Provision Language
Definitions
“Confidential Information” means, with respect to a Party, all proprietary information of any type, or any part or portion thereof, that is disclosed by that Party to the other Party pursuant to this License Agreement, whether or not such information is specifically marked or identified as confidential at the time of disclosure, which may include without limitation,
(i) all scientific, technical, business, financial, legal, marketing or strategic information (including, without limitation, trade secrets and proprietary know-how);
(ii) all documented research, development, demonstration or engineering work, information that can be or is used to define a design or process or procure, produce, support or operate material and equipment, methods of production, regardless of its form;
(iii) all drawings, blueprints, patterns, plans, flow-charts, equipment, parts lists, software and procedures, specifications formulae, designs, technical data, descriptions, related instruction manuals, records and procedures;
(iv) information that is non-public, confidential, privileged or proprietary in nature, which may have actual or potential economic value in part from not being known and may be positive (what works) or negative (what does not) information;
(v) however fixed, stored, expressed or embodied (and includes, without limitation, samples, prototypes, specimens and derivatives);
(vi) and including, without limitation, information disclosed during discussions, meetings, tests, demonstrations, correspondence or otherwise.
8.0 OWNERSHIP OF TECHNOLOGY / IMPROVEMENTS
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8.3 Inimical Use of Confidential Information. The Company shall not use any Confidential Information obtained from Canada in the negotiation of the License Agreement, under due diligence searches or otherwise related to this License Agreement, in any manner that either violates the Company’s rights and obligations under the License Agreement or is inimical to the interests of Canada.
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11.0 CONFIDENTIALITY / FIDUCIARY OBLIGATIONS & EQUITABLE REMEDIES
11.1 Confidentiality Obligations. Commencing on the Execution Date of this License Agreement, Confidential Information disclosed by one Party to the other Party under this License Agreement shall be:
11.1.1 held in confidence and in trust by the receiving Party;
11.1.2 used by the receiving Party exclusively for the purposes authorized under the License Agreement and for no other purpose whatsoever;
11.1.3 safeguarded by the receiving Party using all reasonable measures and taking such action as may be appropriate to prevent the unauthorized access, use or disclosure of the Confidential Information; and
11.1.4 not disclosed to third parties without the prior written consent of the disclosing Party.
The Company may disclose to its sub-licensee Merck (and Merck may thereafter disclose to its affiliates, subcontractors and sub-licensees) Confidential Information of Canada on terms and conditions that are at least as protective as those set out herein.
The confidentiality and non-use obligations under this Article 11 shall survive until July 28, 2033.
11.2 No Waiver of Privilege. Each Party acknowledges that the Confidential Information of the disclosing Party is the property of the disclosing Party or a third party and that none of the latter intend to or do waive any rights, title or privilege they may have in respect of any of the Confidential Information.
11.3 Common Law Duty of Confidentiality. Nothing in this License Agreement derogates, displaces or otherwise diminishes the common law or equitable duty of confidentiality vested in the receiving Party concerning the Confidential Information.
11.4 Confidentiality Exclusions. Article 11.1 (Confidentiality Obligations) does not apply to information which, even if it may be marked “confidential”, is not really confidential, in that:
11.5.1 In Public Domain – the information was legally and legitimately in the public domain through no act or omission of the receiving Party at the time of disclosure by the receiving Party;
11.5.2 Published – the information was legally and legitimately published or otherwise becomes part of the public domain through no act or omission of the receiving Party at the time of disclosure by the receiving Party;
11.5.3 Already Known To The Receiving party – the information was already in the possession of the receiving Party at the time of disclosure and was not acquired by the receiving Party, directly or indirectly, from the disclosing Party (as shown by documentation sufficient to establish the timing of such possession), and the receiving Party is free to disclose the information to others without breaching any contractual or trust obligations or common law duties;
11.5.4 Third Party Discloses – the information becomes available from an outside source who has a lawful and legitimate right to disclose the information to others, and the receiving Party is free to disclose the information to others without breaching any contractual or trust obligations or common law duties;
11.5.5 Independently Developed – the information was independently developed by the receiving Party without any of the Confidential Information being reviewed or accessed by the receiving Party (as shown by documentation sufficient to establish the timing of such development); or
11.5.6 Judicial/Administrative Order – the information was released due to a compulsory order under a judicial process or under a compulsory regulatory (including securities) requirement, none of which was invited by, or consented to, by the receiving Party and the receiving Party made all reasonable efforts to secure a court order to limit production, use and disclosure of the information to the narrowest class practical under the circumstances.
11.5 Secure Location. Each Party shall keep the Confidential Information of the other Party in a secure location accessible only to its employees specifically authorized to have access pursuant to this License Agreement. Each Party shall ensure that its employees complies with the terms and conditions of this License Agreement and shall enter into agreements with such employees if necessary to give effect to this obligation.
11.6 Return of Confidential Information. If this License Agreement expires or is terminated, the Parties shall return to each other the Confidential Information disclosed to them under this License Agreement and any notes, reports and other materials prepared by the receiving Party from the disclosing Party’s Confidential Information except that Canada shall be entitled to retain one copy of such records for the purposes of meeting Canada’s obligations under the federal laws of Canada and for the purposes of paragraph 8.6 (Company Improvements – License to Canada).
11.7 Confidential Information is Proprietary. The Confidential Information of each Party is and shall remain the exclusive property of that Party or third parties and the receiving Party shall not claim any rights, title, interest or ownership in the Confidential Information. The receiving Party shall not contest any such rights, title, interest or ownership.
11.8 Legal and Equitable Remedies. Should a Party commit or threaten to commit a serious or material breach of its confidentiality or fiduciary obligations under this Article 11, then the other Party may pursue any and all legal and equitable remedies, including without limitation, injunctive relief, accounting for profits, redistribution, damages, constructive trust and disgorgement. Disgorgement means, for the purposes of the License Agreement, the ejection of all benefits gained by the receiving Party, traceable to the material breach, notwithstanding that such disgorgement may exceed the damages directly suffered by the disclosing Party or deprivation suffered by the disclosing Party for such breach.
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11.12 Terms Of Agreement Confidential But Not Existence of Agreement. The Parties agree that terms of this License Agreement are confidential but not its existence. The terms of this License Agreement shall not be disclosed by a Party unless disclosure is required by law or if the other Party agrees to the disclosure in writing prior to disclosure.
17.0 INTENT AND INTERPRETATION
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17.22 Due Diligence Audits. If in a subsequent transaction a third party requires to review this License Agreement as part of a due diligence chain of title search, the Company hereby authorizes the release of this License Agreement subject to deleting any financial or proprietary or other Confidential Information contained herein.