“CONFIDENTIAL INFORMATION” shall mean all information disclosed by one party to the other during the negotiation of or under this Agreement in any manner, whether orally, visually or in tangible form, that relates to LICENSED PATENTS or the Agreement itself, unless such information is subject to an exception described in Article 8; provided, however, that CONFIDENTIAL INFORMATION that is disclosed in tangible form shall be marked “Confidential” at the time of disclosure and CONFIDENTIAL INFORMATION that is disclosed orally or visually shall be identified as confidential at the time of disclosure and subsequently reduced to writing, marked confidential and delivered to the other party within thirty (30) days of such disclosure. CONFIDENTIAL INFORMATION shall include, without limitation, materials, know-how and data, technical or non-technical, trade secrets, inventions, methods and processes, whether or not patentable. Notwithstanding any other provisions of this Article 2.2, CONFIDENTIAL INFORMATION of LICENSEE that is subject to Article 8 of this Agreement is limited to information that LICENSEE supplies pursuant to LICENSEE’s obligations under Articles 4, 7, 9, and 11 of this Agreement, unless otherwise mutually agreed to in writing by the parties. Notwithstanding any other provisions of this Article 2.2, CONFIDENTIAL INFORMATION of YALE that is subject to Article 8 of this Agreement is limited to information that directly relates to the LICENSED PATENTS, unless otherwise mutually agreed to in writing by the parties.
8. CONFIDENTIALITY AND PUBLICITY
8.1 Subject to the parties’ rights and obligations pursuant to this Agreement, YALE and LICENSEE agree that during the term of this Agreement and for ten (10) years thereafter, each of them:
(a) will keep confidential and will cause their AFFILIATES and, in the case of LICENSEE, its SUBLICENSEES, to keep confidential, CONFIDENTIAL INFORMATION disclosed to it by the other party, by taking whatever action the party receiving the CONFIDENTIAL INFORMATION would take to preserve the confidentiality of its own CONFIDENTIAL INFORMATION, which in no event shall be less than reasonable care; and
(b) will only disclose that part of the other’s CONFIDENTIAL INFORMATION to its officers, employees, consultants or agents (or, with respect to LICENSEE, its AFFILIATES and SUBLICENSEES and their respective officers, employees, consultants and agents) that is necessary for those officers, employees, consultants or agents who need to know to carry out its responsibilities under this Agreement; and
(c) will not use the other party’s CONFIDENTIAL INFORMATION other than as expressly set forth in this Agreement or disclose the other’s CONFIDENTIAL INFORMATION to any third parties (other than, with respect to LICENSEE, its AFFILIATES and SUBLICENSEES and their respective officers, employees, consultants and agents) under any circumstance without advance written permission from the other party except to bona fide potential and actual investors, and then only under a written agreement with terms of confidentiality and non-use substantially the same as those contained herein; and
(d) will, within sixty (60) days of termination of this Agreement, return or destroy all the CONFIDENTIAL INFORMATION disclosed to it by the other party pursuant to this Agreement except for one copy which may be retained by the recipient for monitoring compliance with this Article 8.
8.2 The obligations of confidentiality described above shall not pertain to that part of the CONFIDENTIAL INFORMATION that:
(a) was known to the recipient prior to the disclosure by the disclosing party; or
(b) is at the time of disclosure or has become thereafter publicly known through no fault or omission attributable to the recipient; or
(c) is rightfully given to the recipient from sources independent of the disclosing party; or
(d) is independently developed by the receiving party without use of or reference to the CONFIDENTIAL INFORMATION of the other party; or
(e) is required to be disclosed by law, rule or regulation in the reasonable opinion of recipient’s attorney, but only after the disclosing party is given prompt written notice and an opportunity to seek a protective order.
8.3 Except as required by law or by the requirements of any nationally recognized securities exchange, quotation system or over-the-counter market on which such party has its securities listed, neither party may publicly disclose the financial terms of this Agreement except to bona fide potential and actual investors without the prior written consent of the other party, such consent not to be unreasonably withheld or delay, but LICENSEE shall be allowed to disclose this Agreement and its financial terms under written terms of confidentiality substantially the same as those contained herein.
12. USE OF YALE’S NAME
12.1 LICENSEE shall not use the name “Yale” or “Yale University,” nor any variation or adaptation thereof, nor any trademark, tradename or other designation owned by YALE, nor the names of any of its trustees, officers, faculty, students, employees or agents, for any purpose without the prior written consent of YALE in each instance, except that LICENSEE may state that it has licensed from YALE one or more of the patents and/or patent applications comprising the LICENSED PATENTS.