Provision Language
“Target Diseases” means polio, malaria (including falciparum and vivax), tuberculosis, cryptococcus, certain neglected infectious diseases (including hookworm, trichuris, ascaris, loa, leishmaniasis, trypanosomiasis, chagas, rabies, cysticercosis, trachoma, onchocerciasis, schistosorniasis, Japanese encephalitis, guinea worm, lymphatic filariasis, human African trypanosomiasis (HAT) and leprosy), pertussis, measles, rubella, yellow fever, Group B streptococcus, dengue, zika, Ebola, Lassa Fever, and diarrhea/enteric diseases (including ETEC, shigella, cryptosporidium, cholera, typhoid, rotavirus, norovirus and hepatitis E).
3. Global Access Commitments
The following paragraphs are intended to ensure satisfaction of the Charitable Purposes. In consideration of theFoundation Investment, the Company agrees to the following (collectively “Global Access Commitments”) effective as of the Closing Date (as defined in the SPA):
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3(c) Covenant not to Sue Third Party AA or AD Producers under the Company’s Patents. If, prior to the Foundation’s grant of a non-exclusive sublicense in subsection (d)(ii) below, a third party making, using, offering for sale, selling, or importing AA or AD that is solely used to produce artemisinin for ACTs to treat malaria infringes or allegedly infringes a claim of a patent or patent application owned or licensed by the Company that is necessary to make such AA or AD (other than any patents or patent applications exclusively licensed or sublicensed to The Institute for One World Health per the Amended and restated Exclusive Development and Commercialization Agreement dated January 11, 2008 (the “IOWH Agreement”)), the Company covenants to the Foundation that it will not seek to enforce (whether via an injunction, a declaratory relief action, a claim for damages, or otherwise) such patent or patent application against such third party’s making, using, offering for sale, selling, or importation of such AA or AD. Such a third party will be considered a third-party beneficiary under this Agreement for the purpose of enjoying the benefits of this subsection (c). For clarity, such covenant does not apply to a third party’s making, using, offering for sale, selling, or importation of AA or AD that is not solely used to produce artemisinin for ACTs to treat malaria. In addition, the Company has no obligation under this subsection (c) to provide, transfer, permit use of, license, disclose, or otherwise make available to any third party any of the Company’s Strains, Know-How, or other Intellectual Property relevant to making, using, offering for sale, selling, or importing AA or AD.
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(e) Treatment of Additional Target Diseases. The parties acknowledge that in addition to the use of artemisinin to produce ACTs to treat malaria, now or in the future it may be possible for artemisinin to be used for the treatment of other Target Diseases. The Company agrees that during the Commitment Period, if the Foundation so requests in writing to the Company, (i) the license granted in Section 3(d)(i) of this Letter Agreement (including any sublicense thereof) will also allow the Foundation and its sublicensees to make, use, import, sell, and offer for sale AA or AD from the escrowed Strain for the production of artemisinin for use in the treatment of any or all of the Target Diseases and (ii) the covenant not to sue in Section 3(c) will also apply to the making, using, offering for sale, selling, or importing of AA or AD that is used for the production of artemisinin for use in the treatment of any or all of the Target Diseases.