Provision Language
Definitions
“Confidential Information” shall mean any and all non–public information which by its nature or the manner of its disclosure is reasonably identifiable as confidential information, including but not limited to data, results, know–how, software (further including non–open source code), plans, details of research work, discoveries, inventions, intended publications, intended or pending patent applications, designs, technical information, business plans, budgets and strategies, business or financial information or other information in any medium, and any physical items, prototypes, compounds, samples, components, non–public regulatory filings, non–public submissions to regulatory authorities or other articles or materials disclosed on or after the Effective Date of this Agreement by one Party to the other Party whether orally or in writing or in any other form. Confidential information will not include:
(a) information that is or was already known to the receiving Party at the time of disclosure, as shown by written records, without any obligation to keep it confidential;
(b) information that is independently developed by employees of the receiving Party who have not had access to the Confidential Information of the disclosing Party as evidenced by contemporaneous written records;
(c) information that at the time of being disclosed or obtained by the receiving Party or at any time thereafter, is published or otherwise generally available to the public other than due to default by the receiving Party of its obligations hereunder;
(d) information properly obtained by the receiving Party from a source which, to the best knowledge of the receiving Party, is not known to be bound by a confidentiality agreement, fiduciary obligation or other legal or contractual restriction that may prohibit the disclosure of such Confidential Information;
(e) information necessarily disclosed by the receiving Party pursuant to a statutory obligation and, to the limited extent that it is disclosed for this purpose only, the Party required to make that disclosure has informed the other, within a reasonable time after being required to make such disclosure, of the requirement to disclose and the information required to be disclosed; and
(f) information approved for release in writing by an authorised representative of the disclosing Party.
5. Announcements
5.1 Announcements. Except as required by law or any competent regulatory authority or in compliance with this Article 5, the Parties shall consult on and agree in writing upon the form of all press releases and public announcements concerning this Agreement or its subject matter (“Announcements”). Notwithstanding the foregoing, the Parties acknowledge that the existence and general purpose of this Agreement may be disclosed by either Party. For the avoidance of doubt, no Confidential Information introduced by a Party under this Agreement may be published by the other Party without the express prior written consent of the providing Party, and no Personal Data shall be contained in any Announcement and/or other communications to the public. For clarity, nothing in this Agreement shall be construed to prohibit Dynavax from making such press releases, public announcements and other public disclosures concerning this Agreement or its subject matter as are necessary to comply with applicable securities laws, rules and regulations and the requirements of any exchange on which Dynavax’s securities are listed.
5.2 Publicity/Use of Name. Neither Party shall use the names, logos or trademarks of the other in any Announcement, advertising, promotion, or for other commercially–related purposes, without the named Party’s prior express written consent, except as expressly provided for in this Agreement.
6. Confidentiality and Personal Data
6.1 Confidentiality Obligations. Each Party undertakes that both during the Term and for a period of five (5) years after its termination or expiry, it shall keep confidential and not disclose any Confidential Information of the other Party disclosed to or obtained by it in connection with this Agreement other than its employees, agents, consultants, professional advisers, sub–contractors, regulatory authorities and, in the case of CEPI, CEPI Partners and CEPI’s funders, in each case who have a need to know Confidential Information of the other Party and to the extent they are bound by a written agreement or statutory obligation to protect the confidentiality of such Confidential Information equivalent to the provisions contained herein. Each Party shall take reasonable security precautions to protect against unauthorized disclosure of such Confidential Information. Each Party shall use Confidential Information solely in connection with the operation of the Agreement and to the extent that is reasonably necessary for the purposes of the Agreement. Each Party shall ensure that all staff, consultants, agents and third parties to which Confidential Information of the other Party is disclosed are: (i) informed of the confidentiality provisions of this Agreement; and (ii) bound by obligations of confidentiality and non–use at least as protective as the provisions contained herein.
6.2 Required Disclosure. The disclosure of information that is required to be disclosed by a competent court or regulatory authority or otherwise by Applicable Law may be disclosed as required, provided that where it is free to do so, the receiving Party shall give notice of such disclosure to the disclosing Party as soon as reasonably practicable.
6.3 Permitted Disclosures. Notwithstanding the above, nothing in this Agreement shall restrict Dynavax’s right to (a) disclose the existence of a relationship between the Parties for the purpose of declaring a potential conflict of interest; or (b) disclose Confidential Information to any committee or regulatory body in furtherance of Dynavax’s statutory or regulatory duties. Notwithstanding the above, nothing in this Agreement Shall restrict CEPI’s right to (a) disclose the existence of a relationship between the Parties for the purpose of declaring a potential conflict of interest; or (b) disclose the nature of the relationship between the Parties, the aggregate Loan Amount and a high level description of how this relationship enables CEPI’s mission as it pertains to equitable access to vaccines against SARS–CoV–2.