LEXON, INC.
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement ("Agreement") is entered into and
effective this 19th day of April, 1999 by and between Lexon, Inc. ("Lexon") and
Ortho-Clinical Diagnostics, Inc. ("OCD").
WHEREAS, Lexon and OCD are considering a business relationship in which
Lexon proposes to disclose and provide to OCD certain Confidential Information
as defined below concerning colon and other cancer detection and certain
business, financial and other information defined as Confidential Information.
NOW, THEREFORE, for good and valuable consideration, the receipt,
adequacy and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. For purposes of this Agreement, the term "Confidential Information"
shall mean all Technical Information and all Miscellaneous Information
concerning the Ebaf Assay colon cancer blood screening discovery, technology,
process and use which is licensed to Lexon and which is confidential or
proprietary or competitively sensitive and which is disclosed in writing to OCD
or to its affiliates and their respective directors, officers, employees,
contractors, agents, and other representatives of Confidential Information
pursuant to this Agreement, whether before or after the date hereof, including
without limitation the following:
(i) Technical Information. All trade secrets, inventions,
discoveries, know-how, formulas, formulations, compositions,
specifications, patents, patent applications, copyrights,
software and applications, drawings, schematics, processes,
process technologies, manufacturing techniques, tests, test
results, research and development data and similar technical
information, together with all actual and proposed
modifications and alterations made, created, developed,
invented or discovered by or for and on behalf of Lexon,
including without limitation specifically the invention,
discovery and use of the Ebaf Assay and its detection,
measurement and use by way of the blood screening test kit
being developed by Xx. Xxxxxx Xxxxxxxxxx; and
(ii) Miscellaneous Information and Documentation. All records,
reports, analyses, memoranda, notes, analyses, compilations,
studies, and copies and extracts thereof, however and
whenever arising, containing any Confidential Information
with respect to any of the foregoing in every written form.
2. "Confidential Information" does not include (a) information which is
or becomes known to the general public through no fault of the receiving party,
(b) information which was rightfully in the possession of the receiving party
prior to its disclosure by or on behalf of Lexon hereto, (c) information which
comes into the possession of receiving party without violation of any
contractual or legal obligation, and (d) information which is independently
developed by or on behalf of OCD, without use of or reliance on the Confidential
Information received hereunder. If these exceptions to the confidential nature
of information provided apply to a specific item, that does not relieve the
receiving party of its obligations hereunder with respect to all other items.
The receiving
party shall have the burden of proof relating to all exceptions to the
confidential treatment of Confidential Information hereunder.
3. The receiving party agrees to hold the Confidential Information in
strict confidence and not to communicate, disclose, divulge, disseminate,
publish or transfer the Confidential Information to any other person, except as
expressly permitted hereby, without the prior written consent of Lexon.
4. The receiving party agrees to use the Confidential Information
solely in connection with proposed business relationship with Lexon or an
affiliate thereof and for no other purpose whatsoever.
5. The receiving party may disclose the Confidential Information,
solely for the purposes permitted by this Agreement, to its directors, officers,
employees, agents, attorneys, accountants, and other representatives and
advisors strictly on a need-to-know basis for the purposes of evaluating the
Confidential Information and for any other purpose solely in accordance with the
uses permitted hereby; provided the receiving party notifies each person and
entity receiving the information which is Confidential Information covered by
this Agreement and requires that the receiving party maintains the confidential
nature of the Confidential Information in accordance with the terms and
conditions of this Agreement; and further provided OCD remains liable to Lexon
for any violation of these agreements and the actions or inactions on the part
of any other person who acquires access to the Confidential Information by, from
or through the receiving party.
6. Lexon shall furnish Confidential Information in written form marked
as "Confidential". However, if disclosure of Confidential Information is
initially in non-written form or if the disclosure is first made orally or by
visual inspection, Lexon shall have the obligation to confirm in writing the
confidential nature of the information within a 15 days after such disclosure,
and the confidentiality obligations under shall thereafter apply to such
information to the same extent as if the information had been marked as
"Confidential" when disclosed.
7. Nothing contained herein shall be construed as granting or implying
any right or license to use the Confidential Information disclosed hereunder,
except solely for the permitted purposes as set forth herein.
8. Lexon makes no representation or warranty as to the accuracy or
completeness of the Confidential Information disclosed hereunder. The receiving
party expressly agrees that neither Lexon nor its directors, officers,
employees, agents, advisors, attorneys, accountants, or representatives shall
have any liability to the receiving party or to anyone else for any inaccuracy
in, incompleteness of or unauthorized use of Confidential Information.
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9. The receiving party agrees to return to Lexon all Confidential
Information not later than the earlier of 10 days after the termination of this
Agreement or within 10 days after receipt of a written request from the other,
whichever is sooner, except one copy which may be retained by OCD solely for
archival purposes and for no other use whatsoever.
10. No failure or delay by Lexon in exercising any right, remedy, power
or privilege shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude the exercise of any other right, remedy, power or
privilege hereunder or as permitted by law or in equity.
11. The term of this Agreement is 2 years from the date of execution of
this Agreement.
12. The rights, duties and obligations of the parties cannot be
assigned without the written consent of all interested parties.
13. This Agreement does not obligate any of the parties hereto to enter
into any transaction or agreement and does not obligate any party to purchase or
sell equipment or to provide services.
14. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York , USA.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed effective as of the date first written above.
Lexon, Inc. Ortho-Clinical Diagnostics, Inc.
By /s/ XXXXXXXXX X. XXXXXXX By /s/ XXX XXXXX
Xxxxxxxxx X. Xxxxxxx, Vice President Xxx Xxxxx, Vice President
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