U.S. Department of Defense – Inovio, COVID-19 Vaccine Delivery Device, Other Transaction Prototype Agreement

Liability | Indemnification & liability

Annotations

This agreement between Inovio Pharmaceuticals, Inc. (“Inovio” or “Awardee“) and the Natick Contracting Division of the U.S. Department of Defense (“DoD“, or “Government“) was entered into in July 2020. The agreement is an Other Transaction Authority (“OTA”) for a Prototype Project, meaning that certain legislation including the FAR, DFARS and Bayh-Dole Act only apply to the extent that they are specifically referenced in the agreement. According to an SEC filing by Inovio, the total amount of funding under the agreement was USD $54.5 million.

The Scope of Work (“SOW”) under the agreement covers the development of an FDA approved next generation electroporation device for delivery of Inovio’s INO-4800 vaccine against COVID-19, and demonstration of capability for large-scale production (“Prototype Project”). The parties anticipate negotiation of a separate agreement for follow-on production and purchase of a product if the Prototype Project is successful.

The agreement includes a Most Favored Customer provision under which Inovio agrees that it will not sell the production model of the Prototype to any entity at a lower price than that offered to the DoD. Additionally, if Inovio develops a similar product for a lower price, then it must make the DoD aware of the product and the price difference, and Inovio may not sell that product in similar quantities to any other entity at a lower price than that received by the DoD.

Government “March-in” rights under the Bayh-Dole Act do not apply to this agreement, but the Government will receive a license to the patents and other information necessary to continue development of the product. Additionally, any inventions made under the OTA are subject to an “unlimited rights” license to the Government to use and distribute the invention for its own purposes, and to allow others to use the invention for their own purposes.

Provision Language

ARTICLE 11. Intellectual Property Rights

[…]

C. Patent Indemnity. The Awardee shall indemnify the Government and its officers, employees and agents against liability, including costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark or copyright, arising out of this Agreement, provided the Awardee is reasonably notified of such claims and proceedings.

ARTICLE 16. Miscellaneous Clauses

[…]

C. Limitation of Liability. In no event will either Party be liable to the other Party or any third party claiming through such Party for any indirect, incidental, consequential or punitive damages, or claims for lost profits, arising under or relating to this Agreement, whether based in contract, tort or otherwise, even if the other Party has been advised of the possibility of such damages.

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U.S. Department of Defense – Inovio, COVID-19 Vaccine Delivery Device, Other Transaction Prototype Agreement

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U.S. Department of Defense – Inovio, COVID-19 Vaccine Delivery Device, Other Transaction Prototype Agreement

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