Provision Language
18. CONFIDENTIALITY
18.1 Confidential Information
18.1.1 “Confidential Information” means information disclosed by one Party to another Party or its Affiliates or designees (including, for clarity, any information disclosed by or on behalf of a Partner (i) to CEPI pursuant to Clause 3, (ii) to any Assessor pursuant to Clause 11 and any information disclosed by or on behalf of a Partner to any auditor pursuant to this Agreement) under or in connection with this Agreement, whether prior to, on, or after the Effective Date. For avoidance of doubt, the Project Results and Project Intellectual Property shall be deemed the Confidential Information of the Partner that first created, invented or generated such Project Results or Project Intellectual Property.
18.1.2 Each Party undertakes that it shall keep confidential and not disclose another Party’s Confidential Information to any person other than: (i) to a Party, (ii) any Affiliate of a Party or such Party’s or its Affiliates’ employees, officers, agents, contractors, consultants and legal and accounting advisers, who have a need to know such Confidential Information to achieve the specific purpose under this Agreement for which such Confidential Information was disclosed (or for which such ConfidentialInformation was permitted to be created by the person or entity deemed to be the recipient of the same) and are subject to customary confidentiality terms, or (iii) as permitted in Clause 18.3. The obligations of confidentiality, non-use and non-disclosure under this Clause 18.1 shall be in full force and effect during the Term of this Agreement and until [***] after its expiry or termination. In the event that at anytime a Partner wishes to disclose to CEPI any Confidential Information that is subject to obligations to a third party under any agreement between such Partner or any of its Affiliates and a third party (or to which such Partner or any of its Affiliates is otherwise subject), it shall have the right to condition such disclosure on CEPI’s agreement to comply with any additional confidentiality or non-use obligations owed to such third party(ies). In such event, the relevant Partner shall notify CEPI that such Confidential Information would be subject to such additional confidentiality or non-use obligations, and CEPI and such Partner shall discuss and agree whether such Confidential Information will be disclosed by such Partner. In the event that CEPI elects to receive such Confidential Information, CEPI and the relevant Partner shall work together to enter into a written agreement setting out such additional confidentiality and non-use obligations hereunder. Each Party shall take commercially reasonable precautions to protect against unauthorised use or unauthorised disclosure of another Party’s Confidential Information. For clarity, Project Results may be disclosed and utilised by the Parties as expressly set out in this Agreement.
18.1.3 Notwithstanding Clause 18.1.2 or any term or condition of this Agreement to the contrary, any information produced by Assessors pursuant to Clause 11 using any Confidential Information of a Partner shall be deemed Confidential Information of such Partner.
18.2 Confidentiality Limitations. Confidential Information shall not include:
18.2.1 information already known to the receiving Party and which is not subject to pre existing obligations of confidentiality;
18.2.2 information that is independently developed by the receiving Party without access to or the use of or access to another Party’s Confidential Information;
18.2.3 information that is or becomes part of the public domain other than by unauthorised disclosure by receiving Party or any of its Affiliates or any designee or other person
to which the receiving Party has disclosed such information; and
18.2.4 information properly obtained by the receiving Party from a source that is not bound by a confidentiality obligation to the disclosing Party.
18.3 Permitted Disclosures. Notwithstanding Clause 18.1, the receiving Party may disclose Confidential Information of a disclosing Party:
18.3.1 as permitted by and in accordance with Clause 18.6, to the U.S. Securities and Exchange Commission or any national securities exchange in any relevant
jurisdiction (each a “securities regulator” for purposes of Clause 18.6);
18.3.2 in response to a valid order of a court of competent jurisdiction or other governmental authority or, if in the reasonable opinion of the receiving Party’s legal counsel, such disclosure is otherwise required by applicable law (other than to a securities regulator); provided that to the extent legally permissible the receiving Party will first give written notice to the disclosing Party and give the disclosing Party a reasonable opportunity to (i) quash any such order; (ii) obtain a protective order or confidential treatment requiring that the Confidential Information that is the subject of such order or applicable law (A) be held in confidence by the recipient and (B) be used only for the purposes for which the order was issued or as required by applicable law; and (iii) propose redactions to such Confidential Information; and provided, further, that any Confidential Information disclosed in response to any such order or applicable law will be limited to that information which is required or reasonably deemed to be required to be disclosed in response thereto;
18.3.3 by a Partner, as the receiving Party, to a Regulatory Authority, as reasonably required or useful in connection with any filing, submission or communication with
respect to the Project Vaccine;
18.3.4 to the limited extent that is required to be disclosed by a competent legal authority or which is required to be disclosed pursuant to a request under the Freedom of information Act 2000, the Freedom of Information (Scotland) Act 2002, Environmental Information Regulations 2004 or Environmental Information (Scotland) Regulations 2004; 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; and
18.3.5 (i) in the case of CEPI, to a Regulatory Authority and to CEPI’s funders and Assessors, and (ii) in the case of a Partner as the receiving Party, (1) to any actual or potential collaborators, partners, investors, funders, lawyers, bankers, advisors, (sub)licensees, (sub)contractors or Subawardees in connection with the development, manufacture or commercialization of the Project Vaccine, or (2) otherwise to the extent necessary or useful for such Partner to exercise its rights or perform its obligations hereunder; provided that, in each case ((i) and (ii)), prior to any such disclosure, each disclosee will be bound by written obligations of confidentiality, non- disclosure and non-use no less restrictive than the obligations set forth in this Clause 18; and provided, further, that the receiving Party will remain responsible for any failure by any such disclosee to treat such Confidential Information as required under this Clause 18.
18.4 Permitted Uses. Notwithstanding Clause 18.1 or any other term or condition of this Agreement, Confidential Information of a Partner shall be used by CEPI or any third party to which CEPI discloses any such Confidential Information (for clarity, which third party disclosure shall be made in accordance with Clause 18.3) solely to fulfil CEPI’s obligations and exercise CEPI’s rights in accordance with this Agreement in connection with the Project, and shall not be disclosed to any third party who engages in the same or similar business, including development of same or similar products except as agreed otherwise by the Parties in writing.
18.5 Notice of Breach. Each Party shall promptly notify the other Parties of any breach or unauthorized disclosure with respect to another Party’s Confidential Information of which it becomes aware.
18.6 Securities Filings; Disclosure under Applicable Law. Each Party acknowledges and agrees that each other Party shall have the right to submit this Agreement to, or file this Agreement with, the securities regulators or to other governmental persons or entities, if required by applicable law, and if a Party submits this Agreement to, or files this Agreement with, any securities regulator or other person or entity as required by applicable law, to the extent practicable in a given timeline and as permitted under applicable law, such Party shall consult with the other Parties with respect to the preparation and submission of a confidential treatment request for this Agreement. Notwithstanding the foregoing, if a Party seeks to make a disclosure as required by a securities regulator or other person or entity as required by applicable law as set forth in this Clause 18.6 and any other Party provides comments in accordance with this Clause 18.6, the Party seeking to make such disclosure or its counsel, as the case may be, will reasonably consider such comments, to the extent permitted under and consistent with applicable law.
21. MISCELLANEOUS
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21.2 Announcements and Use of Names. No Party shall issue any press release, public statement or public announcement with respect to this Agreement without the prior written consent of the other Parties. Subject to Clause 18.6, no Party shall use the name or trademarks of another Party or its Affiliates in any press release, public statement or publication in connection with this Agreement without the named Party’s prior express written consent. After the initial announcement, or as required by law, either Party may disclose a description of the Project, the names of each Party and its Project Lead, and the amount of the CEPI funding without the prior consent of the other Parties.