Exclusions from Nondisclosure Obligation. The nondisclosure and nonuse obligations in Section 6.1 (General Confidentiality Obligations) shall not apply to that part of the Confidential Information of which the receiving Party can establish by competent written proof that it:
a) was publicly known at the time of disclosure;
b) has become publicly known after disclosure, by publication or otherwise, except by breach of this Agreement by the receiving Party;
c) was in the receiving Party’s lawful possession at the time of disclosure hereunder;
d) was received by such Party from a third party who has the lawful right to disclose the Confidential Information and who shall not have obtained the Confidential Information either directly or indirectly from the disclosing Party; or
e) was independently developed by the receiving Party, without reference to Confidential Information of the disclosing Party.
Exclusions from Nondisclosure Obligation. Information shall not be considered Confidential Information of a Party (the “Disclosing Party”) and the nondisclosure and nonuse obligations in Section 6.1 (General Confidentiality Obligations) shall not apply to the extent that the other Party (the “Receiving Party”) can establish by competent written proof that such information: (a) was publicly known at the time of disclosure (or generation, as applicable); (b) after disclosure (or generation, as applicable), becomes publicly known by publication or otherwise, except by breach of this Agreement by the Receiving Party; (c) was in the Receiving Party’s possession at the time of disclosure hereunder; (d) is received by the Receiving Party from a Third Party who has the lawful right to disclose the Confidential Information and who shall not have obtained the Confidential Information either directly or indirectly from the Disclosing Party; or (e) is independently developed by the Receiving Party (i.e., without reference to Confidential Information of the disclosing Party); provided, however, that Adimab shall not be permitted to avail itself of: (i) the exceptions set forth in the foregoing clauses (c) and (e) during the Evaluation Term with respect to Sequence information as to Adimab RSV Antibodies; (ii) the exception set forth in the foregoing clause (c) during the Post-Exercise Term with respect to Sequence information with respect to the CDRs of Adimab RSV Antibodies; or (iii) the exception set forth in the foregoing clause (e) during the Post-Exercise Term with respect to Sequence information with respect to the CDRs of Adimab RSV Antibodies except to the extent that such Sequences are independently rediscovered by Adimab without use of any Confidential Information of Arsanis or any Arsanis Materials.
Exclusions from Nondisclosure Obligation. The nondisclosure and nonuse obligations in Section 10.1 shall not apply to any Confidential Information to the extent that the Receiving Party can establish by competent written proof that it:
(a) at the time of disclosure is publicly known;
(b) after disclosure, becomes publicly known by publication or otherwise, except by breach of this Agreement by such Party;
(c) was in such Party’s possession prior to disclosure by the Disclosing Party hereunder without any obligation of confidentiality with respect to such information;
(d) is received by such Party from a Third Party who has the lawful right to disclose the Confidential Information and who has not obtained the Confidential Information either directly or indirectly from the Disclosing Party; or
(e) is independently developed by or for such Party without reference to Confidential Information of the Disclosing Party. Notwithstanding the foregoing: (i) the fact that certain technology becomes publicly known shall not release a Party from the obligation to keep confidential (and not use) the information that such technology is practiced (or not practiced) by the other Party; and (ii) the fact that individual features or combinations of features of a technology are or may become publicly known shall not be deemed to indicate that the overall combination is publicly known or disclosed and shall not allow the Party to whom individual features or combinations of features of a technology was disclosed under this Agreement to disclose (or practice) such individual features or combinations of features of a technology outside the scope of a license granted to such Party under this Agreement.
Exclusions from Nondisclosure Obligation. The nondisclosure and nonuse obligations in Section 6.1 (General Confidentiality Obligations) shall not apply to any Confidential Information to the extent that the receiving Party can establish by competent written proof that it:
(a) at the time of disclosure is publicly known;
(b) after disclosure, becomes publicly known by publication or otherwise, except by breach of this Agreement by such Party;
(c) was in such Party’s possession at the time of the earlier of disclosure hereunder and disclosure under the agreement referred to in Section 6.1 (General Confidentiality Obligations);
(d) is received by such Party from a Third Party who has the lawful right to disclose the Confidential Information and who shall not have obtained the Confidential Information either directly or indirectly from the disclosing Party; or
(e) is independently developed by such Party (i.e., without reference to Confidential Information of the disclosing Party).
Exclusions from Nondisclosure Obligation. The nondisclosure and nonuse obligations in Section 6.1 shall not apply to any Confidential Information to the extent that the receiving Party can establish by competent written proof that it:
(a) at the time of disclosure is publicly known;
(b) after disclosure, becomes publicly known by publication or otherwise, except by breach of this Agreement by such Party;
(c) was in such Party’s possession in documentary form at the time of the earlier of disclosure hereunder and disclosure under the agreement referred to in Section 6.1;
(d) is received by such Party from a Third Party who has the lawful right to disclose the Confidential Information and who shall not have obtained the Confidential Information either directly or indirectly from the disclosing Party; or
(e) is independently developed by such Party (i.e., without reference to Confidential Information of the disclosing Party). CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. DEVELOPMENT AND OPTION AGREEMENT
Exclusions from Nondisclosure Obligation. Information shall not be considered Confidential Information and the nondisclosure and nonuse obligations in Section 6.1 (General Confidentiality Obligations) shall not apply to the extent that the receiving Party can establish by competent written proof that it:
(a) at the time of disclosure is publicly known;
(b) after disclosure, becomes publicly known by publication or otherwise, except by breach of this Agreement by such Party;
(c) was in such Party’s possession at the time of the earlier of disclosure hereunder and disclosure under the agreement referred to in Section 6.1 (General Confidentiality Obligations);
(d) is received by such Party from a Third Party who has the lawful right to disclose the Confidential Information and who shall not have obtained the Confidential Information either directly or indirectly from the disclosing Party; or
(e) is independently developed by such Party (i.e., without reference to Confidential Information of the disclosing Party).
Exclusions from Nondisclosure Obligation. The nondisclosure and nonuse obligations in Section 17.1 shall not apply to any Confidential Information to the extent that the receiving Party can establish by competent written proof that it:
a. at the time of disclosure is in the public domain;
b. after disclosure, becomes part of the public domain by publication or otherwise, except by breach of this Agreement by the receiving Party;
c. was in such Party’s possession or was known by the Party at the time of disclosure;
d. is received by such Party on a non-confidential basis from a third party who has the lawful right to disclose the Confidential Information;
e. was disclosed with the prior written approval of the disclosing Party; † DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION
f. is independently developed or discovered by or on behalf of the receiving Party without any aid, application or use of or access to the Confidential Information of the other Party; or
g. was or is disclosed generally to third parties by the disclosing Party without restrictions similar to those contained in this Agreement.
Exclusions from Nondisclosure Obligation. The nondisclosure and nonuse obligations in Section 6.1 (General Confidentiality Obligations) shall not apply to that part of the Confidential Information of which the receiving Party can establish by competent written proof that it:
Exclusions from Nondisclosure Obligation. The nondisclosure and nonuse obligations in Section 3.1 shall not apply to any Confidential Information to the extent that the receiving Party can establish that the Confidential Information:
3.2.1. at the time of disclosure is in the public domain;
3.2.2. alter disclosure, becomes part of the public domain by publication or otherwise, except by breach of this Agreement by the receiving Party;
3.2.3. was in the receiving Party’s possession or was known by the receiving Party, in each case without confidentiality restriction, at the time of disclosure;
3.2.4. is received by the receiving Party, without confidentiality restriction, from a third party who has the lawful right to disclose the Confidential Information;
3.2.5. is independently developed or discovered by or on behalf of the receiving Party without any aid, application or use of or access to the Confidential Information of the other Party; or
3.2.6. was or is disclosed generally to third parties by the disclosing Party without restrictions similar to those contained in this Agreement.
Exclusions from Nondisclosure Obligation. The nondisclosure obligation in Section 5 shall not apply to Confidential Information which, to the extent that either party can establish by competent written proof: (a) is now, or hereafter becomes, part of the public domain by publication or otherwise, except by breach of this Agreement by the receiving party; (b) was in the receiving party's possession in documentary form at the time of disclosure; (c) is received by the receiving party from a third party who has the lawful right to disclose the Confidential Information and who shall not have obtained the Confidential Information either directly or indirectly from the disclosing party; or (d) is disclosed as required by law or regulation. In the event that Confidential Information is required to be disclosed pursuant to subsection (d), the party under such obligation shall notify the other party to allow such other party to assert whatever exclusions or exemptions may be available to it under such law or regulation.
