Provision Language
Definitions
“Confidential Information” means (i) in the case of Council, Council Know-How and financial or other non-scientific or non-technical business information regarding Council or its Affiliates made available to LICENSEE, Program Improvements, and any and all know-how and information relating to the Licensed Product or the use, development, manufacturing, or Commercialization of any of the foregoing; (ii) in the case of LICENSEE, all know-how and information relating to LICENSEE products other than the Licensed Product (whether commercialized or in development), or the use, development, manufacturing, or Commercialization of any of the foregoing; and (iii) in the case of either Party, clinical or regulatory affairs, and financial or other non-scientific or non-technical business information regarding such Party or its Affiliates or its sublicensees made available to the other Party; and in each case, which is owned or Controlled by the applicable Party hereto or any of its Affiliates. Confidential Information may exist in written, electronic or graphic form and may be disclosed orally. Notwithstanding the foregoing, Confidential Information will not include:
(a) information which is or becomes part of the public domain through no breach of this Agreement by the recipient or any of its Affiliates;
(b) information which the recipient can demonstrate by its written records was known by the recipient or any of its Affiliates prior to the disclosure thereof by the disclosing Party;
(c) information which is independently developed by the recipient or any of its Affiliates, so long as such development does not result from use of Confidential Information of the other Party, and such independent development can be demonstrated by written records of the Party claiming such independent development or any of its Affiliates; and
(d) information that becomes available to the receiving Party or its Affiliates on a non-confidential basis, whether directly or indirectly, from a Third Party who is not bound by a duty of confidentiality to the non-disclosing party.
XI. CONFIDENTIAL INFORMATION
11.1 Confidentiality
11.1.1 During the Product Term and at all times thereafter, each Party will use commercially reasonable efforts to keep, and cause its Affiliates and permitted sublicensees, if any, to keep confidential all Confidential Information of the other Party, and neither Party nor any of its Affiliates or sublicensees, if any, will use or disclose the Confidential Information of the other Party except as expressly permitted in this Agreement. The Parties acknowledge that Confidential Information may have been disclosed by either Party or its Affiliates to the other Party or its Affiliates pursuant to the Confidentiality Agreement. All information disclosed pursuant to the Confidentiality Agreement will be deemed Confidential Information of the disclosing Party within the meaning of this Agreement and subject to the terms hereof.
11.2 Disclosure to Investors; Public Announcements. Prior to making any public announcement or other disclosure regarding this Agreement, the Parties will agree in writing on an initial press release of the transaction contemplated by this Agreement (the “Initial Press Release”). The Initial Press Release may be issued or used by any Party individually or by the Parties jointly on or after the Effective Date. Other than the Initial Press Release and any information described therein, neither Party will disclose the specific terms described in this Agreement without the prior written approval of the other Party, except such announcements or disclosures, as in the opinion of the counsel for the Party making such announcement or disclosure, are required by law or regulation (including, without limitation, the regulations or rules of any stock exchange or similar self-governing body) If a Party decides to make an announcement or disclosure it believes to be required by law or regulation with respect to this Agreement or the subject matter hereof, it will give the other Party such notice as is reasonably practicable and the Parties will work together in good faith to attempt to agree on the content of the disclosure; provided, however, that if such announcement or disclosure is required to be made immediately pursuant to any applicable law or regulation, then no such agreement will be required, and provided further that the Party deciding to make such an announcement shall have the final decision making authority with respect to the form, content and timing of such disclosure.
11.3 Required Disclosure. The receiving Party will be entitled to disclose Confidential Information where such disclosure is reasonably necessary to enforce its rights pursuant to this Agreement or where demand for such disclosure is made on the receiving Party pursuant to: (i) a valid order of a court or other governmental body or (ii) any other applicable law or regulation; provided that if the receiving Party intends to make such disclosure or receives such demand, the receiving Party will give the disclosing Party prompt notice of such fact to enable the disclosing Party to seek a protective order or other appropriate remedy concerning any such disclosure. The receiving Party will fully co-operate with the disclosing Party at the disclosing Party’s expense in connection with the disclosing Party’s efforts to obtain any such order or other remedy. If any such order or other remedy does not fully preclude disclosure, the receiving Party will make such disclosure only to the extent that such disclosure is legally required.
11.4 Use of Council’s Name. LICENSEE will not use or refer to Council’s name, in writing or otherwise, except (1) with the approval of Council in accordance with the following sentence of this clause, (ii) by disseminating informational materials furnished by Council or (iii) in order to comply with any requirement of the FDA or any other requirement of applicable law. Prior to each proposed use of Council’s name (other than pursuant to clause (ii) above), LICENSEE will submit to Council a sample of such proposed use. Not later than the tenth Business Day (the “Notice Deadline”) after the date of its receipt of such sample, Council will notify LICENSEE in writing (the “Use Notice”) whether it approves such proposed use, which approval will not be unreasonably withheld. If Council does not deliver the Use Notice on or before the Notice Deadline, Council will be deemed to have approved such use. When using Council’s name in any promotional and other materials or public information generated by LICENSEE relating to the Licensed Product, LICENSEE will credit Council for its role in inventing and developing the Licensed Product.