Subject matter

Any plant, animal, micro-organism or other non-human biological material, including any substance produced by, or extracted or derived from the biological material.

Summary of use(s)

Subject to the terms of the Agreement, an exclusive license to:
(a) use a Sample or Derivative to conduct Biodiversity Research; and
(b) commercialize a Sample or Derivative.

Purpose or background

The State wishes to facilitate the development of the Queensland biodiscovery industry for the benefit of Queensland's community and economy. The Organisation wishes to conduct Biodiscovery Research on Samples of Biological Material Collected from Queensland and to undertake associated Commercialisation. Both the State and the Organisation wish to capture an equitable share of the benefits (including Non-Monetary Benefits) derived from Biodiscovery Research and associated Commercialisation. The State agrees to allow the Organisation to conduct Biodiscovery Research and to undertake associated Commercialisation on the terms and conditions set out in this Agreement.

Contact details

The Queensland Government, Department for Innovation and Information Economy, P.O. Box 187, Brisbane Albert Street Queensland 4002 Australia.
E-mail: biotechnology.regulation@iie.qld.gov.au
Telephone: (07) 3404 3648
Fax: (07) 3225 8754.

 

THIS AGREEMENT is made on ………………………….. 2002

 

BETWEEN

The State of Queensland (the "State")

AND

The party specified in item 1 of schedule 1 (the "Organisation").

RECITALS

A. The State wishes to facilitate the development of the Queensland biodiscovery industry for the benefit of Queensland's community and economy.

B. The Organisation wishes to conduct Biodiscovery Research on Samples of Biological Material Collected from Queensland and to undertake associated Commercialisation.

C. Both the State and the Organisation wish to capture an equitable share of the benefits (including Non-Monetary Benefits) derived from Biodiscovery Research and associated Commercialisation. Non-Monetary Benefits include:

(a) investment in the capacity of the Queensland-based biotechnology industry;
(b) technology transfer to Queensland-based entities;
(c) creation of employment in Queensland;
(d) formation of collaborative agreements with Queensland-based entities;
(e) investment in Queensland-based entities;
(f) investment in research and development infrastructure in Queensland;
(g) conducting field and clinical trials in Queensland;
(h) undertaking commercial, production, processing or manufacture in Queensland;
(i) creation of alternative industries or crops in Queensland;
(j) improved knowledge of Queensland's biodiversity;
(k) improved knowledge of Queensland's natural environment; and
(l) lodgement of voucher specimens with the Queensland Museum or Queensland Herbarium.

D. The State agrees to allow the Organisation to conduct Biodiscovery Research and to undertake associated Commercialisation on the terms and conditions set out in this Agreement.

IT IS AGREED

1 INTERPRETATION

1.1 Definitions

In this Agreement:

"Agreement" means the biodiscovery benefit sharing agreement evidenced by this document.

"Ancillary Agreement" means any agreement (however described) which includes terms related to the Sublicence, including any terms in respect of any consideration to be provided by the Sublicensee for the granting of the Sublicence.

"Biodiscovery Licence" means the licence granted by the Department under clause 6.1.

"Biodiscovery Plan" means the plan required to be submitted to the Department in accordance with clause 2.1(a).

"Biodiscovery Research" means any research in relation to a chemical, compound, substance or thing comprising, or contained in, or produced by, a Sample or a Derivative.

"Biological Material" means any plant, animal, micro-organism or other non-human biological material, and includes any substance produced by, or extracted or derived from, the biological material.

"Business Day" means a day other than a Saturday, Sunday, bank or public holiday in Brisbane.

"Code" means the Code of Ethical Practice for Biotechnology in Queensland, approved by the Queensland Government, shown in schedule 6, as amended from time to time.

"Collection" means taking, however described, of Biological Material from the natural environment.

"Commencement Date" means the date specified in item 2 of schedule 1.

"Commercialise" means:

(a) in relation to Intellectual Property:
(i) to licence or otherwise authorise any other person to exploit any Intellectual Property; and
(ii) to Dispose of any Intellectual Property; and

(b) in relation to the Biodiscovery Licence, to grant a Sublicence; and

(c) in relation to a Sample, to:
(i) propagate, cultivate or produce by whatever means, the Sample for any commercial or industrial purpose (other than for Biodiscovery Research);
(ii) propagate, cultivate or produce any biological entity of the same taxonomic description as the Sample for any commercial or industrial purpose (other than for Biodiscovery Research);
(iii) Dispose of anything referred to in subparagraphs (i) or (ii).

(d) in relation to a Derivative, to:
(i) propagate, cultivate, manufacture or produce by whatever means, the Derivative for any commercial or industrial purpose (other than for Biodiscovery Research);
(ii) reproduce or substantially reproduce the Derivative for any commercial or industrial purpose (other than for Biodiscovery Research); and
(iii) Dispose of anything referred to in subparagraphs (i) or (ii).

"Commercialisation Date" means the date of first Commercialisation by or on behalf of the Organisation.

"Commercialisation Plan" means a plan approved by the Department under clause 8.3.

"Commercialisation Receipts" means the value of any consideration (whether monetary or non-monetary) provided or due to the Organisation (or any person on its behalf) in relation to, or in any way connected with Commercialisation.

"Conditions" means the conditions precedent specified in clause 2.1.

"Corporations Act" means the Corporations Act 2001 (Cth) and the Corporations Regulations made under it, as amended from time to time.

"Department" means the State of Queensland through the Department of Innovation and Information Economy, Sport and Recreation Queensland.

"Derivative" means:

(a) any chemical, compound, substance or thing extracted or derived from a Sample;

(b) any chemical, compound, substance or thing which represents a substantially unmodified copy of a chemical, compound, substance or thing referred to in paragraph (a); and

(c) any chemical, compound, substance or thing created from or mixed with (by whatever means, and to whatever extent) a chemical, compound, substance or thing referred to in paragraphs (a) or (b).

"Dispose" means to sell, transfer, assign, create any interest over, licence or part with the benefit of.

"Fulfilment Date" means the date one (1) month after the Commencement Date or such other date as agreed in writing by the parties.

"Initial Term" means the period specified in item 4 of schedule 1.

"Insolvency Event" means any of the following:

(a) a person is or states that the person is unable to pay from the person's own money all the person's debts as and when they become due and payable;

(b) a person is taken or must be presumed to be insolvent or unable to pay its debts under any applicable legislation;

(c) an application or order is made for the winding up or dissolution or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of a corporation;

(d) an administrator, provisional liquidator, liquidator or person having a similar or analogous function under the laws of any relevant jurisdiction is appointed in respect of a corporation or any action is taken to appoint any such person and the action is not stayed, withdrawn or dismissed within seven (7) Business Days;

(e) a receiver or receiver and manager is appointed in respect of any property of a corporation;

(f) a corporation is deregistered under the Corporations Act or notice of its proposed deregistration is given to the corporation;

(g) a distress, attachment or execution is levied or becomes enforceable against any property of a person;

(h) a person enters into or takes any action to enter into an arrangement (including a scheme of arrangement or deed of company arrangement), composition or compromise with, or assignment for the benefit of, all or any class of the person's creditors or members or a moratorium involving any of them;

(i) a petition for the making of a sequestration order against the estate of a person is presented and the petition is not stayed, withdrawn or dismissed within seven (7) Business Days or a person presents a petition against himself or herself;

(j) a person presents a declaration of intention under section 54A of the Bankruptcy Act 1966 (Cth); or

(k) anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs in respect of a person.

"Intellectual Property" means any:

(a) inventions, innovations or improvement (whether patentable or not);
(b) patents or patent applications;
(c) Trade Secrets;
(d) know-how (whether patentable or not);
(e) plant breeders right; or
(f) copyright which has been created or acquired or which is in the process of being created or acquired as a result of, or in connection with, Biodiscovery Research.

"Loss" means any loss, claim, action, liability, damage, cost, charge, expense, outgoing, payment, diminution in value or deficiency of any kind or character, which the State pays, suffers or incurs or is liable for including:

(a) liabilities on account of Tax;

(b) interest and other amounts payable to third parties; and

(c) legal (on a full indemnity basis) and other expenses reasonably incurred in connection with investigating or defending any claim or action, whether or not resulting in any liability and all amounts paid in settlement of any claim or action.

"Minimum Performance Value" means:

(a) for the twelve (12) month period commencing on the Commercialisation Date – the amount specified in item 7 of schedule 1;

(b) for each successive twelve (12) month period thereafter an amount equal to the greater of:
(i) the Minimum Performance Value for the preceding twelve (12) month period; or
(ii) the Minimum Performance Value for the preceding twelve (12) month period increased by the movement of the Consumer Price Index (All Groups) for the City of Brisbane, such increase to be calculated in accordance with the formula specified in schedule 4.

"Non-Monetary Benefit" means any social, environmental or economic benefit for Queensland, including by way of example:

(a) investment in the capacity of the Queensland-based biotechnology industry;

(b) technology transfer to Queensland-based entities;

(c) creation of employment in Queensland;

(d) formation of collaborative agreements with Queensland-based entities;

(e) investment in Queensland-based entities;

(f) investment in research and development infrastructure in Queensland;

(g) conducting field and clinical trials in Queensland;

(h) undertaking commercial, production, processing or manufacture in Queensland;

(i) creation of alternative industries or crops in Queensland;

(j) improved knowledge of Queensland's biodiversity;

(k) improved knowledge of Queensland's natural environment; and

(l) lodgement of voucher specimens with the Queensland Museum or Queensland Herbarium.

"Overseas-based" in relation to an entity, means that the entity is not a Queensland-based entity or an Australian-based entity.

"Permit" means a licence, permit or authority issued under Queensland legislation authorising the Collection of a Sample.

"Prescribed Information" means the information required to be provided to the Department pursuant to clause 4.3.

"Proper Commercial Terms" means terms which would normally be contained in a contract, agreement or transaction between persons dealing with each other at arms length and from positions of comparable bargaining power.

"Quarter" means any three (3) month period ending on either the last day of March, June, September or December and must include the period between the Commencement Date and the next occurrence of such dates.

"Queensland Herbarium" means the herbarium administered by the State through the Environmental Protection Agency or its successor.

"Queensland Museum" means the museum administered by the Board of the Queensland Museum, or its successor, under the Queensland Museum Act 1970 (Qld).

"Queensland-based" in relation to any entity, means that:

(a) the entity has its registered office or principal place of business in Queensland;

(b) the entity is a body corporate established under Queensland legislation;

(c) the entity, together with any Related Corporation, employs more than [ten (10)] employees on a permanent full time basis in a workplace located in Queensland; or

(d) the Department consents in writing to the entity being considered as a Queensland-based entity for the purposes of this Agreement, and "Australian-based" has the corresponding meaning.

"Related Corporation" in relation to an entity, means any body corporate which is, under section 50 of the Corporations Act, related to the entity.

"Reporting Period" means any twelve (12) month period ending on the last day of June and must include the period between the Commencement Date and the next occurrence of such date.

"Sample" means a sample of Biological Material which is authorised to be Collected under a Permit.

"Sublicence" means any sublicence of the Biodiscovery Licence approved under clause 9.

"Sublicensee" means any person granted a Sublicence.

"Tax" includes:

(a) all taxes levied, imposed or assessed under the Tax Act or any other statute, ordinance or law in Australia or elsewhere; and

(b) taxes in the nature of sales tax, consumption tax, value added tax, payroll tax, group tax, PAYE, PAYG, undistributed profits, fringe benefits tax, recoupment tax, withholding tax, land tax, water rates, municipal rates, stamp duties, gift duties or other state, territorial, Commonwealth or municipal charges or impositions levied, imposed or collected by any governmental body, together with any additional tax, interest, penalty, charge, fee or other amount of any kind assessed, charged or imposed in relation to the late or short payment of the same or the failure to file any return.

"Tax Act" means the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth).

"Total Royalties" means the total amount of royalties paid or due to the Department pursuant to clause 11.1.

"Trade Secret" means any secret information of commercial benefit or advantage, formulae, designs, concepts, ideas, flow charts, compilations, programs, devices, methods, techniques or processes that are, or may be, used in relation to, or arise from, Biodiscovery Research.

"Unique Identification Code" means:

(a) in relation to a Sample, a code (whether comprised of numerals or letters or a combination of both) which is unique to that Sample; and

(b) in relation to a Derivative, a code (whether comprised of numerals or letters or a combination of both) which is unique to that Derivative, which must commence with the Unique Identification Code for the Sample from which the Derivative ultimately was extracted, derived or created.

1.2 Construction

Unless expressed to the contrary, in this Agreement:

(a) words in the singular include the plural and vice versa;

(b) any gender includes the other genders;

(c) if a word or phrase is defined, its other grammatical forms have corresponding meanings;

(d) "includes" means includes without limitation;

(e) 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;

(f) a reference to:
(i) a person includes a partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority;
(ii) a thing or amount includes the whole and each part of it;
(iii) any legislation or subordinate legislation includes any corresponding later legislation or subordinate legislation;
(iv) an obligation includes a warranty or representation and a reference to a failure to comply with an obligation includes a breach of warranty or representation;
(v) a right includes a benefit, remedy, discretion and power;
(vi) time is to local time in Brisbane;
(vii) "$" or "dollars" is a reference to Australian currency;
(viii) this or any other document includes the document as novated, varied or replaced and despite any change in the identity of the parties;
(ix) writing includes any mode of representing or reproducing words in tangible and permanently visible form, and includes fax transmission; and
(x) this Agreement includes all schedules and annexures to it;

(g) if the date on or by which any act must be done under this document is not a Business Day, the act must be done on or by the next Business Day; and

(h) where time is to be calculated by reference to a day or event, that day or the day of that event is excluded.

 

2 CONDITIONS PRECEDENT

2.1 Conditions

The Organisation must:

(a) submit a written plan to the Department, which must provide, to the reasonable satisfaction of the Department:
(i) details of all Biodiscovery Research and Commercialisation which the Organisation proposes to undertake during the Initial Term;
(ii) a proposed timetable for undertaking the specified Biodiscovery Research and Commercialisation;
(iii) details of all benefits (including Non-Monetary Benefits) for the State which, in the Organisation's reasonable opinion, may arise from the specified Biodiscovery Research and Commercialisation; and
(iv) such other matters as the Department may reasonably require.

(b) subscribe as a Subscribing Biotechnology Organisation under the Code; and

(c) provide to the Department, in the form provided in schedule 2, a properly executed performance guarantee by each of the guarantors specified in item 3 of schedule 1.

2.2 Conditions Precedent

Subject to clause 2.4, this Agreement (expect for this clause 2) shall not come into force until the Conditions are satisfied.

2.3 Fulfilment of Conditions

The Organisation must use its best endeavours to fulfil or procure fulfilment of the Conditions by the Fulfilment Date.

2.4 Waiver of Conditions

The Conditions can only be waived wholly or in part by the written waiver of the Department.

2.5 Conditions Fulfilment Date

If the Conditions are not fulfilled by the Fulfilment Date or waived by the Department in accordance with clause 2.4, then this Agreement will terminate.

2.6 Effect of Termination

If this Agreement is terminated under clause 2.5, this Agreement (except for clauses 15, 20, 23.2 and 23.4 and this clause 2.6) is of no further effect and:

(a) the parties are released from any further obligations under this Agreement; but

(b) the parties remain liable for any breach committed before that termination.

 

3 TERM

This Agreement commences on the Commencement Date and continues until terminated:

(a) in accordance with clause 17; or

(b) by the Department with at least six (6) months prior written notice of termination, expiring after the Initial Term.

 

4 COLLECTION OF SAMPLES

4.1 Notice of Permit

The Organisation must lodge a copy of each Permit with the Department within ten (10) Business Days after the Permit is granted.

4.2 Compliance with Permit

The Organisation must comply with a Permit. [Commencement of permit should be conditional on the Organisation being party to a Benefit Sharing Agreement with the Department and fulfilling the conditions precedent to that Agreement]

4.3 Prescribed Information

The Organisation must, within one (1) month after the date of Collection of a Sample, submit to the Department, in the form provided in schedule 3, information in respect of the Sample.

4.4 Verification of Prescribed Information

The Organisation must in normal business hours with at least two (2) Business Days prior written notice, allow the Department or its duly authorised agent to inspect and to take samples from any Sample or Derivative in the possession or under the control of the Organisation for the purpose of verifying the accuracy of the Prescribed Information submitted in respect of a Sample.

 

5 IDENTIFICATION OF SAMPLES AND DERIVATIVES

The Organisation must:

(a) at the time of the Collection of a Sample, or as soon a practicable thereafter, record a Unique Identification Code for the Sample;

(b) at the time of extraction, derivation or creation of a Derivative, or as soon as practicable thereafter, record a Unique Identification Code for the Derivative; and

(c) display the Unique Identification Code for each Sample and Derivative, on, or in association with, any container in which the Sample or Derivative is stored.

 

6 BIODISCOVERY LICENCE

6.1 Biodiscovery Licence

Subject to the terms of this Agreement, the Department hereby grants to the Organisation the exclusive licence to:

(a) use a Sample or Derivative to conduct Biodiscovery Research; and

(b) Commercialise a Sample or Derivative.

6.2 Compliance with Code

The Organisation must comply with the Code in conducting Biodiscovery Research.

6.3 Restriction on Exportation

The Organisation must not, without the Department's prior written consent (which consent shall be at the Department's absolute discretion), export a Sample or Derivative from Australia.

6.4 Restriction on Disposal

Subject to clauses 8.2 and 9.1, the Organisation must not, without the Department's prior written consent (which consent shall be at the Department's absolute discretion), Dispose of a Sample or Derivative.

 

7 BIODISCOVERY RESEARCH

7.1 Biodiscovery Research in Queensland

(a) The Organisation must not, without the Department's prior written consent (which consent shall be at the Department's absolute discretion), undertake Biodiscovery Research outside of Queensland.

(b) In deciding whether to give consent for Biodiscovery Research to be conducted outside of Queensland, the Department will have regard to the benefits (including Non-Monetary Benefits) for Queensland of the Biodiscovery Research proposed to be conducted outside of Queensland.

7.2 Maximising Benefits

In conducting Biodiscovery Research, the Organisation must use its best endeavours to maximise benefits (including Non-Monetary Benefits) for Queensland.

7.3 Non-Monetary Benefits

The Organisation agrees to provide the Non-Monetary Benefits (if any) specified in item 10 of schedule 1 on the terms and conditions specified (if any).

 

8 COMMERCIALISATION

8.1 Proper Commercial Terms

The Organisation must not, without the Department's prior written consent (which consent shall be at the Department's absolute discretion), undertake Commercialisation unless such Commercialisation is on Proper Commercial Terms.

8.2 Authorised Commercialisation

Subject to clause 8.1, the Organisation must not undertake Commercialisation (other than the granting of a Sublicence pursuant to clause 9.1(a) or Commercialisation in relation to Intellectual Property) unless such Commercialisation is authorised under a Commercialisation Plan approved by the Department under clause 8.3.

Example 1: The Organisation may undertake Commercialisation in relation to any Intellectual Property without such Commercialisation required to be authorised under a Commercialisation Plan.

Example 2: The Organisation may, subject to the Department's consent, grant a Sublicence to allow a Sublicensee to use a Sample or Derivative to conduct Biodiscovery Research without such Commercialisation required to be authorised under a Commercialisation Plan. (However the Biodiscovery Research cannot be conducted outside of Queensland without the Department's consent).

Example 3: The Organisation cannot commence commercial production of a Derivative unless the production is authorised by a Commercialisation Plan.

8.3 Approval of Commercialisation Plan

(a) If the Organisation proposes to undertake Commercialisation which is required pursuant to clause 8.2 to be authorised under a Commercialisation Plan, the Organisation may submit a draft Commercialisation Plan to the Department which must provide to the reasonable satisfaction of the Department, full details of:
(i) all Commercialisation proposed to be authorised under the Commercialisation Plan;
(ii) all benefits (including Non-Monetary Benefits) for Queensland of the Commercialisation proposed to be authorised under the Commercialisation Plan; and
(iii) any aspect of the Commercialisation proposed to be authorised under the Commercialisation Plan which is proposed to occur outside of Queensland.

(b) Within one (1) month of receiving the draft Commercialisation Plan submitted by the Organisation under clause 8.3(a), the Department must, at its absolute discretion, approve or reject the Commercialisation Plan.

(c) In deciding whether to approve a draft Commercialisation Plan, the Department will have regard to the benefits (including Non-Monetary Benefits) for Queensland of the Commercialisation proposed to be authorised under the Commercialisation Plan.

(d) The Department may approve a Commercialisation Plan in whole or in part or subject to conditions (which conditions shall be at the Department's absolute discretion).

(e) Once a Commercialisation Plan is approved by the Department (whether in whole or in part or subject to conditions), it will be legally binding upon the Parties and will form part of this Agreement.

8.4 Best Endeavours

Subject to clauses 8.1 and 8.2, the Organisation shall use its best endeavours to undertake Commercialisation.

 

9 SUBLICENCE

9.1 Grant

Subject to this clause 9, the Organisation may, with the Department's prior written consent (which consent must not be unreasonably withheld) grant a sublicence of the licence granted to the Organisation in clause 6.1 to:

(a) use a Sample or Derivative to conduct Biodiscovery Research; and

(b) Commercialise a Sample or Derivative.

9.2 Terms of Sublicence

The Organisation must ensure that, at all times, each Sublicence provides, as a minimum, the terms specified in schedule 5. [Schedule 5 must include (amongst other clauses) a clause which prohibits a Sublicensee from granting a further licence of the Sublicence]

9.2 Preference

(a) In seeking out potential Sublicensees, the Organisation must give first preference to Queensland-based entities.

(b) If the Organisation is unable to find a Queensland-based entity to enter into a Sublicence on terms that are satisfactory to the Organisation, the Organisation may seek a Sublicensee that is an Australian-based entity to be licensed on the same terms.

(c) If the Organisation is unable to find an Australian-based entity to enter into a Sublicence on terms that are satisfactory to the Organisation, the Organisation may seek a Sublicensee that is an Overseas-based entity to be licensed on the same terms.

9.3 Overseas-based Sublicensees

If the Organisation seeks the Department's consent in accordance with clause 9.1 to grant a Sublicence to an entity that is an Overseas-based entity, the Organisation must provide details, to the satisfaction of the Department, of its attempts to find Queensland-based and Australian-based entities to enter into the Sublicence.

9.5 Maximising Benefits

The terms of each Sublicence must seek to maximise the benefits (including Non-Monetary Benefits) for the Queensland economy.

9.6 Requirement for Writing

Each Sublicence and any Ancillary Agreement must be in writing.

9.7 Notice of Sublicence

The Organisation must lodge an executed copy of each Sublicence and any Ancillary Agreement with the Department within ten (10) Business Days after entering into the Sublicence or Ancillary Agreement.

9.8 Compliance with Sublicence

The Organisation must ensure that a Sublicensee complies with the Sublicensee's obligations under a Sublicence.

9.9 Prescribed Information

The Organisation must not inform a Sublicensee of any Prescribed Information in respect of a Sample unless the Prescribed Information is reasonably required by the Sublicensee to exercise its rights or to perform its obligations under the Sublicence.

 

10 INTELLECTUAL PROPERTY

The Organisation must, at its own cost, take all reasonable steps to protect and secure any Intellectual Property, including by obtaining and maintaining appropriate intellectual property rights registration.

 

11 ROYALTIES AND MINIMUM PERFORMANCE

11.1 Royalties

The Organisation must pay to the Department an amount by way of royalties calculated in accordance with item 5 of schedule 1.

11.2 Payment of Royalties

The Organisation must within one (1) month after the end of each Quarter:

(a) render to the Department a true statement in respect of all Commercialisation Receipts for such Quarter in such form as the Department may require; and

(b) pay into the bank account specified in item 6 of schedule 1 (or any other bank account notified in writing by the Department) the amount due under clause 11.1 in respect of royalties for such Quarter.

11.3 Value of Non-Monetary Consideration

(a) If the parties cannot agree on the value of any portion of the Commercialisation Receipts comprised of non-monetary consideration, the parties must appoint an appropriately qualified independent valuer to determine the value of the non-monetary consideration, the cost of which must be shared equally between the parties.

(b) If the parties cannot agree on the appointment of a valuer, the Department shall appoint an appropriately qualified independent valuer.

11.4 Minimum Performance

If, on each anniversary of the Commercialisation Date, the Total Royalties for the preceding twelve (12) month period are less than the Minimum Performance Value for that period, the Organisation must pay to the Department the difference between the Total Royalties and the Minimum Performance Value for that period, as if that amount were a royalty payment required to be paid pursuant to clause 11.1.

Example: If the Minimum Performance Value for a particular twelve (12) month period is $10,000 and the Total Royalties paid to the Department by the Organisation during that period was $8,000, the Organisation must pay an additional $2,000 to the Department.

11.5 Reduction of Royalty Rate and Minimum Performance Value

(a) If the Organisation reasonably believes that Biodiscovery Research and/or Commercialisation undertaken or proposed to be undertaken by the Organisation has produced or will produce significant Non-Monetary Benefits for Queensland, the Organisation may by written notice, specifying particulars of such Non-Monetary Benefits, request the Department's consent to reduce the royalties payable under clause 11.1 and/or the Minimum Performance Value.

(b) Within one (1) month after receiving a request submitted by the Organisation pursuant to clause 11.5(a), the Department must, at its absolute discretion, accept or reject the request.

(c) The Department may accept such a request in whole or in part or subject to conditions (which conditions shall be at the Department's absolute discretion).

Example: XYZ Pty Ltd discovers a new bioactive compound from a plant species collected in Queensland. XYZ Pty Ltd proposes to undertake significant commercial production of the bioactive compound in Queensland. After considering a request by XYZ Pty Ltd, the Department agrees to reduce the royalties payable by XYZ Pty Ltd under its benefit sharing agreement with the State for so long as XYZ Pty Ltd continues the commercial production of the compound in Queensland.

 

12 KEEPING OF RECORDS AND ACCOUNTS

The Organisation must keep in accordance with generally accepted accounting practice, true and proper records and accounts in respect of all Commercialisation Receipts and all other matters necessary to enable calculation of amounts payable by the Organisation pursuant to clause 11.1.

 

13 AUDIT OF RECORDS AND ACCOUNTS

(a) The Organisation must, within one (1) month after each anniversary of the Commencement Date, and on any other occasion in normal business hours with at least two (2) Business Days prior written notice, allow the Department or its duly authorised agent to verify the Organisation's compliance with clause 12.

(b) The Organisation must permit the Department or its duly authorised agent to inspect and to take copies, photocopies or extracts from any books, accounts, receipts, papers and documents in the possession or under the control of the Organisation and relating in whole or in part to verifying the Organisation's compliance with its obligations pursuant to clause 12.

(c) The Department will bear the cost of verifying the statements rendered pursuant to clause 11.2, unless such verification reveals that the Organisation has understated the value of Commercialisation Receipts by more that 3%, in which case, the Organisation must meet the Department's costs associated with the verification.

 

14 ANNUAL REPORTING

14.1 Annual Report

The Organisation must, within one (1) month after each Reporting Period, submit to the Department, a written report, which must provide, to the reasonable satisfaction of the Department, details in respect of each of the following:

(a) a summary of the results of Biodiscovery Research conducted during the Reporting Period, whether by or on behalf of the Organisation or a Sublicensee;

(b) any Commercialisation undertaken during the Reporting Period (including under a Commercialisation Plan), whether by or on behalf of the Organisation or a Sublicensee;

(c) any Intellectual Property, Sample or Derivative which, in the Organisation's reasonable opinion, has the potential to be Commercialised;

(d) any modifications to the Biodiscovery Plan during the Reporting Period, including the Organisation's reasons for such modifications;

(e) the Organisation's compliance with the Biodiscovery Plan prior to and during the Reporting Period;

(f) the total amount of Commercialisation Receipts provided or due to the Organisation during the Reporting Period;

(g) the total amount of royalties paid to the Department pursuant to clause 11.1 during the Reporting Period; and

(h) any publication (whether scientific or not) or presentation provided to a third party in relation to the Biodiscovery Research during the Reporting Period, whether by or on behalf of the Organisation or a Sublicensee.

14.2 Annual Report Deemed Satisfactory

A report in accordance with clause 14.1 will be deemed to be to the satisfaction of the Department if the Department does not otherwise notify the Organisation within one (1) month from the date on which the Department receives the report.

 

15 CONFIDENTIALITY

All information exchanged between the parties under this Agreement or during the negotiation of this Agreement, including the terms of this Agreement, is confidential to them and may not be disclosed to any person except:

(a) if required by law or by the Australian Stock Exchange Limited;

(b) with the consent of the party who supplied the information;

(c) if the information is in the public domain other than breach of this Agreement;

(d) if the information is already known or in the possession of the recipient without restrictions relating to the disclosure before the date of receipt;

(e) if the information is obtained from a source other than the party who supplied the information, provided that the source was not subject to any prohibition against disclosure;

(f) if it is necessary for the Organisation to disclose the information to a person in the course of negotiating a Sublicence or other agreement concerning Commercialisation with the person, on condition that the person agrees to be bound by the terms of this clause; or

(g) to the parties' professional advisers on condition that they agree to be bound by the terms of this clause.

 

16 NOTICES

16.1 General

A notice, report or other communication relating to this Agreement must be in writing in English and may be given by an agent of the sender.

16.2 How to Give a Communication

A communication may be given by being:

(a) personally delivered;

(b) left at the party's current address for notices;

(c) sent to the party's current address for notices by pre-paid ordinary mail or, if the address is outside Australia, by pre-paid airmail; or

(d) sent by fax to the party's current fax number for notices.

16.3 Particulars for Delivery of Notices

(a) The particulars for delivery of notices to:
(i) the Organisation are the particulars specified in item 8 of schedule 1; and
(ii) the Department are the particulars specified in item 9 of schedule 1.

(b) Each party may change its particulars for delivery of notices by notice to each other party.

16.4 Communications by Post

Subject to clause 16.7, a communication is given if posted:

(a) within Australia to an Australian address, three (3) Business Days after posting; or

(b) in any other case, ten (10) Business Days after posting.

16.5 Communications by Fax

(a) Subject to clause 16.7, a communication is given if sent by fax, when the sender's fax machine produces a report that the fax was sent in full to the addressee. That report is conclusive evidence that the addressee received the fax in full at the time indicated on that report.

(b) A party is not entitled to object to a fax being illegible unless the party requests retransmission within one (1) Business Day of completion of the transmission. This clause 16.5 applies to any retransmission.

16.6 Communications by Email

(a) Subject to clause 16.7, a communication is given if sent by email, when the sender receives an electronic confirmation from the addressee's information system that the email has been received by the addressee. That confirmation is conclusive evidence that the addressee received the email in full at the time indicated on that confirmation.

(b) A party is not entitled to object to an email being incomplete unless the party requests the email be resent within one (1) Business Day of the time that the email was received by the addressee. This clause 16.6 applies to the resending of the email.

16.7 After Hours Communications

If a communication is given:

(a) after 5.00 pm in the place of receipt; or

(b) on a day which is not a Business Day in the place of receipt,

it is taken as having been given on the next Business Day.

 

17 TERMINATION ON DEFAULT

A party (the "Terminating Party") may immediately terminate this Agreement by written notice to the other party (the "Defaulting Party") if:

(a) the Defaulting Party does not pay any money due for payment under this Agreement on the due date and the Defaulting Party does not pay that money within a further period of ten (10) Business Days after the Terminating Party serves written notice on the Defaulting Party requiring payment;

(b) the Defaulting Party does not carry out any other obligation under this Agreement and in the case of a default which is capable of remedy, does not remedy that default within ten (10) Business Days after the Terminating Party serves written notice on the Defaulting Party requiring it to be remedied;

(c) any representation or warranty made by the Defaulting Party in this Agreement is materially inaccurate or untrue;

(d) an Insolvency Event occurs in relation to the Defaulting Party;

(e) the Defaulting Party ceases or threatens to cease to carry on its business or a substantial part of its business;

(f) the Defaulting Party is a natural person and dies;

(g) the Defaulting Party is a corporation and:
(i) it reduces or takes any action to reduce its capital other than by the redemption of redeemable preference shares;
(ii) it passes or takes any action to pass a resolution of the type referred to in section 254N of the Corporations Act;
(iii) it: (A) buys or takes any action to buy; or
(B) financially assists (within the meaning of section 260A of the Corporations Act) or takes any action to financially assist any person to acquire, shares in itself, without the prior written consent of the Terminating Party (such consent not to be unreasonably withheld);
(iv) an investigation is instituted under the Corporations Act or other legislation into or an inspector is appointed to investigate its affairs; or
(v) (A) the person who controls or group of persons who acting together control it, cease to have that control;
(B) if it is a subsidiary, it ceases to be a subsidiary of the body corporate which is its holding company at the date of this Agreement; or
(C) a change takes place in its directors, a transfer of shares in it is registered or new shares, convertible notes or options for shares in its capital are issued without the prior written consent of the Terminating Party (such consent not to be unreasonably withheld).

 

18 EFFECT OF TERMINATION

18.1 Effect of Termination by Either Party

On termination of this Agreement by either party, the Organisation:

(a) must not exercise any further rights granted to it under a Permit, including Collecting any additional Samples; and

(b) must not use a Sample or Derivative to conduct Biodiscovery Research.

18.2 Accrued Rights

If this Agreement is terminated, each party will retain and may enforce all its rights accrued prior to or as a result of the termination.

18.3 No Restriction on Damages

Any right to damages, whether under this Agreement or at common law, that a party may have arising from a breach by the other party of any of its obligations under this Agreement is not in any way limited or prejudiced by the right to terminate or the termination of this Agreement by that party under clause 17.

18.4 Indirect or Consequential Loss

Neither party is to be liable to the other for any indirect or consequential loss (including loss of profit) however arising from the breach or non-performance of any of that party's obligations under this Agreement, even if that party has been specifically put on notice of the risk of that indirect or consequential loss.

 

19 SURVIVAL OF OBLIGATIONS AFTER TERMINATION

This clause and clauses 5, 6 (other than clause 6.1(a)), 8, 9 (other than clause 9.1(a)), 10, 11, 12, 13, 14, 15, 16, 18, 20, 21, 22 and 23 of this Agreement will remain in full force and effect and survive the termination of this Agreement (other than clause 10.4 which will only survive the termination of this Agreement until the expiration of the Initial Term).

Example 1: On termination of the benefit sharing agreement, the Organisation must not use any Samples or Derivatives for Biodiscovery Research or grant Sublicences allowing Sublicensees to use any Samples or Derivatives for Biodiscovery Research.

Example 2: On termination of the benefit sharing agreement, the Organisation may Commercialise a Sample or Derivative and may grant a Sublicence allowing a Sublicensee to Commercialise a Sample or Derivative. The Organisation must continue to pay the Department royalties for any Commercialisation it undertakes after the termination of the benefit sharing agreement.

Example 3: If the benefit sharing agreement is terminated before the expiration of the Initial Term, the Organisation must continue to pay at least the Minimum Performance Value to the Department until the expiration of the Initial Term.

 

20 DISPUTE RESOLUTION

20.1 Notice of Dispute

(a) If a difference or dispute (a "Dispute") between the parties arises out of or relates to this Agreement, or the breach, termination, validity or subject matter of it, or as to any claim in tort, in equity or pursuant to any domestic or international statute or law, then any party may give the other a written notice of dispute adequately identifying and providing details of the Dispute ("Notice of Dispute").

(b) Notwithstanding the existence of a Dispute, all parties will, subject to this Agreement, continue to perform the Agreement.

20.2 Conference

Within ten (10) Business Days after receiving a Notice of Dispute, the parties will confer at least once to resolve the Dispute or to agree on methods of doing so. At every such conference each party will be represented by a person having authority to agree such resolution or methods. All aspects of every such conference, except the fact of its occurrence, will be privileged.

20.3 Expert Determination

(a) If the Dispute is not resolved within the following five (5) Business Days (or such further period as the representatives may agree is appropriate), the parties in dispute agree to settle the dispute by expert determination administered by the Australian Commercial Dispute Centre ("ACDC") before having recourse to arbitration or litigation.

(b) The expert determination will be conducted in accordance with ACDC expert determination Guidelines which set out the procedures to be adopted, the process of selection of the mediator and the costs involved and the terms of those Guidelines are incorporated in this Agreement.

(c) This clause does not merge on completion.

20.4 Exchange of Information

The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this clause is to attempt to settle the Dispute between the parties. No party may use any information or documents obtained through the dispute resolution process established by clause 20 for any purpose other than an attempt to settle a Dispute between the parties.

20.5 Termination of Dispute Resolution

After expiration of the time established by or agreed under this clause for agreement on the dispute resolution process, any party which has complied with the provisions of clauses 20.1 to 20.5, may in writing terminate the dispute resolution process provided for in those clauses and may then refer the Dispute to litigation.

 

21 INDEMNITY

21.1 Indemnity

The Organisation indemnifies the State against all Loss arising directly from any:

(a) breach by the Organisation, its servants or agents of this Agreement;

(b) breach by a Sublicensee, its servants or agents of any of the terms required to be provided in a Sublicence pursuant to clause 11.1;

(c) act or omission (including any negligence, unlawful conduct or wilful misconduct) by the Organisation, its servants or agents relating to this Agreement; and

(d) act or omission (including any negligence, unlawful conduct or wilful misconduct) by a Sublicensee, its servants or agents relating to a Sublicence.

21.2 Independence of Indemnities

(a) Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the Organisation and survives the termination of this Agreement.

(b) It is not necessary for the State to incur expense or make a payment before enforcing any indemnity conferred by this Agreement.

 

22 INSURANCE

(a) During the term of this Agreement and otherwise, while the Organisation undertakes Commercialisation, the Organisation must effect and maintain public liability and professional indemnity insurance, noting the Department as an interested party, with a limit of liability not less than the amounts set out in item 11 of schedule 1.

(b) The Organisation must, within one (1) month after a written request from time to time from the Department, provide to the Department a copy of such insurances and a copy of the certificate of currency in respect of such policies.

 

23 GENERAL

23.1 Obligation of Good Faith

The parties must act in good faith in performing their obligations under this Agreement.

23.2 Stamp Duty

(a) The Organisation as between the parties is liable for and must pay all stamp duty (including any fine or penalty except where it arises from default by the other party) on or relating to this Agreement, any document executed under it or any dutiable transaction evidenced or effected by it.

(b) If a party other than the Organisation pays any stamp duty (including any fine or penalty) on or relating to this Agreement, any document executed under it or any dutiable transaction evidenced or effected by it, the Organisation must pay that amount to the paying party on demand.

23.3 Goods and Services Tax

(a) In this clause 23.3, the terms "GST", "Recipient Created Tax Invoice", "Supply", "Taxable Supply" and "Tax Invoice" have the meanings given to them by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(b) All sums payable or consideration to be provided under or in accordance with this Agreement are exclusive of GST.

(c) If GST is imposed on any Supply made by a party ("Supplier") to another party ("Recipient"), to the extent that any consideration payable or to be provided by the Recipient for the Taxable Supply is exclusive of GST the Recipient must pay to the Supplier, in addition to that GST exclusive consideration, an additional amount for the Taxable Supply calculated by multiplying the GST rate by the GST exclusive consideration for the Taxable Supply, without any deduction or set off.

(d) Where the Organisation is a class of recipient determined by the Commissioner of Taxation as one which may issue a recipient created tax invoice then:
(i) the statement required to be rendered by the Organisation pursuant to clause 11.2 must be rendered in such a manner that it constitutes a valid Recipient Created Tax Invoice;
(ii) the Department warrants that it will not issue a Tax Invoice in respect of any Supply for which the statement rendered by the Organisation pursuant to clause 11.2 constitutes a Recipient Created Tax Invoice;
(iii) the Organisation warrants that it is registered for GST purposes, and that it will notify the Department if it ceases to so registered;
(iv) the Department warrants that it is registered for GST purposes, and that it will notify the Organisation if the Department ceases to be so registered;
(v) the Organisation will indemnify the Department for any penalty, interest, costs or other expenses incurred by the Department as a result of its reasonable reliance on the information contained in a Recipient Created Tax Invoice issued in accordance with this clause; and
(vi) if an amount recovered from the Recipient on account of GST differs for any reason from the amount of GST paid or payable by the Supplier to the Commissioner of Taxation, the difference between the two amounts must be paid by or to the Recipient (as the case requires), but no amount is payable to the Recipient unless the Supplier is entitled to a refund and has been paid the refund from the Commissioner of Taxation.

(e) If clause 23.3(d) does not apply, the Department will issue a tax invoice to the Organisation within one (1) month of receipt of the statement required to be rendered by the Organisation pursuant to clause 11.2.

23.4 Legal Costs

Except as expressly stated otherwise in this Agreement, each party must pay its own legal and other costs and expenses of negotiating, preparing, executing and performing its obligations under this Agreement.

23.5 Amendment

This Agreement may only be varied or replaced by a document duly executed by the parties.

23.6 Waiver and Exercise of Rights

(a) A single or partial exercise or waiver by a party of a right relating to this Agreement does not prevent any other exercise of that right or the exercise of any other right.

(b) A party is not liable for any loss, cost or expense of any other party caused or contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of a right.

23.7 Rights Cumulative

Except as expressly stated otherwise in this Agreement, the rights of a party under this Agreement are cumulative and are in addition to any other rights of that party.

23.8 Consents

Except as expressly stated otherwise in this Agreement, a party may conditionally or unconditionally give or withhold any consent to be given under this Agreement and is not obliged to give its reasons for doing so.

23.9 Further Steps

Each party must promptly do whatever any other party reasonably requires of it to give effect to this Agreement and to perform its obligations under it.

23.10 Governing Law and Jurisdiction

(a) This Agreement is governed by and is to be construed in accordance with the laws applicable in Queensland.

(b) Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Queensland and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.

23.11 Assignment

(a) The Organisation must not assign or deal with any right under this Agreement without the prior written consent of the State.

(b) Any purported dealing in breach of this clause is of no effect.

23.12 Liability

An obligation of two or more persons binds them separately and together.

23.13 Counterparts

This Agreement may consist of a number of counterparts and, if so, the counterparts taken together constitute one document.

23.14 Entire Understanding

(a) This Agreement contains the entire understanding between the parties as to the subject matter of this Agreement.

(b) All previous negotiations, understandings, representations, warranties, memoranda or commitments concerning the subject matter of this Agreement are merged in and superseded by this document and are of no effect. No party is liable to any other party in respect of those matters.

(c) No oral explanation or information provided by any party to another:
(i) affects the meaning or interpretation of this Agreement; or
(ii) constitutes any collateral agreement, warranty or understanding between any of the parties.

23.15 Relationship of Parties

This Agreement is not intended to create a partnership, joint venture or agency relationship between the parties.

 

24 WARRANTIES

Either party warrants to each other party that:

(a) it has the legal right and power to enter into this Agreement and to perform its obligations under the terms of this Agreement;

(b) the execution, delivery and performance of this Agreement by it has been duly and validly authorised by all necessary corporate action or Government action on its part;

(c) this Agreement is valid and binding agreement of it, enforceable in accordance with its terms; and

(d) the execution and performance of this Agreement by it does not, and other transactions contemplated by this Agreement do not, violate or conflict with or result in a breach of or constitute a default under its constitution or laws.

 

25 REVIEW OF AGREEMENT

If requested by either Party, the Parties agree to meet at least once within one (1) month after each anniversary of the Commencement Date to discuss any matter relating to this Agreement, at which time, the Parties may, at their absolute discretion, agree to vary this Agreement.

SCHEDULE 1

GENERAL INFORMATION

Item 1

Name of Organisation

ABN (if any)

  

Item 2

Commencement Date

[Date]

Item 3

Guarantors

Each director of the Organisation [or the Organisation's holding company]

Item 4

Initial Term

[Seven (7)] years

Item 5

Royalty Rate

(a) [Ten percent (10%)] of Commercialisation Receipts on the first [$40,000,000.00];

(b) [Five percent (5%)] of Commercialisation Receipts on the next [$30,000,000.00]; and

(c) [Three percent (3%)] of Commercialisation Receipts thereafter.

Item 6

Bank Account

[Details]

Item 7

Initial Minimum Performance

Value

[Amount]

Item 8

Address

Facsimile No.

Email address

Attention

[Postal Address]

[Facsimile No.]

[Email address]

[Attention]

Item 9

Address

Facsimile No.

Attention

Department of Innovation and Information Economy
PO Box 187 BRISBANE ALBERT STREET QLD 4002

(07) 3225 8754

The Manager, Science and Research Policy and Strategy

Item 10

Non-Monetary Benefits

[Non-Monetary Benefits]

Item 11

Public liability

Professional indemnity

[$5 million]

[$5 million]

 

SCHEDULE 2

The State of Queensland

The Guarantor

DEED OF GUARANTEE

DEPARTMENT OF INNOVATION AND INFORMATION ECONOMY,
SPORT AND RECREATION QUEENSLAND

111 George Street
BRISBANE QLD 4000
AUSTRALIA
Tel: (07) 3405 6207
Fax: (07) 3225 8754

 

THIS AGREEMENT is made on ……………………………………………………... 20………..

BETWEEN The State of Queensland through the Department of Innovation and Information Economy, Sport and Recreation Queensland of 111 George Street, Brisbane, Queensland ("the State").

AND …………………………………………………… ACN/ABN ………………….. [insert name and ACN/ABN of Guarantor] ("the Guarantor").

RECITALS

A …………………………………………………… ACN/ABN …………………..

[insert name and ACN/ABN of the Organisation] ("the Organisation") has agreed to comply with certain obligations under a biodiscovery benefit sharing agreement ("the Benefit Sharing Agreement").

B The Guarantor agrees to provide the guarantees and indemnities stated in respect of the Benefit Sharing Agreement.

IT IS AGREED

The Guarantor guarantees to the State the performance of the obligations undertaken by the Organisation under the Benefit Sharing Agreement on the following terms and conditions:

(a) If the Organisation (unless relieved of performance of the Benefit Sharing Agreement by the State or by statute or by a decision of a tribunal of competent jurisdiction) fails to execute and perform its obligations under the Benefit Sharing Agreement, the Guarantor will, if required to do so by the State, complete or cause to be completed the undertakings contained in the Benefit Sharing Agreement.

(b) If the Organisation commits any breach of its obligations, and the breach is not remedied by the Guarantor as required by this clause, and the Benefit SharingAgreement is then terminated for default, the Guarantor will indemnify the State against costs and expenses directly incurred by reason of such default.

(c) The Guarantor will not be discharged, released or excused from this Deed of Guarantee by an arrangement made between the Organisation and the State with our without the consent of the Guarantor, or by any other inference arising out of the conduct between the parties, in the absence of a formal variation or release.

(d) The obligations of the Organisation will continue in force and effect until the completion of the undertakings of this Deed of Guarantee by the Guarantor.

(e) The obligations and liabilities of the Guarantor under this Deed of Guarantee will not exceed the obligations and liabilities of the Organisation under the Benefit Sharing Agreement.

(f) Where the Guarantor is required to perform any obligations under the Benefit Sharing Agreement in accordance with this Deed of Guarantee, the Guarantor agrees to the novation of the Benefit Sharing Agreement from the Organisation to the Guarantor if requested by the State.

(g) This Deed of Guarantee will be subject to and construed in accordance with the laws in force in the State of Queensland.

(h) Where the Organisation has failed to perform under the Benefit Sharing Agreement the obligations of the Guarantor will continue even though the Organisation has been dissolved or has been made subject to external administration procedures under Chapter 5 of the Corporations Act 2001 (Cth) or any other law.

(i) The rights and obligations under this Deed of Guarantee will continue until all obligations of the Organisation under the Benefit Sharing Agreement have been performed, observed and discharged.

(j) A notice or other communication is properly given or served if the party delivers it by hand, posts it or transmits a copy electronically (by electronic mail or facsimile) to the address lased advised by of them or the other.

(k) Where the notice is to be given or served electronically, the sending party can confirm receipt by any other means.

(l) The address for service of a notice for a party is, in the case of the:

Guarantor

Physical address: …………………………………………………………………...
…………………………………………………………………...
…………………………………………………………………...

Postal address: …………………………………………………………………...
…………………………………………………………………...
…………………………………………………………………...

Phone number: …………………………………………………………………...
Facsimile number: …………………………………………………………………...
Email address: …………………………………………………………………...

Organisation

Physical address: …………………………………………………………………...
…………………………………………………………………...
…………………………………………………………………...

Postal address: …………………………………………………………………...
…………………………………………………………………...
…………………………………………………………………...

Phone number: …………………………………………………………………...
Facsimile number: …………………………………………………………………...
Email address: …………………………………………………………………...

The State

Physical address: The Manager
Biotechnology Policy and Regulation Team
Department of Innovation and Information Economy, Level 13,
111 George Street, BRISBANE QLD 4000

Postal address: The Manager
Biotechnology Policy and Regulation Team
Department of Innovation and Information Economy,
PO Box 187, BRISBANE ALBERT STREET QLD 4002

Phone number: (07) 3224 2644
Facsimile number: (07) 3225 8754,

Or such other address as a party may notify to the other party in writing from time to time.

(m) A notice or other communication is deemed to be received if:
(i) delivered by hand, when the party who has sent the notice holds a receipt for the notice signed by a person employed at the physical address for service;
(ii) sent by post from and to an address within Australia, after three (3) Business Days;
(iii) send by post from or to an address outside of Australia, after ten (10) Business Days;
(iv) sent by facsimile, at the time which the facsimile machine to which it has been sent records that the communication has been transmitted satisfactorily (or, is such time is outside normal business hours, at the time of resumption of normal business hours); or
(v) sent by electronic mail or any other electronic means, only in the event that the other party acknowledges receipt by any means.

EXECUTED as a deed

EXECUTED by the State of Queensland, through the Department of Innovation and Information Economy, Sport and Recreation Queensland

..............................................................……..
Witness

..............................................................……..
Name of witness (print)

..............................................................……..
The Hon Paul Lucas MP


EXECUTED by the Guarantor:

..............................................................……..
[insert name of Organisation]

..............................................................……..
[insert ACN, ABN or other identifier]

[affix common seal]

at …………………………………………...
[insert name of City or town]

in the State of ……………………………....
[insert name of State/Territory and country]

By ........................................................…….. [insert name of director]

………………………………………………
[signature of director]

in the presence of .......................................... [insert name of secretary or other permanent officer]

………………………………………………
[signature of witness]

Where an attorney or other agent executives this Deed or affixes a seal on behalf of the Guarantor, the form of execution must indicate the source of this authority and such authority must be in the form of a deed and a certified copy provided to the State.

SCHEDULE 3

PRESCRIBED INFORMATION

ORGANISATION'S DETAILS
Name:
ABN:
Contact Person:

DETAILS OF PERMIT
Name of Permit:
Issuing authority:
Date of Permit:
Permit No:
Name of Permit holder:

DETAILS OF COLLECTING ORGANISATION
Sample was collected by (tick (√) the appropriate box):

The Organisation or employee
Other entity (complete the following details)

Name of entity:
ABN:
Contact person:
Name of person(s) who collected the Sample:
Address:
Telephone:
Fax:
Email:
Mobile:

DATE OF COLLECTION
Date of collection:

LOCATION FROM WHICH SAMPLE WAS COLLECTED
Name of area from which sample was collected (e.g. state forest):
Geometric coordinates:
Description of habitat from which Sample was collected (including information about exotic species):

DETAILS OF SAMPLE
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 (i.e. grams to five decimal places):

VOUCHER SPECIMEN
Has a voucher specimen been lodged with a biodiscovery agency (tick (√) the appropriate box):
Yes (complete following details) / No
Date of lodgement:
Name of agency:

SCHEDULE 4

CALCULATION OF MINIMUM PERFORMANCE VALUE

(a) In this Schedule:

"CPI" means the Consumer Price Index for Brisbane (All Groups) published quarterly by the Australian Bureau of Statistics or its successor, and includes any index published in substitution.

"CPI-1" means the CPI last published prior to the commencement of the Relevant Period.

"CPI-2" means the CPI last published prior to the expiration of the Relevant Period.

"MPV" means the Minimum Performance Value for the twelve (12) month period immediately preceding the

Relevant Period.

"NMPV" means the Minimum Performance Value for the Relevant Period.

"Relevant Period" means the twelve (12) month period for which the Minimum Performance Value is required to be calculated.

(b) The Minimum Performance Value for the Relevant Period must be calculated in accordance with the following formula: NMPV = MPV x CPI-2/CPI-1

SCHEDULE 5

TERMS OF SUBLICENCE

The terms of sub-licence agreements will be finalised following the negotiation of the benefit sharing agreement.

SCHEDULE 6

THE CODE OF ETHICAL PRACTICE FOR BIOTECHNOLOGY IN QUEENSLAND

Copies of the Code may be obtained form the Department of Innovation and Information Economy or online at www.biotech.qld.gov.au

 

EXECUTED as an agreement.

EXECUTED by the State of Queensland, through the Department of Innovation and Information Economy, Sport and Recreation Queensland

..............................................................……..
Witness

..............................................................……..
Name of witness (print)

..............................................................……..
The Hon Paul Lucas MP

 

EXECUTED by the Organisation by its duly appointed officer in the presence of:

..............................................................……..
Witness

..............................................................……..
Name of witness (print)

..............................................................……..
..............................................................……..
Address of witness (print)

...........................................................……..
Officer

..............................................................……..
Name of Officer (print)