16.1 Definition of Confidential information. In this Agreement, Confidential Information shall, subject to Section 16.2, mean:
(a) any and all Know-How, software, algorithms, designs, plans, forecasts, analyses, evaluations, research, business information, financial information, business plans, strategies, customer lists, marketing plans, or other information whether oral, in writing, in electronic form, or in any other form; and
(b) any physical items, compounds, components, samples or other materials;
disclosed by or on behalf of a Party or any of that Party’s Affiliates (the “Disclosing Party”) to the other Party or any of the other Party’s Affiliates (the “Receiving Party”) before, on or after the Effective Date.
16.2 Exclusions from Confidential Information. In this Agreement, Confidential Information shall not include any information or materials for which the Receiving Party can prove:
(a) is or becomes public knowledge through no improper conduct on the part of the Receiving Party, the Receiving Party’s Affiliates and/or their representatives;
(b) is already lawfully possessed by the Receiving Party and/or the Receiving Party’s Affiliates without any obligations of confidentiality or restrictions on use prior to first receiving it from the Disclosing Party; /or
(c) is obtained subsequently by the Receiving Party and/or the Receiving Party’s Affiliates from an unrelated third party without any obligations of confidentiality and such unrelated third party is in lawful possession of such information or materials and not in violation of any contractual or legal obligation to maintain the confidentiality of such information or materials; and
(d) the Disclosing Party agreed to release the Receiving Party from the confidentiality obligation earlier.
16.3 Legally Required Disclosure of Confidential Information. The Receiving Party and/or the Receiving Party’s Affiliates may disclose Confidential Information to the extent required by law or regulation or by legal, judicial, regulatory or administrative process or pursuant to an audit or examination by a regulator or self-regulatory organization subject to compliance with this Section. If the Receiving Party is so compelled to disclose any Confidential Information, the Receiving Party will provide the Disclosing Party with prompt written notice thereof so that the Disclosing Party may seek a protective order or other appropriate remedy. Subject to its obligations to comply with such subpoenas, court processes or directions, the Receiving Party will reasonably cooperate with the Disclosing Party’s counsel in their efforts to obtain a protective order or other similar remedy to accord some form of confidential treatment to any such Confidential Information of the Disclosing Party.
16.4 Limitations on Use of Confidential Information. The Receiving Party shall treat all Confidential Information as secret and confidential and shall not use, copy or disclose to any third party any Confidential Information of the Disclosing Party (whether before, on or after the date of this Agreement) except as set out in Section 16.5 below.
16.5 Use and Disclosures of Confidential Information. The Receiving Party may:
(a) ensure the protection of confidential information or documents with the same level of protection as its own confidential information or documents and in any case with due diligence;
(b) use and disclose Confidential Information of the Disclosing Party solely to the extent necessary to enable the Receiving Party to exploit the rights granted under this Agreement and/or to perform its obligations under this Agreement; provided, that where any disclosure is required to third parties the Receiving Party shall: (1) only disclose Confidential Information to third parties that have entered into appropriate and legally binding confidentiality and non-use obligations in respect of the Confidential Information disclosed; and (2) procure that such third parties do not further disclose or use Confidential Information. For the avoidance of doubt, the Receiving Party shall not use the Confidential Information with respect to or for any other program or project other than the Vaccine and the express objectives set forth herein;
(c) disclose Confidential Information of the Disclosing Party to those of the Receiving Party’s Affiliates, officers and employees to whom such disclosure is necessary (and only disclose that part of the Confidential Information which is necessary) to enable the Receiving Party to exploit the rights granted under this Agreement and/or to perform its obligations under this Agreement and provided that the Receiving Party shall remain responsible for procuring that the Receiving Affiliates, officers and employees do not further disclose and/or use the Confidential Information for any other purpose; and
(d) after giving written notice to the Disclosing Party, disclose any part of the Confidential Information of the Disclosing Party solely to the extent that it is legally required to do so pursuant to an order of a court of competent jurisdiction or other Governmental Authority or otherwise as required by Applicable Law including the laws and regulations applying to any public listing authority, provided that the Receiving Party shall use reasonable endeavors to limit such disclosure and to provide the Disclosing Party with an opportunity to make representations to the relevant court or other Governmental Authority, Regulatory Authority, or allied authority or listing authority.
16.6 Protection of Confidential Information. The Receiving Party shall at all times maintain documents, materials and other items (including items in electronic form) containing Confidential Information of the Disclosing Party and any copies thereof, in a secure fashion by taking reasonable measures to protect them from theft and unauthorized use and disclosure. Without prejudice to the foregoing, the Receiving Party shall exercise at least the same degree of care to prevent theft and unauthorized Disclosure and/or use of the Disclosing Party’s Confidential Information as the Receiving Party exercises in respect of its own confidential material of like importance.
16.7 Losses of Confidential Material. The Receiving Party shall notify the Disclosing Party immediately if the Receiving Party becomes aware of any unauthorized use or disclosure of, or any unauthorized access to or of any theft or loss of any copies of any Confidential Information of the Disclosing Party.
16.8 Survival. The provisions of this Article 16 shall commence on the Effective Date and shall continue for so long as either Party has knowledge of any Confidential Information received or derived from the other Party and shall survive termination or expiry of this Agreement for a period of five (5) years in respect of all Confidential Information.