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Approved 120412
DEED OF AGREEMENT
BETWEEN
COMMONWEALTH OF AUSTRALIA
AND
<INSERT NAME OF ACCESS PARTY>
IN RELATION TO
ACCESS TO BIOLOGICAL RESOURCES IN COMMONWEALTH AREAS FOR COMMERCIAL OR POTENTIAL COMMERCIAL
PURPOSES AND BENEFIT-SHARING
MODEL ACCESS AND BENEFIT-SHARING AGREEMENT COMMONWEALTH OF AUSTRALIA AND ACCESS PARTY
BSA number: <200X/XX> Page ii
Contents PARTIES 1
CONTEXT AND PURPOSE 1
OPERATIVE PROVISIONS 1
1 Definitions 1
2 Interpretation and Guidance on Construction 2
3 Commencement and Review 3
4 Conditions of Access and Use 3
5 Benefit-sharing with the Commonwealth 3
6 Use of Traditional Knowledge and Engagement with Indigenous Peoples 4
7 Rights In and Dealings with Samples, Products and Intellectual Property 4
8 Handling and Management of Samples 5
9 Acknowledgment of the Provision of Access to Biological Samples 6
10 Taxes, Duties and Government Charges 6
11 Financial Accounts and Records 6
12 Reporting 6
13 Publicity 8
14 Confidential Information 8
15 Audit and Access to Premises 9
16 Dispute Resolution 9
17 Termination 10
18 Notices 12
19 Assignment and Novation 12
20 Negation of Employment, Partnership and Agency 12
21 Waiver 13
22 Survival 13
23 Applicable Law 13
24 Compliance and Standards 13
25 Definitions 14
SIGNATURE 17
Schedule 1: Particulars
Schedule 2: Conditions
Schedule 3: Benefit-Sharing with the Commonwealth
Schedule 4: Non-monetary Benefits
Schedule 5: Use of Traditional Knowledge and Engagement with Indigenous people
Attachment A: Sample Record
MODEL ACCESS AND BENEFIT-SHARING AGREEMENT COMMONWEALTH OF AUSTRALIA AND ACCESS PARTY
BSA number: <200X/XX> Page 1
DEED OF AGREEMENT
ACCESS TO BIOLOGICAL RESOURCES IN COMMONWEALTH AREAS FOR COMMERCIAL OR POTENTIAL COMMERCIAL PURPOSES AND BENEFIT-SHARING
PARTIES
This Deed is made between and binds the following parties:
1. Commonwealth of Australia represented for the purposes of this Deed by the
Department of Sustainability, Environment, Water, Population and Communities
ABN 34 190 894 983 of GPO Box 787 Canberra ACT 2601, Australia
(Department)
2. <Name of Access Party> ABN <11 111 111 111> of <address> (Access Party)
CONTEXT AND PURPOSE
This Deed is made in the following context:
A. The objectives of the Convention on Biological Diversity (Convention) include,
among other things, the fair and equitable sharing of the benefits arising out of
the utilisation of Genetic Resources.
B. Article 15 of the Convention recognises the sovereign rights of each State party
over its natural resources.
C. The Australian Government gives effect to article 15 in relation to
Commonwealth owned and managed land through section 301 of the
Environment Protection and Biodiversity Conservation Act 1999
(Commonwealth) (EPBC Act) and Part 8A of the Environment Protection and
Biodiversity Conservation Regulations 2000 (Commonwealth) (EPBC
Regulations), which regulate Access to Biological Resources in
Commonwealth Areas through a permitting system.
D. Where an application is made for a permit under Part 8A of the EPBC
Regulations for commercial or potential commercial purposes, the applicant will
enter into a benefit-sharing agreement with each Access Provider before the
permit can be issued.
E. This Deed constitutes a benefit-sharing agreement for the purposes of the EPBC
Regulations.
OPERATIVE PROVISIONS
1. Definitions
1.1. Definitions
1.1.1. In this Deed, terms have the meaning in clause 25 unless the context indicates
otherwise.
MODEL ACCESS AND BENEFIT-SHARING AGREEMENT COMMONWEALTH OF AUSTRALIA AND ACCESS PARTY
BSA number: <200X/XX> Page 2
2. Interpretation and Guidance on Construction
2.1. Interpretation
2.1.1. In this Deed, unless the contrary intention appears:
a. words importing a gender include any other gender;
b. words in the singular include the plural and words in the plural include the
singular;
c. words importing a person include a partnership and a body whether
corporate or otherwise;
d. a reference to dollars is a reference to Australian dollars;
e. a reference to any legislation or legislative provision includes any statutory
modification, substitution or re-enactment of that legislation or legislative
provision;
f. if any word or phrase is given a defined meaning, any other part of speech
or other grammatical form of that word or phrase has a corresponding
meaning;
g. a reference to an Item is a reference to an Item in a Schedule;
h. if any conflict arises between the terms and conditions contained in the
clauses of this Deed and any part of a Schedule (and attachments if any),
the Schedule prevails;
i. if any conflict arises between any part of a Schedule and any attachment
or part of an attachment, the Schedule prevails; and
j. a reference to writing is a reference to any representation of words, figures
or symbols.
2.2. Guidance on Construction of this Deed
2.2.1. This Deed records the entire agreement between the parties in relation to its
subject matter.
2.2.2. This Deed will only be varied by a formal Deed of variation executed by the
parties.
2.2.3. As far as possible, all provisions in this Deed will be construed so as not to be
void or otherwise unenforceable.
2.2.4. If anything in this Deed is void or otherwise unenforceable, then it will be severed
and the rest of the Deed remains in force.
2.2.5. A provision of this Deed will not be construed to the disadvantage of a party
solely on the basis that it proposed that provision.
MODEL ACCESS AND BENEFIT-SHARING AGREEMENT COMMONWEALTH OF AUSTRALIA AND ACCESS PARTY
BSA number: <200X/XX> Page 3
3. Commencement and Review
3.1. Commencement Date
3.1.1. This Deed commences on the date the first Access Permit issued in connection
with this Deed commences.
3.2. Review
3.2.1. The operation of this Deed may be reviewed every two (2) years from the
Commencement Date at the request of a party.
3.2.2. Subject to clause 3.2.1, the timing and form of reviews will be agreed between
the parties.
3.2.3. If requested by a party, any review under clause 3.2.1 will be conducted by an
independent person agreed by the parties.
3.2.4. Where a review is conducted by an independent person, the cost of the review
will be borne by the party requesting the review unless the parties agree to share
equally the costs of that review.
3.2.5. Clause 14 [Confidential Information] applies to the conduct of a review under
clause 3.2.1 and the parties will take all reasonable steps to ensure that any
independent person conducting a review in line with clause 3.2.1 complies with
the requirements of this Deed relating to Confidential Information.
3.2.6. The parties will discuss the findings of a review conducted under clause 3.2.1
and may agree to vary the Deed in accordance with clause 2.2.2.
4. Conditions of Access and Use
4.1. Conditions of Access and Use
4.1.1. In performing this Deed, the Access Party will comply with the conditions
specified in Schedule 2.
5. Benefit-Sharing with the Commonwealth
5.1. Benefit-Sharing with the Commonwealth
5.1.1. The Access Party will provide the Commonwealth with:
a. the monetary benefits, being the agreed percentage of Exploitation
Revenue set out in Schedule 3; and
b. the benefits specified in Schedule 4.
5.2. Payments by the Access Party
a. Amounts payable by the Access Party to the Commonwealth under this
Deed will be paid within 30 days following receipt of a correctly rendered
tax invoice in accordance with the GST Act.
MODEL ACCESS AND BENEFIT-SHARING AGREEMENT COMMONWEALTH OF AUSTRALIA AND ACCESS PARTY
BSA number: <200X/XX> Page 4
6. Use of Traditional Knowledge and Engagement with Indigenous Peoples
6.1. Use of Traditional Knowledge and Engagement with Indigenous Peoples
6.1.1. If the Access Party uses any indigenous peoples’ knowledge in connection with
this Deed, the Access Party will:
a. comply with the guidelines relating to engagement with Indigenous peoples
as specified in Item B1 to Schedule 5 (if any) or as notified by the
Commonwealth from time to time;
b. enter into an agreement with the holders of the indigenous peoples’
knowledge regarding use of the knowledge, its source and any agreed
benefits; and
c. provide a copy of the written agreement (or the terms of any oral
agreement) entered into in accordance with clause 6.1.1b within 6 months
of entering into the agreement.
7. Rights In and Dealings With Samples, Products and Intellectual Property
7.1. Rights In Samples, Products and Intellectual Property
a. As between the Access Party and the Commonwealth, rights in Samples,
Products and Intellectual Property in Samples and Products vest in the
Access Party.
7.2. Dealings with Samples, Products and Intellectual Property
a. The Access Party will not:
i. transfer or dispose of Samples or Products; or
ii. grant rights (including Intellectual Property rights) in Samples or
Products;
to a third party unless:
iii. it does so under an agreement on proper terms, being terms
consistent with this Deed so far as practicable and which would
normally be contained in an agreement between persons dealing
with each other at arms length and from positions of comparable
bargaining power; or
iv. the third party has entered into an agreement with the
Commonwealth, or provided an enforceable undertaking to the
Commonwealth, to provide the Commonwealth with benefits in
accordance with clause 5.1.1 and to comply with the requirements of
this clause 7.2 in the event of any further dealing.
b. Any agreement entered into with a third party under clause 7.2(a)(iii) for
commercial or potential commercial purposes will ensure that the
Commonwealth continues to receive an equitable share of the benefits
arising from subsequent use of the Samples or Products, or the rights in
those Samples or Products, by the third party.
c. Any agreement entered into with a third party under clause 7.2(a)(iii) for
non-commercial purposes will include an undertaking that the third party
will not carry out R & D Activity for, or allow others to use the Material for,
MODEL ACCESS AND BENEFIT-SHARING AGREEMENT COMMONWEALTH OF AUSTRALIA AND ACCESS PARTY
BSA number: <200X/XX> Page 5
commercial or potential commercial purposes unless a benefit-sharing
agreement has been entered into with the Access Party or the
Commonwealth.
8. Handling and Management of Samples
8.1. Sample Records and Reports
a. The Access Party will maintain accurate and complete records so as to
enable tracking of the Samples to this Deed numbered <200X/XXX>.
b. The Access Party will maintain Sample Records in accordance with
clause 12.1.3(b).
c. A Sample Record created in accordance with clause 8.1(b) and clause
12.1.3(b) for a particular Sample will be retained by the Access Party
while the Sample is in the Access Party’s possession.
8.2. Dealings with Samples
a. The Access Party will not dispose of, or grant rights (including Intellectual
Property rights) in, Samples or Products except in accordance with
clauses 7 or 8.4.
8.3. Offer of Samples
a. The Access Party will offer to gift or provide for permanent loan duplicates
of the Samples and Sample Records (or where Samples are not
available, Sample Records only) to an Australian public institution that is a
repository of taxonomic specimens of the same order or genus as the
Samples, or to an Australian university or publicly funded research
agency.
b. In offering duplicate Samples under clause 8.3(b), the Access Party:
i. will require the institution to provide an enforceable undertaking to
the Access Party that it will not carry out R & D Activity for, or allow
others to use the Material for, commercial or potential commercial
purposes unless a benefit-sharing agreement has been entered into
with the Access Party or the Commonwealth; and
ii. may set any other reasonable conditions not inconsistent with this
Deed relating to the use of those gifted or loaned duplicate Samples.
8.4. Disposal of Samples
a. If the Access Party does not propose to keep a Sample, the Access
Party will offer the Sample and Sample Record to the Commonwealth.
b. If the Commonwealth does not agree to take the Sample and Sample
Record, the Access Party may dispose of the Sample and will send
details of the Sample disposed of, and the Sample Record, to the
Commonwealth by 31 March next occurring.
c. This clause 8.4 does not apply to Samples disposed of in accordance with
clauses 7.2 or 8.4.
MODEL ACCESS AND BENEFIT-SHARING AGREEMENT COMMONWEALTH OF AUSTRALIA AND ACCESS PARTY
BSA number: <200X/XX> Page 6
9. Acknowledgment of the Provision of Access to Biological Resources
9.1. Acknowledgment
a. The Access Party will acknowledge the provision of Access to Biological
Resources by the Commonwealth in the Access Area in all publications
in a manner approved by the Commonwealth in advance.
10. Taxes, Duties and Government Charges
10.1. Taxes, Duties and Government Charges
10.1.1. Unless otherwise indicated and subject to this clause 10, a party liable for all
taxes, duties and government charges imposed or levied in Australia or overseas
in connection with this Deed and its performance will pay those taxes, duties and
government charges.
10.1.2. Amounts payable by the Access Party to the Commonwealth under this Deed
include an amount on account of GST imposed on any supplies made by the
Commonwealth to the Access Party under this Deed that are taxable supplies
within the meaning of the GST Act.
10.1.3. No party may claim or retain from the other party any amount in relation to a
supply made under this Deed for which the first party can obtain an input tax
credit or decreasing adjustment.
11. Financial Accounts and Records
11.1. Financial Accounts and Records
11.1.1. The Access Party will create and maintain financial accounts and records
relating to this Deed:
a. so as to enable all receipts and payments related to this Deed, including
Exploitation Revenue and amounts payable by the Access Party in
accordance with clause 5.1.1.a, to be identified and reported in accordance
with this Deed;
b. in accordance with Australian Accounting Standards;
c. so as to enable the audit of those accounts and records in accordance with
Australian Auditing Standards; and
d. so as to enable the identification of all relevant taxation liabilities and
payments.
12. Reporting
12.1. Annual Report
12.1.1. The Access Party will provide the Commonwealth with an Annual Report in
electronic and/or hardcopy form on or before the 31 March first occurring after
the Commencement Date, and on annual basis thereafter.
MODEL ACCESS AND BENEFIT-SHARING AGREEMENT COMMONWEALTH OF AUSTRALIA AND ACCESS PARTY
BSA number: <200X/XX> Page 7
12.1.2. Annual Reports will identify this Deed numbered <200X/XXX> as the benefit-
sharing agreement to which the Annual Report relates.
12.1.3. Annual Reports will include the following information:
a. Financial information
i. Exploitation Revenue received;
ii. amounts payable by the Access Party to the Commonwealth,
including amounts payable to the Commonwealth in accordance
with clause 5.1.1.a; and
b. Sample Record
i. for each Sample collected under an Access Permit:
A. a unique identifier for the Sample, which is also on a label attached to the Sample or its container;
B. the date the Sample was taken;
C. the place and latitude and longitude from which the Sample was accessed;
D. an appropriate indication of the quantity or size of the Sample;
E. a summary of taxa collected and isolated (if any);
F. the scientific name of, or given to, the Sample;
G. the location of the Sample as at 31 March;
H. details of any subsequent disposition of the Sample, including the names and addresses of third parties in possession of the Sample or a part of the Sample as at 31 March; and
I. details of the disposal (including destruction) of the Sample;
in accordance with the template at Attachment A to this Deed;
c. Undescribed or unidentified species
i. the scientific name of or given to a Sample of a species, which was
undescribed or unidentified in an earlier Annual Report, when it is
so described or identified;
d. Research activities
i. A summary of R & D Activity undertaken, including:
A. any results of R & D Activity; and
B. any information related to R & D Activity that may be useful in increasing knowledge of the biodiversity of the Access Area, or may assist in biodiversity conservation more generally.
e. Information about the commercialisation of Samples and Products
i. progress in establishing third party agreements under clause
7.2(a)(iii)
ii. progress toward commercialisation of Products; and
iii. any disposal (including destruction) of Products.
MODEL ACCESS AND BENEFIT-SHARING AGREEMENT COMMONWEALTH OF AUSTRALIA AND ACCESS PARTY
BSA number: <200X/XX> Page 8
12.1.4. The Annual Report will report on activities undertaken by the Access Party in
performance of this Deed from the Commencement Date to the 31 March first
occurring, and on an annual basis thereafter.
12.2. Other Reports
12.2.1. The Access Party will provide such other reports as the Commonwealth may
reasonably request from time to time.
13. Publicity
13.1. Public Statement
13.1.1. If requested by the Commonwealth, the Access Party will provide to the
Commonwealth a short statement about the Samples collected from the
Access Area and the results of any R & D Activity for publication by the
Commonwealth.
14. Confidential Information
14.1. Confidential Information Not to be Disclosed
14.1.1. Subject to clause 14.2, a party will not, without the prior written consent of
another party, disclose any Confidential Information of that other party to a
third party.
14.2. Exceptions to Obligations
14.2.1. The obligations on the parties under this clause 14 will not be breached to the
extent that Confidential Information:
a. is disclosed by a party to its officers, employees, agents, contractor staff or
professional advisers engaged in, or in relation to, the performance or
management of this Deed solely in order to comply with obligations, or to
exercise rights, under this Deed;
b. is disclosed to a party’s internal management officers, employees, agents,
contractor staff or professional advisers solely to enable effective
management or auditing of Deed-related activities;
c. is disclosed by the Department to the responsible Minister;
d. is disclosed by the Department, in response to a request by a House or a
Committee of the Parliament of the Commonwealth;
e. is shared by the Department within the Department’s organisation, or with
another agency, where this serves the Commonwealth’s legitimate
interests;
f. is authorised or required by law to be disclosed; or
g. is in the public domain otherwise than due to a breach of this clause 14.
14.2.2. Where a party discloses Confidential Information to another person pursuant
to clauses 14.2.1(a), (b) or (e), the disclosing party will notify the receiving
person that the information is confidential.
MODEL ACCESS AND BENEFIT-SHARING AGREEMENT COMMONWEALTH OF AUSTRALIA AND ACCESS PARTY
BSA number: <200X/XX> Page 9
14.2.3. In the circumstances referred to in clauses 14.2.1(c) or (d) the disclosing party
will not provide the information unless the receiving person will keep the
information confidential.
14.2.4. The parties will secure all Confidential Information against loss and
unauthorised access, use, modification or disclosure.
14.3. Period of Confidentiality
14.3.1. The obligations under this clause 14 will continue, notwithstanding the
termination of this Deed:
a. in relation to information described in Item B to Schedule 1 – for the period
set out in respect of that information; and
b. in relation to any information agreed after the Commencement Date to be
Confidential Information – for the period agreed by the parties in writing
in respect of that information.
15. Audit and Access to Premises and Records
15.1. Audit and Access to Premises and Records
15.1.1. The Access Party will:
a. give the Commonwealth, or any persons authorised in writing by the
Commonwealth, access to premises where obligations under this Deed
are being carried out; and
b. permit those persons to inspect and take copies of any Material relevant to
this Deed.
15.1.2. The rights referred to in clause 15.1.1 are subject to:
a. the Commonwealth providing reasonable prior notice;
b. reasonable security procedures in place at the premises; and
c. if appropriate, execution of a deed of confidentiality by the person to whom
access is given.
15.1.3. The Auditor-General and the Privacy Commissioner are persons authorised for
the purposes of clause 15.1.1.
15.1.4. This clause 15 does not detract from the statutory powers of the Auditor-General
or the Privacy Commissioner.
16. Dispute Resolution
16.1. Procedure for Dispute Resolution
16.1.1. The parties will deal with a dispute arising under this Deed as follows:
a. the party claiming that there is a dispute will give the other party a notice
setting out the nature of the dispute;
MODEL ACCESS AND BENEFIT-SHARING AGREEMENT COMMONWEALTH OF AUSTRALIA AND ACCESS PARTY
BSA number: <200X/XX> Page 10
b. within five Business Days each party will nominate a representative not
having any prior involvement in the dispute;
c. the representatives will try to settle the dispute by direct negotiation
between them;
d. failing settlement within a further 10 Business Days, the parties may agree
to refer the dispute to an independent third person with power:
i. to intervene and direct some form of resolution, in which case the
parties will be bound by that resolution; or
ii. to mediate and recommend some form of non-binding resolution;
e. the parties will co-operate fully with any process instigated under clause
16.1.1(d) in order to achieve a speedy resolution; and
f. if a resolution is not reached within a further 20 Business Days, any party
may commence legal proceedings.
16.2. Costs
16.2.1. The parties will bear their own costs of complying with this clause 16, and the
parties will bear equally the cost of any third person engaged under clause
16.1.1(d).
16.3. Application of Clause
16.3.1. This clause 16 does not apply to:
a. legal proceedings by any party for urgent interlocutory relief; or
b. action by the Department under or purportedly under clause 17.2
[Termination on Cancellation of Permit] or clause 17.3 [Termination for
Fault].
16.4. Performance of Obligations
16.4.1. Despite the existence of a dispute, the parties will (unless requested in writing by
another party not to do so) continue to perform their respective obligations under
this Deed.
17. Termination
17.1. Termination by Agreement
17.1.1. This Deed may be terminated at any time by agreement of the parties in writing.
17.2. Termination on Cancellation of Permit
17.2.1. If an Access Permit to which this Deed relates is cancelled, the
Commonwealth may immediately terminate this Deed by written notice to the
Access Party.
MODEL ACCESS AND BENEFIT-SHARING AGREEMENT COMMONWEALTH OF AUSTRALIA AND ACCESS PARTY
BSA number: <200X/XX> Page 11
17.3. Termination for Fault
17.3.1. The Commonwealth may by notice terminate this Deed immediately (but
without prejudice to any right of action or remedy which a party has or may have)
if:
a. the Access Party fails to fulfil, or is in breach of, any of its obligations
under this Deed and the Commonwealth considers that this failure or
breach is not capable of remedy;
b. the Access Party fails to fulfil, or is in breach of any of its obligations
under this Deed and does not rectify the omission or breach within 10
Business Days of receiving a notice from the Commonwealth to do so;
c. the Access Party is unable to pay all its debts as and when they become
due and payable;
d. the Access Party has applied to come under, received a notice requiring it
to show cause why it should not come under, or has otherwise come
under, one of the forms of external administration referred to in Chapter 5
of the Corporations Act 2001 (Commonwealth) or equivalent provisions in
legislation of the States and Territories pertaining to incorporated
associations or in the Corporations (Aboriginal and Torres Strait Islander)
Act 2006 (Commonwealth), or an order has been made for the purpose of
placing the Access Party under external administration;
e. being an individual, the Access Party becomes bankrupt or enters into a
scheme of arrangement with creditors;
f. in relation to this Deed, the Access Party breaches any law of the
Commonwealth, or of a State or Territory;
g. the Commonwealth is satisfied that any statement made in the Access
Party’s application for an Access Permit to which this Deed relates is
incorrect, incomplete, false or misleading in a way that would have affected
the original decision to issue the Access Permit; or
h. the Commonwealth exercises any other specific right of termination under
the Deed.
17.4. Consequences of Termination
17.4.1. If this Deed is terminated under clauses 17.2 or 17.3:
a. the Access Party will not thereafter use, or cause, permit or allow to be
used, any:
i. Samples;
ii. Products; or
iii. Intellectual Property arising from R & D Activity; and
b. the Access Party will deliver to the Commonwealth or destroy, at the
Commonwealth’s discretion, all Samples and Products that are the
subject of this Deed and that are in the Access Party’s possession at the
date of termination.
MODEL ACCESS AND BENEFIT-SHARING AGREEMENT COMMONWEALTH OF AUSTRALIA AND ACCESS PARTY
BSA number: <200X/XX> Page 12
17.4.2. Termination under clause 17.2 or 17.3 will not affect any third party agreements
under clause 7 existing at the date of termination.
18. Notices
18.1. Format, Addressing and Delivery
18.1.1. A notice under this Deed is only effective if it is in writing, and dealt with as
follows:
a. if given by the Access Party to the Commonwealth - addressed to the
Commonwealth at the address specified in Item C of Schedule 1 or as
otherwise notified by the Commonwealth; or
b. if given by the Commonwealth to the Access Party - given by the
Commonwealth and addressed (and marked for attention) as specified in
Item D of Schedule 1 or as otherwise notified by the Access Party.
18.1.2. A party may, by written notice to any other party, change its address for the
service of notices.
18.1.3. A notice is to be:
a. signed by the person giving the notice and delivered by hand;
b. signed by the person giving the notice and sent by pre-paid post; or
c. transmitted electronically by the person giving the notice by electronic mail
or facsimile transmission.
18.2. When Notice is Effective
18.2.1. A notice is deemed to be effected:
a. if delivered by hand - upon delivery to the relevant address;
b. if sent by post - upon delivery to the relevant address; or
c. if transmitted electronically - upon actual receipt by the addressee.
18.2.2. A notice received after 5.00 pm, or on a Saturday, Sunday or public holiday in
the place of receipt, is deemed to be effected on the next Business Day in that
place.
19. Assignment and Novation
19.1. Assignment and Novation
19.1.1. The Access Party will not novate its obligations, and will not assign its rights,
under this Deed without the Commonwealth’s prior written approval.
20. Negation of Employment, Partnership and Agency
20.1. Negation of Employment, Partnership and Agency
20.1.1. The Access Party will not represent itself, and will use its best endeavours to
ensure that its personnel do not represent themselves, as being an officer,
MODEL ACCESS AND BENEFIT-SHARING AGREEMENT COMMONWEALTH OF AUSTRALIA AND ACCESS PARTY
BSA number: <200X/XX> Page 13
delegate, employee or agent of the Commonwealth or as otherwise able to bind
or represent the Commonwealth.
20.1.2. The Access Party is not by virtue of this Deed an officer, delegate, employee or
agent of the Commonwealth.
20.1.3. The Access Party does not by virtue of this Deed have any power or authority to
bind or represent the Commonwealth.
21. Waiver
21.1. Waiver
21.1.1. A failure or delay by a party to exercise any right or remedy it holds under this
Deed or at law does not operate as a waiver of that right.
21.1.2. A single or partial exercise by a party of any right or remedy it holds under this
Deed or at law does not prevent the party from exercising the right again or to
the extent it has not fully exercised the right.
22. Survival
22.1. Survival
22.1.1. The operation of clauses 5 [Benefit-Sharing with the Commonwealth], 9
[Acknowledgment of the Provision of Access to Biological Resources], 11
[Financial Accounts and Records], 17.4 [Consequences of Termination] and any
other provision which expressly or by implication from its nature is intended to
continue to survive the termination of this Deed shall survive the termination of
this Deed.
22.1.2. Clause 15 [Audit and Access to Premises and Records] applies for a period of
seven (7) years after the date of termination of this Deed.
23. Applicable Law
23.1. Applicable Law
23.1.1. This Deed is to be construed in accordance with, and any matter related to it is
to be governed by, the law of the Australian Capital Territory.
23.1.2. The parties submit to the jurisdiction of the courts of that Territory.
24. Compliance and standards
24.1. Compliance and standards
24.1.1. The Access Party will comply with all laws, policies, codes of practice and
guidelines relating to the performance of this Deed, including the Australian
Code for the Responsible Conduct of Research.
MODEL ACCESS AND BENEFIT-SHARING AGREEMENT COMMONWEALTH OF AUSTRALIA AND ACCESS PARTY
BSA number: <200X/XX> Page 14
25. Definitions
25.1. Definitions
25.1.1. In this Deed, unless the context indicates otherwise:
Access Area means the Commonwealth Area specified in Item
A to Schedule 2 where the Access Party may have Access to Biological Resources;
Access Party means the person named as Access Party on page 1 of this Deed and includes, where the context permits, the officers, delegates, employees, agents and successors of the Access Party;
Access Provider
has the meaning that it has in regulation 8A.04 of the EPBC Regulations;
Access to Biological Resources
has the meaning that it has in regulation 8A.03 of the EPBC Regulations;
Access Permit means a permit issued in accordance with Part 17 of the EPBC Regulations for the purposes of Part 8A of the EPBC Regulations authorising Access to Biological Resources in the Access Area;
Annual Report means the report provided by the Access Party to the Commonwealth annually in accordance with clause 12.1 of this Deed;
Biological Resources has the meaning that it has in section 528 of the EPBC Act;
Business Day means in relation to the doing of any action in a place, any day other than a Saturday, Sunday or public holiday in that place;
Commencement Date means the date described in clause 3.1 of this Deed;
Commonwealth means the Commonwealth of Australia;
Commonwealth Area has the meaning that it has in section 525 of the EPBC Act;
Confidential Information means: a. the information described in ItemsA1 and
A2 to Schedule 1 of this Deed (if any); and b. information that the parties agree in writing
after the Commencement Date is Confidential Information for the purposes of this Deed;
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Deed means this Deed and includes any Schedules and attachments;
Department means the Commonwealth represented by and acting through the Department of Sustainability, Environment, Water, Population and Communities (or any other Commonwealth department or agency that is, from time to time, responsible for the administration of this Deed) and includes, where the context permits, the officers, delegates, employees, agents and successors of the Department;
EPBC Act means the Environment Protection and Biodiversity Conservation Act 1999 (Commonwealth);
EPBC Regulations means the Environment Protection and Biodiversity Conservation Regulations 2000 (Commonwealth);
Exploitation Revenue means any monies received by the Access Party from third parties arising from the Access Party’s use of Biological Resources, including monies received for:
a. transferring, delivering or providing access to Samples or Products;
b. assigning or granting rights (including Intellectual Property rights) in Samples or Products; or
c. sale; but not including monies received by the Access Party for the purpose of R & D Activity;
Genetic Resources has the meaning that it has in section 528 of the EPBC Act;
GST has the meaning that it has in A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth);
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth);
Intellectual Property includes: a. all copyright (including rights in relation to
phonograms and broadcasts); b. all rights in relation to inventions, plant
varieties, trademarks (including service marks), designs and circuit layouts; and
c. all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields;
but does not include:
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a. Moral Rights; b. the rights of performers; or c. rights in relation to Confidential
Information; d.
Material
means any thing in relation to which property rights, including Intellectual Property rights, arise;
Moral Rights
includes the following rights of an author of copyright Material:
a. the right of attribution of authorship; b. the right of integrity of authorship; and c. the right not to have authorship falsely
attributed;
Product means Material produced, obtained, extracted or derived through R & D Activity;
R & D Activity means research or development on Samples or Products;
Sample means a Sample of Biological Resources collected from the Access Area under an Access Permit issued in conjunction with this Deed;
Sample Record means the records required to be maintained for each Sample under clause 12.1.3(b);
Schedule
refers to a Schedule to this Deed and may include attachments and incorporate other documents by reference
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SIGNATURE EXECUTED as a Deed on <Insert date clearly and in full> SIGNED for and on behalf of Department of Sustainability, Environment, Water, Population and Communities by: <Name of signatory>
) ) )
Signature
In the presence of: <Name of witness>
Signature of witness
SIGNED for and on behalf of <insert name> by: <Name of signatory>
) ) )
Signature
In the presence of: <Name of witness>
Signature of witness
Insert mode of attestation required by Access Party
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SCHEDULE 1. PARTICULARS
A. Confidential Information (Clause 14)
A.1. The Commonwealth’s Confidential Information is:
Item Period of Confidentiality
A.2. Access Party’s Confidential Information is:
Item Period of Confidentiality
Specify Confidential Information and the period of confidentiality
B. Commonwealth Address for Notices (Clause 18)
The Director Protected Area Policy and Biodiscovery Department of Sustainability, Environment, Water, Population and Communities GPO Box 787 CANBERRA ACT 2601 AUSTRALIA
C. Access Party’s Address for Notices (Clause 18)
C.1.
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SCHEDULE 2. CONDITIONS
Note: Where a permit is issued to an Access Party in connection with this Deed, it will be attached in this Schedule 2.
A. Access Area (Clause 4)
A.1. List the areas from which the Samples will be taken, including latitude and
longitude references.
B. Time and Frequency of Entry to Access Area (Clause 4)
B.1. List the dates and times of entry to the Access Area(s).
C. Samples of Biological Resources to be Collected (Clause 4)
C.1. Include name of the species, or lowest level of taxon, to which the resources
belong (if known). If the species composition of Samples is not known, list the
sampling method(s) and the types of organisms likely to be collected.
D. Quantity of Resources to be Collected (Clause 4)
D.1. List the quantity of each Sample to be collected in the Access Area using metric
measurements.
E. Quantity of Resources to be Removed From Access Area (Clause 4)
E.1. List the quantity of each Sample to be removed from the Access Area using
metric measurements.
F. Purpose of Access (Clause 4)
F.1. Provide a brief description of the purpose(s) of collecting Samples.
G. Labelling of Samples (Clause 4)
G.1. Include a statement setting out the means of labelling the Samples.
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SCHEDULE 3. BENEFIT-SHARING WITH THE COMMONWEALTH
A.1. Where the gross Exploitation Revenue received by the Access Party in a
calendar year falls within the relevant range specified in column 1 of the table
below, the Access Party will pay to the Commonwealth the corresponding
percentage of gross Exploitation Revenue specified in column 2 of the table.
Purpose of the Product
Gross Exploitation Revenue received in one calendar year ($AUD)
Payment (% of gross Exploitation Revenue)
Pharmaceutical, Nutraceutical or Agricultural
< 500,000
500,000-5,000,000 >5,000,000
0
2.5 5.0
Chemical and diagnostic
> 200,000
or < 100,000
100,000 – 3,000,000 > 3,000,000
1.5
0
1.0 2.0
Other research
> 200,000
or < 100,000
100,000 – 3,000,000 > 3,000,000
2.5
0
1.0 3.0
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SCHEDULE 4. NON-MONETARY BENEFITS
A. Benefits to Biodiversity Conservation in Access Area (Clause 5)
A.1. Insert a statement about the benefits of the research to the conservation of
biodiversity in the Access Area. Benefits may include improved knowledge of
biodiversity, taxonomy, biological and ecological processes, impacts of
environmental changes, or data and knowledge that will assist in the
conservation and management of the environment.
B. Other benefits (Clause 5)
B.1. A range of non-monetary benefits may be provided in return for Access to
Biological Resources. A broad range of benefits are outlined in the Convention
on Biological Diversity’s ‘Bonn Guidelines on Access to Genetic Resources and
Equitable Sharing of the Benefits Arising out of their Utilization’
(http://www.cbd.int/doc/publications/cbd-bonn-gdls-en.pdf).
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SCHEDULE 5. USE OF TRADITIONAL KNOWLEDGE AND ENGAGEMENT WITH INDIGENOUS
PEOPLES
A. Use of Indigenous People’s Knowledge (Clause 6)
A.1. Include details of the source of the knowledge, such as scientific or other public
documents, from the Access Provider or from another group of Indigenous
people.
B. Guidelines Relating to Engagement with Indigenous Peoples (Clause 6)
B.1. Guidelines for Ethical Research in Australian Indigenous Studies (Australian
Institute for Aboriginal and Torres Strait Islander Studies)
B.2. Please list all other policies, guidelines, codes of conduct or standards which will
be used relating to engagement with Indigenous people.
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Attachment A: Sample Record at 31 March 20xx Permit Number: xxx Column 1 Column 2 Column 3 Column 4 Column 5 Column 6 Column 7 Column 8
Sample unique identifier
Scientific name
Sample size/count
Collection date ddmmyyyy
Collection place/location
Sample location at 31 March
Third Parties holding Samples at 31 March
Details of disposal or destruction of Samples at 31 March
Lat Long