Standard
Material Transfer Agreement
PREAMBLE
WHEREAS
The International
Treaty on Plant Genetic Resources for Food and Agriculture (hereinafter
referred to as “the Treaty”) was adopted by the Thirty-first
session of the FAO Conference on 3November2001 and entered into force
on 29June2004;
The objectives
of the Treaty are the conservation and sustainable use of
Plant Genetic Resources for Food and Agriculture and the fair and
equitable sharing of the benefits arising out of their use, in harmony
with the Convention on Biological Diversity, for sustainable agriculture
and food security;
The Contracting
Parties to the Treaty, in the exercise of their sovereign rights
over their Plant Genetic Resources for Food and Agriculture,
have established a Multilateral System both to facilitate access
to Plant Genetic Resources for Food and Agriculture and to share,
in a fair and equitable way, the benefits arising from the utilization
of these resources, on a complementary and mutually reinforcing basis;
Articles 4,
11, 12.4 and 12.5 of the Treaty are borne in mind;
The diversity
of the legal systems of the Contracting Parties with respect to their
national procedural rules governing access to courts and to arbitration,
and the obligations arising from international and regional conventions
applicable to these procedural rules, are recognized;
Article 12.4
of the Treaty provides that facilitated access under the Multilateral
System shall be provided pursuant to a Standard Material Transfer
Agreement, and the Governing Body of the Treaty, in its
Resolution 1/2006 of16 June 2006, adopted the Standard Material Transfer
Agreement.
ARTICLE
1 — PARTIES TO THE AGREEMENT
1.1The present
Material Transfer Agreement (hereinafter referred to as “this Agreement”)
is the Standard Material Transfer Agreement referred to in Article 12.4
of the Treaty.
1.2This
Agreement is:
BETWEEN:
(name and address of the provider or providing institution, name
of authorized official, contact information for authorized official)
(hereinafter referred to as “the Provider”),
AND:
(name of person or organizational unit within IRRI) of the International
Rice Research Institute, Los Baños, Laguna, Philippines (hereinafter
referred to as “the Recipient”).
1.3The parties
to this Agreement hereby agree as follows:
ARTICLE
2 — DEFINITIONS
In this
Agreement the expressions set out below shall have the following
meaning:
“Available
without restriction”: a Product is considered to be
available without restriction to others for further research and breeding
when it is available for research and breeding without any legal or
contractual obligations, or technological restrictions, that would preclude
using it in the manner specified in the Treaty.
“Genetic
material” means any material of plant origin, including reproductive
and vegetative propagating material, containing functional units of
heredity.
“Governing
Body” means the Governing Body of the Treaty.
“Multilateral
System” means the Multilateral System established under
Article 10.2 of the Treaty.
“Plant
Genetic Resources for Food and Agriculture” means any genetic
material of plant origin of actual or potential value for food and
agriculture.
“Plant
Genetic Resources for Food and Agriculture under Development”
means material derived from the Material, and hence distinct
from it, that is not yet ready for commercialization and which
the developer intends to further develop or to transfer to another person
or entity for further development. The period of development for the
Plant Genetic Resources for Food and Agriculture under Development
shall be deemed to have ceased when those resources are commercialized
as a Product.
“Product”
means Plant Genetic Resources for Food and Agriculture that incorporate
the Material or any of its genetic parts or components that are
ready for commercialization, excluding commodities and other
products used for food, feed and processing.
“Sales”
means the gross income resulting from the commercialization of
a Product or Products, by the Recipient, its affiliates,
contractors, licensees and lessees.
“To
commercialize” means to sell a Product or Products
for monetary consideration on the open market, and “commercialization”
has a corresponding meaning. Commercialization shall not include
any form of transfer of Plant Genetic Resources for Food and Agriculture
under Development.
ARTICLE
3 — SUBJECT MATTER OF THE MATERIAL TRANSFER AGREEMENT
The Plant
Genetic Resources for Food and Agriculture specified in Annex
1 to this Agreement (hereinafter referred to as the
“Material”) and the available related information referred
to in Article 5b and in Annex 1 are hereby transferred from the
Provider to the Recipient subject to the terms and conditions
set out in this Agreement.
ARTICLE
4 — GENERAL PROVISIONS
4.1 This
Agreement is entered into within the framework of the Multilateral
System and shall be implemented and interpreted in accordance with
the objectives and provisions of the Treaty.
4.2 The parties
recognize that they are subject to the applicable legal measures and
procedures, that have been adopted by the Contracting Parties to the
Treaty, in conformity with the Treaty, in particular those
taken in conformity with Articles 4, 12.2 and 12.5 of the Treaty.1
4.3The parties
to this Agreement agree that the Food and Agriculture Organization
of the United Nations, acting on behalf of the Governing Body
of the Treaty and its Multilateral System, is the
third party beneficiary under this Agreement.
4.4The third
party beneficiary has the right to request the appropriate information
as required in Articles 5e, 6.5c, 8.3 and Annex, 2 paragraph 3,
to this Agreement.
4.5The rights
granted to the Food and Agriculture Organization of the United Nations
above do not prevent the Provider and the Recipient from
exercising their rights under this Agreement.
ARTICLE
5 — RIGHTS AND OBLIGATIONS OF THE PROVIDER
The Provider
undertakes that the Material is transferred in accordance with
the following provisions of the Treaty:
Access shall be
accorded expeditiously, without the need to track individual accessions
and free of charge, or, when a fee is charged, it shall not exceed the
minimal cost involved;
All available passport
data and, subject to applicable law, any other associated available
non-confidential descriptive information, shall be made available with
the Plant Genetic Resources for Food and Agriculture provided;
Access to Plant
Genetic Resources for Food and Agriculture under Development, including
material being developed by farmers, shall be at the discretion of its
developer, during the period of its development;
Access to Plant
Genetic Resources for Food and Agriculture protected by intellectual
and other property rights shall be consistent with relevant international
agreements, and with relevant national laws;
The Provider
shall periodically inform the Governing Body about the Material
Transfer Agreements entered into, according to a schedule to be established
by the Governing Body. This information shall be made available
by the Governing Body to the third party beneficiary.2
ARTICLE
6 — RIGHTS AND OBLIGATIONS OF THE RECIPIENT
6.1 The
Recipient undertakes that the Material shall be used or conserved
only for the purposes of research, breeding and training for food and
agriculture. Such purposes shall not include chemical, pharmaceutical
and/or other non-food/feed industrial uses.
6.2 The
Recipient shall not claim any intellectual property or other rights
that limit the facilitated access to the Material provided under
this Agreement, or its genetic parts or components, in the
form received from the Multilateral System.
6.3In the case
that the Recipient conserves the Material supplied, the
Recipient shall make the Material, and the related information
referred to in Article 5b, available to the Multilateral System
using the Standard Material Transfer Agreement.
6.4In the case
that the Recipient transfers the Material supplied under
this Agreement to another person or entity (hereinafter referred
to as “the subsequent recipient”), the Recipient shall
do so under the
terms and conditions of the Standard Material Transfer Agreement, through
a new material transfer agreement; and
notify the Governing
Body, in accordance with Article 5e.
On compliance
with the above, the Recipient shall have no further obligations
regarding the actions of the subsequent recipient.
6.5In the case
that the Recipient transfers a Plant Genetic Resource for
Food and Agriculture under Development to another person or entity,
the Recipient shall:
do so under the
terms and conditions of the Standard Material Transfer Agreement, through
a new material transfer agreement, provided that Article 5a of the Standard
Material Transfer Agreement shall not apply;
identify, in
Annex 1 to the new material transfer agreement, the Material
received from the Multilateral System, and specify that
the Plant Genetic Resources for Food and Agriculture under Development
being transferred are derived from the Material;
notify the Governing
Body, in accordance with Article 5e; and
have no further
obligations regarding the actions of any subsequent recipient.
6.6Entering
into a material transfer agreement under paragraph 6.5 shall be without
prejudice to the right of the parties to attach additional conditions,
relating to further product development, including, as appropriate,
the payment of monetary consideration.
6.7In the case
that the Recipient commercializes a Product that
is a Plant Genetic Resource for Food and Agriculture and that
incorporates Material as referred to in Article 3 of this
Agreement, and where such Product is not available without
restriction to others for further research and breeding, the
Recipient shall pay a fixed percentage of the Sales of the
commercialized Product into the mechanism established by the
Governing Body for this purpose, in accordance with Annex2
to this Agreement.
6.8In the case
that the Recipient commercializes a Product that
is a Plant Genetic Resource for Food and Agriculture and that
incorporates Material as referred to in Article 3 of this
Agreement and where that Product is available without
restriction to others for further research and breeding, the
Recipient is encouraged to make voluntary payments into the mechanism
established by the Governing Body for this purpose in
accordance with Annex 2 to this Agreement.
6.9The Recipient
shall make available to the Multilateral System, through the
information system provided for in Article 17 of the Treaty,
all non-confidential information that results from research and development
carried out on the Material, and is encouraged to share through
the Multilateral System non-monetary benefits expressly identified
in Article 13.2 of the Treaty that result from such research
and development. After the expiry or abandonment of the protection period
of an intellectual property right on a Product that incorporates
the Material, the Recipient is encouraged to place a sample
of this Product into a collection that is part of the Multilateral
System, for research and breeding.
6.10A Recipient
who obtains intellectual property rights on any Products developed
from the Material or its components, obtained from the Multilateral
System, and assigns such intellectual property rights to a third
party, shall transfer the benefit-sharing obligations of this
Agreement to that third party.
6.11The
Recipient may opt as per Annex 4, as an alternative to payments
under Article 6.7, for the following system of payments:
The Recipient
shall make payments at a discounted rate during the period of validity
of the option;
The period of validity
of the option shall be ten years renewable in accordance with Annex
3 to this Agreement;
The payments shall
be based on the Sales of any Products
and of the sales of any other products that are Plant Genetic Resources
for Food and Agriculture belonging to the same crop, as set out
in Annex 1 to the Treaty, to which the Material
referred to in Annex 1 to this Agreement belongs;
The payments to
be made are independent of whether or not the Product is available
without restriction;
The rates of payment
and other terms and conditions applicable to this option, including
the discounted rates are set out in Annex 3 to this Agreement;
The Recipient
shall be relieved of any obligation to make payments under Article 6.7
of this Agreement or any previous or subsequent Standard
Material Transfer Agreements entered into in respect of the same crop;
After the end of
the period of validity of this option the Recipient shall make
payments on any Products that incorporate Material received
during the period in which this Article was in force, and where such
Products are not available without restriction. These payments
will be calculated at the same rate as in paragraph (a) above;
The Recipient
shall notify the Governing Body
that he has opted for this modality of payment. If no notification is
provided the alternative modality of payment specified in Article 6.7
will apply.
ARTICLE
7 — APPLICABLE LAW
The applicable
law shall be General Principles of Law, including the UNIDROIT Principles
of International Commercial Contracts 2004, the objectives and the relevant
provisions of the Treaty, and, when necessary for interpretation,
the decisions of the Governing Body.
ARTICLE
8 — DISPUTE SETTLEMENT
8.1 Dispute
settlement may be initiated by the Provider or the Recipient
or the Food and Agriculture Organization of the United Nations, acting
on behalf of the Governing Body of the Treaty and its
Multilateral System.
8.2The parties
to this Agreement agree that the Food and Agriculture Organization
of the United Nations, representing the Governing Body and the
Multilateral System, has the right, as a third party beneficiary,
to initiate dispute settlement procedures regarding rights and obligations
of the Provider and the Recipient under this Agreement.
8.3The third
party beneficiary has the right to request that the appropriate information,
including samples as necessary, be made available by the Provider
and the Recipient, regarding their obligations in the context
of this Agreement. Any information or samples so requested shall
be provided by the Provider and the Recipient, as the
case may be.
8.4 Any dispute
arising from this Agreement shall be resolved in the following
manner:
Amicable dispute
settlement: The parties shall attempt in good faith to resolve the dispute
by negotiation.
Mediation: If the
dispute is not resolved by negotiation, the parties may choose mediation
through a neutral third party mediator, to be mutually agreed.
Arbitration: If
the dispute has not been settled by negotiation or mediation, any party
may submit the dispute for arbitration under the Arbitration Rules of
an international body as agreed by the parties to the dispute. Failing
such agreement, the dispute shall be finally settled under the Rules
of Arbitration of the International Chamber of Commerce, by one or more
arbitrators appointed in accordance with the said Rules. Either party
to the dispute may, if it so chooses, appoint its arbitrator from such
list of experts as the Governing Body may establish for this purpose;
both parties, or the arbitrators appointed by them, may agree to appoint
a sole arbitrator, or presiding arbitrator as the case may be, from
such list of experts. The result of such arbitration shall be
binding.
ARTICLE
9 — ADDITIONAL ITEMS
Warranty
9.1 The
Provider makes no warranties as to the safety of or title to the
Material, nor as to the accuracy or correctness of any passport
or other data provided with the Material. Neither does it make
any warranties as to the quality, viability, or purity (genetic or mechanical)
of the Material being furnished. The phytosanitary condition
of the Material is warranted only as described in any attached
phytosanitary certificate. The Recipient assumes full responsibility
for complying with the recipient nation’s quarantine and biosafety
regulations and rules as to import or release of genetic material.
Duration
of Agreement
9.2This
Agreement shall remain in force so long as the Treaty remains
in force.
ARTICLE
10 — SIGNATURE/ACCEPTANCE
The
Material is provided conditional on acceptance of the terms of
this Agreement. The provision of the Material by the Provider
and the Recipient’s acceptance and use of the Material
constitutes acceptance of the terms of this Agreement.
Annex
1
LIST
OF MATERIALS PROVIDED
This Annex
contains a list of the Material
provided under this Agreement, including the associated
information referred to in Article 5b.
This information
is either provided below or can be obtained at the following website:
(URL).
The following
information is included for each Material listed: all available
passport data and, subject to applicable law, any other associated,
available, non-confidential descriptive information.
Materials
that are Plant Genetic Resources for Food and Agriculture under Development
and that are derived from and distinct from germplasm that is included
within the multilateral system, are identified here in accordance with
article 6.5(b) by identifying the ancestral MLS germplasm used in their
development to date. These Materials are being transferred under
the provisions of article 6.5. Materials with no identified ancestral
MLS germplasm are included within the multilateral system and are being
transferred without invoking article 6.5.
Material
provided
Variety
or other designation
Pedigree
Species
Ancestral
MLS germplasm
ID
Origin
ID
Origin
Annex
2
RATE AND
MODALITIES OF PAYMENT UNDER ARTICLE 6.7 OF THIS AGREEMENT
1.If a Recipient,
its affiliates, contractors, licensees, and lessees, commercializes
a Product or Products, then the Recipient shall
pay one point-one percent (1.1 %) of the Sales
of the Product or Products less thirty percent (30%);
except that no payment shall be due on any Product or Products
that:
(a) are
available without restriction to others for further research and
breeding in accordance with Article 2 of this Agreement;
(b) have
been purchased or otherwise obtained from another person or entity who
either has already made payment on the Product or Products
or is exempt from the obligation to make payment pursuant to subparagraph
(a) above;
(c) are
sold or traded as a commodity.
2. Where a
Product contains a Plant Genetic Resource for Food and Agriculture
accessed from the Multilateral System under two or more material
transfer agreements based on the Standard Material Transfer Agreement
only one payment shall be required under paragraph 1 above.
3.The Recipient
shall submit to the Governing Body, within sixty (60) days after
each calendar year ending December 31st, an annual report setting forth:
(a) the
Sales of the Product or Products by the Recipient,
its affiliates, contractors, licensees and lessees, for the twelve (12)
month period ending on December 31st;
(b) the
amount of the payment due; and
(c) information
that allows for the identification of any restrictions that have given
rise to the benefit-sharing payment.
4.Payment shall
be due and payable upon submission of each annual report. All payments
due to the Governing Body shall be payable in (specified currency)3
for the account of (the Trust Account or other mechanism established
by the Governing Body in accordance with Article
19.3f of the Treaty).4
Annex
3
TERMS
AND CONDITIONS OF THE ALTERNATIVE PAYMENTS SCHEME
UNDER ARTICLE 6.11 OF THIS AGREEMENT
The discounted rate
for payments made under Article 6.11 shall be zero point five percent
(0.5 %) of the Sales of any Products and of the sales
of any other products that are Plant Genetic Resources for Food and
Agriculture belonging to the same crop, as set out in Annex 1 to
the Treaty, to which the Material referred to in Annex1
to this Agreement belong.
Payment shall be
made in accordance with the banking instructions set out in paragraph
4 of Annex 2 to this Agreement.
When the Recipient
transfers Plant Genetic Resources for Food and Agriculture under
Development, the transfer shall be madeonthe condition that the
subsequent recipient shallpay into the mechanism established
by the Governing Body under Article 19.3f of the Treatyzero
point five percent (0.5 %) of the Sales ofany Product
derived fromsuchPlant Genetic Resources for Food and Agriculture
under Development, whether the Productis available or
not without restriction.
At least six months
before the expiry of a period of ten years counted from the date of
signature of this Agreement and, thereafter, six months before
the expiry of subsequent periods of five years, the Recipient
may notify the Governing Body of his decision to opt out from
the application of this Article as of the end of any of those periods.
In the case the Recipient has entered into other Standard Material
Transfer Agreements, the ten years period will commence on the date
of signature of the first Standard Material Transfer Agreement where
an option for this Article has been made.
Where the Recipient
has entered or enters in the future into other Standard Material Transfer
Agreements in relation to material belonging to the same crop[s], the
Recipient shall only pay into the referred mechanism the percentage
of sales as determined in accordance with this Articleor the same Article
of any other Standard Material Transfer Agreement. No cumulative payments
will be required.
Annex
4
OPTION
FOR CROP-BASED PAYMENTS UNDER THE ALTERNATIVE PAYMENTS SCHEME UNDER
ARTICLE 6.11 OF THIS AGREEMENT
I
(full name of Recipient or
Recipient’s authorised official) declare to opt
for payment in accordance with Article 6.11 of this Agreement.
Signature.................................................Date................................................ 5
1
In the case of the International Agricultural Research Centres of the
Consultative Group on International Agricultural Research (CGIAR) and
other international institutions, the Agreement between the Governing
Body and the CGIAR Centres and other relevant institutions will be applicable.
2
Note by the Secretariat: The Standard Material Transfer Agreement
makes provision for information to be provided to the Governing Body,
in the following Articles: 5e, 6.4b, 6.5c and 6.11h, as well as in
Annex 2, paragraph 3, Annex 3, paragraph 4, and in Annex
4. Such information should be submitted to:
The
Secretary
International Treaty on Plant Genetic Resources for Food and Agriculture
Food and Agriculture Organization of the United Nations
I-00100 Rome, Italy
3
Note by the Secretariat: The Governing Body has not yet considered
the question of currency of payment. Until it does so, Standard Material
Transfer Agreements should specify United States dollars (US$).
4
Note by the Secretariat: This is the Trust Account provided for
in Article 6.3 of the Financial Rules, as approved by the Governing
Body (Appendix E to this Report). The details of the Trust Account
when established, will be introduced here, and communicated to Contract
Parties.
5
In accordance with Article 6.11h of the Standard Material Transfer Agreement,
the option for this modality of payment will become operative only once
notification has been provided by the Recipient
to the Governing Body. The signed declaration opting for this
modality of payment must be sent by the Recipient to the Governing
Body at the following address, whichever method of acceptance of
this Agreement (signature, shrink-wrap or click-wrap) has been chosen
by the parties to this Agreement, and whether or not the Recipient
has already indicated his acceptance of this option in accepting
this Agreement itself:
The
Secretary,
International
Treaty on Plant Genetic Resources for Food and Agriculture
Food
and Agriculture Organization of the United Nations
I-00100
Rome, Italy
The
signed declaration must be accompanied by the following:
The date on which
this Agreement was entered into;
The name and address
of the Recipient and of the Provider;
A copy of Annex
1 to this Agreement.