Subject matter
Material Transfer Agreement

Summary of use(s)
Material Transfer Agreement between ICABIOGRAD and National Agriculture and Forestry Research Center (NAFRI, Laos), Agriculture Research Center (ARC, Laos)

Purpose or background
To exchange rice genetic resources for breeding

Contact details
ICABIOGRAD-IAARD
Ministry of Agriculture
Jl. Tentara Pelajar Nomor 3A
Cimanggu, Bogor
Jawa Barat 16111
Indonesia

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 3 November 2001 and entered into force on 29 June 2004;

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 of 16 June 2006, adopted the Standard Material Transfer Agreement.

 

ARTICLE 1 — PARTIES TO THE AGREEMENT

  • The 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.

1.2                This Agreement is:

BETWEEN: Indonesian Center for Agricultural Biotechnology and Genetic Resources Research and Development (ICABIOGRAD), Jalan Tentara Pelajar No. 3A Bogor 16111, West Java, Indonesia (hereinafter referred to as “the Provider”),

AND: Agriculture Research Center (ARC), National Agriculture and Forestry Research Center (NAFRI) Phontong Village, Saythany District, Vientiane Capital, Laos (hereinafter referred to as “the Recipient”).

  • The 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

  • 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.
  • 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
  • The 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.

 

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.

 

  • The 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.
  • The 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:

 

 

  1. 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;
  2. 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;
  3. 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;
  4. 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;
  5. 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 2

 

 

ARTICLE 6 — RIGHTS AND OBLIGATIONS OF THE RECIPIENT

  • 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
  • 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.
  • In 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
  • In 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

 

 

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

 

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  1. do so under the terms and conditions of the Standard Material Transfer Agreement, through a new material transfer agreement; and
  2. notify the Governing Body, in accordance with Article

On compliance with the above, the Recipient shall have no further obligations regarding the actions of the

subsequent recipient.

  • In the case that the Recipient transfers a Plant Genetic Resource for Food and Agriculture under Development to another person or entity, the Recipient shall:
    1. 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;
    2. 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;
    3. notify the Governing Body, in accordance with Article 5e; and
    4. have no further obligations regarding the actions of any subsequent recipient.
  • Entering 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
  • In 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 Annex 2 to this Agreement.
  • In 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.
  • The 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
  • A 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
  • The Recipient may opt as per Annex 4, as an alternative to payments under Article 6.7, for the following system of payments:
    1. The Recipient shall make payments at a discounted rate during the period of validity of the option;
    2. The period of validity of the option shall be ten years renewable in accordance with Annex 3 to this Agreement;
    3. 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;
    4. The payments to be made are independent of whether or not the Product is available without restriction;
    5. 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;

 

  1. 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;
  2. 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;
  3. 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

 

 

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

  • 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.
  • The 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.
  • The 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
  • Any dispute arising from this Agreement shall be resolved in the following manner:
    1. Amicable dispute settlement: The parties shall attempt in good faith to resolve the dispute by negotiation.
    2. Mediation: If the dispute is not resolved by negotiation, the parties may choose mediation through a neutral third party mediator, to be mutually
    3. 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

 

 

ARTICLE 9 — ADDITIONAL ITEMS

Warranty

  • 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

 

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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

  • This Agreement shall remain in force so long as the Treaty remains in

 

ARTICLE 10 — SIGNATURE/ACCEPTANCE

  1. Mastur, M.Si, Ph.D, Director of ICABIOGRAD, represent and warrant that I have the authority to execute this Agreement on behalf of the Provider and acknowledge my institution’s responsibility and obligation to abide by the provisions of this Agreement, both by letter and in principle, in order to promote the conservation and sustainable use of Plant Genetic Resources for Food and Agriculture.

 

 

 

Signature………………………………………………………………Date…………………………..

 

Provider: Indonesian Center for Agricultural Biotechnology and Genetic Resources Research and Development (ICABIOGRAD).

 

  1. Chanthakhone Boualaphanh, the Director of ARC-NAFRI, represent and warrant that I have the authority to execute this Agreement on behalf of the Recipient and acknowledge my institution’s responsibility and obligation to abide by the provisions of this Agreement, both by letter and in principle, in order to promote the conservation and sustainable use of Plant Genetic Resources for Food and Agriculture.

 

 

 

Signature : ………………………………………………………………Date…………………………..

 

Recipient: the Agriculture Research Center (ARC), National Agriculture and Forestry Research Center (NAFRI), Lao PDR

 

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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:

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.

Each Material listed in this annex is identified by an ID that uniquely identifies the sample, followed in parentheses by a variety name or other designation associated with the Material.

The Materials listed below are PGRFA other than PGRFA under Development.

 

The Materials listed below are PGFRA under Development, provided at the discretion of the developer in accordance with article 5c. Each is derived from one or more of the "Ancestral MLS germplasm" listed underneath.

 

List of 18 Accessions of Rice

 

 

No

 

No urut

 

No Aksesi

 

Nama Aksesi

1

STMB.12.

05020-19999

PADI PULUT AYANG

2

STMB.12.

05020-20746

MAMA LAKA

3

STMB.06.

05020-05696

GONDIL

4

DTBS

05020-04153

EMPAT

5

DTBS

05020-04170

SI GUPAI KANDANG

6

STMB.06.

05020-06373

KATIMBUNG

7

STMB.08.

05020-08622

KETAN MARONTO

8

DTBS

05020-05158

GADING

9

DTBS

05020-04352

BALACUNG

10

STMB.06.

05020-06729

SEBEDOL

11

STMB.12.

05020-20759

WAJO KUNING

12

STMB.12.

05020-20817

JERNENG KUNING

13

DTBS

05020-04281

MELATI

14

STMB.12.

05020-21174

BATANGHARI

15

DTBS

05020-07254

IDEN

16

STMB.12.

05020-20906

LOKAL BUNTU SANGALA 2

17

STMB.12.

05020-21149

WIDAS

18

STMB.12.

05020-20791

KEMALA WATER

19

STMB.06.

07042a

DELI A

20

STMB.12.

05020-20808

RAMOS

 

 

 

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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:
    • are available without restriction to others for further research and breeding in accordance with Article 2 of this Agreement;
    • 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.

  1. 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

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:

  • 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

  • information that allows for the identification of any restrictions that have given rise to the benefit-sharing
  1. Payment shall be due and payable upon submission of each annual report. All payments due to the Governing Body shall be payable in United States Dollars (US $) for the account of the Trust Account or other mechanism established by the Governing Body in accordance with Article 19.3f of the Treaty. The details of the Trust Account are as follows :3

FAO Trust Fund (USD) (GINC/INT/031/MUL, IT-PGRFA (Benefit-sharing), HSBC New York, 452 Fifth Ave., New York, NY, USA, 10018,

Swift/BIC: MRMDUS33, ABA/Bank Code: 021001088,

Account No. 000156426.4

 

 

 

 

 

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$).

4The Recipient should check with the Secretariat of the Treaty to confirm these bank account details before making the payment.

 

 

 

Annex 3

TERMS AND CONDITIONS OF THE ALTERNATIVE PAYMENTS SCHEME

 UNDER ARTICLE 6.11 OF THIS AGREEMENT

  1. 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 Annex 1 to this Agreement

2.                   Payment shall be made in accordance with the banking instructions set out in paragraph 4 of

Annex 2 to this Agreement.

  1. When the Recipient transfers Plant Genetic Resources for Food and Agriculture under Development, the transfer shall be made on the condition that the subsequent recipient shall pay into the mechanism established by the Governing Body under Article 19.3f of the Treaty zero point five percent (0.5%) of the Sales of any Product derived from such Plant Genetic Resources for Food and Agriculture under Development, whether the Product is available or not without restriction.

4.                   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.

  1. 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 Article or the same Article of any other Standard Material Transfer Agreement. No cumulative payments will be

 

 

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Annex 4

OPTION FOR CROP-BASED PAYMENTS UNDER THE ALTERNATIVE PAYMENTS SCHEME UNDER ARTICLE 6.11 OF THIS AGREEMENT

I, declare to opt for payment in accordance with Article 6.11 of this Agreement.

 

 

 

 

Signature.................................................                     Date............................................ 5

Dr.Chanthakhone Boualaphanh

 

 

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.