欧州バイオリソースセンター標準素材移転契約

Material Transfer Agreement

一般的チェックリスト
1. Accompanying terms
Existing PIC terms and existing previous MTA terms
2. Basic terms
− Description of MGRs (country of origin, place and date of isolation, identification data, name of the individual that has isolated the strain from in situ conditions or, for lack of individual’s name, the name of the institution (legal entity) that employed the individual at the time of the isolation of the strain);
− Bona fide and sustainable use, following the CBD principles;
− Clause governing the payment of the costs of handling;
− Type of transfer : transfer where distribution to third parties is excluded or is possible
(the choice between these two options is subordinate to the kind of use)
(when distribution is possible look for sub-choice between limited or monitored distribution).
3. Use-specific terms
・ Category 1: Use for test, reference, bioassay, control and training purposes.
− No commercial use;
− The recipient has to follow the protocols of standard test and reference procedure;
− No IPR on MGRs, derived technology and information.
・ Category 2: Use for research purposes
− No commercial use;
− No IPR on MGRs, derived technology and information;
− Scientific feedback: publications will mention provider and country of origin.
・ Category 3 : Commercial use
− Terms on IPR, information feedback about patent application;
− Need for more precise terms for benefit sharing (see additional terms).
4. Additional terms
・ IPR related to MGRs and derived technology
IPR-ownership of the MGRs
IPR-ownership of the derived technology
・ Terms on training, technical and scientific co-operation, access to and transfer of technology, exchange of information and publication policy. Terms providing possibilities for capacity building in taxonomy and general microbiology for the provider of microbial genetic resources should be emphasised and prioritised to less scientific, less durable compensations such as financial arrangements.
・ Conservation of MGRs
・ Partnerships involving other stakeholders than provider and recipient of MGRs, including indigenous and local communities
・ Monetary terms: Initial, up-front payment
Royalty payments

生物多様性条約遵守チェックリスト
１．Has PIC been obtained?
・ Record terms of deposit and supply on the genetic resource record.
・ Record country of origin and, where known, details of the PIC Authority
・ Supply only to recipients who will comply with the requirements of the CBD, according to best knowledge
・ Supply all strains under a material transfer agreement (MTA), which includes conditions of access, terms for benefit sharing and conditions of use a further supply to third parties/forbid supply to third parties

Relevant Treaties, Directives or legislation

契約本体

Introductory Provisions

Preamble
1. The Microorganisms received under this Material Transfer Agreement (MTA) will be used in a bona fide and sustainable way, and this in full respect of the principles laid down in the Convention on Biological Diversity (CBD). Nothing in this agreement shall be construed as changing the rights and obligations of Parties under the CBD. The agreement fully complies with Article 15 of the CBD, which recognises the sovereign rights of States over their natural resources. Access to the genetic resources is subject to Prior Informed Consent (PIC). Materials are provided under this agreement on the understanding that they were collected either before the CBD came into force or with PIC (where procedures are in place and recognised authorities exist) and that copies of any agreements (PIC MAT, MTA) are supplied with the cultures. The Recipient of the genetic resource must not transfer the strains under the terms of this agreement to a third party unless otherwise agreed and terms and conditions laid down for their use.

Parties to this agreement:

The provider: Culture Collection
The recipient:

Objectives of use of genetic resources provided under this agreement

− Access to the preserved organisms in compliance with the CBD
− Enable their utilisation to the benefit of humankind whilst respecting the spirit of the CBD and the rights of stakeholders.

In this Agreement the following expressions shall have the following meanings:

1.1 “Cultures” includes, but is not limited to, fungi and bacteria or other fungal or bacterial material and any other material of 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 fungal, microbial or other origin containing functional units of heredity of actual or potential value;

1.5 “Material” shall mean the microbial or fungal biological material transferred under this Agreement;

1.6 “Third Party” shall mean any person other than Recipient of the genetic resource and the supplying collection.

Access and benefit-sharing provisions

Description of the genetic resources covered
2. The holdings of the Collection available for supply

Use
3. Permitted uses of the genetic resources
− Research
− Commercialisation

Intellectual Property Rights
4. The user may seek Intellectual Property Rights and protection of this, for example under Patent Law, providing the terms on benefit sharing are met.

Terms on benefit sharing
5. The benefits can either be monetary or non-monetary and are listed below:

Monetary benefits:
5.1 The recipient agrees to provide the collection and the country of origin an agreed royalty on the profits made as a result of the exploitation of the genetic resource provided.

Non-monetary benefits:
5.2 Collaboration in scientific research and development programmes, particularly taxonomic and biotechnological research activities
5.3 Collaboration in education and training
5.4 Provision of scientific information relevant to conservation and sustainable utilisation of the materials provided

Third parties ? entitlement to transfer to third parties is not always given

6. The recipient 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 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.

6.1 Materials are transferred to third parties under the following typical conditions:
That the third party recipient does not exploit the materials commercially and under the following supply agreement:

I/we agree not to claim ownership over the microorganisms received nor to seek intellectual property rights over them or related information. If we wish to utilize or exploit such organisms commercially, suitable and adequate recompense in the spirit of the Convention on Biological Diversity will first be discussed with stakeholders and country of origin.

I/We also agree to ensure that any subsequent person or institution to whom I/we make samples of the microorganism available, is bound by the same provision.

Or

6.2 A MTA containing the mutually agreed terms of this MTA plus terms recognising the role of the supplying collection as a stakeholder in the exploitation of the genetic resource. This role includes:

adding value to received and collected biological material, through purification, expert preparation, authoritative identification, description, determination of biochemical and other characteristics, comparison with related material, safe and effective storage/preservation, evaluation of value for biological control uses, and indication of importance of beneficial and detrimental attributes. In some instances this may extend to the development of a marketable product.

Compliance with the MTA

7. The provider and the user agree to comply with the mutually agreed terms of this MTA and will require any third party given access to samples of this material to comply.

Legal provisions

8.1 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 2, 3, 4, 5.1, 6 and 7 herein shall survive the expiration or other termination of this Agreement.

8.2 Notwithstanding clause 8.1 above, either party to this Agreement may give six months notice to the other party to terminate this Agreement.

8.3 On termination of the agreement materials subject to the agreement should either be returned to the provider by the recipient or destroyed.

8.4 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.

8.5 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.

8.6 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:

Recipient:
Name: [Insert name]
Position: [Insert title]
Address: [Insert address]

Collection:
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.

8.6 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.

8.7 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.

8.8 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.

8.9 Nothing contained in this Agreement shall constitute a partnership between Recipeint of the genetic resource and the supplying collection or constitute either of them the agent of the other.

8.10 This Agreement is governed by and shall be construed in accordance with English law.

8.11 This Agreement may be executed in any number of counterparts, all of which, taken together, shall constitute one and the same agreement.

Confidentiality clause

9. All work carried out for the recipient of the genetic resource is to be treated as strictly confidential. This applies to all requests for strains, safe and patent deposits, preservation protocol design, and preservation contracts and to the fact that the product or service was requested.

Signed for and on behalf of Signed for and on behalf of
Biological Resource Centre

Name: _____________________ Name:

Signature: _____________________ Signature: ___________________
Position: Purchasing manager Position:
Date: _____________________ Date: ___________________

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