(a) For this purposes of this Section 7, “Confidential Information” means, without limitation, all technical, business, financial, legal, marketing, business process, intellectual property, security, procurement or strategic information and data and related information, or any part or portion of information that:
(i) is non-public and confidential, privileged or proprietary in nature;
(ii) may have actual or potential economic value, in part, from not being publicly known;
(iii) is in any form (i.e. fixed, stored, expressed or embodied);
(iv) is disclosed in writing, orally, or otherwise;
(v) is treated as confidential, but not required to be marked or identified as confidential at the time of disclosure; and
(vi) is owned or controlled by Roche, UK or a third party.
For clarity, “Confidential Information” includes this Agreement and any discussions and correspondence relating thereto which shall be deemed Confidential Information of each Party.
(b) Subject to the remaining provisions of this Section 7, each Party agrees that with respect to the other Party’s Confidential Information it shall not, during and for [REDACTED] , (i) use the other Party’s Confidential Information except for the purposes contemplated by or authorised by this Agreement, unless otherwise authorized in writing by the other Party; (ii) disclose or transfer the other Party’s Confidential Information to third parties without the express written permission of the other Party. Provided, however, that the Parties are authorized to disclose Confidential Information to their directors, officers, employees, agents or representatives and those of their affiliates (which in the case of UK includes the UK Affiliates as defined in Section 5(b)) including their respective solicitors, accountants, financial advisors and other consultants who require said Confidential Information for the purposes contemplated by this Agreement (hereinafter referred to as “Advisors”) , provided that such Advisors are made aware of and agree to be bound by the provisions of this Agreement. Notwithstanding the foregoing, each Party agrees to be responsible for any breach of this Section by any of its Advisors, whether or not they have agreed to be bound by the terms of this Agreement.
(c) It is expressly understood and agreed by each Party that the obligations of confidentiality herein shall not apply to any Confidential Information disclosed to a Party (a “receiving Party“) which: (i) the receiving Party can demonstrate by written records was known to the receiving Party before the date of disclosure hereunder; (ii) is now, or becomes in the future, publicly available other than by breach of this Section 7 by the receiving Party or its Advisors; (iii) is lawfully disclosed to receiving Party on a non- confidential basis by a third party who is not obligated to the disclosing Party or any other party obligated to the disclosing Party to retain such Confidential Information in confidence; (iv) is independently developed by receiving Party in the course of work by employees or consultants of receiving Party or its affiliates (which, in the case of UK, includes the UK Affiliates) who have not had access to such Confidential Information; (v) receiving Party is required by any Law, regulation, or legal process to disclose, in which event receiving Party shall, where lawful and reasonably possible, provide the disclosing Party with prompt notice of such requirement and provide the disclosing Party (at the disclosing Party’s cost) with reasonable assistance should the disclosing Party seek a protective order or other appropriate remedy to prevent or limit disclosure. In addition to the foregoing, Roche agrees that the obligations of confidentiality herein shall not apply to the extent Confidential Information of Roche is required to be disclosed (but with any information which is exempt from disclosure in accordance with the provisions of the FOIA or the Environmental Regulations redacted) in order to ensure the compliance of UK and UK Affiliates with any Law including, but not limited to, the Freedom of Information Act 2000 (c.36) (“FOIA“), Codes of Practice on Access to Government Information, on the Discharge of Public Authorities’ Functions or on the Management of Records (“Codes of Practice“) or the Environmental Information Regulations 2004 (SI 2004/3391) (“Environmental Regulations“), provided, however, that UK and UK Affiliates have provided advance notice of the impending disclosure to Roche and have provided further that they shall only disclose the information to the extent necessary to comply with such Laws and shall redact any Confidential Information which is not required to be disclosed under such Laws.
(d) Notwithstanding section 7(a), but subject to section 7(e), neither Party may disclose the existence and subject matter of this Agreement, including in any press release or public announcement, without the prior written consent of the other Party provided that, upon the request of a Party, the other Party will cooperate in good faith with such requesting Party in making a press release relating to this Agreement, the subject matter hereof and the transactions contemplated hereby.
(e) Notwithstanding section 7(a) or 7(d), Roche hereby gives consent for UK and UK Affiliates to publish this Agreement in its entirety (but with any information which is exempt from disclosure in accordance with the provisions of the FOIA or the Environmental Regulations being redacted), including from time to time agreed changes to this Agreement, to the general public provided that within 90 days following the Effective Date and prior to such publication UK and Roche shall consult, in good faith, as to the form of a redacted version of this Agreement.
(f) Notwithstanding section 7(a), UK will be permitted to disclose Confidential Information of Roche that is reasonably necessary to disclose under applicable Law, and under compliance with the privacy, confidentiality and proactive disclosure policy regimes of the Government of UK for the purposes of government administration and operations provided that it informs Roche of the intended disclosure and the extent and nature of the disclosure. For greater clarity, this includes:
(i) where the need for such disclosure arises out of or in connection with any legal challenge or potential legal challenge against UK arising out of or in connection with this Agreement;
(ii) where the need for such disclosure arises out of or in connection with the examination and certification of UK’s accounts (provided that the disclosure is made on a confidential basis) or for any examination pursuant to section 6(1) of the National Audit Act 1983 of the economy, efficiency and effectiveness with which UK is making use of any services provided under this Agreement;
(iii) where the need for such disclosure arises out of or in connection with the conduct of a Central Government Body review in respect of this Agreement;
(iv) UK has reasonable grounds to believe that Roche is involved in activity that may constitute a criminal offence under the Bribery Act 2010 and the disclosure is being made to the Serious Fraud Office;
(v) on a confidential basis to any Central Government Body for any proper purpose of UK or of the relevant Central Government Body;
(vi) to Parliament and Parliamentary Committees or if required by any Parliamentary reporting requirement;
(vii) to the extent that UK (acting reasonably) deems disclosure necessary or appropriate in the course of carrying out its public functions.
(g) Where UK or a UK Affiliate is managing a request under FOIA, Codes of Practice or Environmental Regulations, Roche shall co-operate with UK or UK Affiliate and shall respond within [REDACTED] of any request for assistance in determining how to respond to such request for disclosure. Roche shall provide all necessary assistance as reasonably requested by UK or UK Affiliate to enable UK or UK Affiliate to respond to such request for information within the relevant statutory time limit for compliance, including providing a copy of all information in its possession or power in the form UK or UK Affiliate requires within [REDACTED]
(h) UK and UK Affiliates shall consult with Roche regarding their decisions as to any exemptions and/or redactions which may be applicable to Confidential Information, however the decision on whether any exemption/redaction applies is a decision solely for UK and UK Affiliates. UK and UK Affiliates will follow their own internal policies together with any applicable guidelines, including any published by the Treasury, the Cabinet Office or the Information Commissioner.
(i) Where Roche receives any request for information, as defined under section 8 of the FOIA or the Environmental Regulations, Roche shall transfer such request to UK as soon as practicable after receipt and in any event within [REDACTED] of receipt. Roche shall not respond directly to a request for information addressed to UK unless authorised in writing to do so by UK.