“Confidential information or document” means any information or document disclosed or given between the Parties or on their behalf in the context of the negotiation and conclusion of the APA (including the terms of the APA and the Vaccine Order Forms) and/or the performance of the APA. It does not include any information (i) the receiving Party can prove was known to it prior to the date of disclosure; (ii) the receiving Party can prove was lawfully obtained from a third party without any obligation of confidentiality; (iii) is or becomes part of the public domain other than through any act or omission of the receiving Party; or (iv) is independently developed by the receiving Party without use of or reference to the disclosing Party’s confidential information or documents, as evidenced by the receiving Party’s records.
II.6 Confidentiality and Public Announcements
II.6.1. The Commission, the participating Member States and the contractor must treat with strict confidentiality any confidential information or documents in connection with the APA.
II.6.2. The Commission, the participating Member States and the contractor shall:
(a) not use confidential information or documents for any purpose other than to perform their respective obligations under the APA or a Vaccine Order Form without the prior written agreement of the disclosing Party;
(b) ensure the protection of such Confidential information or documents with the same level of protection as their own confidential information or documents and in any case with due diligence;
(c) not disclose, directly or indirectly, confidential information or documents to third parties without the prior written agreement of the other Party.
II.6.3. Notwithstanding the above, the Parties may disclose confidential information or documents to their directors, officers and employees and, in the case of the contractor, to its subcontractors and their directors, officers and employees as well as to those of any corporation directly or indirectly controlling, controlled by, or under common control with the contractor (control being the ownership of more than fifty percent (50 %) of the outstanding voting stock of a corporation), and/or any company, individual or organisation retained by them to assist in the implementation of the APA, provided that each such company, individual and organisation must be legally bound to comply with this Article.
II.6.4. The confidentiality obligations set out in this Article are binding on the Commission, the participating Member State and the contractor during the performance of the APA and for as long as the information or documents remain confidential unless:
(a) the disclosing Party agrees to release the receiving Party from the confidentiality obligation earlier;
(b) the confidential information or documents become public through other means than a breach of the confidentiality obligation;
(c) the applicable law requires the disclosure of the confidential information or documents.
II.6.5. The contractor must obtain from any natural person with the power to represent it or take decisions on its behalf, as well as from third parties involved in the performance of the APA a commitment that they will comply with this Article. At the request of the Commission, the contractor must provide a document providing evidence of this commitment.
II.6.6. The contractor acknowledges that the Commission is subject to requirements laid down under Regulation (EC) 1049/2001 [external link]. The Commission commits that it will consult with the contractor on any disclosure request concerning documents containing confidential information as provided for in Article 4(4) of said Regulation.
II.6.7. Notwithstanding the above, each Party may issue a press release and/or other public statement disclosing the total contract volume and value of the APA and/or the Vaccine Order Form. The Parties shall consult together on the timing, contents and manner of any press release relating to this APA.