Provision Language
11. Confidentiality and Publications
11.1 Confidential Information. All information of confidential and proprietary nature, including technology and know-how (“Confidential Information”), disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) hereunder shall (a) be used solely and exclusively by the Receiving Party in a manner consistent with the licenses and rights granted hereunder; (b) be maintained in confidence by the Receiving Party; and (c) not be disclosed to any third party; and (d) not used for any purpose except to exercise its rights and perform its obligations under this Agreement. Subject to the immediately following sentence, the foregoing confidentiality obligations shall not apply if the Receiving Party can demonstrate by competent written evidence that such information: (i) is known by the Receiving Party at the time of its receipt and, not through a prior disclosure by the Disclosing Party, as documented by the Receiving Party’s business records; (ii) available to the public other than as a result of any breach of this Agreement by the Receiving Party; (iii) is subsequently disclosed to the Receiving Party on a non-confidential basis by a third party who may lawfully do so; or (iv) is independently discovered or developed by the Receiving Party without access to or the use of Confidential Information provided by the Disclosing Party, as documented by the Receiving Party’s business records. All Licensed Know-How shall be deemed to be the Confidential Information of Gilead and none of the foregoing exceptions (i)-(iv) shall apply in respect thereof. 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 (1) copy of the 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 confidential obligations under this Agreement shall survive the expiration or termination of this Agreement for a period of five (5) years except, with respect to the Licensed Know-How, such confidentiality obligations shall continue for so long as the Licensed Know-How remains a Gilead trade secret.
11.2 Limitations on Licensed Know-How. Licensee recognizes that Licensed Know-How constitutes economically important trade secrets from which Gilead derives substantial economic value. Therefore,
(a) Licensee shall not disclose any Licensed Know-How to any consultant or advisor of Licensee, except as may be approved in advance in writing by Gilead;
(b) Licensee shall establish formal measures to (1) screen any Licensee’s personnel with access to Licensed Know-How from any involvement with, or communications with other Licensee personnel involved with, the development, efforts to obtain regulatory approval, or commercialization, in each case, of a product that is or could become subject to a Licensee Independent ANDA Application and (2) prevent any access by any of Licensee’s personnel involved with the development, efforts to obtain regulatory approval, or commercialization of such product to materials developed in reliance on any Licensed Know-How.
(c) Licensee shall (i) ensure that any computer system or other device on which any Licensed Know-How is stored has administrative, technical and physical controls consistent with the highest industry standards including without limitation encryption at rest and in transit and forbidding remote access, (ii) ensure that access to any Licensed Know-How is logged, (iii) provide Gilead, upon Gilead’s request, with a copy of such log and (iv) ensure that no Licensed Know-How is placed on any portable storage medium (including without limitation any USB stick or portable hard drive).
(d) All Licensed Know-How is a trade secret of Gilead, and Licensee hereby assigns all right, title and interest in and to any Licensed Know-How to Gilead, and shall execute, and cause each of Licensee’s personnel, to execute such documents as Gilead may request from time to time to effect or confirm such ownership of Licensed Know-How.
(e) Licensee shall not reverse engineer, derive or modify any Licensed Know-How nor shall Licensee attempt to do any of the foregoing.
(f) Upon Gilead’s request, Licensee shall permit Gilead or Gilead’s designee to review and audit the books and records of Licensee to confirm compliance with the use of Licensed Know-How obligations and limitations set forth herein. Any such audit shall be at Gilead’s cost unless any breach of any terms relating to Licensed Know-How are discovered, in which case Licensee shall reimburse Gilead’s costs therefor.
(g) Upon Gilead’s request no more frequently than once per calendar quarter, an officer of Licensee shall certify to Gilead that Licensee has complied with this Section 11.2 in a form reasonably satisfactory to Gilead.
11.3 Press Release. Licensee may not disclose to third parties or make public statements, by press release or otherwise, regarding the existence of this Agreement, the identity of the Parties, the terms, conditions and subject matter of this Agreement, or otherwise in reference to this Agreement, except with the prior written consent of Gilead.
11.4 Use of Name. Except as otherwise provided section 11.3 in this Agreement, and in Appendix 4, neither Party shall use the other Party’s name, logo or trademarks for any purpose including without limitation publicity or advertising, except with the prior written consent of the other Party.