CONFIDENTIAL DISCLOSURE AGREEMENT
This agreement, effective as of October 26, 1999 between Biosyntech
Limited, having its place of business at 000, Xxxx. Xxxxxx-Xxxxxxxx, Xxxxxxxx
(Xxxxx) XX Xxxxxx H7V 4B3("Company"), and Ontogeny, Inc., a Delaware corporation
having its place of business at 00 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000
("Ontogeny").
1. BACKGROUND. Company and Ontogeny intend to engage in discussions and
negotiations concerning the establishment of a business relationship between
them. In connection with such discussions and negotiations, it is anticipated
that Company may disclose or deliver to Ontogeny certain of its trade secrets or
confidential or proprietary information in the field of Gel-based delivery
systems (the "Company Field") and that Ontogeny may disclose or deliver to
Company certain of its trade secrets or confidential or proprietary information
in the field of growth/inducing factors (the "Ontogeny Field") for the purpose
of enabling the other party to evaluate the feasibility of such business
relationship. The parties have entered into this Agreement in order to assure
the confidentiality of such trade secrets and confidential or proprietary
information in accordance with the terms of this Agreement. As used in this
Agreement, the party disclosing Proprietary Information (as defined below) is
referred to as the "Disclosing Party"; the party receiving such Proprietary
Information is referred to as the "Recipient".
2. PROPRIETARY INFORMATION. As used in this Agreement, the term
"Company Proprietary Information" shall mean any and all information, data
specifications, techniques, formulae, manufacturing processes, and other
information in or concerning the Company Field disclosed in writing by Company
to Ontogeny (or if orally or visually disclosed, confirmed in writing within 30
days of such disclosure) and designated as confidential. As used in this
Agreement, the terms "Ontogeny Proprietary Information" shall mean any and all
information, data, specifications, techniques, formulae, manufacturing
processes, and any other information in or concerning the Ontogeny Field
disclosed in writing by Ontogeny to Company (or if orally or visually disclosed,
confirmed in writing within 30 days of such disclosure) and designated as
confidential. Company Proprietary Information and Ontogeny Proprietary
Information are collectively referred to herein as "Proprietary Information".
3. TERM. The provisions of this Agreement shall remain in force for
five years from the date of this Agreement. ----
4. DISCLOSURE OF PROPRIETARY INFORMATION. The Recipient shall hold in
confidence, and shall not disclose to any person outside its organization, any
Proprietary Information. The Recipient shall use such Proprietary Information
only for the purpose for which it was disclosed and shall not use or exploit
such Proprietary Information for its own benefit or the benefit of another
without the prior written consent of the Disclosing Party. The Recipient shall
disclose Proprietary Information received by it under this Agreement only to
persons within its organization who have a need to 'know such Proprietary
Information in the course of the performance of their duties and who are bound
to protect the confidentiality of such Proprietary Information.
5. LIMITATION ON OBLIGATIONS. The obligations of the Recipient
specified in Section 4 above shall not apply, and the Recipient shall have no
further obligations, with respect to any Proprietary Information to the extent
that such Proprietary Information:
(a) is known to the public at the time of disclosure or becomes so
known through no wrongful act on the part of the Recipient, but only after it
becomes so publicly known;
(b) is in the Recipient's possession at the time of disclosure as
evidenced by written records;
(c) becomes known to the Recipient through disclosure by sources not
under an obligation to the disclosing party to maintain such information in
confidence; or
(d) is independently developed by or on behalf of the Recipient by an
individual or individuals not having received Proprietary Information hereunder;
Notwithstanding the above, the Recipient may disclose such Proprietary
Information as may be required to comply with applicable laws or governmental
regulations, provided that the Recipient provides notice to the Disclosing Party
of this request promptly prior to any disclosure to permit the Disclosing Party
to oppose such disclosure by appropriate legal action or to evaluate whether
means can be taken to provide such disclosure on a confidential basis.
6. NO LICENSe. It is understood that no right to a license, implied or
otherwise, under any patent or other rights now or hereafter owned or controlled
by the Disclosing Party, is granted to the Recipient by this Agreement and that
the disclosure of information does not grant any party any right in and to such
information.
7. RETURN OF DOCUMENTS. The Recipient shall, upon the request of the
Disclosing Party, return to the Disclosing Party all drawings, documents and
other tangible manifestations of Proprietary Information received by the
Recipient pursuant to this Agreement (and all copies and reproductions thereof),
except that the Recipient may retain one copy thereof solely for the purpose of
determining the extent of its obligations hereunder.
8. MISCELLANEOUS.
(a) This Agreement supersedes all prior agreements, written or oral,
between the Disclosing Party and the Recipient relating to the subject matter of
this Agreement. This Agreement may not be modif ed, changed or discharged, in
whole or in part, except by an agreement in writing signed by the Disclosing
Party and the Recipient.
(b) This Agreement will be binding upon and inure to the benefit of the
parties hereto and their respective heirs, successors and assigns.
(c) The obligations and rights of the parties under this Agreement
shall be governed by the internal laws of the Commonwealth of Massachusetts,
U.S.A., without reference to its conflict of laws rules.
(d) Each party acknowledges that disclosure of the Proprietary
Information of the other party or use of the Proprietary Information of the
other party contrary to the provisions of this Agreement is likely to cause
irreparable harm to the Disclosing Party for which damages at law may not be an
adequate remedy, and the Recipient agrees that the Disclosing Party shall be
entitled to injunctive relief to enjoin the
breach of any provisions of this Agreement or to specifically enforce any of the
Recipient's obligations hereunder. Notwithstanding, but not in limitation of the
foregoing, the Recipient shall be responsible to the Disclosing Party for any
damages arising from the breach by the Recipient of any of the covenants and
obligations on its part to be observed or performed under this Agreement, in
addition to any and all other remedies available to the Disclosing Party at law
or in equity.
(e) The parties shall adhere to the U.S. Export Administration Laws and
Regulations and shall not export or re-export any technical data received from
any other party hereunder or the direct product of such technical data to any
proscribed country listed in the U.S. Export Administration Regulations unless
properly authorized by the U.S. Government.
EXECUTED as a sealed instrument as of the day and year first set forth
above.
BioSyntech Limited
By: /s/ Xxxxxxxx Xxxxxxx
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Xxxxxxxx Xxxxxxx
Title: Vice President R&D
Ontogeny, Inc.
By: /s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx
Title: Senior V.P., Business Development
