II.14 Termination of the APA
II.14.5 Effects of Termination
(a) in case of an automatic termination pursuant to Article II.14.1
No liability is incurred by any Party in case of an automatic termination according to Article II.14.1.
The up–front payment and the second up–front payments shall [REDACTED] in the following way:
The contractor shall send to the Commission within sixty (60) days from notifying the Commission about the automatic termination of the APA, a financial statement (the “Financial Statement”), detailing for which expenses the up–front payments have been used in relation to the purposes as set out in the APA. Expenses to be taken into account include the full amount of internal and/or external expenses which have been, or will be, incurred as well as such which have been committed by, or relate to commitments made by, the contractor at the time when the contractor notified the Commission, it being understood that such ‘expenses’ shall include, without limitation, costs, expenses and liabilities, write–offs and value adjustments in connection with research, development, ramp up, IP, real estate, construction, administration, manufacturing, production, packaging, delivery, preservation, transportation, personnel, redundancy, litigation, agreements, terminations of agreements, advice and services, penalties and fines, whether incurred directly or indirectly by the contractor, a provider, a contractor or a subcontractor of the contractor.
In the Financial Statement, the contractor will set out such amounts as well as those amounts of the up–front payments that have neither been incurred nor committed (“unspent amounts”). Such unspent amounts will be reimbursed by the contractor to the Commission and the participating Member States in proportion to their respective up–front payments within thirty (30) days from the receipt of the Financial Statement by the Commission, it being understood that the Financial Statement and the unspent amounts shall be final and binding upon all Parties to the extent the Commission and the participating Member States have not provided to the contractor a written statement of objections, specifying in reasonable detail the grounds of objections, within thirty (30) days from the receipt of the Financial Statement by the Commission.
In addition, the contractor will transfer, upon the Commission’s request to be provided within forty– five (45) days after the receipt of notification about the automatic termination, to the Commission, or a third party named by the Commission, any raw materials and primary components not used and paid for with the up–front payments (the “Refundable Items”). The contractor will also facilitate the discussion of a transfer of reserved capacity with CMOs paid for with the up–front payments to a third party selected by the Commission. [REDACTED.]
(b) in case of termination pursuant to Article II.14.2.
In case of a termination by the Commission according to Article II.14.2(a), the provisions on the effect of the termination and refunding of the unspent amounts and the Refundable Items as set out in Article II.14.5(a) apply mutatis mutandis.
In case of a termination of the APA by the Commission or a Vaccine Order Form by a participating Member State according to Article II.14.2(b) to (g), the contractor may be liable for damage incurred by the Commission or the participating Member State [REDACTED]. The Commission or the participating Member State may claim compensation for such damage, as allowed by applicable laws.
(c) in case of termination pursuant to Article II.14.3.
The contractor is not entitled to compensation for any damage resulting from the termination of the APA or a Vaccine Order Form, including loss of anticipated profits, if the contractor terminated the APA or the relevant Vaccine Order Form in accordance with Article II.14.3(b).
The Commission and the participating Member State are liable for damage incurred by the contractor as a result of the termination of the APA or a Vaccine Order Form by the contractor on the basis of Article II.14.3(a). The contractor may claim compensation for such damage against the Commission and/or the participating Member State(s), as allowed by applicable laws.
The Parties must take all appropriate measures to minimise costs, prevent damage and cancel or reduce their commitments. Within sixty (60) calendar days of the date of termination, the contractor must submit any report and any invoice required for Products that were provided before the date of termination.
Articles I.10.3, I.10.4, I.10.5, I.23, II.6, II.7 and II.17 shall survive any termination of this APA and/or the Vaccine Order Forms.