Provision Language
Definitions
“Confidential Information” means, with respect to a Party, all non-public, confidential or proprietary Information of such Party that is disclosed to the other Party (or its employees, consultants, Affiliates, officers, directors, attorneys, accountants, advisors or agents) on or after the Effective Date, whether in oral, written, graphic, or electronic form, together with otherInformation which a reasonable person would conclude is intended to remain confidential due to its nature or the circumstances under which it is disclosed. All Information disclosed by either Party pursuant to the Confidential Disclosure Agreement betweenthe Parties dated June 10, 2013, as amended as of June 10, 2014, shall be deemed to be such Party’s Confidential Information disclosed hereunder.
ARTICLE 12. CONFIDENTIALITY
12.1. Confidentiality. Except to the extent expressly authorized by this Agreement or otherwise agreed in writing by the Parties, each Party agrees that it shall keep confidential and shall not publish or otherwise disclose and shall not use for any purpose other than as provided for in this Agreement (which includes the exercise of any rights or the performance of any obligations hereunder) any Confidential Information of the other Party pursuant to this Agreement. The foregoing confidentiality and non-use obligations shall not apply to any portion of the Confidential Information that the receiving Party can demonstrate by competent written proof:
(a) was already known to the receiving Party or its Affiliate, other than under an obligation of confidentiality, at the time of disclosure by the other 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 subsequently disclosed to the receiving Party or its Affiliate by a Third Party who has a legal right to make such disclosure; or
(e) is subsequently independently discovered or developed by the receiving Party or its Affiliate without the aid, application, or use of the disclosing Party’s Confidential Information, as evidenced by a contemporaneous writing.
12.2. Authorized Disclosure. Notwithstanding the obligations set forth in Section 12.1, a Party may disclose the other Party’s Confidential Information and the terms of this Agreement to the extent:
(a) such disclosure: (i) is reasonably necessary for the filing or prosecuting patent rights as contemplated by this Agreement; or (ii) is reasonably necessary for the prosecuting or defending litigation as contemplated by this Agreement;
(b) such disclosure is reasonably necessary: (i) to such Party’s directors, attorneys, independent accountants or financial advisors for the sole purpose of enabling such directors, attorneys, independent accountants or financial advisors to provide advice to the receiving Party; provided that in each such case on the condition that such directors, attorneys, independent accountants and financial advisors are bound by confidentiality and non-use obligations consistent with those contained in this Agreement; or (ii) to actual or potential investors or acquirers solely for the purpose of evaluating an actual or potential investment or acquisition; provided that in each such case on the condition that such actual or potential investors or acquirers are bound by confidentiality and non-use obligations consistent with those contained in this Agreement;
(c) such disclosure is required by judicial or administrative process; provided that in such event such Party shall promptly inform the other Party such required disclosure and provide the other Party an opportunity to challenge or limit the disclosure obligations. Confidential Information that is disclosed by judicial or administrative process shall remain otherwise subject to the confidentiality and non-use provisions of this Article 12, and the Party disclosing Confidential Information pursuant to law or court order shall take all steps reasonably necessary, including seeking of confidential treatment or a protective order to ensure the continued confidential treatment of such Confidential Information;
(d) such disclosure is reasonably necessary to its collaborators in its respective territory (including contract research organizations, hospitals, doctors, consultants, subcontractors and Affiliates) for the purpose of the Development, Manufacture or Commercialization of the Products, solely for the purpose of carrying out such collaboration, on the condition that such collaborators are bound by confidentiality and non-use obligations consistent with those contained in this Agreement;
(e) such disclosure is reasonably necessary to its potential collaborators to have such potential collaborators to evaluate the possibility of entering into an agreement with the disclosing Party on condition that such potential collaborators are bound by confidentiality and non-use obligations consistent with those contained in this Agreement; or
(f) in the case of disclosure of SIIL’s Confidential Information by Visterra, such disclosure is made to MIT as required by the terms of the MIT Agreement.
12.3. Publication.
(a) Visterra shall develop and present to the JSC for its review and comment a global branding strategy for Products in the Field throughout the world, including a life cycle plan, brand vision, positioning, key messaging, concept and imagery, brand public relations and supporting market research (a “Publication Strategy”).
[…]
12.4. Publicity; Use of Names. Subject to Section 12.2 and the rest of this Section 12.4, no disclosure of the terms of this Agreement may be made by either Party or its Affiliates, and no Party shall use the name, trademark, trade name or logo of the other Party, its Affiliates or their respective employee(s) in any publicity, promotion, news release or other public disclosure relating to this Agreement or its subject matter, without the prior express written permission of the other Party, except as may be required by law.
(a) A Party may disclose this Agreement and its terms in filings with the Securities Exchange Commission (or equivalent foreign agency) (“SEC”), tax authorities, bankers (in connection with payments from SIIL), governmental authorities or other regulatory agencies to the extent required by law after complying with the procedures set forth in this Section 12.4. In such event, the Party seeking such disclosure shall prepare a draft confidential treatment request and a proposed redacted version of this Agreement to request confidential treatment for this Agreement, and the other Party agrees to promptly (and in any event, no less than [**]Business Days after receipt of such confidential treatment request and proposed redactions) give its input in a reasonable manner in order to allow the Party seeking disclosure to file its request within the time lines proscribed by applicable regulations. The Party seeking such disclosure shall exercise Commercially Reasonable Efforts to obtain confidential treatment of this Agreement from the SEC or other regulatory agency as represented by the redacted version reviewed by the other Party.
(b) Further, each Party acknowledges that the other Party may be legally required to make public disclosures (including in filings with the SEC or other agency) of certain material developments or material information generated under this Agreement and agrees that each Party may make such disclosures as required by law; provided that, where possible, the Party seeking such disclosure first provides the other Party a copy of the proposed disclosure; and provided further that (except to the extent that the Party seeking disclosure is required to disclose such information to comply with applicable Laws) if the other Party demonstrates to the reasonable satisfaction of the Party seeking disclosure, within [**] Business Days of such Party’s providing the copy, that the public disclosure of previously undisclosed information shall materially adversely affect the Development or Commercialization of a Product being developed or commercialized, the Party seeking disclosure shall remove from the disclosure such specific previously undisclosed information as the other Party shall reasonably request to be removed.
(c) Notwithstanding the foregoing, the Parties will agree on language of a press release announcing the collaboration no later than thirty (30) days after the execution of this Agreement by both Parties and shall issue such press release promptly thereafter.
(d) The Parties agree that after a disclosure pursuant to Sections 12.4(a) or 12.4(b) has been reviewed and approved by the other Party, the disclosing Party may make subsequent public disclosures or issue a press release disclosing the same content without having to obtain the other Party’s prior consent and approval.
12.5. Non-Use of MIT Names. SIIL and its Affiliates shall not use the name of “Massachusetts Institute of Technology,” “Lincoln Laboratory” or any variation, adaptation, or abbreviation thereof, or of any of its trustees, officers, faculty, students, employees, or agents, or any trademark owned by MIT, or any terms of the MIT Agreement in any promotional material or other public announcement or disclosure.
12.6. Equitable Relief. Each Party and its Affiliates acknowledge that a breach of this Article 12 cannot reasonably or adequately be compensated in damages in an action at law and that such a breach shall cause the other Party irreparable injury and damage. By reason thereof, each Party and its Affiliates agree that the other Party shall be entitled, in addition to any other remedies it may have under this Agreement or otherwise, to preliminary and permanent injunctive and other equitable relief to prevent or curtail any breach of the obligations relating to Confidential Information set forth herein by the other Party.
12.7. Obligation Period. The obligations of the Parties under this Article 12 shall continue for a period of [**] years after the expiration of, or [**] years after the earlier termination of, this Agreement.