PREAMBLE
WHEREAS,
The International Treaty on Plant Genetic Resources for Food and Agriculture (hereinafter
referred to as “the Treaty”7) 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, which in Resolution XX/2017 of XX October 2017 it decided to amend.
ARTICLE 1 — PARTIES TO THE AGREEMENT
1.1 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: (name and address of the provider or providing institution, name of
authorized official, contact information for authorized official) (hereinafter referred to as
“the Provider”),
AND: (name and address of the recipient or recipient institution, name of authorized
official, contact information for authorized official*) (hereinafter referred to as “the
Recipient”).
1.3 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 incorporate8 the
Material or any of its genetic parts or components that are ready for commercialization,
excluding commodities and other products used for food, feed and processing.
“Sales” means the gross income resulting from the commercialization of a Product or
Products, by the Recipient, its affiliates, contractors, licensees and lessees.
“To commercialize” means to sell a Product or Products for monetary consideration on the open
market, and “commercialization” has a corresponding meaning. Commercialization shall not
include any form of transfer of Plant Genetic Resources for Food and Agriculture under
Development.
ARTICLE 3 — SUBJECT MATTER OF THE MATERIAL TRANSFER AGREEMENT
The Plant Genetic Resources for Food and Agriculture specified in Annex 1 to this
Agreement (hereinafter referred to as the “Material”) and the available related information
referred to in Article 5b and in Annex 1 are hereby transferred from the Provider to the Recipient
subject to the terms and conditions set out in this Agreement.
ARTICLE 4 — GENERAL PROVISIONS
4.1 This Agreement is entered into within the framework of the Multilateral System and
shall be implemented and interpreted in accordance with the objectives and provisions of the
Treaty.
4.2 The parties recognize that they are subject to the applicable legal measures and
procedures, that have been adopted by the Contracting Parties to the Treaty, in conformity with
the Treaty, in particular those taken in conformity with Articles 4, 12.2 and 12.5 of the Treaty.9
4.3 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.
4.4 The third party beneficiary has the right to request the appropriate information as required
in Articles 5e, 6.5c, 8.3, Annex 2, [OPTION 1 paragraph 5] / [OPTION 2 paragraph 3], and
Annex 3, Article 3, to this Agreement.
4.5 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:
a) 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;
b) 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;
c) 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;
d) 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;
e) The Provider shall inform the Governing Body at least once every two calendar
years, or within an interval that shall be, from time to time, decided by the
Governing Body, about the Material Transfer Agreements entered into,
either by:
Option A: Transmitting a copy of the completed Standard Material Transfer
Agreement,
or
Option B. In the event that a copy of the Standard Material Transfer Agreement is
not transmitted,
i. ensuring that the completed Standard Material Transfer Agreement is at
the disposal of the third party beneficiary as and when needed;
ii. stating where the Standard Material Transfer Agreement in question is
stored, and how it may be obtained; and
iii. providing the following information:
a) The identifying symbol or number attributed to the Standard Material
Transfer Agreement by the Provider;
b) The name and address of the Provider;
c) The date on which the Provider agreed to or accepted the Standard
Material Transfer Agreement, and in the case of shrink-wrap, the date
on which the shipment was sent;
d) The name and address of the Recipient, and in the case of a shrinkwrap agreement, the name of the person to whom the shipment was made;
e) The identification of each accession in Annex 1 to the Standard
Material Transfer Agreement, and of the crop to which it belongs.
This information shall be made available by the Governing Body to the third party
beneficiary.
ARTICLE 6 — RIGHTS AND OBLIGATIONS OF THE RECIPIENT
6.1 The Recipient undertakes that the Material shall be used or conserved only for the
purposes of research, breeding and training for food and agriculture. Such purposes shall not
include chemical, pharmaceutical and/or other non-food/feed industrial uses.
[6.1bis If the Recipient uses the Material for any of these prohibited uses, a lower court in the
country of origin of the Material may, on presentation of prima facie evidence of such illegal use,
award damages against the Recipient to the value of USD25 million or ten times the Recipient’s
annual turnover, whichever is higher. The Recipient agrees that it shall not oppose enforcement of
such damage by a competent court in the jurisdiction, where its main business identity is registered.]
6.2 The Recipient shall not claim any intellectual property or other rights that limit the
facilitated access to the Material provided under this Agreement, or its genetic parts or
components, in the form received from the Multilateral System.
[6.2 The Recipient shall not claim any intellectual property or other rights that limit the
facilitated access to the Material provided under this Agreement, or its genetic parts or
components, in the form received from the Multilateral System, or that limit Farmers’ Rights to
save, use, exchange and sell seed and propagating material of the provided Material.]
[6.2bis If the Recipient claims any such IP or other rights in contravention of this clause, a lower
court in the country of origin of the Material may on presentation of prima facie evidence of
such claims award damages against the Recipient to the value of USD25 million or ten times the
Recipient’s annual turnover, whichever is higher, and declare the IP or other right forfeited to the
country of origin.]
6.3 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 Agreement.
6.4 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
a) do so under the terms and conditions of the Standard Material Transfer Agreement,
through a new material transfer agreement; and
b) notify the Governing Body, in accordance with Article 5e.
On compliance with the above, the Recipient shall have no further obligations regarding the actions
of the subsequent recipient.
6.5 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[, until a period
of [x] years after signing of this Agreement has lapsed]:
a) 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;
b) 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;
c) notify the Governing Body, in accordance with Article 5e; and
d) have no further obligations regarding the actions of any subsequent recipient.
e) [The obligations in this Article 6.5 do not apply to Plant Genetic Resources for
Food and Agriculture under Development, of which the theoretical proportion of
germplasm from the Material is sufficiently low, because at least five generations of
crossing have been made.]
6.6 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 consideration.
[6.11 The Recipient, by signing this Agreement, agrees to be bound by the terms and
conditions of the Subscription System, as set out in Annex 3 of this Agreement, which
constitute and integral part of this Agreement. Any reference to this Agreement shall be
understood, where the context permits and mutatis mutandis, to also include Annex 3. ]
OR
[6.11 The Recipient may opt at the time of signing of this Agreement or at the time of
acceptance of this Agreement for the Subscription System, as set out in Annex 3 to this
Agreement, by returning the Registration Form contained in Annex 4 to this Agreement, duly
completed and signed, to the Governing Body of the Treaty, through its Secretary[, or by
signifying acceptance through EasySMTA] (“Subscription”). [If the Registration Form is not
returned to the Secretary, [or acceptance not signified through EasySMTA], within this period, the
modality of payment specified in Articles 6.7 and 6.8 will apply], unless the Recipient has already
opted for the Subscription System earlier.]
[6.11bis Should the Recipient opt for the Subscription System, the terms and conditions of the
Subscription System, as set out in Annex 3 to this Agreement, apply. In this case, Annex 3 to this
Agreement constitutes an integral part of this Agreement and any reference to this Agreement
shall be understood, where the context permits and mutatis mutandis, to also include Annex 3.]
6.11ter By opting for the Subscription System, the Recipient, as Subscriber, shall have no
payment obligations with regard to the Material received, during the term of the Subscription,
and the Product that incorporates the Material, other than the payment obligations provided for
under the Subscription System.
[6.7 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 [for a period of [x] years] 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 [OPTION 1] to this Agreement.
6.8 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 shall pay [for a period of [x] years] a [lower] 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 [OPTION 1] to this Agreement.]
OR
[[6.7 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 [, for a period of 20 years,] 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 [OPTION 2] to this Agreement.]
[6.8 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
[OPTION 2] to this Agreement.]]
[6.9 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 breeding.]
6.10 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 party.
ARTICLE 7 — APPLICABLE LAW
The applicable law shall be the General Principles of Law, including the UNIDROIT Principles
of International Commercial Contracts 2010 and as subsequently updated, the objectives and the
relevant provisions of the Treaty, and, when necessary for interpretation, the decisions of the
Governing Body.
ARTICLE 8 — DISPUTE SETTLEMENT
8.1 Dispute settlement may be initiated by the Provider or the Recipient or the third party
beneficiary acting on behalf of the Governing Body of the Treaty and its Multilateral System.
8.2 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.
8.3 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 be.
8.4 Any dispute arising from this Agreement shall be resolved in the following manner:
a) Amicable dispute settlement: The parties shall attempt in good faith to resolve the dispute
by negotiation.
b) Mediation: If the dispute is not resolved by negotiation, the parties may choose mediation
through a neutral third party mediator, to be mutually agreed.
c) Arbitration: If the dispute has not been settled by negotiation or mediation, any party may
submit the dispute for arbitration under the Arbitration Rules of an international body as
agreed by the parties to the dispute. Failing such agreement, the dispute shall be finally
settled under the Rules of Arbitration of the International Chamber of Commerce, by one
or more arbitrators appointed in accordance with the said Rules. Either party to the
dispute may, if it so chooses, appoint its arbitrator from such list of experts as the
Governing Body may establish for this purpose; both parties, or the arbitrators appointed
by them, may agree to appoint a sole arbitrator, or presiding arbitrator as the case may be,
from such list of experts. The result of such arbitration shall be binding.
ARTICLE 9 — ADDITIONAL ITEMS
Warranty
9.1 The Provider makes no warranties in this Agreement as to the safety of or title to the
Material, nor as to the accuracy or correctness of any passport or other data provided with the
Material. Neither does it make any warranties as to the quality, viability, or purity (genetic or
mechanical) of the Material being furnished. The phytosanitary condition of the Material is
warranted only as described in any attached phytosanitary certificate. The Recipient assumes full
responsibility for complying with the recipient nation’s quarantine, invasive alien species and
biosafety regulations and rules as to import or release of genetic material.
[Duration of and Termination of this Agreement]
[9.2 The Recipient may terminate this Agreement upon six months written notice to the
Governing Body through its Secretary, not less than [XX] years from the date of signing of this
Agreement by the Provider or the Recipient, whichever date is later, or from the date of
acceptance of this Agreement by the Recipient.
[9.3 In the case that the Recipient has begun before termination to commercialize a Product,
in respect of which payment is due in accordance with Articles 6.7 and 6.8 and Annex 2 of this
Agreement, such payment shall continue while that Product is commercialized.]
[9.4 In case of termination of this Agreement, the Recipient shall no longer be allowed to
use or transfer the Material. In case the Recipient still has any Material in its possession, the
Recipient shall contact the Provider or any other designated MLS provider to effect the return or
transfer of the possession of the Material. Termination of this Agreement shall not affect the
rights and obligations of the Recipient with regard to both the Plant Genetic Resources for
Food and Agriculture under Development as well as the Products. Articles [6.1, 6.2, 6.5, 6.6,
6.7, 6.8, 6.9 and 6.10] shall therefore, even after this Agreement has been terminated, remain
applicable for an indefinite period of time, unless the specific Article itself mentions a limited
period of applicability.]
[9.4 Notwithstanding the above, Articles [6.1.][6.2][…] of this Agreement shall continue to
apply.]
[Amendments to this Agreement]
[9.5 If the Governing Body decides to amend the terms and conditions of the Standard
Material Transfer Agreement, such amendments shall only affect subsequently signed Standard
Material Transfer Agreements. This Agreement shall remain unchanged, unless the Recipient
explicitly agrees in writing with the proposed amendments.]
ARTICLE 10 — SIGNATURE/ACCEPTANCE
The Provider and the Recipient may choose the method of acceptance unless either party
requires this Agreement to be signed.
