Provision Language
Definitions
“Confidential Information” means all trade secrets, processes, formulae, data, know-how, improvements, inventions, chemical or biological materials, techniques, marketing plans, strategies, customer lists, or other information that has been created, discovered, or developed by any Party or any of its Affiliates, or has otherwise become known to a Party or any of its Affiliates, as well as any other information and materials that are deemed confidential or proprietary to or by a Party or any of its Affiliates (including all information and materials of a Party’s (or its Affiliates’) customers and any other Third Party and their consultants), regardless of whether any of the foregoing are marked “confidential” or “proprietary” or communicated to the other by the disclosing Party in oral, written, graphic or electronic form. Confidential Information of MedinCell will include the Licensed Know-How.
6. PUBLICITY AND PUBLICATION
The Parties agree that neither Party will issue a press release or public announcement concerning the transactions contemplated hereby without the advance written consent of the other Party (such consent not to be unreasonably withheld or delayed). If either Party intends to issue a press release, it shall submit a draft of such proposed press release to the other Party at least five (5) business days prior to the date such Party intends to issue the release. After any initial press release or public announcement is made, however, each Party may 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, provided such disclosures or statements are accurate and complete with respect to the subject matter thereof and the information disclosed therein.
10. CONFIDENTIALITY
10.1. Each Party agrees that, for so long as this Agreement is in effect, a Party receiving Confidential Information of the other Party will:
(i) Maintain in confidence such Confidential Information using not less than the efforts such Party uses to maintain in confidence its own confidential information;
(ii) Not disclose such Confidential Information to any Third Party without the prior written consent of the other Party, except for disclosure expressly permitted under this Agreement; and
(iii) Not use such Confidential Information for any purpose except those permitted by this Agreement (it being understood that this clause (iii) will not create or imply any rights or licenses not expressly granted under clause 2 of this Agreement).
10.2. The obligations under clause 10.1 will not apply with respect to any portion of the Confidential Information that the receiving Party can show by written evidence:
(i) Is publicly disclosed by the disclosing Party, either before or after it is disclosed to the receiving Party; or
(ii) Was known to the receiving Party without any obligations to keep it confidential or any restriction on its use, prior to disclosure by the disclosing Party; or
(iii) Is subsequently disclosed to the receiving Party by a third party lawfully in the possession thereof and without any obligation to keep it confidential or any restriction on its use; or
(iv) Is published by a Third Party or otherwise becomes publicly available, on a lawful basis, either before or after it is disclosed to the receiving Party; or
(v) Has been independently developed by employees or contractors of the receiving Party without the aid, application or use of Confidential Information of the disclosing Party.
10.3. The receiving Party may disclose Confidential Information belonging to the other Party to the extent such disclosure is reasonably necessary in the following instances: (i) Regulatory filings; (ii) Prosecuting or defending litigation; (iii) Complying with applicable governmental laws and regulations; (iv) Disclosure in connection with the performance of this Agreement and solely on a “need-to-know basis”, to Affiliates, UNITAID, actual or potential donors, potential collaborators, research collaborators, employees, consultants or agents, each of whom prior to disclosure must be bound by similar obligations of confidentiality and non-use at least equivalent in scope to those set forth in this clause 10; provided however that the receiving Party will remain responsible for any failure by any such person who receives Confidential Information pursuant to this clause 10 to treat such Confidential Information as required under this clause 10.
10.4. If any Confidential Information is disclosed in accordance with clause 10.3, such disclosure will not cause any such information to cease to be Confidential Information except to the extent that such disclosure results in a public disclosure of such information (otherwise than by breach of this Agreement). Where reasonably possible, the receiving Party will notify the disclosing Party’s intent to make such disclosure pursuant to this clause 10.4 sufficiently prior to making such disclosure so as to allow the disclosing Party adequate time to take whatever action it may deem appropriate to protect the confidentiality of the information.
10.5. The Parties agree that a copy of this Agreement as well as of each Sub-licence Agreement may be publicly disclosed on MPP’s website. Such disclosure will not constitute a breach of either Party’s obligations under this clause 10.
Schedule 3. Development Agreement Term Sheet
11. Confidentiality: Confidentiality obligations similar to those established in Clause 10 of the Agreement will be included in the Development Agreement. The Confidential Information exchanged under the Development Agreement may be shared with MedinCell and Unitaid.
12. Trademarks and names: Development Partner will not use MedinCell’s or MPP’s name or logo nor the name of any of the inventors or other principal researchers in any kind of promotional material other than for the purposes of complying with the Development Agreement, without the prior written agreement of both MPP and MedinCell.
Schedule 4. Commercialisation Agreement Term Sheet
11. Confidentiality: Confidentiality obligations similar to those established in Clause 10 of the Agreement will be included in the Commercialisation Agreement. The Confidential Information exchanged under the Commercialisation Agreement may be shared with MedinCell and Unitaid.
12. Trademarks and names: Commercialisation Partner will not use MedinCell’s or MPP’s name or logo nor the name of any of the inventors or other principal researchers in any kind of packaging and promotional material other than for the purposes of complying with the Commercialisation Agreement, without the prior written permission of both MPP’s and MedinCell’s authorised representative. The Final Product manufactured under the Commercialisation Agreement will be marked (to the extent not prohibited by law): (i) with a notice that such Final Product is sold under a license from MedinCell and MPP; and (ii) with all markings and notices as may be required by applicable law, including in relation to patent and other intellectual property.