エチオピア遺伝資源Teff商用開発のためのアクセスと利益配分契約見本

エチオピア遺伝資源Teff商用開発のためのアクセスと利益配分契約

Agreement on access to, and benefit sharing from, Teff genetic resources

Institute of Biodiversity Conservation,
Ethiopian Agricultural Research Organization
Health and Performance Food International bv. (HPFI)

Agreement
on access to, and benefit sharing from, Teff genetic resources

Signed for the Provider
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Date_______________________

Signed for the Company
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Date_______________________
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Table of contents

1 Table of contents 2
2 Parties 3
3 Preamble 3
4 The scope of access 4
5 Intellectual property ownership 5
6 Transfer to third parties 5
7 Effect of the agreement 6
8 Benefit sharing 6
9 Ownership and confidentiality 7
10 Duration of the agreement 8
11 Penalty 8
12 Termination 8
13 Dispute settlement 9
14 Guarantee 9
15 Applicable laws 9
16 Monitoring and follow-up 10
17 Annexes to the agreement 10

Parties

This agreement is signed between:

The Institute of Biodiversity Conservation, whose address is Yeka Kifle Ketema, Kebele 08, P.O.Box 30726; telephone 251-1-627504/612244, fax: 251-1- 627730/613722; e-mail: ibcar@telecom.net.et or Biod@telecom.net.et, Addis Ababa, Ethiopia, hereafter referred to as the “Provider”

The Ethiopian Agricultural Research Organization, whose address is Bole Kifle Ketema, Kebele 12/13, P.O.Box 2003; Tel: 251-1-462270; fax: 251-1-461251; e-mail: dg@earo.org.et; Addis Ababa, Ethiopia, hereafter referred to as “EARO”

And

Health and Performance Food International bv. (HPFI), whose registered address is P.O. Box 427, Azieweg 4, 9407 TG Assen, NL-9400, the Netherlands, Tel: +31 (0) 6 53 413847, e.mail j.turkensteen@soilandcrop.com, hereafter referred to as the “Company”.
Preamble
Whereas Teff (Eragrostis tef) is a crop species of Ethiopian origin and has various attributes of interest to the food industry.
Whereas the Company has come up with new applications of Teff and thus wants to have access to Teff varieties to be used for producing Teff-based food and beverage products and to develop new Teff varieties more suitable for producing such products.
Whereas the Company acknowledges that the genetic resources of Teff the Company has acquired or will acquire irrespective of the source are of Ethiopian origin and thus belongs to Ethiopia, and it agrees to respect this fact.
Whereas the Provider is a national institution in Ethiopia with the authority to grant and regulate access to genetic resources of Teff and other species and is responsible for effecting the sharing of the benefits from those genetic resources.
Whereas the EARO is a national research institution responsible for the coordination of national agricultural research on Teff in Ethiopia and has developed various Teff varieties.
Whereas Articles 1 and 15-19 of the ‘Convention on Biological Diversity’ and the ‘Bonn guideline on access to genetic resources and fair and equitable sharing of the benefits arising out of their utilization,’ which “are a useful first step of an evolutionary process in the implementation of relevant provisions of the Convention”, require that the benefits arising out of the utilization of genetic resources be shared fairly and equitably between the Provider and the Company; and whereas the access to genetic resources and the fair and equitable sharing of the benefits arising from the utilization thereof is to be determined by terms mutually agreed by the two parties.
Whereas the Company wants to use the genetic resources of Teff and is willing to share with the Provider the benefits arising out of the use; and whereas the Provider has consented to the use of the genetic resources of Teff by the Company.
Therefore, in witness thereof, the following agreement on access to Teff genetic resources and the fair and equitable sharing of the benefits arising from the access has been concluded by the two parties.
The scope of access
The Provider agrees that the Company accesses and uses the genetic resources of Teff specified in Annex 1 to this agreement.
Under this agreement, the Company is permitted to use the genetic resources of Teff only for the purpose of developing non-traditional Teff based food and beverage products that are listed in Annex 3 to this agreement.
The Company cannot use Teff for any other purposes (e.g. chemical, pharmaceutical etc.) whatsoever unless explicit written consent is given by the Provider.
The Provider shall not grant to other parties access to Teff genetic resources for the purpose of producing the products of the Company listed in Annex 3 of this agreement unless it secures the consent of the Company.
The Company is not permitted to access the traditional knowledge of Ethiopian communities on the conservation, cultivation and use of Teff. Therefore, the Company shall not claim any rights over, nor make commercial benefit out of, such traditional knowledge unless explicit written agreement is given to it by the Provider.
To avoid possible confusion between the traditional knowledge of Ethiopian local communities and inventions made by the Company, the Provider shall, upon submission by the Company of its research proposals, inform the Company of the existing traditional knowledge of relevance to the research areas proposed by the Company.
The Company acknowledges that the genetic resources of Teff it has acquired or will acquire, irrespective of the source, is of Ethiopian origin and thus belongs to Ethiopia. It agrees to respect this fact.
Should there arise any claim challenging the origin or ownership of Teff, the Provider shall take the responsibility to defend the parties against that claim, and the Company shall assist the Provider in the defence.
The Company shall assist in identifying and bringing to court infringers upon the rights of Ethiopia over Teff.
Intellectual property ownership
The Company shall neither claim nor obtain intellectual property rights over the genetic resources of Teff or over any component of the genetic resources. However, plant variety protection may be obtained over Teff varieties.
The plant variety protection rights over new Teff varieties the Company will develop shall be co-owned by the Company and EARO. Such varieties shall be used by EARO and the Company in such a way as not to damage the business interests of the Company in so far as the products listed in Annex 3 or the interests of EARO or the Provider are concerned.
The Teff varieties that are not developed by the Company shall be owned by the Provider on behalf of the Teff farming local communities of Ethiopia. If it is found to be in the interest of the Provider or the Company, such varieties may be registered in the name of EARO. The Company shall handle and cover the cost of such registration outside of Ethiopia, provided that it has the finances in the given budget year.
Transfer to third parties
The Company shall not transfer Teff seed samples or any component of the genetic resources of Teff to third parties without first having explicit written consent from the Provider.
Effect of the agreement
The agreement shall not affect the sovereign rights of Ethiopia over the genetic resources of Teff and the Provider shall always retain the authority to grant other parties access to any genetic resources of Teff.
This agreement shall not affect whatsoever any traditional products of Teff, be it in Ethiopia or abroad.
This agreement shall not affect whatsoever any non-traditional products of Teff, be it in Ethiopia or abroad, except for those the Company has specified in Annex 3 to this agreement.
This agreement shall not prohibit the exporting of Teff from Ethiopia to other parties. However, if an importer or anyone who buys Teff from that importer wants to use or uses Teff for making any of the products specified in Annex 3 to this agreement and this fact is brought to the attention of the Provider, Ethiopia will refuse to export Teff to that importer.
Benefit sharing

The Company has agreed to share the benefits that arise out of the utilization of the genetic resources of Teff.
The Company agrees to pay to the Provider a lump sum equal to the amount

This payment shall be made immediately after the publication of the annual account of the Company for the year 2009 (i.e. shortly after publication and shareholder approval in June 2010).
The Company agrees to pay to the Provider annually a royalty of 30% of the net profit from the sale of basic and certified seeds of the Teff varieties specified in column 3 of Annex 1 to this agreement.
The Company agrees to pay to the Provider annually a license fee equal to the amount defined in Annex 2.
The Company agrees to contribute 5% of its net profit, which shall not be less than 20,000 Euro per year, to the Financial Resource Support for Teff, hereafter referred to as FiRST. The FiRST shall be used for improving the living conditions of local farming communities and for developing Teff business in Ethiopia.
The FiRST shall be administered jointly by the Provider and the Company. The University of van Hall/Larenstein will participate in the administration of the FiRST. The role of van Hall/Larenstein University in the administration of the FiRST will be to ensure that Dutch scientific knowledge and experience with product innovation are transferred into Ethiopia in the process of using the FiRST. Other details of the administration of the FiRST shall be specified by another agreement of the parties.
The Company agrees to share with the Provider and EARO the results of research it will undertake on Teff. Accordingly, the Company shall share with the Provider and EARO the knowledge or technologies it may generate using Teff except when it constitutes Undisclosed Information to the Company according to Article 39 of the Agreement on Trade-related Aspects of Intellectual Property Rights of the World Trade Organization.
The Company agrees to involve Ethiopian scientists in the research it will undertake. The kinds of research on which Ethiopian scientists will participate and the mode of participation shall be specified by mutual agreement of the parties in the research plan of the Company. As appropriate, the Company will contract out research to Ethiopian research institutions.
The Company will take the EARO as the most preferred institution to breed Teff varieties.
By way of contributing to the Ethiopian local economy in connection with the access to Teff genetic resources, the Company agrees to establish profitable Teff businesses in Ethiopia, such as establishing Teff farming, cleaning and milling enterprises, bakeries, etc. The Company will therefore create joint ventures with Ethiopian counterparts.
Furthermore the Company will find funding that will augment the FiRST specified in paragraph 8.3 using the opportunity created by the joint ventures.
The Company shall acknowledge, in all its publications and application for the registration of Teff varieties and other intellectual property rights over products it will develop from Teff, that Ethiopia is the country of origin of that Teff.
Ownership and confidentiality
Results of any joint research conducted on Teff materials shall be owned by both parties and shall be released only upon written consent of both parties.
Information that is identified by either party as confidential shall be kept as such by both parties.
Duration of the agreement
The agreement shall remain in force for a period of 10 years. The parties may renegotiate the agreement at the end of that period.
Penalty
A party that breaches the terms of this agreement shall pay to the aggrieved party a penalty of 50,000 Euro if asked to do so by the aggrieved party.
The penalty that is specified in paragraph 11.1 is applicable on the Provider if it breaches the terms of this agreement, particularly those given in paragraphs 4.1, 4.4, 4.6, 4.8, 5.2, 7.3 and 7.4
The penalty that is specified in paragraph 11.1 is applicable on the Company if it breaches the terms of this agreement, particularly those given in paragraphs 4.2, 4.3, 4.5, 4.6, 4.7, 4.9, 5.1, 5.2, 5.3 and 6.
If the Company fails to fulfil its financial obligations as specified in part 8 of this agreement on ‘Benefit sharing’, the Provider may add a penalty of 5% of the due payment for any delay of between 90 and 180 days, and 25% thereafter.
Termination
If the company is in the process of bankruptcy, the Provider can immediately terminate the agreement.
If one of the parties repeatedly fails to fulfil or repeatedly violates its obligations under this agreement, then the aggrieved party may terminate the agreement upon 30 days notice given in writing to the other party.
Termination of this agreement, except in the case of bankruptcy, will be done through mutual agreement by both parties.
The termination of this agreement shall not affect the rights and obligations that were due to accrue to either party prior to the effective date of termination.
Starting with the day of termination of the agreement, the Company shall stop using the genetic resources of Teff. However, the Company is entitled to continue the use of co-owned Teff varieties upon payment of royalties to be mutually agreed upon by both parties.
Dispute settlement
If any dispute arises in connection with the interpretation or application of this agreement, both parties shall seek solution by negotiation. If the dispute cannot be resolved by negotiation, it shall be submitted to an arbitration body in accordance with the procedure laid down in part I of Annex II of the Convention on Biological Diversity.
For the purpose of Paragraph 13.1, the word ”party” in Part I of Annex II of the Convention on Biological Diversity shall mean ”Provider” or ”Company”.
The decision of the arbitral tribunal shall be final and binding on the parties without appeal.
If either of the parties fails to comply with the award of the arbitral tribunal, the aggrieved party may, in accordance with Paragraph 16 (d) (iv) of the Annex to Section A of Decision VI/24 of the 6^th Conference of the Parties of the Convention on Biological Diversity, UNEP/CBD/COP/6/20, the Hague, 7-19 April 2002, ask the Government of the Federal Democratic Republic of Ethiopia or the Government of the Netherlands to enforce the award given by the arbitral tribunal.
Guarantee
Each year, the Company shall pay a sufficient sum of money in advance from which the requests by the provider for payment will be subtracted.
Applicable laws
The Convention on Biological Diversity (CBD) and the relevant decisions, guidelines and laws that emanate from it, including the International Treaty on Plant Genetic Resources for Food and Agriculture, in particular but not restricted to, its Article 9 on Farmers’ Rights, the Bonn Guidelines, decisions of the various Conferences of the parties as well as those provisions of the Union for the Protection of New Plant Varieties (UPOV) that are consistent with the CBD and the relevant decisions, guidelines, and laws that emanate from it shall apply to matters not addressed in this agreement.
The CBD and the decisions, guidelines or laws that emanate form it shall prevail over the UPOV in cases on which the two do not agree.
Monitoring and follow-up
The Company shall submit to the Provider annual research and financial reports.
The Provider has the right to review at any moment, through an independent accountant if it so wishes, the bookkeeping as well as the relevant administrative details of the items covered by this agreement.
Meetings between the two parties will be held as required to exchange information.
Annexes to the agreement
The following Annexes shall form part of this agreement.
Annex 1: Varieties of Teff accessed by S&C. This Annex shows the different varieties of Teff and the authorization of use given by the Provider to the Company. This Annex may be updated by mutual agreement of the parties as needed.
Annex 2: Annual payments of licence fee per hectare for growing Teff. The annual payment of the licence fee provided for in Paragraph 8.3 will be determined after each harvest season based on this Annex.
Annex 3: List of products of the Company. This Annex shall be updated by mutual agreement of the parties as needed.

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