MAWRD, Namibia and RBG Kew
MATERIAL TRANSFER AGREEMENT
BETWEEN
THE MINISTRY OF AGRICULTURE, WATER AND RURAL
DEVELOPMENT, NAMIBIA
AND
THE BOARD OF TRUSTEES OF THE
ROYAL BOTANIC GARDENS, KEW, UNITED KINGDOM
An AGREEMENT made on this the
day of
2001 between The
Ministry of Agriculture, Water and Rural Development, Private Bag 13184, Government Office
Park, Windhoek, Namibia (hereinafter referred to as “MAWRD”) and The Board of Trustees of
the Royal Botanic Gardens, Kew, Richmond, Surrey, TW9 3AE United Kingdom (hereinafter
referred to as “RBG Kew”).
PREAMBLE
WHEREAS:
The Parties to this Agreement recognise the sovereign rights of States over their own
biological resources and are committed to implementing the letter and the spirit of the 1973
Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),
the 1992 Convention on Biological Diversity (CBD) and national laws and regulations
concerning bio-diversity including access to and the transfer of plant genetic resources;
MAWRD is the Namibian Government Authority for the time being responsible for the
management of plant genetic resources in Namibia. It works inter alia through agencies such
as the National Botanical Research Institute (hereinafter referred to as “NBRI”) and the
National Plant Genetic Resources Centre (hereinafter referred to as “NPGRC”).
RBG Kew is a botanical garden incorporated in the United Kingdom by statute and an exempt
charity whose mission is to ensure better management of the Earth's environment by
increasing knowledge and understanding of the plant and fungal kingdoms - the basis of life
on earth. RBG Kew is supported by the United Kingdom Ministry of Agriculture, Fisheries and
Food (“MAFF”), which is ultimately responsible to Parliament for RBG Kew’s key aims and
activities;
AND WHEREAS NPGRC and RBG Kew have jointly developed a long-term collaborative
project with the purpose of enhancing ex situ conservation and sustainable utilisation of plant
genetic resources indigenous to Namibia;
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MAWRD, Namibia and RBG Kew
NOW THEREFORE MAWRD AND RBG KEW HAVE AGREED AS FOLLOWS:
DEFINITIONS
OBJECTIVE
AGREEMENT
OF
THIS
1.
In this Agreement the expressions set out below shall mean
as follows:
1.1
“Agreement” shall mean and include this Material Transfer
Agreement together with Annex 1 and Annex 2;
1.2
"Commercialise" and "Commercialisation" shall include, but
not be limited to, any of the following: filing a patent
application, obtaining, or transferring intellectual property
rights or other tangible or intangible rights by sale or licence
or in any other manner; commencement of product
development; conducting market research and seeking premarket approval and/or the sale of any resulting product;
1.3
“Genetic Resources” shall mean any biological material of
plant, animal, microbial, fungal or other origin of actual or
potential value containing functional units of heredity
transferred to RBG Kew under this Agreement and its
progeny and derivatives, including extracts and compounds
obtained from genetic resources and analogues of those
compounds;
1.4
“Information” shall mean any maps, drawings, photographs,
plans, manuscripts, records, reports, recommendations,
estimates, documents and any other data arising out of or
received by NPGRC or RBG Kew in connection with the
Project;
1.5
“Material” shall mean the duplicate seeds and herbarium
material transferred to RBG Kew under this agreement
including the genetic resources contained therein and any
other genetic resources inadvertently transferred to RBG
Kew under this agreement;
1.6
“Notification of transfer” shall mean the documentation
recording the material transferred to RBG Kew under this
agreement, a pro forma copy of which is attached to the
agreement at Annex 2;
1.7
“Partners” shall mean NPGRC and RBG Kew;
1.8
“Project’’ shall mean the long-term collaboration between
NPGRC and RBG Kew as described at Annex 1 to this
Agreement;
1.9
“Seed Bank” shall mean the Seed Bank maintained by RBG
Kew at Wakehurst Place, Ardingly, West Sussex, United
Kingdom where the Material shall be accessioned for safekeeping and long term conservation;
1.10
"Third Party" shall mean any person or institute other than
NPGRC and RBG Kew.
2.
The objective of this Agreement is the transfer by MAWRD
of the Material to the RBG Kew Seed Bank for safe-keeping
and long-term conservation.
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MAWRD, Namibia and RBG Kew
CONSENT
3.
In consideration of the undertakings given by RBG Kew in
this Agreement as set out in Clauses 5 and 6, MAWRD
hereby:
3.1.1
Gives its consent and approval to the Project as is
described at Annex 1; and
3.1.2
Undertakes to transfer into the collections at the
Seed Bank the Material listed in each Notification of
Transfer itemised and agreed by NPGRC and RBG
Kew. All Material listed in a Notification of Transfer
will be transferred pursuant to the terms of this
Agreement.
ACCESS TO THE
MATERIAL
4.
The signature of NPGRC on any Notification of Transfer will
confirm that the Material has been collected and is being
transferred to RBG Kew in accordance with all applicable
Namibian access laws and regulations, permits, prior
informed consents and/or licenses.
NON
COMMERCIALISATION
5.1
RBG Kew will not Commercialise any Genetic Resources
transferred under this Agreement.
5.2
Without prejudice to the above, any Commercialisation to
which MAWRD and RBG Kew may agree will be subject to a
separate written agreement.
BENEFIT SHARING
6.
The Partners agree to work together to share fairly and
equitably any benefits that arise from the collection, study or
conservation of the Genetic Resources. In particular, the
Partners agree to work together to support and strengthen
institutional development through the provision of training
and the transfer of technology as is more fully detailed in
Annex 1.
TRANSFER TO THIRD
PARTIES
7.
RBG Kew may supply the Material, its progeny or
derivatives to a Third Party provided prior written consent is
obtained from NPGRC and such Third Party signs a written
agreement with RBG Kew, prohibiting, inter alia,
Commercialisation of the Material, its progeny or derivatives.
USE OF INFORMATION &
CONFIDENTIAL DATA
8.1
Neither NPGRC nor RBG Kew shall publish or disclose to a
Third Party any Information or any publication containing or
incorporating any Information, without giving the other
partner no less than thirty (30) days prior written notice of
such publication or disclosure.
8.2
Furthermore, MAWRD, NPGRC and RBG Kew hereby
undertake to treat as confidential any Information which the
party creating or delivering it declares to be confidential and
which is not otherwise known or available to the public
(hereinafter referred to as “Confidential Data”).
8.3
MAWRD, NPGRC and RBG Kew shall be permitted to
disclose the Confidential Data to those of their Directors,
employees and professional advisors to whom such
disclosure is necessary for the performance of their duties
provided that each person to whom MAWRD, NPGRC or
RBG Kew discloses Confidential Data is fully aware in
advance of the terms of this undertaking and the obligation of
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MAWRD, Namibia and RBG Kew
confidentiality.
8.4
Save as aforesaid, at no time during this Agreement or for a
period of twenty five (25) years after the expiration or other
termination of this Agreement shall the Confidential Data be
published or disclosed to a Third Party without prior written
approval of NPGRC and RBG Kew.
9.1
This Agreement shall come into effect on the date of
signature. It will be valid for a term of five (5) years after
such date and can be renewed for further periods of five (5)
years through mutual agreement expressed in writing.
9.2
The obligations and rights contained in Clauses 5, 7, 8, 11,
12, 13, 15 and 16 inclusive shall survive the expiration or
other termination of this Agreement unless mutually agreed
to the contrary.
TERMINATION
10.
Notwithstanding Clause 9.1 above, either party to this
Agreement may give six (6) months written notice to the
other party to terminate this Agreement.
FORCE MAJEURE
11.1
Neither party shall be liable to the other party for any delay
or non-performance of its obligations under this Agreement
arising from any cause beyond its reasonable control,
including, but not limited to, any of the following: Act of God,
governmental act, war, fire, flood, explosion, civil commotion
or industrial dispute.
11.2
The affected party must promptly notify the other party in
writing of the cause and the likely duration of the cause.
Such notice having been given, the performance of the
affected party’s obligations, to the extent affected by the
cause, shall be suspended during the period the cause
persists.
11.3
Without prejudice to the above, the affected party must take
all reasonable measures to minimise the impact of any force
majeure on the performance of its obligations under the
Agreement and to ensure, as soon as possible, the
resumption of normal performance of the obligations
affected by the force majeure.
12.1
Any dispute arising out of or in connection with this
Agreement, including any question regarding its existence,
validity or termination (a "Dispute"), shall, to the extent
possible, be resolved by good faith negotiation. For the
purposes of this clause, “good faith” means in accordance
with standards of honesty, sincerity or lawfulness of purpose
and applies to both the substance of and the machinery of
any such negotiations.
12.2
In the event that the Dispute remains unresolved for more
than three (3) months from the date when the Dispute is first
notified in writing by either party to the other party, the
Dispute shall be submitted, before any other means of
recourse, to a conciliation procedure with a conciliator
agreed between and appointed by the parties or, in default
of agreement within fifteen (15) days of either party
receiving written notice of a request for conciliation, to be
DURATION
DISPUTE RESOLUTION
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MAWRD, Namibia and RBG Kew
nominated by the Secretary General at the time of the
International Court of Justice (The Hague). The language to
be used in the conciliation shall be English. The conciliation
shall take place at a venue to be agreed by the parties or
failing agreement in the Hague.
NOTICE
12.3
All Disputes arising out of or in connection with this
Agreement which are not previously resolved by conciliation
after three (3) months from the appointment of the
conciliator shall be referred to and finally settled by an
arbitrator to be agreed between the parties or, in default of
agreement within fifteen (15) days of either party receiving a
written request for arbitration, to be nominated in
accordance with the International Chamber of Commerce
Rules of Arbitration (Paris) in force at the date of the referral
of the Dispute to arbitration. Unless the parties to the
dispute otherwise agree, the applicable law of the
agreement shall be Namibian law and the arbitrator shall
determine its own rules of procedure. The language to be
used in the arbitration shall be English. The arbitration shall
take place at a venue to be agreed by the parties or failing
agreement in Paris.
13.1
Any notice or other document to be served under this
Agreement must be delivered by hand or sent by registered
mail or by international courier service to be served at the
address below.
MAWRD:
Permanent Secretary, Ministry of Agriculture, Water and
Rural Development, Government Office Park, Room 493,
Windhoek, NAMIBIA
RBG Kew:
Head of Corporate Services, Royal Botanic Gardens, Kew,
Richmond, Surrey TW9 3AB, UNITED KINGDOM
13.2
All notices or documents shall be deemed to have been
served at the date and time of delivery of the said notices or
documents to the recipient party.
ENTIRE AGREEMENT
14
The provisions of this Agreement together with Annex 1 and
2 constitute the entire Agreement between the parties
relating to the subject matter and the parties do not make
any representations or warranties except those contained in
this Agreement and Annexes 1 and 2. The Agreement can
only be extended, terminated or amended if done so in
writing signed on behalf of the parties to this Agreement.
NO ASSIGNMENT
15
This Agreement is specific to the parties and none of the
rights or the obligations under this Agreement may be
assigned or transferred without the prior written consent of
the other party.
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MAWRD, Namibia and RBG Kew
NO PARTNERSHIP IN LAW
16
Nothing contained in this Agreement shall constitute a
partnership in law between MAWRD and RBG Kew or
constitute either of them the agent of the other.
NON-EXCLUSIVITY
17
This Agreement in no way restricts the Partners from
involvement in similar Project activities with other public
and/or private organisations and/or individuals.
AS WITNESSED IN TWO IDENTICAL COPIES IN THE ENGLISH LANGUAGE,
BOTH COPIES BEING EQUALLY AUTHENTIC, BY THE DULY AUTHORISED
REPRESENTATIVES OF THE PARTIES HERETO
SIGNED BY:
SIGNED BY:
For and On Behalf of the Ministry of
Agriculture, Water and Rural
Development, Namibia
For and on behalf of the Board of
Trustees of the Royal Botanic
Gardens, Kew, United Kingdom
Name: Dr. V.P. Shivute
Permanent Secretary, MAWRD
Name: Prof. Peter Crane
Director, RBG, Kew
Date:
Date:
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MAWRD, Namibia and RBG Kew
ANNEX 1
PROJECT SYNOPSIS
COLLABORATION BETWEEN THE MILLENNIUM SEED BANK PROJECT,
UNITED KINGDOM, AND THE NATIONAL PLANT GENETIC RESOURCES
CENTRE, NAMIBIA
Duration:
5 years (renewable for a further 5 years by mutual agreement)
Project Site:
Royal Botanic Gardens, Kew Seed Bank Wakehurst Place, UK (RBG
Kew)
Drylands of Namibia and National Plant Genetic Resources Centre
(NPGRC)
Counterparts:
Millennium Seed Bank Project (MSBP), Seed Conservation
Department (SCD), Royal Botanic Gardens, Kew, Wakehurst Place,
United Kingdom
National Plant Genetic Resources Centre (NPGRC) National
Botanical Research Institute (NBRI), Ministry of Agriculture, Water &
Rural Development, Namibia
Starting date:
January 2001
Objectives:

to establish an international collaborative project to assist the
MSBP in achieving its main objective of conserving germplasm
of the dryland flora of the world
 to assist the NPGRC in its efforts to conserve plant genetic
resources of indigenous Namibian plant species
Justification:

Namibia has a diverse and unique flora, including around 600
endemic species, many occurring in dryland habitats.

Since a significant part of Namibia’s economy is based upon its
natural vegetation, the conservation of genetic resources of wild
plant species is a national priority

Amongst Namibia’s flora there may be many as yet unexplored
opportunities for commercial applications, e.g. pharmaceuticals,
industrial compounds and crops; these could benefit not only
Namibia, but the entire global community
Beneficiaries:

Staff at the NPGRC will benefit through training, capital input and
information exchange

the MSBP will benefit by reaching its target of conserving seed of
dryland plants
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MAWRD, Namibia and RBG Kew

in the long term, the entire world community could benefit
through the use of this germplasm
Areas of

Seed collection: supply of seed, methodology
collaboration:

Seed storage: improved methods and facilities

Research: seed germination, seed storage, targeted germplasm
collecting using GIS

Training and Technology Transfer: formal and informal, priority
areas being seed germination and DNA analysis

Supply of relevant literature
Inputs:

Staff time
NPGRC

Transport costs (partial) for collecting missions

Facilities, supplies and equipment for collecting, processing and
storage of germplasm and for research projects
MSBP


Staff time
Support for collecting missions, seed shipment, equipment and
supplies for research projects
Outputs:

Copies of relevant information/literature

Link with GIS section at RBG Kew

Capital input for increasing storage capacity at NPGRC

Germplasm of wild species of arid/semi-arid areas in Namibia
conserved and duplicated at MSBP

Personnel trained in specialised techniques and research
methodologies

Storage capacity at NPGRC expanded

Baseline knowledge on Namibian plant genetic resources
improved and documented
Financial
MSBP input = N$ 775 000 over 10 years
Implications:
NPGRC input = N$ 312 500 over 10 years
TOTAL Project : N$ 1 087 500 over 10 years
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MAWRD, Namibia and RBG Kew
Proposed Timetable:
Time
January 2001
Sept. 2000 – Feb. 2001
April
2010
June
2010
June
2010
Aug.
2010
Aug.
2010
Aug.
2010
Reporting:
– May 2001 –
Activity
Finalise and sign agreement
determine priority target species and areas for
collection of germplasm
collection of germplasm
– July 2001 –
processing and shipment of germplasm to MSBP
– Aug. 2001 –
– Sept. 2001 –
processing and storage of germplasm at NPGRC
and MSBP
reporting by both parties
– Jan. 2001 –
training of staff where and when appropriate
– Jan. 2001 –
research activities

NPGRC will report annually (September) to the MAWRD

NPGRC will report annually to MSBP on progress of the project,
including number of collections made, provision of collecting
data, training of personnel, collaborative research activities and
financial accounting

MSBP will report annually to NPGRC on progress of project,
including use of germplasm, training programmes and
collaborative research activities.
Publications:

NPGRC or MSBP will give the other party no less than thirty (30)
days prior written notice of publication or disclosure by NPGRC
or MSBP of Information1 arising out of or received by NPGRC or
RBG Kew in connection with the Project;

MSBP will acknowledge NPGRC as the source of the Material in
any such publication or disclosure;

NPGRC and MSBP will ensure that there is mutual provision of
copies of any such publication or disclosure.
“Information” means any maps, drawings, photographs, plans, manuscripts, records, reports, recommendations,
estimates, documents and any other data arising out of or received by NPGRC or RBG Kew in connection with the
Project.
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MAWRD, Namibia and RBG Kew
ANNEX 2
PRO FORMA
NOTIFICATION OF TRANSFER
The following Material is transferred to the Board of Trustees of the Royal Botanic Gardens,
Kew, United Kingdom (“RBG Kew”) in accordance with the terms and conditions of the
Material Transfer Agreement between The Ministry of Agriculture, Water and Rural
Development, Namibia and RBG Kew, dated
2001.
By signing this Notification of Transfer, the National Plant Genetic Resources Centre hereby
confirm that the Material has been collected and is being transferred to RBG Kew in
accordance with all applicable laws and regulations, permits, prior informed consents and/or
licenses.
DATE
COLLECTED
COLLECTION
No.
FAMILY
GENUS or SPECIES
SIGNED BY:
No. OF
HERBARIUM
DUPLICATES
DATE:
For and on behalf of the National Plant Genetic Resources Centre, Namibia
Name:
Position:
SIGNED BY:
DATE:
For and on behalf of the Board of Trustees of the Royal Botanic Gardens, Kew, United
Kingdom
Name:
Position:
A copy of this document signed by NPGRC will be forwarded to RBG Kew with each
consignment of seed and herbarium specimens. Upon receipt of the plant material, RGB Kew will
countersign this copy and return it to NPGRC as acknowledgement of receipt by RBG Kew under
the terms of the Material Transfer Agreement.
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