ARTICLE 10. Confidential Information
(1) “Disclosing Party” means the Government or the Awardee who discloses Confidential Information as contemplated by the subsequent Paragraphs.
(2) “Receiving Party” means Government or the Awardee who receives Confidential Information disclosed by a Disclosing Party.
(3) “Confidential Information” means information and materials of a Disclosing Party which are designated as confidential or as a Trade Secret in writing by such Disclosing Party, whether by letter or by use of an appropriate stamp or legend, prior to or at the same time any such information or materials are disclosed by such Disclosing Party to the Receiving Party. Notwithstanding the foregoing, materials and other information which are orally, visually, or electronically disclosed by a Disclosing Party, or are disclosed in writing without an appropriate letter, stamp, or legend, shall constitute Confidential Information or a Trade Secret (as defined below) if such Disclosing Party, within thirty (30) calendar days after such disclosure, delivers to the Receiving Party a written document or documents describing the material or information and indicating that it is confidential or a Trade Secret, provided that any disclosure of information by the Receiving Party prior to receipt of such notice shall not constitute a breach by the Receiving Party of its obligations under this Paragraph. “Confidential Information” includes any information and materials considered a Trade Secret by the Awardee. “Trade Secret” means all forms and types of financial, business, scientific, technical, economic, or engineering or otherwise proprietary information, including, but not limited to, patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if –
(a) The Disclosing Party thereof has taken reasonable measures to keep such information secret; and
(b) The information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, the public.
B. Exchange of Information: The Government shall not be obligated to transfer Confidential Information independently developed by or on behalf of the Government absent an express written agreement between the Parties involved in the exchange providing the terms and conditions for such disclosure.
C. Authorized Disclosure: The Receiving Party agrees, to the extent permitted by law, that Confidential Information shall remain the property of the Disclosing Party (no one shall disclose unless they have the right to do so), and that, unless otherwise agreed to by the Disclosing Party, Confidential Information shall not be disclosed, divulged, or otherwise communicated by it to third parties or used by it for any purposes other than in connection with specified project efforts and the licenses granted in Article 11, Intellectual Property Rights, and Article 12, Data Rights, provided that the duty to protect such “Confidential Information” and “Trade Secrets” shall not extend to materials or information that:
(a) Are received or become available without restriction to the Receiving Party under a proper, separate agreement,
(b) Are not identified with a suitable notice or legend per Article 12 entitled “Confidential Information” herein,
(c) Are lawfully in possession of the Receiving Party without such restriction to the Receiving Party at the time of disclosure thereof as demonstrated by prior written records,
(d) Are or later become part of the public domain through no fault of the Receiving Party,
(e) Are received by the Receiving Party from a third party having no obligation of confidentiality to the Disclosing Party that made the disclosure,
(f) Are developed independently by the Receiving Party without use of Confidential Information as evidenced by written records,
(g) Are required by law or regulation to be disclosed; provided, however, that the Receiving Party has provided written notice to the Disclosing Party promptly so as to enable such Disclosing Party to seek a protective order or otherwise prevent disclosure of such information.
D. Return of Proprietary Information: Upon the request of the Disclosing Party, the Receiving Party shall promptly return all copies and other tangible manifestations of the Confidential Information disclosed. As used in this section, tangible manifestations include human readable media as well as magnetic and digital storage media.
E. Term: The obligations of the Receiving Party under this Article shall continue for a period of seven (7) years from conveyance of the Confidential Information.
F. The Government shall flow down the requirements of this Article 10 to their respective personnel, member entities, agents, and Awardees (including employees) at all levels, receiving such Confidential Information under this Agreement.
ARTICLE 15. Scientific Publications and Press Releases
D. The Parties will jointly agree on whether to issue one or more press releases related to the resulting Data. If all Parties agree that one or both Parties will issue a press release, each Party will also have the right to review and agree on the content in advance of its publication. Other parties, if any, contributing to the studies, will have review rights and will be appropriately accredited in the press release. For data generated in studies executed by Awardee outside the scope of this Agreement, the Awardee, at its sole discretion, may issue a press release related to such data.
ARTICLE 16. Miscellaneous Clauses
D. Disclosure of Information. Subject to Article 10, the Awardee shall not release to anyone outside the Awardee’s organization any unclassified information, regardless of medium (e.g., film, tape, document), pertaining to any part of this Agreement or any program related to this Agreement, unless (i) the OTAO has given prior written approval or (ii) the information is otherwise in the public domain before the date of release. For purposes of this clause, Awardee’s Organization includes entities identified as Collaborators in Appendix A Table 1.