Provision Language
Definitions
“Confidential Information” shall mean any and all information, data or know-how (including without limitation Know-How),whether technical or non-technical, oral or written, that is disclosed by one Party (or the Foundation) or its Affiliates (“Disclosing Party”) to the other Party (or the Foundation) or its Affiliates (“Receiving Party”). Confidential Information shall not include any information, data or know-how that:
(i) was generally available to the public at the time of disclosure, or information that becomes available to the public after disclosure by the Disclosing Party other than through fault (whether by action or inaction) of the Receiving Party,
(ii) can be shown by cogent written records to have been already known to the Receiving Party prior to its receipt from the Disclosing Party,
(iii) is obtained by the Receiving Party at any time lawfully from a Third Party without obligations of non-use or non-disclosure,
(iv) is developed independently by the Receiving Party as evidenced by written records other than through knowledge of Confidential Information of the Disclosing Party, or
(v) is approved in writing by the Disclosing Party for release by the Receiving Party.
The terms of this Agreement and the SRA shall be considered Confidential Information of both Parties and Foundation.
19. Obligation Not to Disclose Confidential Information
19.1 Non-Use and Non-Disclosure. During the Term of this Agreement and for [**] years thereafter, a Receiving Party shall (i) treat Confidential Information provided by a Disclosing Party as it would treat its own information of a similar nature, (ii) take all reasonable precautions not to disclose such Confidential Information to Third Parties or Sublicensees without the Disclosing Party’s prior written consent, and (iii) not use such Confidential Information other than for fulfilling its obligations or exercising its rights under this Agreement or the SRA.
19.2 Permitted Disclosure. Notwithstanding the obligation of non-use and non-disclosure set forth in Section 19.1, the Parties and the Foundation recognize the need for certain exceptions to this obligation, specifically set forth below, with respect to press releases, Patent Rights, publications, and certain commercial considerations. In addition, a Receiving Party shall not be bound by the obligation of non-disclosure set forth in Section 19.1 to the extent it is required to disclose Confidential Information of a Disclosing Party to comply with applicable Law, provided that the Receiving Party furnishes prompt notice (in no event less than [**] days unless otherwise required by applicable Law) to the Disclosing Party to enable it to resist or minimize the scope of such disclosure.
19.3 Disclosure to Foundation. To the extent reasonably necessary or useful to fulfill the requirements or accomplish the objectives of the SRA or this Agreement, each Party may disclose the other Party’s Confidential Information to the Foundation and the Foundation’s Confidential Information to the other Party, and the Foundation may disclose a Party’s Confidential Information to the other Party.
19.4 Press Releases and Other Disclosures. The Parties and the Foundation will cooperate in the release of a joint press release, substantially in the form set forth in Appendix 19.4, as soon as practicable after the Effective Date. The Parties and the Foundation also recognize that each Party or the Foundation may from time to time desire to issue additional press releases and make other public statements or disclosures regarding the subject matter of this Agreement or the SRA (if the Disclosing Party is PTC or the Foundation). In such event, the Party desiring to issue an additional press release or make a public statement or disclosure (or the Foundation, as applicable) shall provide the other Party and the Foundation, or the Parties, as applicable, with a copy of the proposed press release, statement or disclosure for review, comment and approval at least [**] Business Days in advance (or such shorter period as would permit the publicizing Party (or the Foundation, as applicable) to comply with applicable Law), which advance approval shall not be unreasonably withheld, conditioned or delayed (except that neither Party nor the Foundation shall have any obligation to disclose Confidential Information except to the extent required or permitted pursuant to the other provisions of this Article 19). Each reviewing Party(and the Foundation, as applicable) shall notify the publicizing Party (or the Foundation, as applicable) within such [**] Business Days period (or such shorter period) of its comments and whether it approves such disclosure. It is agreed that each such disclosure shall only be done with such approval of each reviewing Party (and the Foundation, as applicable) and no other public statement or disclosure concerning the existence or terms of this Agreement or the SRA shall be made, either directly or indirectly, by either Party or the Foundation, without first obtaining the written approval of the other Party and the Foundation, or the Parties, as applicable. Notwithstanding the foregoing provisions of this Section 19.4 or the other provisions of this Article 19, (i) a Party or the Foundation may make any disclosure or public announcement if the contents of such disclosure or public announcement have previously been made public other than through a breach of this Agreement by the issuing Party (or the Foundation, as applicable); (ii) if a Party or the Foundation reasonably determines that a public disclosure shall be required by Law, including without limitation in a public filing with the US Securities and Exchange Commission, such Party (or the Foundation, as applicable) may disclose the existence and terms of this Agreement and any material developments that occur under this Agreement where so required; provided that such Party (or the Foundation, as applicable) shall, to the extent practicable and permitted by applicable Law, notify the other Party and the Foundation, or the Parties, as applicable, and allow the other Party and the Foundation, or the Parties, as applicable to comment on the proposed disclosure, which comments shall be con side red by the disclosing Party (or the Foundation, as applicable) in good faith; (iii) a Party or the Foundation may disclose the terms of this Agreement under obligations of confidentiality to bona fide potential or actual advisors, consultants, investors, acquirers, lenders, investment bankers or other potential financial partners in connection with such Party’s (or the Foundation’s) proposed financing or business combination activities, including without limitation any Reverse Merger; and (iv) Roche may disclose the terms of this Agreement to bona fide potential or actual Sublicensees, as reasonably necessary in connection with a permitted sublicense under the licenses granted in this Agreement.
[…]
19.6 Commercial Considerations. Nothing in this Agreement shall prevent either Party from disclosing Confidential Information of the other Party or the Foundation, or the Parties, as applicable (i) to Regulatory Authorities, to the extent necessary to obtain or maintain INDs or Regulatory Approvals for anyProduct as permitted under this Agreement; (ii) to outside consultants, scientific advisory boards, and clinical investigators to the extent necessary to research, develop or commercialize any Compound or Product in accordance with this Agreement; provided that such Party, as applicable, shall obtain confidentiality obligations from such Third Parties substantially similar to the confidentiality provisions set forth in this Article 19; and (iii) to the extent necessary to Handle, defend and enforce Roche Patent Rights, PTC Patent Rights or Joint Patent Rights, in each of the foregoing cases, to the extent applicable to such Party’s activities under this Agreement.