Provision Language
Definitions
“Confidential Information” shall mean any confidential or proprietary information of a party, including, without limitation, information relating to any compound, product specifications, chemical structures, data, know-how, formulations, research project, work in process, future development, scientific, engineering, manufacturing, marketing, business plan, financial or personnel matter relating to such party, its present or future products, sales, suppliers, customers, employees, investors or business, whether in oral, written, graphic or electronic form, subject to the provisions of Section 5.2 hereof. Without limiting the generality of the foregoing, the terms of this Agreement shall be deemed the Confidential Information of both parties, subject to Section 5.5.
5. CONFIDENTIALITY
5.1 Confidentiality. Except to the extent expressly authorized by this Agreement or otherwise agreed in writing by the parties, the parties agree that, during the Research Term and for a period of [**] years thereafter, each party (the “Receiving Party”) will maintain in confidence all Confidential Information disclosed to it by the other party (the “Disclosing Party”), provided that, with regard to Confidential Information which is trade secret information, such obligation shall extend thereafter until such information is no longer a trade secret of the Disclosing Party. The Receiving Party may use the Confidential Information of the Disclosing Party only to the extent required to accomplish the purposes of this Agreement. The Receiving Party shall use at least the same standard of care as it uses to protect proprietary or confidential information of its own to ensure that its employees, agents, consultants and other representatives do not disclose or make any unauthorized use of the Disclosing Party’s Confidential Information. Each party will promptly notify the other upon discovery of any unauthorized use or disclosure of the other party’s Confidential Information.
5.2 Exceptions. The obligations of confidentiality contained in Section 5.1 will not apply to the extent that it can be established by the Receiving Party by competent proof that such Confidential Information: (a) was already known to the Receiving Party, other than under an obligation of confidentiality, at the time of disclosure by the Disclosing Party; (b) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the Receiving Party; (c) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the Receiving Party in breach of this Agreement; (d) is independently discovered or developed by the Receiving Party without the use of Confidential Information of the Disclosing Party; or (e) was disclosed to the Receiving Party, other than under an obligation of confidentiality, by a Third Party who had no obligation to the Disclosing Party not to disclose such information to others.
5.3 Authorized Disclosure. Notwithstanding any other provision of this Agreement, disclosure of Confidential Information shall not be precluded if such disclosure is in response to a valid order of a court or other governmental body of competent jurisdiction of the United States or any political subdivision thereof or is otherwise required by law or regulation; provided, however, that the Receiving Party shall, to the extent practicable, first have given notice to the Disclosing Party and shall have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued or the law or regulation required or to seek other confidential treatment of such information.
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5.5 Publicity; Regulatory Disclosures. It is understood that the parties intend to issue a joint press release announcing the execution of this Agreement, and the parties agree that each party may desire or be required to issue subsequent press releases or make disclosures in regulatory filings relating to this Agreement or activities hereunder. The parties agree to consult with each other reasonably and in good faith with respect to the text and timing of such press releases or other disclosures prior to the issuance thereof, provided that a party may not unreasonably withhold consent to such releases or disclosures, and that either party may issue such press releases or disclosures as it determines, based on advice of counsel, are reasonably necessary to comply with laws or regulations or for appropriate market disclosure. In addition, following the initial joint press release announcing this Agreement, either party shall be free to disclose, without the other party’s prior written consent, the existence of this Agreement, the identity of the other party and those terms of the Agreement which have already been publicly disclosed in accordance with this Section 5.5.
AMENDMENT No. 2 TO SPONSORED RESEARCH AGREEMENT
15. Confidentiality and Exceptions. Section 5.1 of the Agreement (captioned “Confidentiality”) and Section 5.2 of the Agreement (captioned “Exceptions”) shall, as of the Second Amendment Effective Date, be amended and restated as follows:
“5.1 Confidentiality. Except to the extent expressly authorized by this Agreement or otherwise agreed in writing by the parties, the parties agree that, during the Term and for a period of [**] years thereafter, each party (the “Receiving Party”) will maintain in confidence all Confidential Information disclosed to it by the other party (the “Disclosing Party”), provided that, with regard to Confidential Information which is trade secret information, such obligation shall extend thereafter until such information is no longer a trade secret of the Disclosing Party. The Receiving Party may use the Confidential Information of the Disclosing Party only to the extent required to accomplish the purposes of this Agreement. The Receiving Party shall use at least the same standard of care as it uses to protect proprietary or confidential information of its own to ensure that its employees, agents, consultants and other representatives do not disclose or make any unauthorized use of the Disclosing Party’s Confidential Information; provided, however, each party shall ensure that any such employees, agents, consultants and other representatives who are granted access to trade secrets or, prior to publication, to other potentially patentable matter for which patent protection has been or is planned to be sought, arising from the DC Research shall sign written agreements containing confidentiality obligations substantially similar to those set forth in this Agreement except that the duration of such confidentiality obligations for consultants may be less than the duration set forth in this Agreement provided that the duration shall be for a minimum of [**] years from the date of disclosure. Each party will promptly notify the other upon discovery of any unauthorized use or disclosure of the other party’s Confidential Information.
“5.2 Exceptions. The obligations of non-disclosure and non-use contained in Section 5.1 will not apply to the extent that it can be established by the Receiving Party by competent proof that such Confidential Information: (a) was already known to the Receiving Party, other than under an obligation of confidentiality, at the time of disclosure by the Disclosing Party; (b) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the Receiving Party; (c) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the Receiving Party in breach of this Agreement; (d) is independently discovered or developed by the Receiving Party without the use of Confidential Information of the Disclosing Party; or (e) was disclosed to the Receiving Party, other than under an obligation of confidentiality, by a Third Party who had no obligation to the Disclosing Party not to disclose such information to others.”
16. Publications, Presentations and Public Disclosures. Section 5.4 of the Agreement (captioned “Publication”) and Section 5.5 of the Agreement (captioned “Publicity; Regulatory Disclosures”) shall, as of the Second Amendment Effective Date, be amended and restated as follows:
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“5.5 Publicity; Regulatory Disclosures. In connection with the execution of the Second Amendment, the parties shall jointly issue one or more press releases, the contents of which shall be mutually agreed. Except as otherwise required by law or regulation, or as permitted pursuant to Section 5.4 of the Agreement, neither party shall issue any additional press release or make any other public disclosure concerning this Agreement or the subject matter hereof without first providing the other party with a copy of the proposed release or public disclosure for review and comment, provided that such right of review and comment shall only apply for the first time that specific information is to be disclosed, and shall not apply to the subsequent disclosure of substantially similar information that has previously been disclosed. The party proposing to make the press release or other public disclosure shall give due consideration to any reasonable comments by the other party relating to such proposed press release or other public disclosure. The principles to be observed by the parties in press releases or other public disclosures with respect to this Agreement shall be: accuracy, compliance with applicable legal and regulatory requirements, the requirements of confidentiality under this Agreement and customary business practice in the biopharmaceutical industry for disclosures by companies comparable to Company. For the avoidance of doubt, either party may issue such press releases as it determines, based on advice of counsel, are reasonably necessary to comply with laws or regulations (including regulations of non-governmental regulatory bodies) or for appropriate market disclosure. It is understood, however, that unless required by law or regulation, the parties shall not disclose the specific financial terms and conditions of this Agreement in any press release or other public disclosure. In addition, if a public disclosure is required by law or regulation, including without limitation in a filing with the United States Securities and Exchange Commission, the disclosing party shall provide copies of the proposed disclosure reasonably in advance of such filing or other disclosure for the non-disclosing party’s prior review and comment and shall give due consideration to any reasonable comments by the non-filing party relating to such filing, including without limitation the provisions of this Agreement for which confidential treatment should be sought.”