Provision Language
4. Development Other than with BMGF
To the extent the Company utilizes the Platform Technology and successfully develops a vaccine, therapeutic or diagnostic for any of the diseases listed in the definition of Group 1, Group 2 or Group 3 Diseases (i.e., without support from the Foundation or Foundation-Supported Entities), the Company will use reasonably diligent efforts, that take into account both the Global Access Objectives and the Company’s profitability, enterprise value and other commercial interests, to make such product accessible to people most in need within the Developing World. For clarity, nothing in this Letter Agreement shall limit the right or ability of the Company to work, for itself or with a third party, to use the Platform Technology on any products, whether for human use or otherwise. The Company will report to the Foundation if it reasonably believes that a conflict in available capacity may arise as a result of work for itself or a third party. The Company will further report to the Foundation before entering into negotiations for any license or other transfer of rights in the Platform Technology to a third party.
5. Obligations in the Event of Acquisition of Platform Technology or Company by Another
In the event the Platform Technology is acquired directly, or through a merger or an acquisition of the Company by a third party, the Company will ensure the Global Access Commitments applicable to the Company’s Platform Technology described above will survive and be assumed by the acquirer. The Company will not grant to a third-party any rights to, or enter into any arrangements with respect to, the Platform Technology that would prohibit, prevent or otherwise significantly restrict the Company (or any acquirer of the Platform Technology) from fulfilling the above stated commitments. The Global Access Commitments shall apply solely to the Company’s Platform Technology and intellectual property rights and proprietary information owned or controlled by the Company, and shall expressly not be applicable to other services, products or intellectual property rights, including rights of any licensee of the Company or any company that merges with or acquires the Company.
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6. Withdrawal Right
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In the event that the Company fails to comply with the restrictions on the use of funds, the Global Access Commitments or the other related U.S. tax obligations set forth herein, (a “Charitability Default“), the Foundation will have the rights set forth below (the “Withdrawal Right“). […] In the event of a Charitability Default, the Foundation and Foundation-Supported Entities will also be provided with nonexclusive access (including any necessary licenses to relevant intellectual property) to the Platform Technology sufficient to enable the Foundation and Foundation-Supported Entities to practice the Platform Technology for the pursuit of the Global Access Objectives. Such access shall include, but not be limited to, access contemplated in this Letter Agreement sufficient for the Foundation or Foundation-Supported Entities to complete the Services that the Company agreed to perform under a grant or contract previously entered into between the Company and the Foundation or Foundation Supported Entity. Such access to and permissions to practice the Platform Technology shall be accomplished without any delay or hindrance by the Company (regardless of whether or not the provision of the Services had been started). The Foundation will continue to have the other rights set forth in this Letter Agreement (e.g., use of the results of the Services in accordance with Section 3.a.ii.). […]
7. Exclusive License by Stanford to the Company and Provision for Benefit of Foundation
The Company has provided language acceptable to the Foundation in the exclusive license from Stanford in the event that license is terminated for any reason. Such language provides the Foundation continued nonexclusive access to the patent or patents licensed to the Company by Stanford relating to the Platform Technology on terms consistent with the global access requirements of the Foundation. Moreover, the Company further agrees, in the event of a termination of the Stanford license, to enter into a license to provide the Foundation, consistent with the Foundation’s rights in the territories as set forth in this letter, non-exclusive access to the Company proprietary information (including software in source code and executable formats) sufficient to allow the Foundation (or any entity it would identify for this purpose) to most directly and efficiently utilize the patent or patents previously licensed to the Company by Stanford relating to the Platform Technology as of the date of the termination of the Stanford license.
