“Confidential Information” means all confidential and proprietary information and data of one party that is provided by that party (the “disclosing party”) to the other party (the “receiving party”) hereunder in written or other tangible medium and marked as confidential at the time of disclosure, or if disclosed orally, is indicated as such at the time of disclosure and confirmed in writing by the disclosing party to the receiving party within thirty (30) days after disclosure, except any portion thereof which:
(a) was known to the receiving party, before receipt thereof under this Agreement, as evidenced by the receiving party’s written record;
(b) is or becomes generally known through no fault of the receiving party;
(c) was provided to the receiving party by a third party, provided that such information was lawfully disclosed by such third party free of restrictions upon disclosure and, to the receiving party’s knowledge, without breach of any obligation to the disclosing party;
(d) is independently developed by persons at the receiving party not having knowledge of, or access to, the Confidential Information; or
(e) is disclosed pursuant to valid court order or other governmental directive, so long as receiving party has provided to the disclosing party immediate notice of such order or directive so as to enable the disclosing party to interpose appropriate objections thereto.
11. General Provisions
11.01 Confidentiality. It is contemplated that in the course of the performance of this Agreement each party may, from time to time, disclose Confidential Information to the other. Each party agrees to use reasonable efforts to: i) to not use the other party’s Confidential Information except in the course of the performance of this Agreement or as required to comply with laws or with legal process; and ii) to take all reasonable steps, but no less than the steps it takes to keep its own Confidential Information confidential, to prevent disclosure to a third party; provided that no provision of this Agreement will be construed to preclude such disclosure of Confidential Information as may be necessary or appropriate to obtain from any governmental agency any necessary approval or license or to obtain patents that are to be included in Patent Rights. The obligations of confidentiality set forth in this Section 11.01 shall survive termination of this Agreement for a period of three (3) years. Notwithstanding the forgoing, if the University terminates this Agreement in accordance with Section 9.02, the University may provide any of Licensee’s information to a third party for purposes of attempting to relicense the Patent Rights. Notwithstanding any other provision of this Agreement, Licensee agrees not to disclose to University any information that may be subject to export controls under any applicable laws or regulations, including but not limited to the Export Administration Regulations of the United States Department of Commerce, the International Traffic in Arms Regulations of the Department of State, and the Office of Foreign Assets Control of the Department of Treasury
11.06 Use of Names. Neither party will use the name of the other party or any staff member, officer, employee or student of the other party or any adaptation thereof in any advertising, promotional or sales literature, publicity or in any document employed to obtain funds or financing without the prior written approval of the party or individual whose name is to be used; provided that Licensee may state that Licensed Products are based on research originally carried out at Boston University and that it is licensed by the University under the Patent Rights and/or Copyright [DELETE IF NO COPYRIGHT]. Licensee may, without seeking permission of University, make reference to publications authored or co–authored by the inventor(s). Licensee will submit to the University for review and approval, which approval will not be unreasonably withheld or delayed, any references to Licensed Products, this Agreement, the University or the inventors in submissions required by the Securities and Exchange Commission or any stock exchange or market system on which its shares are listed or being considered for listing. For the University and its officers, employees and students, such approval will be obtained from the Managing Director of the University’s Office of Technology Development or its successor. In addition, the University may disclose the name of Licensee in publications by the University. Licensee and University agree that they will jointly make an initial announcement about the existence of this Agreement.