“Commercialisation Agreement” means any agreement entered into by the Recipient and a Commercialisation Partner pursuant to which such Commercialisation Partner is granted rights to make, use, offer for sale, sell, export, import or distribute a Health Product.
“Commercialisation Partner” means any firm, corporation, partnership, limited liability company, business trust, joint venture or other form of business organization which has been granted rights to make, use, offer for sale, sell, export, import or distribute a Health Product by the Recipient.
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. […]
7. Access License
The Recipient hereby grants to Unitaid a conditional, non-exclusive, royalty-free, worldwide, irrevocable and sublicensable license to use the Recipient Foreground IP in order to research, develop, make, have made, offer-for-sale, sell, import, export and distribute the Health Products in for the benefit of the Public sector in LMICs (“Access License”).
The Access License is conditional and will be granted in the event that the Recipient: (i) commits a material breach of this Agreement which, if capable of being cured, is not cured within ninety (90) days of receipt by the Recipient of written notice from Unitaid; (ii) experiences a Force Majeure event which, if capable of being resolved, is not resolved within one hundred and twenty (120) days of receipt by the Recipient of written notice from Unitaid; (iii) becomes unable to pay its debts as and when they fall due, makes any voluntary arrangement with its creditors, becomes subject to an administration order, goes into liquidation, or is subject to any other bankruptcy, insolvency or similar proceedings, such situation which is not resolved within thirty (30) days; (iv) makes a strategic decision to discontinue development and/or commercialisation of a Health Product; or (v) experiences a Change in Control or Transfer in breach of Section 8 (Change in Control or Transfer) of this Agreement, which, if capable of being cured, is not cured within ninety (90) days of receipt by the Recipient of written notice from Unitaid; or (vi) is unable to secure Commercialisation Agreements complying with the requirements set out in Section 3 (Access to Health Products) of this Agreement; (each of (i) to (vi), an “Access Default”).
In the event of notice from Unitaid indicating occurrence of an Access Default leading to the unconditional granting of the Access License, the Recipient will work with Unitaid to take any action and/or execute any documents which may be reasonably required to complete or formalise such license of the Recipient Foreground IP to Unitaid, or an alternative industry partner nominated by Unitaid. Such action will include, without limitation, transferring and/or making available all technology, know-how, documentation and information relating to the Recipient Foreground IP which may be necessary to permit Unitaid, or its nominated alternative industry partner, to utilise the Access License and facilitate the continued development, manufacture and commercialisation of the Health Products for the benefit of the Public Sector in LMICs.
8. Change in Control or Transfer
In the event of either: (i) a Change in Control of the Recipient; or (ii) the license (other than in accordance with this Agreement), transfer, sale or acquisition of the Recipient Background IP and/or the Recipient Foreground IP, or substantial assets owned or controlled by the Recipient which are necessary to perform its obligations hereunder, by a third party, including as a result of a Change in Control (a “Transfer”); the Recipient will ensure that all of its obligations hereunder are assumed by the licensee, purchaser, transferee, acquirer or successor of the Recipient Foreground and/or Background IP, the Recipient’s assets or the Recipient in a written agreement reasonably acceptable to Unitaid. A breach of this provision will constitute an Access Default.