Provision Language
Definitions
“Confidential Information” means all information that would reasonably be regarded as, or is designated as, of a confidential or commercially sensitive nature by the Party to which the information relates including, without limitation, the confidential and proprietary information and materials, discoveries, processes, methods, protocols, formulas, reagents, assays, data, results, compositions of matter (including compounds), formulations, and any matter relating to, or arising in connection with, this Agreement or a Sublicence or the business or affairs of any of the Parties or their Affiliates. Neither this Agreement nor any Sublicence shall be considered as Confidential Information;
Novartis – MPP Agreement
10. CONFIDENTIALITY
10.1. Each Party shall hold the Confidential Information disclosed to it under or in connection with this Agreement in strict confidence and shall not use such Confidential Information for any other purpose than the performance of this Agreement.
10.2. The Party that releases, exchanges, or discloses Confidential Information (the “Disclosing Party”) shall use reasonable efforts to mark such Confidential Information as “Confidential”. In the event that Confidential Information is disclosed and not so marked, the receiving Party agrees to treat such information as confidential to the extent that a reasonable person would consider such information to be confidential given the content and circumstances of the disclosure.
10.3. A receiving Party shall not disclose any Confidential Information received from the Disclosing Party and/or any of their Affiliates under or in connection with this Agreement, or otherwise developed by any party in the performance of activities in furtherance of this Agreement, except to such of its officers, employees, agents, representatives, Affiliates, advisors, consultants, governing bodies, and potential or actual Sublicensees to whom disclosure is necessary to exercise the Party’s rights or perform the Party’s obligations under this Agreement, provided that (1) any such officers, employees, agents, representatives, Affiliates, advisors, consultants, governing bodies, and potential or actual Sublicensees is bound by written obligations of confidentiality and non-use (i) at least as restrictive as those set forth in this Clause 10, and (ii) enforceable by the Disclosing Party and (2) the receiving Party remains liable for the compliance of such officers, employees, agents, representatives, Affiliates, advisors, consultants, governing bodies, and potential or actual Sublicensees with such obligations.
10.4. The obligations in Clauses 10.1, 10.2 and 10.3 shall not apply to the following as established by reasonable, contemporaneous written records or other proof:
(a) information which at the time of disclosure is in the public domain; or
(b) information which, after its disclosure, becomes part of the public domain by publication or otherwise part of the public domain after its disclosure, except by breach of this Agreement; or
(c) information that a Party can demonstrate was lawfully possessed by it prior to disclosure under or in connection with this Agreement; or
(d) information that a Party receives from a Third Party who had no obligation, both legal and contractual, to the Disclosing Party (or Novartis or its Affiliates where the Confidential Information relates to or belongs to Novartis or its Affiliates) not to disclose such information to others; or
(e) information a Party is required by law to disclose, provided that the other Party is promptly notified of any such requirement; or
(f) information which is independently developed by the receiving Party or its Affiliates who had no knowledge of the Disclosing Party’s ConfidentialInformation.
10.5. If a receiving Party becomes obligated by law to disclose Confidential Information received under or in connection with this Agreement, or any portion thereof, to any Third Party, governmental authority or court, that Party shall immediately notify the Disclosing Party thereof of each such requirement prior to its disclosure and identify the Confidential Information to be disclosed so that the Disclosing Party may seek an appropriate protective order or other remedy with respect to narrowing the scope of such requirement and, to the extent necessary, waive the receiving Party’s compliance with the confidentiality obligations of this Agreement.
10.6. The Parties acknowledge that disclosure of any Confidential Information in breach of this Agreement could give rise to irreparable injury to the non-breaching Party or its Affiliates and that such injury will not be adequately compensated by damages. Accordingly, the nonbreaching Party and its Affiliates shall be entitled to the remedies of specific performance and injunctive relief or other equitable relief for any threatened or actual breach of this Clause 10. Such relief shall be in addition to all other remedies available to the non- breaching Party at law or in equity.
10.7. 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, 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.
10.8. Novartis shall treat any unpublished information disclosed to it under the Sublicence as Confidential Information provided that Novartis shall be entitled to disclose information about the quantities of Products sold or supplied by Sublicensees on an aggregate basis provided such disclosure does not reveal any Confidential Information of any Sublicensee.
11. Publicity and external communications
11.1. Either Party shall be entitled, subject to the other Party’s prior written approval,to make an initial press release or public announcement concerning the grant, scope or terms of this Agreement (“Initial Announcement”), or any other publication regarding this Agreement (“Other Announcement”) (collectively, “Initial Announcement” and “Other Announcement” is referred to as “Agreement Announcements”). Each Party shall have the right to use the other Party’s name and logo in any Agreement Announcement published pursuant to this Clause 11.1. Following the Initial Announcement, neither Party shall be required to seek the other Party’s consent to respond to reactive statements to the Initial Announcement, provided such statements are accurate and not misleading and subject to Clause 10.
11.2. Subject to Clauses 10 and 11.1, neither Party shall be required to obtain the other Party’s prior consent for any external communication relating to this Agreement. Each Party shall ensure that any external communication relating to this Agreement is accurate and notmisleading. Novartis understands and agrees that MPP will publish this Agreement and any Sublicences on MPP’s website.
11.3. With exception of any Agreement Announcement or external communication relating to this Agreement permitted in Clauses 11.1 and 11.2 herein, neither Party shall have any right, express or implied, to use in any manner the name (alone or as part of another name) or other designation of the other Party or any other trade name, trademark, logo, marks or other words, names, symbols or devices of the other Party for any purpose in connection with the performance of this Agreement. These restrictions shall not apply to any information required by applicable law to be disclosed to any governmental entity.
11.4. Each Party acknowledges that it is solely responsible and liable for its communications relating to this Agreement, including compliance with any applicable codes, laws and/or regulations.
Form of sublicence
6. EXCHANGE OF INFORMATION AND CONFIDENTIALITY
6.1 Each Party shall hold the Confidential Information disclosed to it under or in connection with this Agreement in strict confidence, and shall not use such Confidential Information for any other purpose than the performance of this Agreement.
6.2 The Party that releases, exchanges, or discloses Confidential Information (the “Disclosing Party”) shall use reasonable efforts to mark such Confidential Information as “Confidential.” In the event that Confidential Information is disclosed and not so marked, the receiving Party agrees to treat such information as confidential to the extent that a reasonable person would consider such information to be confidential given the content and circumstances of the disclosure.
6.3 Neither Party shall disclose any Confidential Information received from the other Party (or Novartis and/or any of their Affiliates where applicable) under or in connection with this Agreement, or otherwise developed by any party in the performance of activities in furtherance of this Agreement, except to such of its officers, employees, agents, representatives, Affiliates, advisors and consultants, governing bodies (and in the case of the Licensor to Novartis and/or any of its Affiliates) to whom disclosure is necessary to exercise the Party’s rights or perform the Party’s obligations under this Agreement (and in the case of the Licensor, under the terms of the Head Licence); provided that (1) any such officers, employees, agents, representatives, Affiliates, advisors and consultants, governing bodies (and in the case of the Licensor to Novartis and/or any of its Affiliates) is bound by written obligations of confidentiality and non-use (i) at least as restrictive as those set forth in this Clause 6 and (ii) enforceable by the Disclosing Party (and where the Confidential Information belongs or relates to Novartis or its Affiliates, enforceable by Novartis) and (2) the receiving Party remains liable for the compliance of such officers, employees, agents, representatives, Affiliates, advisors and consultants, governing bodies (and in the case of the Licensor to Novartis and/or any of its Affiliates) with such obligations.
6.4 The obligations in Clauses 6.1, 6.2 and 6.3 shall not apply to the following as established by reasonable, contemporaneous written records or other proof:
(a) information which at the time of disclosure is in the public domain; or
(b) information which, after its disclosure, becomes part of the public domain by publication or otherwise part of the public domain after its disclosure, except by breach of this Agreement; or
(c) information that a Party can demonstrate was lawfully possessed by it prior to disclosure under or in connection with this Agreement; or
(d) information that a Party receives from a Third Party who had no legal or contractual obligation to the Disclosing Party (or Novartis or its Affiliates where the Confidential Information relates to or belongs to Novartis or its Affiliates) not to disclose such information to others; or
(e) information a Party is required by law to disclose, provided that the other Party is promptly notified of any such requirement; or
(f) information which is independently developed by the receiving Party or its Affiliates who had no knowledge of the Disclosing Party’s Confidential Information.
6.5 If a receiving Party becomes obligated by law to disclose Confidential Information received under or in connection with this Agreement, or any portion thereof, to any Third Party, governmental authority or court, that Party shall immediately notify the Disclosing Party of each such requirement prior to its disclosure and identify the Confidential Information to be disclosed so that such Disclosing Party (or Novartis or its Affiliates where the Confidential Information relates to or belongs to Novartis or its Affiliates) may seek an appropriate protective order or other remedy with respect to narrowing the scope of such requirement and, to the extent necessary, waive the receiving Party’s compliance with the confidentiality obligations of this Agreement.
6.6 The Parties acknowledge that disclosure of any Confidential Information in breach of this Agreement could give rise to irreparable injury to the non-breaching Party or Novartis or its Affiliates and that such injury will not be adequately compensated by damages. Accordingly, the non-breaching Party, and Novartis and its Affiliates where the non- breaching Party is the Licensor and the Confidential Information belongs to Novartis or its Affiliates, shall be entitled to the remedies of specific performance and injunctive relief or other equitable relief for any threatened or actual breach of this Clause 6. Such relief shall be in addition to all other remedies available to the non breaching Party at law or in equity.
6.7 All Confidential Information shall remain the property of the Disclosing Party, except for Confidential Information disclosed under or in connection with this Agreement relating to the business or affairs of Novartis and/or any of its Affiliates and Confidential Information disclosed by Novartis and/or its Affiliates under or in connection with this Agreement relating to the Raw Materials or Product, in each case such Confidential Information belongs to and shall remain the property of Novartis and/or its Affiliates. 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 (or Novartis and/or its Affiliates as applicable); and
(b) of the confidentiality obligations under this Agreement.
6.8 Nothing in this Agreement shall be construed as preventing or in any way inhibiting the Licensor, Licensee or Novartis from complying with statutory and regulatory requirements relating to, or arising out of, its rights under this Agreement.