Provision Language
Definitions
“Confidential Information” means any scientific, technical, financial or business information developed under the Research Program, or provided by a Party to another Party under this Agreement, and which is customarily considered confidential or proprietary in the biopharmaceutical industry, whether or not labeled or identified as “Confidential”. Alnylam Technology and Alnylam Program Developments are Confidential Information of Alnylam. AlCana Technology and AlCana Program Developments are Confidential Information of AlCana. UBC Technology and UBC Program Developments are Confidential Information of UBC.
“Program Participants” means any employee, staff, research assistant, consultant, contractor or agent of a Party who participates in the Research Program, including without limitation, the Principal Investigator, the Alnylam Principal Scientist, the AlCana Principal Scientist and the AlCana Key Scientists.
9.Confidential Information and Publication
9.1 Obligations of Confidentiality
9.1.1 Non–disclosure Obligations. All Confidential Information of a Party (the “Disclosing Party”) disclosed to another Party (the “Receiving Party”) under this Agreement shall be maintained in confidence by the Receiving Party and shall not be disclosed to a Third Party or used in the Field of Use for any purpose except as set forth herein without the prior written consent of the Disclosing Party, except to the extent that such Confidential Information:
(a) is known by the Receiving Party at the time of its receipt, and not through a prior disclosure by the Disclosing Party, as documented by the Receiving Party’s business records;
(b) subject to Section 9.1.2, is in the public domain by use and/or publication before its receipt from the Disclosing Party, or thereafter enters the public domain through no fault of the Receiving Party;
(c) is subsequently disclosed to the Receiving Party by a Third Party who may lawfully do so and is not under an obligation of confidentiality to the Disclosing Party; or
(d) is developed by the Receiving Party independently of Confidential Information received from the Disclosing Party, as documented by the Receiving Party’s business records.
For purposes of this Section 9.1, Alnylam will be deemed the Disclosing Party of all Program Developments and Program Materials in the Field of Use.
9.1.2 Certain Exceptions. Notwithstanding the obligations of confidentiality and non–use set forth above and in Section 9.2 below, a Receiving Party may provide Confidential Information disclosed to it, and disclose the existence and terms of this Agreement as may be reasonably required in order to perform its obligations and to exploit its rights under this Agreement or the Supplemental Agreement, and specifically to (a) in the case of Alnylam, Related Parties, and its and their employees, directors, agents, consultants, and advisors in accordance with this Agreement in each case who are obligated to keep such Confidential Information confidential; (b) in the case of AlCana, its employees, directors, agents, consultants, and advisors in accordance with this Agreement in each case who are obligated to keep such Confidential Information confidential; (c) governmental or other regulatory authorities in order to obtain patents or perform its obligations or exploit its rights under this Agreement; provided, that such Confidential Information shall be disclosed only to the extent reasonably necessary to do so, (d) the extent required by applicable law, including without limitation by the rules or regulations of the United States Securities and Exchange Commission or similar regulatory agency in a country other than the United States or of any stock exchange or listing entity, (e) any bona fide actual or prospective underwriters, investors, lenders or other financing sources and any bona fide actual or prospective collaborators or strategic partners and to consultants and advisors of such Party, in each case who are obligated to keep such Confidential Information confidential, and (f) UBC may: (i) use UBC Controlled IP at UBC and, after giving Alnylam an opportunity to file patent applications in accordance with Section 9.2, in collaboration with other non–profit academic research institutions for internal, non–commercial research purposes; (ii) disclose or publish UBC Controlled IP as permitted under Section 9.2 below; (iii) may provide Confidential Information disclosed to it, and disclose the existence and terms of this Agreement, to the UBC Program Participants.
If a Party is required by judicial or administrative process to disclose Confidential Information that is subject to the non–disclosure provisions of this Section 9.1 or Section 9.2, such Party shall promptly inform the Disclosing Party of the disclosure that is being sought in order to provide the Disclosing Party an opportunity to challenge or limit the disclosure obligations. Confidential Information that is disclosed by judicial or administrative process shall remain otherwise subject to the confidentiality and non–use provisions of this Article 9, and the Party disclosing Confidential Information pursuant to law or court order shall take all steps reasonably practical, including without limitation seeking an order of confidentiality, to ensure the continued confidential treatment of such Confidential Information. In addition to the foregoing restrictions on public disclosure, if Alnylam or AlCana concludes that a copy of this Agreement must be filed with the United States Securities and Exchange Commission or similar regulatory agency in a country other than the United States or any stock exchange or listing entity, such Party shall provide the other Parties with a copy of this Agreement showing any sections as to which the Party proposes to request confidential treatment, will provide the other Parties with an opportunity to comment on any such proposal and to suggest additional portions of the Agreement for confidential treatment, and will take such Parties’ reasonable comments into consideration before filing the Agreement.
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9.3 Publicity
(a) Except as set forth in Section 9.1 above and subsection (b) below, the terms of this Agreement and the Supplemental Agreement may not be disclosed by any Party, and no Party shall use the name, trademark, trade name or logo of another Party or its employees in any publicity, news release or disclosure relating to this Agreement, the Supplemental Agreement, or its subject matter, without the prior express written permission of the such other Party, except as may be required by law or expressly permitted by the terms hereof; provided, however, that each Party shall be entitled to acknowledge and disclose the existence of this Agreement and the Supplemental Agreement.
(b) Notwithstanding Section 9.3(a) above, no Party shall issue a press release or public announcement relating to this Agreement or the Supplemental Agreement without the prior written approval of the other Parties, which approval shall not be unreasonably withheld or delayed, except that a Party may (i) once a press release or other written statement is approved in writing by the Parties, make subsequent public disclosure of the information contained in such press release or other written statement without the further approval of the other Parties, and (ii) issue a press release or public announcement as required, in the reasonable judgment of such Party, by applicable law, including without limitation by the rules or regulations of the United States Securities and Exchange Commission or similar regulatory agency in a country other than the United States or of any stock exchange or listing entity.