アフリカユニオン素材情報移転契約

Material and Information Transfer Agreement

Between ___________________________________________________________ and _______________________________________________________________ (insert name of provider community or institution)
led by ________________________________________ and duly represented by __________________________________________________________________
with identity number: ________________________________________________ (the duly nominated ____________________________________ Representative and hereinafter referred to as _______________________________ (insert short name of provider)

RECORDAL

WHEREAS __________________________ (insert name of provider) made claims that certain materials can be used ________________________ (insert uses) and

WHEREAS the _________________________________________________ wants ______________________________________________ (insert name of provider) to provide it with such materials and/or information to source such materials to evaluate the claims and/or to perform the necessary analysis to establish whether such materials can be used for
_______________________________________________________ (insert uses) within the framework of the prescribed national legislative requirements alongside with the principles articulated in the United Nations Convention on Biodiversity; and

WHEREAS _______________________________________ (insert name of provider) is willing to provide such material and/or information to _______________ and ________________________________________ (insert name of receiver) is willing to accept such materials and/or information in accordance with the terms and conditions as set out in this Agreement.

The Parties now therefore agree as follows:

1. Definitions and Interpretation
1.1 Definitions:
– “Agreement” means this agreement together with its annexures.
– “Material” means any genetic material of plant origin, together with any progeny or unmodified derivatives, including reproductive and vegetative propagating material, seeds, extracts thereof, plant exudates, gums or any other substances of the material with details as set out in Annexure A of this Agreement, which annexure will be supplemented in writing from time-to-time and will form an integral part of this Agreement.
– “Information” means the information provided by ____________________________________ (insert name of provider)
to __________________________________ (insert name of recipient)
to enable ____________________________ (insert name of recipient)
to source the necessary plant material or to perform the necessary analysis as to whether certain plant materials can be used to cure certain diseases.
– “Confidential Information” means (without limitation) all knowledge, know-how, specifications, trade secrets, plans, processes and procedures, financial information, systems, strategies and any other information of a sensitive, confidential and/or proprietary nature (including extracts thereof or any documentation containing such information) relating to this Agreement, or relating to the parties’ businesses, which a party sharing the information has indicated to be of a confidential nature or is of such a nature or has been disclosed in such a way that it is obvious to the other party that it is claimed as confidential. Confidential Information may equally well be written information or information transmitted verbally, visually, electronically or by any other means. For the purpose of this Agreement, Information as defined in clause 1.2 above will be regarded as Confidential Information belonging to ____________________________________ (insert name of provider);
and all Information (excluding information as defined in clause 1.2 above), know-how, secrets, processes and procedures used or generated by _____________________________________ (insert name of recipient) as a result of this Agreement will be regarded as Confidential Information belonging to the ____________________________________ (insert name of recipient).

1.2 Interpretation:
Unless expressed to the contrary, in this Agreement:
– Words in the singular include the plural and vice versa;
– Any gender includes the other gender;
– No rule of construction will apply to a clause to the disadvantage of a party, merely because that party put forward the clause or would otherwise benefit from it;
– Reference to day in this Agreement will be reference to any day, however, if the date on or by which any act must be done in this Agreement is not a business day, the act must be done on or by the next business day; and
– Where time is to be calculated by reference to a day or event, that day or the day of that event is excluded.

2. Relationship

The parties shall remain all the time independent contractors or entities for all purposes in terms of this Agreement, and nothing in this Agreement shall be construed as to create a legal partnership, an agency or a joint venture between the parties or that the one party being the agent of the other party on a permanent basis.

3. Evaluation of information

3.1 _________________________ (insert name of provider) undertakes to provide the ____________________________ (insert name of recipient) with all necessary Information as set out below to enable the ______________________________________ (insert name of recipient) to evaluate its claim whether certain Information and/or Material can be used to treat and/or to cure certain diseases.

3.2 __________________________ (insert name of provider) will furnish the ___________________________ (insert name of recipient) with all the Information at its disposal which is relevant to _______________________________________ (insert name of provider) claims for evaluation purposes by _________________________ (insert name of recipient)

3.3 _____________________________ (insert name of provider) undertakes to provide the _________________________________ (insert name of recipient) with true and honest Information to the best of its knowledge and undertakes not to change the Information provided to the ___________________________________ (insert name of recipient) such as the composition, the process or method of preparation and dosages at any time during the evaluation process.

3.4 The _____________________ (insert name of recipient) will analyse the Information provided by __________________ (insert name of provider) to the _________________________________ (insert name of recipient) by using criteria developed in order to make a decision whether to approve or to decline the application by _________________(insert name of provider) for the scientific testing of its claim by the ___________________ (insert name of recipient).

3.5 Should the application by __________________ (insert name of provider) for scientific testing be successful, then clause 4 below will apply and the ____________________________________ (insert name of recipient) may consider in its own discretion whether as to compensate ____________________________ (insert name of provider) for any costs incurred and may also insist on proof of such costs incurred before reimbursing ___________________________ (insert name of provider).

3.6 _____________________________ (insert name of provider) shall be at liberty to continue to apply and utilize the products derived from the Material which they have prepared and/or may continue to prepare in future by their own technique, notwithstanding that the material used has been referred to _______________________________ (insert name of recipient) for scientific research, unless the parties agreed otherwise in writing.

4. The transfer of material and/or information

4.1 The transferring of Material and/or Information by _________________________________ (insert name of provider) to the ______________________________________ (insert name of recipient) to enable it to do the necessary analysis under this Agreement is subject to the evaluation of Information as set out in clause 3 above.

4.2 The parties will, from time to time, mutually agree on the date and method of the provision of Material and/or Information by _________________________________ (insert name of provider) to the ________________________ (insert name of recipient) or the gathering of Material by the _______________________ (insert name of recipient).

4.3 Each sample of Material will be numbered according to the date of delivery or gathering thereof and quantified as set out in Annexure A of this Agreement, which annexure will form an integral part of this Agreement and be supplemented in writing from time to time as and when the Material is received or gathered by ______________________________________ (insert name of recipient).

4.4 The __________________________________ (insert name of recipient) will use the Material and/or Information for analysis purposes to investigate whether such Materials can be used to cure certain diseases and will inform __________________________ (insert name of provider) of the results thereof.

4.5 _______________________________________ (insert name of provider) may continue with its own research in respect of the Material, which activities will not form part of this Agreement and which activities will not interfere with the obligations undertaken by _______________________________________ (insert name of provider) in terms of this Agreement. ________________(insert name of provider) however undertakes to be available and to assist the _________________________ (insert name of recipient) for the duration of this Agreement as to enable it to achieve its aims under this Agreement.

4.6 Should ________________________________ (insert name of provider) indicate that it is not desirous to pursue the bioassay of any specific sample Material and/or Information or should _______________________ (insert name of provider) terminate the Agreement in terms of clause 10 below, then __________________________ (insert name of provider) will inform the ____________________________ (insert name of recipient) accordingly and may consider assigning all the rights in respect of the Material and/or Confidential Information belonging to it to the _____________________________ (insert name of recipient) should the _____________________________ (insert name of recipient) be keen to pursue the research further. The _____________________ (insert name of recipient) undertakes, to the best of its knowledge, to make the implications thereof clear to _________________________ (insert name of provider). Clause 6.4 below will then apply in respect of Confidential Information.

4.7 Should the _________________________________________ (insert name of recipient) indicate at any stage that it is not desirous to pursue the bioassay of a specific sample Material or should the ___________________________ (insert name of recipient) terminate the Agreement in terms of clause 10 below, then the _____________________________ (insert name of recipient) will inform _____________________________ (insert name of provider) accordingly and the _______________________________ (insert name of recipient) will then return immediately to ______________________ (insert name of provider) the Material (or part thereof which is left), in which case _______________________________________ (insert name of provider) may continue with its own researches in respect of such Material. Clause 6.4 below will apply in respect of Confidential Information. 4.8 The parties agree that they will obtain the necessary permits to gather the Material and will take every reasonable precaution as to prevent any unauthorized possession by third parties of the Material.

5. Intellectual Property

5.1 Ownership of any intellectual property owned by either party in respect of the Material or Information prior to the effective date of this Agreement, or developed in the future outside the scope of this Agreement (“Background Intellectual Property”), shall be and remain vested in the party who initially owned and/or developed the same and as set out in Annexure B of this Agreement.

5.2 In the event that any intellectual property is created as a result of this Agreement in respect of the Material or Information (“Foreground Intellectual Property”), the ownership thereof will jointly vest with the parties and should any party decide upon further exploitation of the proceeds under this Agreement, then the parties undertake to embark in good faith negotiations with each other around the commercial use (which may include without limitation the fi ling of intellectual property applications; obtaining or transferring of intellectual property rights by sale, license or by any other means; product development; market research and seeking market approval; or any other activities which may have commercial value) and/or exploitation (which may include without limitation the improvement of a party’s competitive position; the generation of revenue; and the maker of a discovery, invention or other original work which may be the subject of Intellectual Property Rights and which may have commercial value) of such Foreground Intellectual Property, taking into account the contributions to such Foreground Intellectual Property as made by the respective parties so as to ensure that any share in the proceeds of exploitation will be proportioned to a party taking into account the effective contribution by each party in respect of the Material and/or Information. (To this end, relevant contributions to take into account include, but are not limited to, intellectual and financial contributions and contributions in kind e.g. use of land, equipment or facilities).

5.3 Subject to clause 5.2 above and unless otherwise agreed between the parties, each party will have the right to fi le, in its own name and at its own expense, worldwide intellectual property rights (which shall include, but not be limited to, patent applications and patents or utility models) relating to inventions made by it.

5.4 The parties undertake not to infringe the existing rights of each other and of any third party in respect of intellectual property in terms of this Agreement and undertake to disclose full details of any third party who may have rights in this regard.

5.5 The parties undertake to obtain the prior written consent to use any intellectual property belonging to each other, including (without limitation) the use of logos and any trademarks.

6. Confidentiality

6.1 The parties may, during the course of its dealings with each other, gain access to each other’s Confidential Information. The parties undertake, during the validity of this Agreement and thereafter, to ensure the confidentiality and secrecy of such Confidential Information, to use the Confidential Information solely for the purpose necessary in terms of this Agreement and not to disclose it to any other party, without the prior written approval being obtained from the party whose Confidential Information it is.

6.2 The ___________________________________ (insert name of recipient) shall be considered to have provided adequate consideration by either of the following actions, unless expressly stated to the contrary in this Agreement or any annexures hereto:
(i) Providing __________________________ (insert name of provider) with rights to or rights of access to the results of any research involving the Material and/or related Information undertaken by the _______________________ (insert name of recipient), hereto; or
(ii) Placing the results of any research involving the material and/or related Information undertaken by the __________________________ (insert name of recipient), subject to the above provision and any annexures hereto into the public domain to the satisfaction and with the written consent of _________________________ (insert name of provider).

6.3 The above secrecy obligation shall not apply in respect of information which became public or was commonly known at the time of the disclosure other than as a result of breach by any party of the provisions of clause 6; or the disclosure of Confidential Information required to satisfy the order of a court of competent jurisdiction; or to comply with the provisions of any law or regulation in force from time to time.

6.4 _______________________________________ (insert name of provider) shall keep confidential all dealings with the _____________________________ (insert name of recipient) and shall refrain from referring to the _____________________________ (insert name of recipient) for any marketing purposes.

6.5 The parties shall be committed to take all reasonable steps to maintain the secrecy and confidentiality of each other’s Confidential Information and that such efforts to be no less than the degree of care employed by a party as to preserve and safeguard its own Confidential Information. 6.6 Should a party indicate at any stage that it does not desire to pursue the bioassay of the Material, Information and/or Confidential Information (to the extend applicable in this instance) received under this Agreement, then the party receiving such Material, Information and/or Confidential Information will inform the other party accordingly and the parties will then immediately retain, return or destroy all Confidential Information as per the instruction received from the party to whom the Confidential Information belongs.

6.7 This clause 6 is severable from this Agreement and shall survive the termination of this Agreement.

7. Publications

7.1 The ___________________________________ (insert name of recipient) will be entitled, from time to time, to make publications under this Agreement (including without limitation the publication of results, intellectual property in respect of the Material and/or Information and/ or any activities undertaken by the ______________________________________ (insert name of recipient) under this Agreement). The ______________________________ (insert name of recipient) undertakes to inform _______________________________ (insert name of provider) of such publications and to make the appropriate acknowledgement of the source of the Material and/or Information to the best of its knowledge, including making the necessary reference to ____________________________________ (insert name of provider) contributions in this regard.

7.2 The ___________________________________ (insert name of recipient) shall not make any public announcement regarding this Agreement and the object or the results of the Research without the prior written consent of Provider. In case the Provider gives such consent with relation to scientific publications, the ______________________________________ (insert name of recipient) shall acknowledge, in any such publication, the source of the Materials.

8. Suspensive Conditions

8.1 Each party undertakes, at its own costs and effort, to obtain the necessary permit/s required by law on/or before the collecting of any Materials in respect of this Agreement. ___________________________ (insert name of provider) undertakes to provide the ____________________________ (insert name of recipient) timeously with the necessary proof that the required permit/s was obtained on/or before delivery of such Material to the __________________________________ (insert name of recipient).

8.2 Should the ____________________________(insert name of recipient) in its discretion decide upon further exploitation of the proceeds under this Agreement, then clauses 5.2 and 5.3 will apply and the parties will further undertake to enter into a Benefit Sharing Agreement to properly address all interests and any share in proceeds in respect of such exploitation.

9. Duration

This Agreement shall commence on the date of last signature hereto and shall, subject to clause 10 below, remain in force until all analyses under this Agreement have been completed by the _______________________________ (insert name of recipient) upon written confirmation thereof by the _________________ (insert name of recipient) to ____________________________________ insert name of provider).

10. Termination

10.1 Any party may terminate this Agreement by means of ____________________ months prior written notice to the other party.

10.2 Should the Agreement be terminated by either party, then clauses 4.7 and 4.8 will apply in respect of the Material and/or Confidential Information.

10.3 Notwithstanding the above-mentioned, the ____________________________ (insert name of recipient) may terminate the Agreement with immediate effect upon prior written notice to _____________________________ (insert name of provider) if:

10.3.1 __________________________ (insert name of provider) commits a deliberate breach of any of the terms of this Agreement which it refuses to rectify, even upon demand; and/or

10.3.2 When the Material and/or Information is or becomes generally available from third parties, has already been documented for the same disease or traditional use for which ___________________________ (insert name of provider) uses it or where ________________________ (insert name of recipient) has already obtained Information from other sources on the same Material, for example, though public depositories. In the event that any of the Material has already been documented for the same disease for which ________________________ (insert name of provider) uses it or where the ________________________________ (insert name of recipient) has already obtained Information from other community’s on the same Material and/or Information, the _____________________________ (insert name of recipient) will duly inform ______________________________ (insert name of provider) as such , giving the relevant literature references within __________ days of the discovery.

10.3.3 If, from any cause, __________________________ (insert name of provider) , in the reasonable opinion of the _______________________________ (insert name of recipient), is prevented from performing its duties hereunder for a continuous period of __________________________________.

10.3.4 If _______________________________ (insert name of provider) is guilty of any conduct which in the reasonable opinion of the ________________________________ (insert name of recipient) prejudicial to the interest of ________________________________ (insert name of recipient).

10.4 Notwithstanding the above-mentioned, ____________________(insert name of provider) may terminate the Agreement with immediate effect upon prior written notice to the _____________________________________ (insert name of recipient) if ______________________________________ (insert name of recipient) ceases to carry out research and development or deal in _____________________________ as were previously mentioned, this Agreement shall forthwith terminate.

11 Warranties

11.1 The parties acknowledge the fact that the Material received from ______________________________________ (insert name of provider) is of experimental nature and, although ______________________________________ (insert name of provider) undertakes to inform the ______________________________________ (insert name of recipient) of any negative effects it is aware of, it does not warrant that such Material will be free from any unforeseen negative effects.

11.2 Although ______________________________________ (insert name of provider) does not guarantee the safety, purity and quality or standard of Information and/or Material provided to the ________________________________ (insert name of recipient) by it, it however warrants that it will ensure itself to the best of its knowledge and efforts of the truth and correctness of its claims and of any Information and/or Material provided to the ______________________________________ (insert name of recipient).

11.3 ______________________________________ (insert name of provider) warrants that it will not approach any third parties to evaluate the claims already referred to the ______________________________________ (insert name of recipient) under this Agreement.

11.4 Each party warrants that it will refrain from doing anything which may interfere with its obligations under this Agreement and with the aims of this Agreement.

11.5 Neither party gives any warranty regarding the fitness of the Material and/or the Information for any purpose, nor does it give any warranty in respect of the merchantability or commercial viability thereof.

12. Breach

In the event that either of the parties (the “Defaulting Party”) committing a breach of any of the terms and conditions of this Agreement and failing to remedy such breach within _____________ (insert period) of receipt by the Defaulting Party of a written notice to remedy such breach, then the other party (the “Aggrieved Party”) will be entitled to cancel this Agreement forthwith by means of written notice to the Defaulting Party and/or to claim such damages and/or losses it may have suffered in this regard. The provisions of this clause 12 will not affect or prejudice any other rights or remedies which the parties may have by law.

13. Costs

Each party will carry its own costs relating to the gathering of the Material, the analysis to be conducted and the permits to be obtained under this Agreement.

14. Claims and Disputes

In the event of any claim or dispute arising from this Agreement, the parties shall make every effort to settle such dispute or claim amicably. Should the claim or dispute remain unresolved for a period of ______________ days of such claim or dispute arising, then either party may refer the claim or dispute to arbitration in accordance with the rules of the Arbitration Federation of South Africa. The provisions of this clause shall not preclude any party from obtaining urgent interim relief in a competent court of law.

15. Notices Any notices or communications by the parties in terms of this Agreement shall be in writing and shall either be hand delivered, sent by registered post or sent by facsimile message and addressed as follows:

If addressed to ________________________________ (insert name of recipient), to the contact person as set out in Annexure C of this Agreement:

Street address: ______________________________________________________ Postal address: ______________________________________________________ Telephone number: __________________________________________________ Facsimile number: ___________________________________________________ E-mail address: _____________________________________________________

If addressed to __________________________________ (insert name of provider), to the community duly nominated representative / contract as set out in Annexure C of this Agreement:

Street address: ______________________________________________________ Postal address: _____________________________________________________ Telephone number: _________________________________________________ Facsimile number: ___________________________________________________ E-mail address: _____________________________________________________

The street addresses specified above shall be regarded as the domicilium citandi et executandi of the respective parties.

Unless the contrary is proved, notices or communications:

– Sent by registered post will be deemed to have been received _______ days after date of posting;
– Delivered by hand will be deemed to have been received on the date of delivery;
– Sent by facsimile message will be deemed to have been received on the date reflecting on the transmission slip; and
– Sent by e-mail message will be deemed to be received on the date reflected on the electronic confirmation slip received by the sender from the addressee’s information system indicating that the e-mail has been received by the addressee.

16. General

16.1 This Agreement constitutes the sole record of the Agreement between the parties with regard to the subject matter thereof.

16.2 No consensual cancellation or amendment of this Agreement (or this clause 16.2) shall be valid unless reduced to writing and signed by or on behalf of both parties.

16.3 No indulgence which any party may grant the other shall constitute a waiver of, or prejudice the rights of the party granting the indulgence.

16.4 If any part of this Agreement is found to be invalid or unenforceable, it shall be severed from the remainder of the Agreement which shall remain valid and enforceable.

16.5 Neither party may cede its rights or delegate its obligations in terms of this Agreement without the prior written consent of the other party.

16.6 This Agreement may be signed in counterparts, in which case the counterparts jointly shall constitute the Agreement.

16.7 This Agreement shall be governed and construed in accordance with __________________________________________ (insert country) law.

Signed at _____________________ this _________ day of ____________________ For and on behalf of the _________________________ (insert name of recipient) and
duly authorized thereto: ________________________________________________ Full names and surname: _______________________________________________
Identity number: ______________________________________________________ Capacity: ____________________________________________________________

As witnesses:
1. __________________________________
2. __________________________________
Signed at ___________________ this _________ day of ______________________ ____________________________ (insert name of provider) or for and on behalf of ____________________________ (insert name of provider) and duly authorized thereto: ___________________________________________________________
Full names and surname: _______________________________________________
Identity number: ______________________________________________________

As witnesses:
1. __________________________________
2. __________________________________

Annexure A
アフリカユニオン素材詳細記載
Description of Material

Details in respect of each sample Material: ________________________________
Name of permit: _____________________________________________________ Issuing authority: ____________________________________________________ Date of permit: __________________________
Permit no.: ______________________________
Name of permit holder: ____________________________ (insert name of recipient)
Date of collection: ________________________
Name of area from which material was collected: __________________________
Description of habitat from which material was collected: ___________________ _____________________________________________________________
Sample no.: _______________________________
Taxonomic description (to lowest known level): __________________________ Description of material collected (e.g. twigs, leaves) and manner in which the material is fixed or preserved: __________________________________________ __________________________________________________________________ Quantity collected (also state unit of measurement and accuracy level): ________ __________________________________________________________________ Source: _____________________________________________________________ Type of Material: ______________________________________________________ Part of Material: ______________________________________________________ Scientific or common name (Family, genus and species if possible): _____________ _________________________________________________________________ Quantity allowed (Limitation on the quantity of samples): ____________________ __________________________________________________________________
Full locality data (GIS readings if possible): ________________________________
Current use/s: ________________________________________________________ Purpose of export (if applicable): _________________________________________

Annexure B (Insert full details of Background Intellectual Property associated with the material)

Annexure C

Contact person
_______________________________________________ (insert name of recipient)

Contact person:
Full name and surname: ________________________________________________
Identity number: __________________________________
Capacity: _________________________________________
A certified copy of the Identity document of ___________________________ (insert name of recipient), contact person is attached hereto as Annexure _______________________________________________(insert name of provider) Full name and surname: ________________________________________________
Identity number: __________________________________
A certified copy of the identity document of ____________________________ (insert name of provider)
is attached hereto as Annexure __________

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