Provision Language
MOU
3. Confidentiality
a) During the course of this MOU, the Parties (each a “Disclosing Party”) may make available to each other (each a “Receiving Party”) certain Confidential Information (as hereinafter defined) or one Party may otherwise learn of Confidential Information belonging to the other Party. For purposes of this Section, “Confidential Information” means any and all confidential or proprietary information regarding a Party or its business, including, without limitation, all products, patents, trademarks, copyrights, trade secrets, processes, techniques, scientific information, computer programs, databases, software, services, research, development, inventions, financial, purchasing, accounting, marketing, fundraising and other information, whenever conceived, originated, discovered or developed, concerning any aspect of its business, whether or not in written or tangible form; provided, however, that the term “Confidential Information” shall not include information (i) which is or becomes generally available to the public on a non-confidential basis, including from a third party provided that such third party is not in breach of an obligation of confidentiality with respect to such information, (ii) which was independently developed by a Party not otherwise in violation or breach of this MOU or any other obligation of one Party to the other, or (iii) which was rightfully known to the Receiving Party prior to entering into this MOU.
b) Any Confidential Information disclosed by the Disclosing Party to the Receiving Party in connection with this MOU shall be used solely and exclusively by the Receiving Party in a manner consistent with the rights granted hereunder and for the purposes of this MOU; shall be maintained in strict confidence by the Receiving Party; and shall not be further used, relied upon or disclosed to a third-party without the prior written consent of the Disclosing Party. Notwithstanding the foregoing, the Receiving Party may disclose such Confidential Information to its employees and third-parties who are bound by confidentiality obligations no less restrictive than those set forth herein and need to know such Confidential Information solely to perform the Receiving Party’s obligations and/or exercise the Receiving Party’s rights under or in connection with this MOU. Notwithstanding the foregoing, the Receiving Party shall not be in violation of this subsection in the event that: (i) the Receiving Party is legally compelled to disclose any of the Confidential Information, provided however that such Receiving Party notifies the Disclosing Party of the requested disclosure within sufficient time to enable the Disclosing Party to seek an appropriate protective order or other remedy with respect to narrowing the scope of such required disclosure; or (ii) MPP discloses any order report or data received from Ferring under Section 2a)iii) to a third party on a need-to-know basis, and who is bound by confidentiality obligations no less restrictive than those contained in this MOU.
c) Within thirty (30) days after any expiration or termination of this MOU, Receiving Party shall destroy (and certify to the Disclosing Party such destruction) or return all Confidential Information provided by the Disclosing Party except as otherwise set forth in this MOU. One copy of the Disclosing Party’s Confidential Information may be retained in the Receiving Party’s files solely for archival purposes as a means of determining any continuing or surviving obligations under this MOU.
d) Notwithstanding any of the terms set forth in this Section 3, the Parties acknowledge and agree that Ferring may share a copy of this MOU and License Agreement (and form sublicense) with Unitaid and WHO prior to and upon execution in order to enable: (i) Unitaid to confirm that this MOU and License Agreement (and form sublicense) are in accordance with the principles set out in any agreement between Ferring and Unitaid; and (ii) WHO to confirm that this MOU and License Agreement (and form sublicense) are without prejudice to the terms and conditions of the Existing Agreement and in particular any rights of, and commitments made by Ferring to WHO and Merck.
e) The obligations of this Section 3 shall survive the expiration or termination of this MOU.
4. Press Release and Other Communications. The signature of this MOU may be announced through a press release (joint or individual) agreed to by the Parties. Ferring acknowledges that this MOU, in accordance with MPP policy, will be made publicly available on MPP’s website and by other appropriate means. Ferring further agrees that MPP may periodically publish updates on the order reports or data received from Ferring under Section 2a)iii) subject to Ferring’s prior approval, such approval not to be unreasonably withheld.
Annexure A: License Agreement
7. CONFIDENTIALITY
7.1. During the course of this Agreement, the Parties (each a “Disclosing Party”) may make available to the other Party (each a “Receiving Party”) certain Confidential Information (as hereinafter defined) or one Party may otherwise learn of Confidential Information belonging to the other Party. For purposes of this Agreement, “Confidential Information” means any and all confidential or proprietary information regarding a Party or its business, including, without limitation, all products, patents, trademarks, copyrights, trade secrets, processes, techniques, scientific information, computer programs, databases, software, services, research, development, inventions, financial, purchasing, accounting, marketing, fundraising and other information, whenever conceived, originated, discovered or developed, concerning any aspect of its business, whether or not in written or tangible form; provided, however, that the term “Confidential Information” shall not include information (i) which is or becomes generally available to the public on a non-confidential basis, including from a third party provided that such third party is not in breach of an obligation of confidentiality with respect to such information, (ii) which was independently developed by a Party not otherwise in violation or breach of this Agreement or any other obligation of one Party to the other, or (iii) which was rightfully known to the Receiving Party prior to entering into this Agreement.
7.2. Any Confidential Information disclosed by the Disclosing Party to the Receiving Party in connection with this Agreement shall be used solely and exclusively by the Receiving Party in a manner consistent with the rights granted hereunder and for the purposes of this Agreement; shall be maintained in strict confidence by the Receiving Party; and shall not be further used, relied upon or disclosed to a third-party without the prior written consent of the Disclosing Party. Notwithstanding the foregoing, the Receiving Party may disclose such Confidential Information to its employees and third parties who are bound by confidentiality obligations no less restrictive than those set forth herein and need to know such Confidential Information solely to perform the Receiving Party’s obligations and/or exercise the Receiving Party’s rights under or in connection with this Agreement. Notwithstanding the foregoing, the Receiving Party shall not be in violation of this subsection in the event that the Receiving Party is legally compelled to disclose any of the Confidential Information, provided however that such Receiving Party notifies the Disclosing Party of the requested disclosure within sufficient time to enable the Disclosing Party to seek an appropriate protective order or other remedy with respect to narrowing the scope of such required disclosure.
7.3. Within thirty (30) days after any expiration or termination of this Agreement, Receiving Party shall destroy (and certify to the Disclosing Party such destruction) or return all Confidential Information provided by the Disclosing Party except as otherwise set forth in this Agreement. One copy of the Disclosing Party’s Confidential Information may be retained in the Receiving Party’s files solely for archival purposes as a means of determining any continuing or surviving obligations under this Agreement. The confidentiality obligations under this Agreement shall survive the termination or expiration of this Agreement.
8. PUBLICITY
Each Party shall seek each other’s previous written approval of any press release or public announcement concerning the grant, scope or terms of this License prior to such press release or other publication being made. Following an initial announcement, neither Party shall be required to seek the other Party’s consent to reactive statements, provided such statements are accurate and not misleading.
Annexure A, Schedule 3: Form of Sublicense
5. EXCHANGE OF INFORMATION AND CONFIDENTIALITY
5.1 Any Confidential Information disclosed by a Party, or Ferring and/or Ferring’s Affiliates (the “Disclosing Party”) to the other Party, or Ferring and/or Ferring’s Affiliates (the “Receiving Party”) in connection with this Agreement shall be used solely and exclusively by the Receiving Party in a manner consistent with the rights granted hereunder and for the purposes of this Agreement; shall be maintained in strict confidence by the Receiving Party; and shall not be further used, relied upon or disclosed to a Third-Party without the prior written consent of the Disclosing Party. Notwithstanding the foregoing, the Receiving Party may disclose such Confidential Information to its employees and Third-Parties who are bound by confidentiality obligations no less restrictive than those set forth herein and need to know such Confidential Information solely to perform the Receiving Party’s obligations and/or exercise the Receiving Party’s rights under or in connection with this Agreement. This confidentiality obligation shall not apply to such information which:
(a) the Receiving Party can prove, by written records and to the reasonable satisfaction of the Disclosing Party, is or has become a matter of public knowledge other than through any breach by or at the instigation of the Receiving Party, or any of its Affiliates, of this Agreement;
(b) is already legitimately in the possession of the Receiving Party;
(c) is disclosed to the Receiving Party by a Third-Party (other than Ferring and/or its Affiliates) having the right to do so;
(d) is subsequently and independently developed by employees of the Receiving Party or its Affiliates who had no knowledge of the Confidential Information disclosed; or
(e) in the case of the Licensor, is required to be disclosed to Ferring under the terms of the Head License.
5.2 The Parties shall ensure that no unauthorized use or disclosure is made by others to whom access to such Confidential Information is granted, by binding such persons on like terms to this Agreement which are enforceable by each of the Licensor and Ferring.
5.3 All Confidential Information shall remain the property of the Disclosing Party. In the event that a court or other legal or administrative tribunal of competent jurisdiction, directly or through an appointed master, trustee or receiver, assumes partial or complete control over the assets of a Party to this Agreement, based on the insolvency or bankruptcy of such Party (or based on any other analogous or similar status of that party under foreign laws), the bankrupt or insolvent Party shall promptly notify the court or other tribunal:
(a) that Confidential Information remains the property of the Disclosing Party; and
(b) of the confidentiality obligations under this Agreement.
5.4 In addition, the bankrupt or insolvent Party shall, to the extent permitted by law, take all steps necessary or desirable to maintain the confidentiality of such Confidential Information and to ensure that the court, other tribunal or appointee maintains such information in confidence in accordance with the terms of this Agreement.
5.5 Prior to submitting for written or oral publication any manuscript, abstract or the like which includes data or other information generated and provided under the terms of (including but not limited to Licensed Know-How), or in relation to, this Agreement or relating to Licensed Product, the Licensee shall provide a copy of such intended publication to Ferring and give Ferring at least thirty (30) days to review the proposed submission and provide its comments to the submission. Licensee shall take into account Ferring’s reasonable comments in connection therewith and delete any Ferring Confidential Information before proceeding to publication.
5.6 Nothing in this Agreement shall be construed as preventing or in any way inhibiting the Receiving Party from complying with statutory and regulatory requirements relating to, or arising out of, its rights and obligations under this Agreement if in the reasonable opinion of the Receiving Party’s counsel, such disclosure is necessary for such compliance; provided however that such Receiving Party notifies the Disclosing Party of the requested disclosure within sufficient time to enable the Disclosing Party to seek an appropriate protective order or other remedy with respect to narrowing the scope of such required disclosure.
5.7 Within thirty (30) days after any expiration or termination of this Agreement, Receiving Party shall destroy (and certify to the Disclosing Party such destruction) or return all Confidential Information provided by the Disclosing Party except as otherwise set forth in this Agreement. One copy of the Disclosing Party’s Confidential Information may be retained in the Receiving Party’s files solely for archival purposes as a means of determining any continuing or surviving obligations under this Agreement. The confidentiality obligations under this Agreement shall survive the termination or expiration of this Agreement.