Gates Foundation – CureVac, RNA Rotavirus Vaccine R&D Collaboration Agreement

Liability | Indemnification & liability

Summary of Approaches

What occurrences could result in a liability claim against which one party will indemnify the other?
- CureVac will indemnify the Foundation against third party claims arising from CureVac’s breach of the agreement, wilful misconduct, conduct of the Activities, violation of laws or regulations, or infringement of third party IP rights, as well as any employment-related claims.
What is the process for managing liability claims?
- The Foundation may employ separate counsel to monitor and participate in the defense of any Claim, at its own expense.
Is there any limitation or monetary cap on each party’s liabilities under the agreement?
- CureVac will not be liable for indirect or consequential damages.

Annotations

This Definitive Agreement and Project Collaboration Plan for Assessment of RNA Vaccine Technology for Non-live Rotavirus Vaccines in Pre-clinical Models (“Agreement“) between the Gates Foundation (“Foundation“) and CureVac GmbH (“CureVac“) is effective May 2014. The Agreement was signed pursuant to a separate Framework Agreement for Cooperation between the parties under which they agreed to cooperate in establishing projects for the R&D of new candidate vaccines.

Under the terms of the Agreement and subsequent amendments, the Foundation will provide up to USD $3 million in funding for CureVac to perform activities under a Project Collaboration Plan set out in Appendix 1 to the Agreement (“Activities“). The Activities include a global access plan recognizing the overarching goal of making products more available and accessible in Developing Countries (defined as countries eligible for Gavi support), as well as ensuring the broad dissemination of data and results.

CureVac will own intellectual property created in the performance of the Activities (“Project IPR“) but must manage it in a way that will best achieve the project’s global access objectives. This may include sublicensing the Project IPR at CureVac’s discretion. If the project success criteria are met and CureVac elects not to participate in further development, the Parties will enter into good faith negotiations for an agreement allowing the Foundation and its partners or grantees to proceed. Such an agreement must include licenses under necessary CureVac intellectual property, as well as access and permissions to use data generated under the Agreement.

Provision Language

8. Indemnification

8.1 CUREVAC will indemnify, hold harmless, and defend the Foundation and its trustees, officers, employees, representatives and agents from and against any and all third party causes of action, claims, suits, legal proceedings, judgments, settlements, damages, penalties, losses, liabilities and costs (including reasonable attorneys’ fees and costs) (each a “Claim”) arising out of or caused by: (a) CUREVAC’s breach of this Agreement; (b) CUREVAC’s willful misconduct, or negligent act or omission, (c) CUREVAC’s conduct of Activities; (d) CUREVAC’s violation of any applicable laws or regulations, including failure to comply with any applicable taxing authority; (e) CUREVAC’s infringement, misappropriation, or violation of the valid intellectual property rights of any third party; (f) any and all employment related claims whatsoever made in connection with the performance of Activities under this Agreement and the Appendix 1; and (g) personal injury or unemployment compensation Claims made by CUREVAC’s employees or any Subcontractors, notwithstanding any protections CUREVAC might otherwise have under applicable workers’ compensation or unemployment insurance law The Foundation may, at its own expense, employ separate counsel to monitor and participate in the defense of any Claim under this Section.

8.2 In any case of liability according to Section 8.1 and to any other provision of this Agreement CUREVAC will only be liable for willful conduct or gross negligence. Under no circumstances CUREVAC shall be liable for punitive, incidental, consequential or indirect damages.

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Gates Foundation – CureVac, RNA Rotavirus Vaccine R&D Collaboration Agreement

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