UK Secretary of State – AstraZeneca, COVID-19 Vaccine Supply Agreement

Protecting & sharing information | Confidentiality

Summary of Approaches

What is the scope of confidential information?
- Confidential Information means any information provided by one party to the other, or otherwise obtained in connection with the agreement, that is marked or otherwise indicated as confidential and would be considered as confidential by a reasonable business person. The definition applies to information obtained on, before, or after the Effective Date of the agreement.
- The terms of the agreement, but not its existence, are regarded as Confidential Information.
What are the obligations of the parties to protect confidential information?
- Each party will treat Confidential Information with at least the same care and in the same manner as its own information.
- Confidential Information will not be disclosed to third parties without prior consent, and will only be used for the purposes of the agreement.
- Confidential Information will be returned or destroyed upon termination of the agreement, save for one copy which may be retained at a secure location for evidence purposes. There are some exceptions to this obligation related to information stored on IT Media.
- The confidentiality obligations survive for 10 years after termination of the agreement, or for the maximum period under applicable law for personal data.
Are there any exceptions to the confidentiality obligations?
- Both parties may disclose information to their Representatives to the extent required to perform the parties’ obligations under the agreement, provided that the Representatives comply with the confidentiality obligations under the agreement.
- The obligations do not apply to information that: (i) was known to the receiving party before the date of disclosure; (ii) is, or becomes, publicly available other than by breach of the agreement; (iii) is lawfully disclosed to receiving party on a non- confidential basis by a third party; or (iv) is independently developed by the receiving party
- Information may be disclosed if required by any Law, regulation, or legal process, but the party making the disclosure must provide the other party with prompt notice of such requirement and provide reasonable assistance of that party wishes to seek a protective order.
- The obligations do not apply to the extent that disclosure of the information is required for compliance with the Freedom of Information Act, other UK laws & regulations. The assessment of requirements for disclosure, along with any exemptions, will be made solely by the UK Government. However, reasonable advance notice must be provided to AstraZeneca.
- AstraZeneca specifically gives consent for the UK Government to publish the agreement in full, except for redactions to terms that are exempt from FOIA disclosure requirements.
- Both parties may disclose Confidential Information if required by applicable laws or regulatory authorities, as well as to professional advisors or for the purpose of legal proceedings.
Are the parties permitted to make public announcements related to the project?
- The parties agree not to issue any press releases or public announcements regarding the agreement without the consent of the other party.

Annotations

This Supply Agreement between the Secretary of State for Business, Energy & Industrial Strategy (“UK Government”, or “Purchaser“) and AstraZeneca UK Ltd was executed on August 28, 2020. The agreement provides for the supply of 100 million doses of the AZD1222 vaccine for the prevention of SARS-CoV-2, which AstraZeneca will supply to the UK Government in accordance with a delivery schedule. The price for the doses will be on a “no profit no loss” basis, calculated using AstraZeneca’s Cost of Goods (the definition of which has been partially redacted in the publicly available agreement). AstraZeneca agrees to use its “Best Reasonable Efforts” to meet the delivery schedule, mitigate the Cost of Goods and maintain sufficient supplies of manufacturing materials.

Provisions relating to indemnity, insurance and effects of termination are not included in the MAPGuide because they have been either entirely or substantially redacted in the available copy of the agreement.

Provision Language

Definitions
“Confidential Information” means any business, commercial or technical information (in whatever form or media) of either Party that is marked or otherwise indicated as confidential when disclosed or would otherwise be regarded as confidential by a reasonable business person relating to the business, affairs, technologies, products, customers, clients or suppliers of that Party or its Affiliates which is provided by or on behalf of one Party to the other Party pursuant to this Supply Agreement or to which a Paty obtains access as a consequence of entering into or performing this Supply Agreement (in each case whether before, on or after the Effective Date);
Confidential Information includes any information or materials possessed or developed by either Party or their respective Affiliates, whether possessed or developed before, on or after the Effective Date, in relation to the Product and/or services provided hereunder (including know how, processes, techniques, specifications, reports, analyses, sources of supply, marketing plans, sales strategies and pricing information), except for such information that is demonstrably non-confidential in nature. The terms of this Supply Agreement (but not its existence) will be regarded as the Confidential Information of both Parties.
17. Confidentiality
17.1 Each Party shall treat the Confidential Information of the other Party as strictly confidential and not disclose it to any Third Party for any purpose whatsoever without obtaining the prior written consent of the other Party and not make use of the Confidential Information of the other Party or any part thereof other than as permitted under this Supply Agreement, in each case other than to conduct its activities under this Supply Agreement and as expressly permitted under this clause 17. Each Party agrees to treat such Confidential Information with at least the same care and in the same manner as its own secret and valuable information.
17.2 AstraZeneca may disclose all or any part of the Confidential Information to its Affiliates, and to its and its Affiliates’ respective Personnel and suppliers (“Representatives”) as necessary to enable AstraZeneca’s performance under this Supply Agreement, provided, however, that it ensures that such Representatives comply with the provisions of this clause 17. The Purchaser may disclose all or any part of the Confidential Information to Authorised Agents, Central Government Bodies and the Devolved Administrations (“Representatives”) as necessary to enable the Purchaser’s performance under this Supply Agreement, provided, however, that it ensures that such Representatives comply with the provisions of this clause 17.
17.3 The confidentiality obligations and use restrictions set forth in clause 17.1 shall not apply to:
17.3.1 information that is or becomes generally available to the public (other than as a result of its disclosure by the receiving Party in breach of this clause 17);
17.3.2 information that was available to the receiving Party or its Representatives on a nonconfidential basis before disclosure by the disclosing Party;
17.3.3 information that was, is or becomes available to the receiving Party or its Representatives on a non-confidential basis from a Third Party who, to the receiving Party’s or the relevant Representative’s knowledge, is not bound by a confidentiality agreement with the disclosing Party or otherwise prohibited from disclosing the information to the receiving Party or the Representative;
17.3.4 information that is developed by or for the receiving Party or its Representatives independently of the information disclosed by the disclosing Party; or
17.3.5 information for which disclosure is required to ensure the compliance of the Purchaser with any law including, but not limited to, the Freedom of Information Act 2000 (c.36) (“FOIA”), Codes of Practice on Access to Government Information, on the Discharge of Public Authorities’ Functions or on the Management of Records (“Codes of Practice”) or the Environmental Information Regulations 2004 (SI 2004/3391) (“Environmental Regulations”), provided, however, that the Purchaser has provided reasonable advance notice of the impending disclosure to AstraZeneca and provided further that it shall only disclose the information to the extent strictly necessary to comply with such laws.
17.4 AstraZeneca agrees that:
17.4.1 without prejudice to the generality of clause 17.3.5, the provisions of this clause 17 are subject to the respective obligations and commitments of the Purchaser and any Authorised Agent, Central Government Body, Administering Entity and Devolved Administration (as the case may be) under the FOIA, the Codes of Practice and the Environmental Regulations;
17.4.2 the decision on whether any exemption applies to a request for disclosure of recorded information is a decision solely for the Purchaser or an Authorised Agent, Central Government Body, Administering Entity or Devolved Administration (as the case may be); and
17.4.3 where the Purchaser or an Administering Entity or Devolved Administration is managing a request as referred to in clause 17.4.2, AstraZeneca shall co-operate with the Purchaser and any Authorised Agent, Central Government Body, Administering Entity or Devolved Administration making the request and shall respond within five (5) Business Days of any request by it for assistance in determining how to respond to a request for disclosure.
17.5 AstraZeneca shall:
17.5.1 transfer any request for information, as defined under section 8 of the FOIA and/or the Environmental Regulations, to the Purchaser or an Authorised Agent, Central Government Body, Administering Entity or Devolved Administration as soon as practicable after receipt and in any event within five (5) Business Days of receiving a request for information;
17.5.2 provide the Purchaser or an Authorised Agent, Central Government Body, Administering Entity or Devolved Administration with a copy of all information in its possession or power in the form that the Purchaser or an Authorised Agent, Central Government Body, Administering Entity or Devolved Administration requires within five (5) Business Days (or such other period as the Purchaser or an Authorised Agent, Central Government Body, Administering Entity or Devolved Administration may specify) of the Purchaser or an Authorised Agent, Central Government Body, Administering Entity or Devolved Administration requesting that information; and
17.5.3 provide all necessary assistance as reasonably requested by the Purchaser or an Authorised Agent, Central Government Body, Administering Entity or Devolved Administration to enable the Purchaser or an Authorised Agent, Central Government Body, Administering Entity or Devolved Administration to respond to a request for information within the time for compliance set out in section 10 of the FOIA.
17.6 Subject to clauses 17.3.5 and 17.5 above, AstraZeneca hereby gives consent for the Purchaser to publish this Supply Agreement in its entirety (but with any information which is exempt from disclosure in accordance with the provisions of the FOIA and or the Environmental Information Regulations redacted), including from time to time agreed changes to this Supply Agreement, to the general public.
17.7 The Purchaser may, at its sole discretion, redact information from this Supply Agreement prior to publishing for one or more of the following reasons:
17.7.1 national security; 
17.7.2 Personal Data; 
17.7.3 confidential information protected by <a href=”#kt”>Intellectual Property Rights</a>; 
17.7.4 Third Party confidential information; 
17.7.5 IT security; or 
17.7.6 prevention of fraud.
17.8 The Purchaser shall consult with AstraZeneca to inform its decision regarding any exemptions and/or redactions, but the Purchaser shall have the final decision regarding such items. AstraZeneca shall assist and cooperate with the Purchaser to enable the Purchaser to publish this Supply Agreement. The Purchaser will follow its own internal policies together with any applicable guidelines, including any published by the Treasury, the Cabinet Office or the Information Commissioner.
17.9 The Purchaser or an Authorised Agent, Central Government Body, Administering Entity or Devolved Administration shall consult AstraZeneca in relation to any request for disclosure of AstraZeneca’s Confidential Information in accordance with all applicable guidance.
17.10 Each Party acknowledges that damages resulting from disclosure of the Confidential Information not permitted hereby would be an insufficient remedy. Each Party acknowledges and agrees that the other Party shall be entitled to seek, by way of private litigation, injunctive relief or other equitable relief in addition to any and all remedies available at law or in equity.
17.11 Each Party may disclose Confidential Information of the other Party to the extent that such disclosure is:
17.11.1 required by Applicable Laws, such as filing with securities regulators, or by an order of a Governmental Authority; provided that the receiving Party (where it is legally permitted to do so) shall first have given notice to the disclosing Party and given the disclosing Party a reasonable opportunity to seek a protective order or other form of confidential treatment for the information, or obtain assurances that the information be used only for the purposes for which the order was issued, and the receiving Party shall thereafter disclose only that portion of the information required to be disclosed in order to comply;
17.11.2 to a <a href=”#kt”>Regulatory Authority</a> as reasonably necessary for the purposes of any filing, application or request for any marketing authorisation, licence or other Regulatory Approval made by or on behalf of AstraZeneca or its Affiliates in respect of the Product;
17.11.3 made by or on behalf of the receiving Party to legal, financial or other professional advisors, in each case for the purposes of advising on this Supply Agreement and/or on the transactions contemplated hereby and thereby; provided however that, in each case, such Persons shall be subject to obligations of confidentiality and nonuse with respect to such Confidential Information and may only use such information for the purpose of assessing such transaction or providing such advice (as the case may be); or
17.11.4 for the purposes of any legal proceedings brought pursuant to clause 31.9.2; provided that the Party making disclosures to a Third Party (other than a Governmental Authority) pursuant to clause 17.11.3 or clause 17.11.4 shall ensure that each Third Party recipient is bound by obligations of confidentiality no less restrictive than those contained in this Supply Agreement and shall be liable to the other Party for any breach of such confidentiality obligations by the relevant recipient.
17.12 Nothing in this clause 17 shall prevent the Purchaser from disclosing Confidential Information where it is required to do so by judicial, administrative, governmental or regulatory process in connection with any action, suit, proceedings or claim or otherwise by Applicable Law. Nothing in this Supply Agreement shall prevent the Purchaser from disclosing Confidential Information:
17.12.1 to any contracting authority as defined in Regulation 2 of the Public Contracts Regulations 2015 (“Contracting Authority”). All Contracting Authorities receiving such Confidential Information shall be entitled to further disclose the Confidential Information to other Contracting Authorities on the basis that the information is confidential and is not to be disclosed to a Third Party which is not part of any Contracting Authority;
17.12.2 to any consultant, contractor or other person engaged by the Purchaser or any person conducting an Office of Government Commerce gateway review;
17.12.3 for the purpose of the examination and certification of the Purchaser’s accounts; or
17.12.4 for any examination pursuant to section 6(1) of the National Audit Act 1983 of the economy, efficiency and effectiveness with which the Purchaser has used its resources.
17.13 The Purchaser may disclose the Confidential Information of AstraZeneca:
17.13.1 on a confidential basis to any Central Government Body for any proper purpose of the Purchaser or of the relevant Central Government Body;
17.13.2 to Parliament and Parliamentary Committees or if required by any Parliamentary reporting requirement;
17.13.3 to the extent that the Purchaser (acting reasonably) deems disclosure necessary or appropriate in the course of carrying out its public functions;
17.13.4 on a confidential basis to a professional adviser, consultant, supplier or other person engaged by any of the entities described in clause 17.13.1 (including any benchmarking organisation) for any purpose relating to or connected with this Supply Agreement;
17.13.5 on a confidential basis for the purpose of the exercise of its rights under this Supply Agreement, including the audit rights pursuant to clause 26; or
17.13.6 on a confidential basis to a proposed successor body in connection with any assignment, novation or disposal of any of its rights, obligations or liabilities under this Supply Agreement, and for the purposes of the foregoing, references to disclosure on a confidential basis shall mean disclosure subject to a confidentiality agreement or arrangement containing terms no less stringent than those placed on the Purchaser under this clause 17.
17.14 The Purchaser and AstraZeneca agree not to issue any press releases or public announcements concerning this Supply Agreement or its terms without the prior written consent of the other Party to the form, timing and content of any such release or announcement, except as required by Applicable Laws, including disclosure required by any securities exchange.
17.15 Subject to clause 17.16, on expiry or termination of this Supply Agreement or at any time at the disclosing Party’s request, the receiving Party shall return to the disclosing Party all copies containing Confidential Information of the disclosing Party or, at the disclosing Party’s option, destroy all copies of such Confidential Information. The return or destruction of the Confidential Information of the disclosing Party will not affect the receiving Party’s obligation to observe the confidentiality and non-use restrictions in respect of that Confidential Information set out in this Supply Agreement.
17.16 Each Party may keep one (1) copy of Confidential Information for evidence purposes at a secure place subject to the confidentiality and non-use obligations provided in this clause 17. The aforementioned return and destruction obligation shall not apply to electronic copies of Confidential Information which are rightfully contained in computers, word processors, communication systems and system-backup media (collectively “IT Media”) which do not need to be destroyed or returned, provided that such IT Media are: (i) overwritten in the ordinary course of their reuse; or (ii) at all times maintained in confidence and not readily accessible and the receiving Party shall treat such copies as confidential in accordance with this clause 17.
17.7 This clause 17 shall remain in force for the maximum period under Applicable Laws in respect of Confidential Information which comprises Personal Data or which relates to a patient, his or her treatment and/or medical records. Save as aforesaid, the obligations in this clause 17 shall last for the Term and for a period of ten (10) years thereafter.

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