Provision Language
Definitions
“Enabling Rights” means, with respect to a Partner, such Partner’s Background IP and improvements thereto, Project IP and Project Results that could be asserted by the applicable Partner to block CEPI from exercising its rights under Clause 14.6 of this Agreement. For the purposes of this Agreement, ‘Enabling Rights’ also includes the contractual rights under contracts executed for the Project that control the use of such items, for example, in material transfer agreements.
2. PROJECT ORGANISATION AND MANAGEMENT
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2.3 Project Continuity Plan.
2.3.1 The iPDP shall include the following in order to address continuity of the Project in the event either or both Partners becomes unable to continue its activities under this Agreement and must delegate certain activities to another Party or third party (the “Project Continuity Plan”):
(i) responsibilities and level of access on the part of other collaborators, Sub Contractors and consortium members, if any, to Project Results;
(ii) management of key Project Materials through participants in the Project and other entities;
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3. USE OF FUNDS; PROCUREMENT; PROJECT RECORDS
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3.2 Use of Sub-Contractors. Each Partner may use third party service providers and/or Subawardees (“Sub-Contractors”) to undertake work pursuant to the Work Packages on its behalf, provided that any such Sub-Contractors are listed in Annex G or the applicable Work Package, and are listed in the iPDP and Budget. The use of any Sub-Contractors that are not included in Annex G or the applicable Work Package and the iPDP and Budget are subject to the applicable Partner providing notice in advance in writing to CEPI and CEPI’s prior written approval (such approval not to be unreasonably withheld, conditioned or delayed). The following terms shall apply to the engagement of any Sub-Contractors:
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3.2.3 A Sub-Contractor must agree to comply with all of the relevant obligations applicable to the relevant Partner, whether explicitly defined as such or as is reasonable from
the nature of the obligation. Each sub-agreement with a Sub-Contractor must:
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(iv) be consistent with the applicable Partner’s obligations under this Agreement including in relation to Clause 4.2.2 (Technology Transfer in Event of Outbreak), Clause 5 (Ownership of Project Results; Intellectual Property), Clause 10 (Dissemination of Project Results; Publication) Clause 14 (Equitable Access), Clause 15 (Commercial Benefits), and Clause 19 (Term and Termination);
3.4 Third Party Licences. It will be each Partner’s responsibility to ensure that it has obtained all necessary licences and consents to perform the Project. CEPI shall be entitled to retain funding or to condition any funding unless and until each Partner has reasonably satisfied CEPI that it has obtained all of the third party licences reasonably required to perform the Project and to supply the Project Vaccine. In the event that a Partner is bound by, or is to be bound by, certain obligations to any third party that holds IP rights necessary to develop and commercialize the Project Vaccine (“Third Party Collaborators”), such Partner shall (i) notify CEPI in writing of the identity of such Third Party Collaborators as well as such Partner’s obligations in relation to them, (ii) use reasonable endeavours to facilitate the necessary arrangements between CEPI and Third Party Collaborators in the event the Public Health License is triggered under Clause 14.7, and (iii) use reasonable endeavours to secure all IP rights from Third Party Collaborators as required for a technology transfer under Clause 4.2.
14. EQUITABLE ACCESS
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14.6 Public Health Licence. Subject to the terms of this Agreement, each Partner hereby grants (and shall ensure that each Subawardee grants) to CEPI a non-exclusive, worldwide, irrevocable, fully paid up, royalty free license under such Partner’s Enabling Rights that is necessary or reasonably useful to develop, manufacture, and commercialise the Project Vaccine in order to achieve Equitable Access during the Term and for [***] thereafter (the “Public Health License”), on the condition that CEPI may only exercise the Public Health License in the event that:
14.6.1 CEPI is not in material breach of its obligations under this Agreement; and
14.6.2 one or more of the triggers set out in Clause 14.7 has occurred with respect to such Partner.
The Public Health License shall be sub-licensable to one or more third parties. Notwithstanding the foregoing, CEPI acknowledges and agrees that each Partner’s obligations to any Third Party Collaborators may limit the availability or the scope of a Partner’s sublicensees, and as such, if required by CEPI, such Partner shall use reasonable efforts to facilitate the necessary arrangements between CEPI and any Third Party Collaborators, as contemplated in Clause 3.4. Any sublicence of the Public Health License shall be in writing and CEPI shall require that each sublicensee complies with the terms of the Public Health Licence.
14.7 Public Health Licence Triggers. Consistent with Clause 14.6, CEPI shall have the right to exercise the Public Health Licence with respect to a Partner, in the event that any one or more of the following events occurs with respect to such Partner:
14.7.1 [***]
14.7.2 [***]
14.7.3 Such Partner is in material breach of this Agreement or the Equitable Access Plan and has not cured such breach [***]; or
14.7.4 The Agreement is terminated by CEPI pursuant to Clause 19.3 (Termination by CEPI for Default or Insolvency) or Clauses 19.4.5 (failure to satisfy payment
criteria), 19.4.6 (Financial Irregularity) or 19.4.7 (reputation impact).
14.8 Effects of Exercise of the Public Health Licence. Upon exercise of the Public Health Licence by CEPI and provision of written notice to the Partners, the Partner in respect of which the Public Health Licence has been exercised shall promptly:
14.8.1 provide CEPI with an up-to-date written list of all its Enabling Rights; and
14.8.2 promptly and diligently make available to CEPI all guidance, information, materials and assistance reasonably required to accomplish any Project activities that were to be performed by such Partner, and which guidance, information, materials and assistance are identified by CEPI. Such transfer shall be: (i) in the event the Public Health Licence is exercised by CEPI pursuant to Clause 14.7.1 or Clause 14.7.2 at CEPI’s reasonable cost; or (ii) in the event the Public Health Licence is exercised by CEPI pursuant to Clause 14.7.3 or Clause 14.7.4 at such Partner’s cost.
14.9 Effects of Termination of Barinthus Bio Licence Agreement. In addition to the foregoing, in the event that the licence agreement between Oxford University Innovation Limited, a private limited company registered in England and Wales with company number 02199542 and with its registered office address at University Offices, Wellington Square, Oxford, OX1 2JD (“OUI”) and Barinthus Bio dated 4 March 2016 (the “Barinthus Bio Licence Agreement”) is terminated, then Oxford shall, and shall procure that OUI shall, immediately upon such termination, grant to CEPI a non-exclusive, worldwide, irrevocable, fully paid up, royalty free license under all rights previously licensed to Barinthus Bio pursuant to the Barinthus Bio Licence Agreement that are necessary or reasonably useful to develop, manufacture, and commercialise the Project Vaccine in order to achieve Equitable Access during the Term and for twenty (20) years thereafter.
21. MISCELLANEOUS
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21.3 Assignment
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21.3.2 Save as otherwise permitted under this Agreement, neither Partner shall assign, license or encumber its rights in the Project Intellectual Property, Project Results or any Intellectual Property controlled by such Partner, in each case to the extent that they relate to the Project Vaccine, including all Enabling Rights, without the consent of CEPI, such consent not to be unreasonably withheld or delayed, and as a condition of giving such consent CEPI may require that such assignment, or license is made subject to the terms of this Agreement, and that any encumbrance is subject and subordinate to CEPI’s rights under this Agreement. In the event of a change of control of a Partner, or any Partner is otherwise acquired, then such Partner shall ensure that any such acquirer is made aware of the terms of this Agreement and shall remain bound by and subject to the terms of this Agreement in all respects.