Model Agreement between the National Institute for Pharmaceutical Research and Development, Nigeria and a Consultant Herbalist, 1997

THIS AGREEMENT made this .....................…................……................ day of .... ........…..……..…...... 1997 between NATIONAL INSTITUTE FOR PHARMACEUTICAL RESEARCH AND DEVELOPMENT, IDU- ABUJA (hereinafter called the "INSTITUTE" which expression shall where the context admits include agents, successors in office and assigns) of the one part and ........................................................................................ (hereinafter called the "CONSULTANT HERBALIST" which expression shall where the context admits include his agents, personal legal representatives and assigns) of the other part.

WHEREAS:

1. The "INSTITUTE" is a scientific and technological-oriented public Institution established to undertake research and development work into (among other things) drugs and pharmaceutical raw materials from indigenous natural resources or materials and the evaluation, standardization and rational utilization of traditional medicine.

2. The "CONSULTANT HERBALIST" has acquired useful information, facts and knowledge in respect of the use of herbal products for the management, treatment and/or cure of ............................ and other ailments and he is engaged in the practice of Herbal medicine.

3. The "CONSULTANT HERBALIST" is willing to make these information, facts and discoveries in respect of the herbal products available to the "INSTITUTE" for use in the management and/or cure of ............ and other ailments for the overall benefit of the public.

4. The "INSTITUTE" has requested, and the "CONSULTANT HERBALIST" has agreed, to provide services and information set out herein on herbal products for development and use in the management of ........................ and other ailments.

5. The "CONSULTANT HERBALIST" is willing and has agreed to supply the "INSTITUTE" with herbal materials (in their compounded forms) for the treatment of ……………….. and other ailments for scientific identification, evaluation, analysis, development and/or improvement.

6. The "CONSULTANT HERBALIST" hereby gives consent to the "INSTITUTE" and the "INSTITUTE" hereby accepts to conduct research into, develop and process the said herbal products into suitable pharmaceutical drugs in dosage forms for commercial and industrial utilization towards the management or treatment of .......................... and other ailments.

NOW THIS AGREEMENT WITNESSETH:

In consideration of the mutual Covenants and Agreements herein contained, the parties hereto do hereby agree as follows:

1. The "CONSULTANT HERBALIST" hereby permits the "INSTITUTE" to conduct research into, develop and process the said herbal products into standard pharmaceutical drugs in dosage forms and to ensure due scientific evaluation, purification, standardization and safety of the said products for use in the management of ................ and other ailments aforesaid.

2. The "CONSULTANT HERBALIST" shall disclose to the "INSTITUTE" his existing collections of the plant or herbal materials in their compounded forms at the moment (and fully subsequently) in respect of .............. and other ailments for scientific identification, evaluation and development and literature search on such compounded plants/materials and shall at all times endeavor during the continuance of this Agreement to make available to the "INSTITUTE" any collection at his disposal upon request.

3. In the event that any of the medicinal plants has already been documented for the same disease which the "CONSULTANT HERBALIST" uses it to treat or where the "INSTITUTE" has already obtained information from other "CONSULTANT HERBALISTS" on the same plant, the "INSTITUTE" shall duly inform the "CONSULTANT HERBALIST" as such giving the relevant literature references within fourteen (14) days.

4. The "INSTITUTE" engages the "CONSULTANT HERBALIST" to procure, provide and keep on supplying samples, information, facts/ideas relating to and in respect of herbal products that will facilitate research and development towards the management of .............. and other ailments.

5. The "CONSULTANT HERBALIST" shall as and when requested by the "INSTITUTE" and within a reasonable time after receiving such request supply compounded plant samples for the scientific evaluation as the "INSTITUTE" shall specify and diligently proceed with the preparation of such samples and deliver the same as required by the "INSTITUTE".

6. The "INSTITUTE" shall subject the various extracts and fractions obtained from the medicinal plants used to prepare the herbal products to scientific evaluation for safety and efficacy provided that and it is hereby agreed that the "INSTITUTE" shall in all events furnish the "CONSULTANT HERBALIST" in writing with the result of every scientific test or analysis carried out on any herbal product/material received from him.

7. The "INSTITUTE" shall diligently proceed at Abuja or such other designated places within and outside Nigeria as the "INSTITUTE" may determine to conduct research and development work into the evaluation, preservation, purification, standardization, safety and rational utilization of the herbal products and formulate same into dosage form for commercial and industrial use and to apply and obtain the grant of patent in respect of the products at the cost, expense and techniques of the "INSTITUTE" and in a manner mentioned herein before in the proceeding clauses.

8. The "INSTITUTE" shall apply for and obtain or cause to be granted and obtained the letters of patent on the products in the name of the "INSTITUTE" after the same has been developed and processed provided that the "CONSULTANT HERBALIST'S" name be included in the patent subject to the conditions hereinafter set forth.

9. The either party shall use every reasonable means to protect, preserve and secure the interest and person of the other and the efficacy and safety of the products and shall not subject each other to public ridicule, adverse publicity and derogatory treatment during the subsistence of this Agreement.

10. The "CONSULTANT HERBALIST" shall be at liberty to continue to use, apply and utilize the herbal products which he has prepared and/or may continue to prepare in future by his own technique notwithstanding that the same or similar product has been referred to the "INSTITUTE" for scientific evaluation and formulation, provided however that the "INSTITUTE" does not guarantee the safety, purity, and quality or standard of such products. Nothing in this Agreement shall be construed as implying that the "CONSULTANT HERBALIST" is prohibited from citing his relationship with the "INSTITUTE" in any advertisement of his practice if and only if the consent of the "INSTITUTE" is first sought and obtained in writing.

11. Any information acquired by the "CONSULTANT HERBALIST" in the course of his services, transactions and operations under this Agreement regarding the sample preparation process, research and development work and details of the formulae of the products shall be treated by him as secret and confidential and shall not be disclosed by him without consent and authority in writing of the "INSTITUTE" provided that, and it is hereby agreed that, the "INSTITUTE" shall not unreasonably withhold such consent.

12. The "CONSULTANT HERBALIST" shall not during the continuance of this Agreement be engaged in a transaction similar with the one here in evidence with any other person, firm, company or organization anywhere in Nigeria in respect of products of any description or kind similar to, or competitive with, those of the "INSTITUTE" without the previous consent in writing of the "INSTITUTE".

13. The ownership of and rights to obtain trade name or trademark and/or registration of designs in any products supplied by the "CONSULTANT HERBALIST" to the "INSTITUTE" under this Agreement shall be vested in the "INSTITUTE" from the date of delivery by the "CONSULTANT HERBALIST" to the "INSTITUTE" of the herbal products and the "INSTITUTE" shall thereupon be at liberty to effect and be responsible for the registration and other protection of such formulated dosage as it thinks fit provided always that the discovery of the herbal products by the "CONSULTANT HERBALIST" shall be acknowledged as such in the correspondence and literature publications on the products as much as practicable and provided that and it is hereby agreed that the "CONSULTANT HERBALIST" gives no warranty for the efficacy and safety of such resultant end product.

14. The "CONSULTANT HERBALIST" hereby convenants to make available to the "INSTITUTE" upon its observance of the terms contained in this Agreement, information and assistance relating to and in furtherance of research and development of the herbal product.

15. The "INSTITUTE" shall endeavor in every reasonable and proper way and to the best of its ability to publicize the result of its Research and Development of the herbal products and for that purpose advertise such in Magazines, Journals, Periodicals, Weeklies, Newspapers or on radio and television in such manner as may be necessary.

16. IN CONSIDERATION of the foregoing provisions, the "INSTITUTE" shall at the point of commercialization of products derived from the "CONSULTANT HERBALIST'S" input negotiate on behalf of the "CONSULTANT HERBALIST" for some royalty of at least 10% of the net profit to accrue to the "CONSULTANT HERBALIST".

17. IN FURTHER CONSIDERATION of the services rendered by the "CONSULTANT HERBALIST", the "INSTITUTE" shall make payment to him as follows:

a) The cost of collection, travelling, shipping of samples, identification, curating and processing, literature search as may be applicable.

b) The "CONSULTANT HERBALIST'S" cost of work already carried out on the samples.

c) The "CONSULTANT HERBALIST'S" cost of specified quantities of samples delivered to the Institute upon request and such sum outstanding due before the formal execution of this agreement.

d) […….] quarterly subvention to facilitate the "CONSULTANT HERBALIST'S" herbal plant collection drive, overall productivity, research and further development.

18. In addition to the sums payable under clause 17 herein the "INSTITUTE" shall fully pay for herbal products and materials procured and supplied to the Institute upon request and also reimburse the "CONSULTANT HERBALIST" for such out of pocket expenses incurred in travelling in the course of on behalf of the "INSTITUTE'S" business provided always that the "CONSULTANT HERBALIST" shall provide his own working premises and staff.

19. The "INSTITUTE" may notwithstanding clause 17 above at its own discretion render any assistance to the "CONSULTANT HERBALIST" or grant concessions or privileges or benefits in any realistic way it deems fit to improve his productivity, efficiency and capability whether by way of training or otherwise.

20. The Agreement (except the provisions as to royalty payments) may be terminated by either party upon giving to the other at least 3 months notice to the effect without prejudice to whatever remedies that may be available to the parties or any of them for the enforcement of any outstanding benefits or obligations as the case may be.

a) Without prejudice to any other remedies the "INSTITUTE" may have against the "CONSULTANT HERBALIST", the "INSTITUTE" shall have the right at any time by giving 3 months notice in writing to the "CONSULTANT HERBALIST" to terminate the Agreement in any of the following events:

i. If the "CONSULTANT HERBALIST" commits a deliberate breach of any of the terms of this Agreement which he refuses to rectify even upon demand.

ii. If the "CONSULTANT HERBALIST" dies, compounds with his creditors or takes or suffers any similar action in consequence of debts.

iii. If from any cause the "CONSULTANT HERBALIST" in the reasonable opinion of the "INSTITUTE" is prevented from performing his duties hereunder for a continuous period of six (6) months or for a total of eight (8) months in any period of (12) twelve calendar months.

iv. If the "CONSULTANT HERBALIST" is guilty of any conduct which in the reasonable opinion of the "INSTITUTE" prejudicial to the "INSTITUTE'S" interest.

v. If the "CONSULTANT HERBALIST" purports to assign the burden or benefits of this Agreement provided that the floating of a company by the "CONSULTANT HERBALIST" to undertake the practice of herbal medicine or for his practice shall not be taken as a breach hereof.

b) If the "INSTITUTE" ceases to carry out research and development or deal in such drugs as were previously mentioned, this Agreement shall forthwith terminate unless the business or any part of it (being a part concerned in the manufacture or sale of such drugs or any class of them) has been transferred to any other organization and the rights and obligations of the Company hereunder have been assigned to that other organization after one month's notice of such assignment in writing has been given by the "INSTITUTE" to the "CONSULTANT HERBALIST".

c) It is hereby agreed that where pursuant to clause 20 (a) it shall not be practicable to effect personal service of notice to terminate on the "CONSULTANT HERBALIST", the "INSTITUTE" shall be excused from giving such notice as aforesaid.

d) If the “INSTITUTE” shall fail any of its obligations to the “CONSULTANT HERBALIST” and remains in breach for 90 days, the “CONSULTANT HERBALIST”, in addition to any other remedies available to him, may on the 90th day of the breach terminate this Agreement forthwith.

21. Subject to clause 17 (c) above, all previous Agreements and arrangements if any relating to the foregoing between the parties hereto are hereby superseded.

22. If any dispute arises as to the construction of the provisions of this contract or implementation of the terms, the parties shall appoint one independent Arbitrator, or constitute a panel of 3 Arbitrators. And for the purpose of this clause the provisions of the Arbitration Acts, 1990 shall apply.

23. The "CONSULTANT HERBALIST" or his personal representative shall upon the termination of this Agreement immediately deliver up to the "INSTITUTE" all facilities and property belonging to the "INSTITUTE" which may be in his possession or under his control.

24. This Agreement shall have effect in substitution for all previous Agreements and arrangements whether written or oral or implied by the "INSTITUTE" and the "CONSULTANT HERBALIST".

25. The Agreement shall not in any way constitute or be presumed to constitute a partnership between the parties hereto or make them in any way liable as partners of or as agents for one another. The "CONSULTANT HERBALIST" shall relate with the "INSTITUTE" as an independent contractor.

26. The Waiver by either party of any breach of any terms of this Agreement shall not prevent the subsequent enforcement of that term and shall not be deemed a waiver of any subsequent breach provided that a breach, once rectified, shall not, for any purpose whatsoever, be taken into account.

27. The Agreement embodies the entire understanding of the parties in respect of research and development for the management of ……………. and other ailments and there are no promises, terms or conditions, obligations oral or written, express or implied other than those contained herein.

IN WITNESS WHEREOF the parties hereto have executed this presents the day and year first above written.

SIGNED, SEALED AND DELIVERED BY: ...............................................
for and on behalf of the "INSTITUTE" DIRECTOR-GENERAL/CHIEF EXECUTIVE

IN THE PRESENCE OF:

Name: .....................................................................................

Address: .....................................................................................

Occupation: .....................................................................................

SIGNED, SEALED AND DELIVERED BY
The "CONSULTANT HERBALIST"

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("CONSULTANT HERBALIST")

IN THE PRESENCE OF:

Name: .....................................................................................

Address: .....................................................................................

Occupation:...............................................................................…..