Provision Language
2. Representations and Warranties
The Recipient represents and warrants to Unitaid the following as of the date of last signature of this Agreement (“Effective Date”): (i) the Recipient is a legal entity with full power and authority to enter into this Agreement and implement the Project, and all necessary approvals and consents have been obtained and are in full force and effect; (ii) the execution of this Agreement does not contravene the Recipient’s governing documents or any legal obligations to which it is subject; (iii) the Recipient is solvent and able to pay its debts as and when they fall due; (iv) the Recipient is not, and was not over the last four years, part of the Tobacco Industry or Arms Industry; (v) to the best of its knowledge, the Recipient has not, over the last four years: (a) engaged in activities that are aimed at furthering or supporting the interests of the Tobacco Industry including, but not limited to, supply contracts, contract work, services and lobbying; or (b) had any other association or relationship with the Tobacco Industry including, but not limited to, investment interests (other than general mutual funds or similar arrangements whereby the Recipient has no control over the selection of the investments), commercial business interests and/or the provision or receipt of financial or other support; (vi) the information provided by the Recipient to Unitaid prior to the Effective Date, was in all material respects accurate and not misleading, and there has been no material change to that information or any developments that may have reasonably affected Unitaid’s decision to enter into this Agreement since the date on which that information was provided.
The Recipient acknowledges that Unitaid has entered into this Agreement on the basis of the representations and warranties made by the Recipient above and in Section 5 (Intellectual Property) of this Agreement. In the event that any representation made by the Recipient is found to have been false or misleading in any material respect, the Recipient will, following a written demand from Unitaid, reimburse all Project Funding disbursed by Unitaid.
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4. Intellectual Property
The Recipient represents, warrants and undertakes (as appropriate) to Unitaid the following as of the Effective Date: (i) the Recipient holds all Intellectual Property Rights existing at the Effective Date which are necessary in order to develop, manufacture, seek regulatory approval, commercialise and sell the Health Products in accordance with the terms of this Agreement; (ii) to the best of the Recipient’s knowledge, the development and commercialisation of the Health Products in accordance with the terms of this Agreement will not infringe any third party Intellectual Property Rights; (iii) the Recipient has the full right, power and authority to authorize or license the use of the Recipient Foreground IP in the manner set out in this Agreement; (iv) the Recipient has not granted and will not grant, during the period from the Effective Date to the end of the Access Enforceability Period, to any third party any right, license or interest in, to or under the Recipient Background IP or Recipient Foreground IP that would conflict with, limit or adversely affect the Recipient’s ability to comply with the terms of this Agreement including, without limitation, the commitments set out Section 3 (Access to Health Products); and (v) the Recipient will manage the Recipient Background IP and Recipient Foreground IP in a manner which furthers and is consistent with the Access Objective, including in accordance with the Commercialisation Plan.
The Recipient will make best efforts to ensure that the development and commercialisation of the Health Products will not infringe any third party Intellectual Property Rights in any jurisdiction worldwide. Without prejudice to the generality of this obligation, the Recipient will commission a formal freedom to operate search in order to determine whether there are any potentially blocking Intellectual Property Rights in relevant jurisdictions by the date set out in the Milestone Schedule. The Recipient will provide Unitaid with the results of the freedom to operate search on request.