisition Agreement between [Partner] and the [PG] (the "Notification of Transfer") to be itemised and agreed by the parties for each material transfer under this Agreement. A pro forma copy of the Notification of Transfer is attached as Appendix A hereto.
2.2 The Material referred to in clause 2.1 will be transferred pursuant to the terms of this Agreement.
2.3 The signature of [Partner] on any Notification of Transfer will confirm firstly that [Partner] is satisfied that best efforts have been made by [PG] and/or by [Partner], as appropriate, to obtain all necessary permits, prior informed consents and licenses in connection with the acquisition by [PG] of the Material and secondly that [Partner] is authorised to acquire and supply the Material to [PG].
3.1 [PG] undertakes, where reasonably practicable, to provide [Partner] with a fair and equitable share of any benefits obtained by [PG] resulting from the use of any Genetic Resources, their progeny or Derivatives, including the results of processing, monitoring, research, development or other use of such Genetic Resources.
3.2 Research publications by [PG] resulting from the use of any Genetic Resources, their progeny or Derivatives, will acknowledge [Partner] as the source of such Genetic Resources.
4.1 In order to justify investment in the collaboration established by this Agreement, [PG] must ensure its future use of the Material. Consequently, subject to the terms of clause 4.2, below, [PG] shall own the Material and may use it for purposes consistent with its not-for-profit mandate.
4.2 [PG] will not Commercialise any Genetic Resources, their progeny or Derivatives, without having obtained the written permission of [Partner] prior to such Commercialisation. Any such Commercialisation to which [Partner] agrees will be subject to a separate agreement with [Partner] consistent with [PG]'s policy on access to genetic resources and benefit-sharing.
4.3 [PG] may supply any Genetic Resources, their progeny or Derivatives, to a Third Party and will use its best efforts to ensure that such Third Party has entered into a written agreement with [PG] containing conditions no less restrictive than those contained in this Agreement, including the conditions on benefit-sharing, publication, Commercialisation and supply of Genetic Resources, their progeny or Derivatives, and providing that such Third Party shall not supply such Genetic Resources, their progeny or Derivatives, to any other Third Party (a "Subsequent Recipient") unless such Subsequent Recipient has entered into a legally binding written agreement containing conditions no less restrictive than those contained in this Agreement, including the conditions on benefit-sharing, publication, Commercialisation and supply of Genetic Resources, their progeny or Derivatives.
5.1 This Agreement shall be in effect from ___________________________ and shall extend for a term of [ten (10)] years after such date unless the parties reach prior agreement to new terms. The obligations and rights contained in Clauses 1, 2.2, 2.3, 3, 4 and 5 herein shall survive the expiration or other termination of this Agreement.
5.2 Notwithstanding clause 5.1 above, either party to this Agreement may give six months notice to the other party to terminate this Agreement.
5.3 Neither party shall be liable to the other party for any delay or non-performance of its obligations under this Agreement arising from any cause beyond its reasonable control including, without limitation, any of the following: Act of God, governmental act, war, fire, flood, explosion, civil commotion or industrial disputes of a Third Party or impossibility of obtaining gas or electricity or materials. Subject to the affected party promptly notifying the other party in writing of the cause and the likely duration of the cause, the performance of the affected party's obligations, to the extent affected by the cause, shall be suspended during the period the cause persists.
5.4 Any dispute, difference or question between the parties arising under this Agreement shall be referred to an arbitrator to be agreed between the parties or, in default of agreement [insert appropriate arbitration provisions].
5.5 Any notice or other document to be served under this Agreement may be delivered or sent by prepaid air mail or by fax to the party to be served at the below address or at such other address as it may have notified to the other party in accordance with this clause. Any notice shall be marked for the attention of the person and at the address indicated below:
Name: [Insert name]
Position: [Insert title]
Address: [Insert address]
Name: [Insert name]
Position: [Insert title]
Address: [Insert address]
Any notice or document shall be deemed to have been served (a) if delivered, at the time of delivery; or (b) if posted by air mail, at 10:00 a.m. on the fifth business day after it was put in the post; or (c) if sent by fax at the expiration of two hours after the time of despatch if despatched before 3:00 p.m. (local time of destination) or at 10:00 a.m. (local time) on the next business day after despatch in any other case.
5.6 The provisions of this Agreement constitute the entire Agreement between the parties relating to the subject matter and the parties do not make any representations or warranties except those contained in this Agreement. The Agreement shall not be considered extended, cancelled or amended in any respect unless done so in writing signed on behalf of the parties hereto.
5.7 This Agreement is personal to the parties and none of the rights or the obligations under this Agreement may be assigned or transferred without the prior written consent of the other party.
5.8 The provisions contained in each clause and sub-clause of this Agreement shall be enforceable independently of each of the others and its validity shall not be affected if any of the others is invalid. If any of these provisions is void and would be valid if some part of the provision were deleted, the provision in question shall apply with such modification as may be necessary to make it valid.
5.9 Nothing contained in this Agreement shall constitute a partnership between [PG] and [Partner] or constitute either of them the agent of the other.
5.10 This Agreement is governed by and shall be construed in accordance with [insert appropriate nationality] law.
5.11 This Agreement may be executed in any number of counterparts, all of which,
taken together, shall constitute one and the same agreement.
AS WITNESS the hands of the duly authorised representatives of the parties hereto.
for and on behalf of [Partner]
for and on behalf of [Participating Garden]
NOTIFICATION OF MATERIAL TRANSFERRED
UNDER THE MATERIAL ACQUISITION AGREEMENT BETWEEN
("[PARTNER]") AND [PARTICIPATING GARDEN] ("[PG]")
The material itemised on the attached sheets, sequentially numbered A1 to A___ and each initialled by a duly authorised representative of [Partner] and a duly authorised representative of [PG], is transferred subject to the Material Acquisition Agreement between [Partner] and [PG], dated . . . . . . . . . . . . . . . . . .
for [Partner Institution] for [Participating Garden]:
AS A DULY AUTHORISED REPRESENTATIVE OF [Government Department/Name of Host Country], I HEREBY CONFIRM, ON BEHALF OF THE GOVERNMENT OF [Name of Host Country] THAT I HAVE REVIEWED AND APPROVED THE MATERIAL ACQUISITION AGREEMENT, DATED
.................................................................... 1998 BETWEEN [Partner Institution] AND [Participating Garden].
FOR [Government Department/Name of Host Country]
The material itemised on the attached sheets, sequentially numbered A1 to A___ and each initialled by a duly authorised representative of the [Partner] and a duly authorised representative of [PG], is transferred subject to the Material Acquisition Agreement between [Partner] and [PG], dated . . . . . . . . . . . . . . . . . .
for [Partner Institution] for [Participating Garden]