DEFINITIONS

1.

In this Agreement the expressions set out below shall mean as follows:

1.1

“Agreement” shall mean and include this Access and Benefit-Sharing Agreement together with Annex 1 and Annex 2;

1.2

“ASDP Seed Bank” shall mean the Seed Bank maintained by the Botany Unit of the Alice Springs Desert Park, Larapinta Drive, Alice Springs, 0870 Northern Territory;

1.3

"Commercialise" and "Commercialisation" shall mean filing a patent application, 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; seeking pre-market approval; and/or the sale of any resulting product;

1.4

“Genetic Resources” shall mean any biological material of plant, animal, microbial, fungal or other origin of actual or potential value containing functional units of heredity transferred to RBG Kew under this agreement and its progeny and derivatives, including extracts and compounds obtained from genetic resources and analogues of those compounds;

1.5

“Herbarium Studies” shall mean the comparative observation, characterisation and analysis of plant material to better understand its identification and classification;

1.6

“Intellectual property” shall mean all inventions, innovations, improvements, patents, patent applications, trade marks (whether registered or not), trade secrets, know-how (whether patentable or not), plant breeders’ rights and copyright in any drawings, plans, specifications and any other literary or artistic work, which have been created or acquired or which are in the process of being created or acquired in relation to the project;

1.7

“Kew Herbarium” shall mean the Herbarium maintained by RBG Kew at Richmond, Surrey, TW9 3AE, United Kingdom where the duplicate herbarium specimens shall be accessioned for scientific research, education and/or long-term conservation. For the avoidance of doubt, on accession, ownership of and title to the duplicate herbarium specimens shall be transferred to RBG Kew;

1.8

“Kew Seed Bank” shall mean the Seed Bank maintained by RBG Kew at Wakehurst Place, Ardingly, West Sussex, United Kingdom where the duplicate seeds shall be accessioned for scientific research, education and/or long-term conservation. For the avoidance of doubt, on accession, ownership of and title to the duplicate seeds shall be transferred to RBG Kew;

1.9

“Material” shall mean the duplicate seeds and herbarium material transferred to RBG Kew under this agreement including the genetic resources contained therein and any other genetic resources inadvertently transferred to RBG Kew under this agreement;

1.10

“Material Supply Agreement” shall mean the standard RBG Kew document setting out the terms under which RBG Kew may supply plant or fungal material to a third party for non-commercial uses such as scientific research, education, long-term conservation and/or the development of botanic gardens;

1.11

“Notification of transfer” shall mean the documentation recording the material transferred to RBG Kew under this agreement, a pro forma copy of which is attached to the agreement at Annex 2;

1.12

“Partners” shall mean DIPE and RBG Kew;

1.13

“Project” shall mean the long-term collaboration between DIPE and RBG Kew as described at Annex 1 to this Agreement;

1.14

“Seed Studies” shall mean tests required to better understand seed storage requirements including post harvest seed handling, germination tests, moisture relation tests, seed dormancy tests and diagnostic characterisation;

1.15

“State Herbarium” shall mean the herbaria maintained by the NT Government at the Alice Springs Desert Park in Alice Springs (“NT”) and in the Gaymark Building, Darwin (“DNA”);

1.16

"Third Party" shall mean any person or institute other than the NT Government and RBG Kew.

OBJECTIVE OF THIS AGREEMENT

2.

The objective of this Agreement is the transfer by the NT Government to RBG Kew of Material collected in collaboration with DIPE for scientific research, education and long-term conservation.

CONSENT

3.

In consideration of the undertakings given by RBG Kew in this Agreement as set out in Clauses 7, 8 and 9, 10 and 11 the NT Government hereby gives its prior informed consent to the Project as described in Annex 1 to the Agreement.

ACTIVITIES

4.1

Subject to the terms and conditions set out in this Agreement, the Partners will work together with agreed local counterparts, such as CDU, to collect, study and conserve the flora of the Northern Territory as is more fully set out in the Project synopsis at Annex 1 to the Agreement. Project activities will include, but will not be limited to:

a.

The conducting of joint plant collecting expeditions in the Northern Territory in accordance with all applicable access laws and regulations, permits, prior informed consents and/or licenses and in an ecologically sustainable manner;

b.

The storage of collected plant material at the ASDP Seed Bank and at the State Herbarium with duplicate Material transferred to the United Kingdom for accession into the collections at the Kew Herbarium and the Kew Seed Bank;

c.

The conducting of Seed Studies and Herbarium Studies upon the Material to determine its viability and to enable long-term conservation of the material;

d.

The generation and mutual sharing of information arising from the Project, including the exchange of research reports from the above-mentioned Seed and Herbarium Studies and the acknowledgement by each party of the other party in all publications and reports arising from the Project; and

e.

The dissemination of appropriate information to aid the conservation of the biological diversity of the Northern Territory, by written and/or electronic media.

4.2

The technical detail of the Project activities, including the identification of priority species, will be developed by the Partners on an annual basis and in accordance with available funds.

4.3

The Partners will write formal annual reports to report against these agreed Project activities. At the end of years three and six, an evaluation of the Project shall be carried out by a mutually agreed independent consultant.

ACCESS

5.

The NT Government, through DIPE, shall use reasonable endeavours to secure the prior informed consents, permissions and/or licences from any relevant State and/or Commonwealth Government authorities and other Australian stakeholder(s), such as local or indigenous communities, to enable the Partners to:

a.

Enter the land where the Material is located;

b.

Access the Material and, where relevant and appropriate, any associated traditional knowledge;

c.

Obtain an export authorisation for scientific collections to enable the duplicate Material to be exported to the United Kingdom; and

d.

Conduct the aforesaid Project activities in the Northern Territory and in the United Kingdom.

NOTIFICATION OF TRANSFER

6.1

All Material collected by or sent to RBG Kew will be listed in a Notification of Transfer, a pro forma copy of which is at Annex 2. All material listed in a Notification of Transfer will be transferred pursuant to the terms of this Agreement.

6.2

The signature of the Minister for Parks and Wildlife or of his or her delegate or authorised representative on a Notification of Transfer will confirm that, to the best of his or her knowledge, the Material has been collected and is being transferred into the collections at RBG Kew in accordance with all applicable laws and regulations, permits, prior informed consents and/or licenses.

BENEFIT-SHARING

7.1

The Partners agree to share fairly and equitably the benefits that arise from the collection, study and conservation of the Genetic Resources.

7.2

Furthermore, the Partners agree to work together to support and strengthen institutional development through the provision of technical and academic training, as is more fully detailed in Annex 1.

INTELLECTUAL PROPERTY

8.1

NT Government and RBG Kew recognize, and will respect, any pre-existing intellectual property rights in any software, data, images, analysis, techniques, opinion, review, or other contributing effort in any form, including without limitation electronic or hardcopy, that is contributed to the Project by the other party. The contributing party will grant a non-exclusive, royalty free license to the other party for use by it of such pre-existing intellectual property rights in the Project, subject to acknowledgment.

8.2

Apart from copyright in any thesis produced by a student, Intellectual Property shall be owned by the NT Government and RBG Kew in equal proportions as tenants in common. Accordingly, each party shall bear equally any expenses (such as copyright or patent registration fees) incurred in connection with protecting such Intellectual Property.

8.3

Such Intellectual Property may not be commercially exploited by a party without the prior written consent of the other party, such consent not to be unreasonably withheld.

8.4

Save as aforesaid, NT Government and Kew hereby grant each other a perpetual, non-exclusive, royalty free, world-wide license to use any Intellectual Property arising out of the Project for non-commercial research, education and/or conservation-related purposes.

NON

COMMERCIALISATION

9.1

RBG Kew shall not Commercialise any Genetic Resources transferred under this Agreement.

9.2

Without prejudice to the above, any Commercialisation to which the NT Government and RBG Kew may agree will be subject to a separate written agreement and will be:

a.

In accordance with all applicable Northern Territory laws and regulations; 

b.

Respect the need to acquire new authorisations, permits, prior informed consents and licences to reflect the proposed change of use of the Genetic Resources; and will be

9.3

In accordance with Clauses 7 and 8 above; namely, unless otherwise agreed, all Intellectual Property will be owned by the NT Government and RBG Kew in equal proportions as tenants in common; and benefits from the Commercialisation will be shared fairly and equitably.

TRANSFER TO THIRD PARTIES

10.1

Subject to Clause 10.2, RBG Kew may supply the seed to a Third Party provided the Third Party signs a Material Supply Agreement with RBG Kew, prohibiting, inter alia, any Commercialisation of the seed by that Third Party.

10.2

Seed that is listed as threatened by either the Government of Australia or by the Northern Territory Government may only be supplied by RBG Kew to a Third Party with the prior written consent of the NT Government, such consent is not to be unreasonably withheld.

10.3

As part of the annual reporting process referred to in clause 4.3 above, RBG Kew will provide the NT Government with a list of all Third Parties to whom RBG Kew has supplied seed material in any one year.

10.4

RBG Kew may loan or supply samples from the duplicate herbarium specimens to a Third Party provided that the Third Party signs a Material Supply Agreement with RBG Kew, prohibiting, inter alia, any Commercialisation of the material supplied to that Third Party.

REPATRIATION

11.1

In the event of a total loss of the ASDP Seed Bank’s seed collection, or the extinction of a species within the Northern Territory, RBG Kew shall make available to the NT Government from the Material at the Kew Seed Bank up to 50% of any taxon destroyed or extinct.

11.2

The NT Government shall use its best efforts to return to RBG Kew, within a reasonable time, the proportion of the species so made available by RBG Kew.

11.3

Subject to Clause 11.1 above and notwithstanding the expiration or termination of this Agreement, RBG Kew shall continue to store the Material in accordance with standard seed banking and herbarium regulations and practice.

DURATION

12.1

This Agreement shall come into effect on the date of the last signature.  It shall be valid for a term of 6 (six) years after such date.

12.2

It can be renewed and extended for further fixed periods thereafter through mutual agreement expressed in writing signed on behalf of the NT Government and RBG Kew.

12.3

It can be amended through mutual agreement expressed in writing signed on behalf of the NT Government and RBG Kew.

TERMINATION

13.1

Notwithstanding Clause 12.1 above, either party to this Agreement may give six (6) months written notice to the other party to terminate this Agreement.

13.2

The obligations and rights contained in Clauses 4.1b, 4.1c, 4.1d, 7.1, 8, 9, 10, 11, 14, 16, 18 and 19 inclusive shall survive the expiration or other termination of this Agreement unless mutually agreed to the contrary.

FORCE MAJEURE

14.1

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, but not limited to, any of the following: Act of God, governmental act, war, fire, flood, explosion, civil commotion or industrial dispute.

14.2

The affected party must promptly notify the other party in writing of the cause and the likely duration of the cause. Such notice having been given, the performance of the affected party’s obligations, to the extent affected by the cause, shall be suspended during the period the cause persists.

14.3

Without prejudice to the above, the affected party must take all reasonable measures to minimise the impact of any force majeure on the performance of its obligations under the Agreement and to ensure, as soon as possible, the resumption of normal performance of the obligations affected by the force majeure.

DISPUTE RESOLUTION

15.1

Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination (a "Dispute"), shall, to the extent possible, be resolved by good faith negotiation. For the purposes of this clause, “good faith” means in accordance with standards of honesty, sincerity or lawfulness of purpose and applies to both the substance of and the machinery of any such negotiations.

15.2

At any time within the period of three (3) months referred to in clause 14.1 above, the parties may agree that the dispute be referred to mediation.

15.3

If the parties agree that the dispute be referred to mediation, then the parties may by agreement between them appoint from the panel of mediators kept by “Lawyers Engaged in Alternative Dispute Resolution” (“LEADR”), National Dispute Centre, Level 4, 233 Macquarie Street, Sydney, NSW, 2000, AUSTRALIA, a mediator to mediate the dispute. The language to be used in the mediation shall be English. The mediation shall take place at a venue to be agreed by the parties within fourteen (14) days after agreeing to mediate or failing agreement in Sydney, New South Wales. 

15.4

If the dispute is not resolved by a date which is the later of the end of three (3) months from the date when the dispute is first notified in writing by either party to the other party, or three (3) months from the date of appointment of the mediator under clause 15.3, then the Dispute shall be referred to and finally settled by an arbitrator appointed in accordance with, and subject to, the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitrations.

15.5

Such arbitration shall be conducted by a single arbitrator agreed by the parties or failing agreement appointed by the President of the Northern Territories Law Society. Any arbitrator so appointed shall not be the same person as any mediator appointed under clause 15.3.

NOTICE

16.1

Any notice or other document to be served under this Agreement must be delivered by hand or sent by registered mail or by international courier service to be served at the address below.

The NT Government:

The Minister for Parks and Wildlife, P O Box 3146, Parliament House, Darwin NT 0801

RBG Kew:                                          

Head of Corporate Services, Royal Botanic Gardens, Kew, Richmond, Surrey TW9 3AB, UNITED KINGDOM

16.2

All notices or documents shall be deemed to have been served at the date and time of delivery of the said notices or documents to the recipient party.

ENTIRE AGREEMENT

17

The provisions of this Agreement together with Annexes 1 and 2 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 and Annexes 1 and 2 inclusive.

NO ASSIGNMENT

18

This Agreement is specific 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.

NO PARTNERSHIP IN LAW

19

Nothing contained in this Agreement shall constitute a partnership in law between the NT Government and RBG Kew or constitute either of them the agent of the other.

NON-EXCLUSIVITY

20

This Agreement in no way restricts the Partners from involvement in similar Project activities with other public and/or private organisations and/or individuals.

SIGNED:

For and on behalf of the Northern Territory Government, Australia

Chris Burns

Minister for Parks and Wildlife

Date:

SIGNED:

For and on behalf of the Board of Trustees of the Royal Botanic Gardens, Kew, United Kingdom

Prof. Sir Peter Crane

Director, RBG Kew

Date: