MODEL AGREEMENT FOR SUPPLY OF BIOLOGICAL MATERIAL 26
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.
Upon receipt of this Agreement, signed by Recipient below, and because Recipient has agreed to comply with the terms and conditions set forth in this Agreement, [Participating Garden] (“[PG]”) will supply to Recipient such of the Biological Material27 requested by Recipient as is, in [PG]’s sole judgement, reasonable and appropriate. Such Biological Material as is supplied to Recipient will be accompanied by a copy of this Agreement, on the reverse of which the Biological Material being supplied (the “Material”) will be itemized.
[PG] intends to honor the letter and spirit of the Convention on Biological Diversity in the use of its collections. Accordingly, the supply of any and all Biological Material by [PG] to Recipient, including any Material to be supplied under this Agreement, will be subject to the following conditions:
1. Subject to Clauses 2 and 4 below, Recipient may use the Material and any progeny or Derivatives28 thereof such as modified or unmodified extracts) for non-commercial purposes only.
2. Recipient will provide [PG] with a fair and equitable share of any benefits obtained by Recipient arising out of any utilization by Recipient of the Material or its progeny or Derivatives, including benefits such as research results and copies of publications. In addition, Recipient shall acknowledge [PG] and, where determinable, the Country of Origin, in all research publications resulting from the use of the Material.
3. Under this Agreement, Recipient may not commercialize29 the Material or any progeny or Derivatives thereof.
4. If at any point in the future Recipient wishes to commercialize the Material or its progeny or Derivatives, Recipient must first obtain the written permission of [PG]. Any commercialization to which [PG] agrees will be subject to a separate agreement between Recipient and [PG] consistent with [PG]’s policy that benefits be shared fairly and equitably with the Country of Origin30 of the Material.
5. Recipient may not transfer the Material or any progeny or Derivatives thereof to any party other than Recipient or [PG] without the prior informed consent in writing of [PG], and then only under a legally binding written agreement containing terms no less restrictive than those contained in this Agreement unless otherwise agreed in writing by [PG].
6. [PG] makes no representation or warranty of any kind, either express or implied, (1) as to the identity, safety, merchantability or fitness for any particular purpose of the Material or its progeny or Derivatives or (2) that the Material provided to Recipient under this Agreement is or will remain free from any further obligation to obtain prior informed consent from, to share benefits with or to comply with restrictions on use imposed by the country of origin of the Material or any other country or regional economic integration organization. Recipient will indemnify [PG] from any and all liability arising out of the Material or its progeny or Derivatives and their use.
7. This Agreement is governed by and shall be construed in accordance with [insert appropriate nationality] law.
I understand that any Material supplied to me by [PG] pursuant to this Agreement will be subject to, and I agree to comply with, the conditions above.
for and on behalf of [Insert name of recipient institution] (“Recipient”)
Name: [Insert name of individual]
Title: [Insert title of individual]
Date: [Insert date]
for and on behalf of [Participating Garden]
Name: [Insert name of individual]
Address of Recipient: [Insert address]
Date: [Insert date]
27 Note 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; Genetic resources mean any material of plant, animal, fungal, microbial or other origin containing functional units of heredity of actual or potential value. This definition of genetic resources is adapted from the definitions of genetic materials and genetic resources set forth in Article 2 of the Convention on Biological Diversity.
28 (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;
29 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;
30 Note 2. Country of origin of genetic resources means the country which possesses those genetic resources in in situ conditions;