2- 91837512_5 deployment and administration, and that Customer will be solely responsible for the use, deployment and administration of Product to individuals in the Territory. The terms and conditions of this Agreement, including with respect to...
-8- 91837512_5 Customer will notify Novavax within [***] of receipt of the applicable invoice. The [***] payment period begins again upon acceptance of the revised invoice or the replacement or corrected Product if Product is rejected pursuant to Section 3.2. Failure by Customer to notify Novavax within [***] will only result in the date specified to apply for the sole purpose of calculating interest on overdue accounts. 5.5.3. For the purpose of this section: 5.5.3.1. "Average Rate" means the simple arithmetic mean of the Bank Rates in effect at 4:00 p.m. Eastern Time each day during the calendar month immediately before the calendar month in which payment is made; 5.5.3.2. "Bank Rate" means the rate of interest established from time to time by the Bank of Canada as the minimum rate at which the Bank of Canada makes short term advances to members of the Canadian Payments Association; 5.5.3.3. "date of payment" means the date of the negotiable instrument drawn by the Receiver General for Customer to pay any amount under the Agreement; 5.5.3.4. an amount becomes "overdue" when it is unpaid on [***] following the day on which it is due and payable according to the Agreement. 5.5.3.5. Customer will pay to Novavax simple interest at the Average Rate plus [***] per year on any amount that is overdue, from the date that amount becomes overdue until the day before the date of payment, inclusive. Novavax is not required to provide notice to Customer for interest to be payable. 5.5.4. Customer will pay interest in accordance with this section only if Customer is responsible for the delay in paying Novavax. Customer will not pay interest on overdue advance payments; however, Novavax shall be entitled to withhold shipments until overdue advance payments are received. 5.5.5. Novavax will maintain appropriate records and supporting documentation regarding sales of Product hereunder, that includes but is not limited to all invoices, receipts and vouchers. Novavax must retain records, including bills of lading and other evidence of transportation or delivery, for all deliveries made under the Agreement, to confirm that each invoice is limited to the actual quantities of Product shipped to the Point of Entry, which will be records and documentation will be maintained by Novavax for [***] following shipment of the relevant Product. Customer will have the right, upon reasonable advanced notice to Novavax, during normal business hours, to inspect any such records at the place such records are
-15- 91837512_5 secrets, methods, processes, practices, formulae, instructions, techniques, designs, drawings, data or results, but expressly excluding any information that (a) at the time of disclosure, is in the public domain, (b) after disclosure, becomes part of the public domain by publication or otherwise, through no fault of the receiving Party or its affiliates, (c) at the time of disclosure, is already in the receiving Party’s or its affiliates’ possession, except through prior disclosure by the disclosing Party, without any obligation of confidentiality or any restriction on its use, and such possession can be properly documented by the receiving Party or its affiliates in its written records, and was not made available to the receiving Party or its affiliates by any person or party owing an obligation of confidentiality to the disclosing Party, (d) is rightfully made available to the receiving Party or its affiliates from sources independent of the disclosing Party and (e) is independently discovered or developed by or on behalf of the receiving Party or its affiliates without the aid, use of, access to or application of any Confidential Information of the disclosing Party. For clarity, specific aspects or details of Confidential Information will not be deemed to be within the public domain or in the possession of the receiving Party merely because the Confidential Information is embraced by more general information in the public domain or in the possession of the receiving Party. 13.2. Obligation to Maintain in Confidence; Permitted Disclosure. Each Party agrees to (a) protect and maintain in confidence the disclosing Party’s Confidential Information using the same degree of care that it employs to protect the confidentiality of its own confidential information (but never less than a reasonable standard of care), (b) not disclose to any person or entity any the disclosing Party’s Confidential Information; provided that the receiving Party may disclose such Confidential Information to its affiliates and to its and their officers, directors, employees, contractors or agents who are bound by confidentiality obligations at least as restrictive as those set forth in this Section 13 and who reasonably need to know such Confidential Information in the performance of the receiving Party’s obligations under this Agreement, (c) ensure the full compliance of each of its affiliates and its and their officers, directors, employees, contractors or agents who have access to the disclosing Party’s Confidential Information with the confidentiality and non-use obligations in this Section 13 and (d) not use such Confidential Information for any purpose other than performing its obligations under this Agreement. Each Party acknowledges and agrees that its failure to comply with the provisions of this Section 13 may cause irreparable harm to the other Party that cannot be adequately compensated for in damages and, accordingly, that each Party will be entitled to claim, in addition to any other remedies available to it, interlocutory and permanent injunctive relief to restrain any anticipated, present or continuing breach of this Section 13 without the need to post bond or other security. The terms of this Agreement will be the Confidential Information of both Parties. 13.3. Notwithstanding Section 13.2, Customer will be permitted to disclose Confidential Information of Novavax for the purposes of government administration and operations, including for the purposes of vaccination program planning and vaccination program administration in collaboration with the Provinces and
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[Signature Page to Advanced Purchase Agreement] 91837512_5 IN WITNESS WHEREOF, the parties hereto by their duly authorized officers have executed this Agreement as of the Effective Date. CUSTOMER By:/s/ Xxxxx Xxxxx Minister Xxxxx Xxxxx Printed Name Title: Minister of Public Works and Government Services NOVAVAX, INC. By:/s/ Xxxx X Xxxxxxxx III Xxxx X. Xxxxxxxx III Printed Name EVP, CLO Title: 01/19/2021
91837512_5 EXHIBIT A PRODUCTS Aggregate Amount: 52 million doses Product Name Total Price (= [***]) Per-Unit Price per unit Delivery Price (= [***]) NVX-CoV2373 USD$ [***] USD[***] USD[***] Additional Amount: 24 million doses Product Name Total Price (= [***]) Per-Unit Price per-unit Delivery Price (= [***]) NVX-CoV2373 USD[***] USD[***] USD[***]
91837512_5 EXHIBIT B DELIVERY SCHEDULE [Pursuant to Regulation S-K, Item 601(a)(5), this Exhibit setting forth the delivery schedule has not been filed. The Registrant agrees to furnish supplementally a copy of any omitted exhibits to the Securities and Exchange Commission upon request; provided, however, that the Registrant may request confidential treatment of omitted items.]
91837512_5 EXHIBIT C SPECIFICATIONS [Pursuant to Regulation S-K, Item 601(a)(5), this Exhibit setting forth the specifications has not been filed. The Registrant agrees to furnish supplementally a copy of any omitted exhibits to the Securities and Exchange Commission upon request; provided, however, that the Registrant may request confidential treatment of omitted items.]
91837512_5 EXHIBIT D SUPPORT OBLIGATIONS 1. Distribution in Canada Novavax must deliver the Product to, as a minimum, the destinations specified in Exhibit B in accordance with the directions of Customer. 2. Packaging Novavax must properly label and package the Product in compliance with the Food and Drugs Act (Canada) and any regulations, orders or instruments made thereunder, for the approved Product authorized for sale in Canada. To the extent a waiver of serialization is not available from Health Canada, Novavax will include bar codes on shipping package, secondary and primary package which includes variable data and which complies with GS1 standards that will enable tracking and tracing of Product from shipment to administration or other requirements specified by Health Canada. Unless otherwise agreed to in writing, smallest available package must not contain more than [***] doses 3. Maintenance of the Cold Chain During Transportation and the Use of Cold Chain Monitors The Product is a refrigerator-stable product, i.e. stored at 2-8 degrees Celsius, which permits leveraging standard vaccine distribution and delivery infrastructure. 4. Adverse Event Following Immunization (AEFI) Reporting Requirement Novavax must comply with all AEFI reporting requirements. 5. Customer Service (a) Novavax must identify a bilingual (English and French) Customer Support Contact, and maintain a bilingual customer support desk (reached via a toll free telephone number and an e-mail account) throughout a declared pandemic period to provide [***] customer support to Customer and to health care providers (“Requestors”). (b) The Customer Support Contact or Support Desk must, as a minimum:
91837512_5 (i) Be reachable Monday through Friday from [***] Newfoundland Standard Time to [***] Newfoundland Standard Time, with adjustments as necessary for daylight savings time (ii) Respond to general enquiries on product information concerning the use of the vaccine, its indications, contraindications, dosage and administration, drug interactions, storage and handling requirements; (iii) Provide scientific and technical advice and guidance in response to detailed technical and scientific questions; (i) Provide up-to-date information on product holds or suspensions and on product recalls and withdrawals; (ii) Provide technical advice concerning the continued ability to use vaccine which has experienced a cold chain excursion; (iii) Provide order status including real-time tracking of shipments; and (iv) Log reports received on adverse events following immunization. (c) For general enquiries, such as those regarding order tracking and status, product information, storage and administration, etc., a response must be communicated to the Requestor [***]. Enquiries of a scientific or technical nature that require more detailed review and investigation by Novavax may take longer; however, Novavax must inform the Requestor of the steps being taken to respond to the enquiry and of the expected timeline for a complete response. (d) Where requested, responses should be provided in writing. (e) Novavax must provide the Customer with an emergency contact and telephone number for any urgent enquiries that occur outside the regular business hours listed above, such as for urgent scientific or technical information or to report an adverse event. Novavax representative must call-back the Requestor within [***]. 6. Logistics Support Novavax must, as a minimum: (a) Provide to the Contracting Authority and the Technical Authority advance notice of production and delivery schedules (e.g. expected availability, timely updates on status of announced schedules, immediate notification of interruptions or delays in production and delivery schedules, etc.); and (b) Initiate and coordinate product holds, recalls or withdrawals, if necessary including coordinating trace back through the automated identification of vaccine products (AIVP);
91837512_5 provide clear and concise instructions on the activities necessary to implement the hold, recall or withdrawal; and provide regular updates on the status of same; 7. Support in the Management of Cold Chain Excursions As a minimum, Novavax must: (a) provide all published information on the stability of the product including continued stability if subject to temperature fluctuations (outside of recommended storage conditions); (b) clearly state all of the information required on a specific cold chain excursion to allow Novavax to properly assess the excursion; (c) provide clear and consistent written responses on the question of continued use of vaccine following an excursion; and (d) provide a written assessment on the viability of continued use of vaccine following an excursion within [***] of receipt of a request for assistance. 8. Technical Information and Data (a) During the Term, Novavax will upon written request, make available to the Technical Authority, who may in confidence make copies and take extracts therefrom, those reports, communications, etc. received from Health Canada which are exchanged for purposes of Regulatory Approval of the Vaccine. If requested, Novavax will make available to the Technical Authority on a confidential basis, where available, data and technical information concerning the Product being delivered under the Agreement, including such information as: (i) Clinical trial data – Canadian and International; (ii) Product safety data – Canadian and International; and (iii) Product quality and stability data. The Parties shall mutually agree on the scope of such data and information exchange in advance, taking into consideration the Technical Authority’s need to understand the clinical, safety, quality and stability profile of the Product and Novavax’ desire to provide such data and information in a manner that minimizes administrative burden and disruption to its operations. (b) Unless specifically prohibited by Novavax in writing, the information and data provided will be shared, on a confidential and need to know basis, within the Public Health Agency of Canada and Health Canada, as well as with Provincial and Territorial public health officials and experts in the field who provide public health advice to these officials, including but not limited to the National Advisory Committee on Immunization (NACI), to inform recommendations regarding the use of vaccine. Any information or data shared