Gavi Alliance – Novavax, COVID-19 Vaccine Advance Purchase Agreement

Protecting & sharing information | Confidentiality

Summary of Approaches

What is the scope of confidential information?
- Confidential information is broadly defined to include any material or information that one party provides the other in connection with the Agreement, either before or after the effective date. It also includes anything derived from such information, such as newly generated documents that incorporate the other parties’ confidential information.
What are the obligations of the parties to protect confidential information?
- The parties must treat confidential information as strictly confidential. The receiving party must obtain the disclosing party’s prior written consent to use the information or disclose it to a third party.
Are there any exceptions to the confidentiality obligations?
- The parties may disclose confidential information to the extent required (a) to perform the Agreement, (b) to comply with the law or a court order in a court proceeding arising from the Agreement or a related agreement; or to (c) to satisfy funder reporting obligations.
- Confidential information may also be provided (d) to a tax authority in connection with the disclosing party’s taxes; (e) to professional advisors subject to equivalent confidentiality obligations; (f) when the information becomes publicly available; or (g) the information is already in the receiving party’s possession.
- Exceptions to confidentiality specific to each party are redacted.
Are the parties permitted to make public announcements related to the project?
- Each party may issue press releases about Gavi’s advance purchase commitment and collaboration in connection with the Agreement, provided the party obtains the other’s prior written approval.
- Subsequent press releases on the same topic do not require the other party’s consent, provided the information is true, correct and current.

Annotations

This Advance Purchase Agreement governs the supply of about 350 million doses of developer Novavax’s COVID-19 vaccine to participants in the Global COVID-19 Vaccine Facility (“COVAX Facility”), which was established to equitably distribute such vaccines worldwide. The parties to the Agreement are Novavax, which agrees to supply the doses, and the Gavi Alliance, a global health nonprofit organization, which agrees to make an advance payment and facilitate the sale of doses to COVAX buyers. The Agreement is effective as of May 5, 2021. The Parties intend that Novavax will deliver all doses to COVAX participants by the end of Q2 2022.

The Agreement facilitates Novavax’s fulfilment of its obligation in a funding agreement with the Coalition for Epidemic Preparedness Innovations (“CEPI”) to supply its vaccine to a then-unnamed “Global Allocation Body” for distribution to Lower- and Middle-income Countries (LMICs) and other nations. The purpose of Gavi’s advance payment is to “provide demand certainty” for Novavax and secure doses on behalf of COVAX participants with whom Novavax will enter into separate supply agreements. Gavi’s advance payment reduces the price they must pay on delivery. Gavi allocates Novavax doses between COVAX participants.

The Agreement contemplates that the Novavax licensee Serum Institute of India (“SII”) will be the primary source of Novavax vaccine to low- and middle-income countries, under the SII brand name “Covovax.” SII has a separate advance purchase agreement with Gavi for this purpose. The parties expect that Novavax and SII, collectively, will supply 1,092,000,000 vaccine doses under a tiered pricing framework. If SII is unable to meet its supply obligations, then Novavax must provide a ‘backstop supply’ to make up the shortfall.

Many key provisions and details have been redacted from this publicly available copy of the agreement.

Provision Language

Definitionsb>em>p>
“span>Confidential Informationb>” means any and all (i) information or material, including any documents, notes, analyses, studies, financial summaries, samples, drawings, diagrams, designs, flowcharts, databases, models and plans, that at any time on or after or prior to the Effective Date has been or is provided or communicated by or on behalf of one Party (such Party in such capacity, the “span>Disclosing Partyb>em>”) or any of its Representatives to the other Party (such Party in such capacity, the “span>Receiving Partyb>em>”) or any of its Representatives in connection with this Agreement, including any discussions or negotiations with respect thereto and any data, ideas, concepts or techniques contained therein and (ii) modifications thereof or derivations therefrom, including documents, memoranda, notes, studies and analyses prepared by the Receiving Party or its Representatives that contain, incorporate or are derived from the Disclosing Party’s Confidential Information, in each case, to the extent containing any information or material described in sub–section (i) above. Confidential Information may be disclosed either orally, visually, electronically, in writing, by delivery of materials containing Confidential Information or in any other form now known or hereafter invented;span>p>
16. Generalb>span>p>
16.1 Confidentialityb>p>
16.1.1 Each Party shall treat as strictly confidential and not disclose or use any Confidential Information, including this Agreement and its terms, unless the disclosing Party has given prior written approval to the disclosure or use.span>p>
16.1.2 The provisions of Clause 16.1.1 shall not prohibit disclosure or use of Confidential Information if and to the extent:span>p>
(i) necessary for the performance of either Party’s obligations under this Agreement;span>p>
(ii) that Gavi discloses to: span>(a) [***]; span>(b) [***]; span>(c) [***]; span>(d) [***]; span>(e) [***]; span>(f) [***]; span>(g) [***]; span>(h) [***]; span>(i) [***]span>p>
(iii) that Novavax discloses to [***]: span>(a) [***]; span>(b) [***]span>p>
(iv) in the reasonable opinion of the receiving Party’s counsel, is required by law (including the rules of any stock exchange) or a valid order of a court of competent jurisdiction or for the purpose of any judicial proceedings arising out of this Agreement or any other agreement entered into under or pursuant to this Agreement;span>p>
(v) the disclosure is required to fulfil reporting obligations to financial institutions providing funding relating to this Agreement;span>p>
(vi) the disclosure is made to a tax authority in connection with the tax affairs of the disclosing Party;span>p>
(vii) the disclosure is to the professional advisers or experts of a Party (including a Party’s insurers, financial advisors or any Auditor) and those advisers are subject to confidentiality obligations broadly equivalent to those set out in this Clause span>16.1 (span>Confidentialityspan>i>);span>p>
(viii) it becomes publicly available other than as a result of a breach of an obligation of confidentiality; orspan>p>
(ix) the information is already in the possession of that Party and is not subject to an obligation of confidentiality or a restriction on use.span>p>
[…]p>
16.3 Press Release. b>Each Party may issue press releases on Gavi’s advance purchase commitment and the Parties’ related collaboration according to this Agreement. The Parties shall discuss and align the form and content of such press releases and a Party shall not make or authorise a press release or other public statement relating to the collaboration of the Parties or the terms of this Agreement unless it has the prior written approval of the other Party. The Parties agree that after a disclosure pursuant to this Clause, whether it be issuance of a press release or other public announcement pursuant to this Clause that has been reviewed and approved by the other Party, the disclosing Party may make subsequent public disclosures reiterating such information without having to obtain the other Party’s prior consent and approval, so long as the information in such press release or other public announcement remains true, correct, and the most current information with respect to the subject matters set forth therein.span>p>

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