NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
This agreement is entered into as of February 23, 1999, between Sulzer
Orthopedics Biologics Inc. ("SOBI") and BIOSYNTECH LTD. ("BIOSYNTECH"). Mutually
SOBI and BIOSYNTECH are referred to as "The Parties".
Whereas, The Parties are willing to disclose information and provide access to
material they regard as confidential business information (hereafter called
"Company Information") to each other, and
Whereas, The Parties will receive Company Information in their evaluation of
possible future business relations and ongoing business, and
Now therefore, The Parties, acknowledging mutual consideration and intending to
be legally bound, agree as follows:
1. COMPANY INFORMATION
As used in this agreement, the term "Company Information" shall mean all
confidential or proprietary information and proprietary materials, including,
but not limited to: trade secrets, know-how, client lists, proposed trademarks,
patent applications, formulations, techniques, processes, inventions, ideas,
designs, formulae, methodology, data, reports, proteins, biological substances,
chemical substances and chemical compounds, including the compounds and
substances resulting from a variation of the proportion of their component
parts, computer software, computer software source codes, machinery, equipment,
all prior and future developments, enhancements and improvements to any of the
foregoing and information regarding sources of supply, business plans, patent
positioning and the existence, scope and activities regarding any research,
development, manufacturing, marketing or other projects of The Parties.
"Company Information" shall include, without limiting the preceding, a sample
(Arthroscopic Probe identified as ARTHRO-BST /Mechanical Tester identified as
MACH-1/ of polymeric compounds resulting from the incorporation of varying
proportions of component parts, each such compound having various
physico-chemical properties, identified as BST-GEL, BST-CARGEL or other
trademarks of BIOSYNTECH and bone-derived growth factor mixtures from Sulzer)
and related proprietary information provided by BIOSYNTECH or Sulzer to the
other Party.
2. DISCLOSURE OF COMPANY INFORMATION
The Parties shall not, except with the prior written consent of the other Party,
disclose to a third party, wholly or partly, Company Information disclosed by or
in any other manner obtained from the other Party or from the material of the
other Party to which access is granted, on or after they date first above
written .
3. USE OR SALE
The Parties shall use the Company Information solely for the purpose of testing
and examining the Company Information to evaluate the possibility of executing
an agreement for the marketing, sale and distribution of Company Information or
products incorporating Company Information or other future business relations
between them. The Parties shall not use the other Party's Company Information
for any other purpose. In particular, but without limitation, The Parties shall
not use the other Party's Company Information for the direct or indirect benefit
of third parties or for consulting purposes, nor sell, lend, exchange or draw
profits from the Company Information of the other Party, in whole or in part.
4. REVERSE ENGINEERING
The Parties shall not make use of any reverse engineering processes or
techniques, or other similar means, to obtain additional information from the
Company Information disclosed or otherwise obtained from the other Party or from
the material of the other Party to which access is granted, on or after the date
first above written.
5. COPIES
The Parties shall not make any copies, images or other reproductions of the
Company Information disclosed by or otherwise obtained from the other Party.
6. PRECAUTIONS REGARDING THIRD PARTIES
The Parties shall hold the Company Information in strict confidence and shall
take all possible precautions to prevent the Company Information from being
disclosed or made available to third parties.
7. PRECAUTIONS REGARDING EMPLOYEES
The Parties shall take every possible precaution to ensure that only their
employees, contractors, directors and officers who have a strict and genuine
need to know have access to the Company Information.
8. LIMIT
The Parties' obligations under this agreement shall not apply to any information
required by law, regulation or court order to be disclosed to regulatory
authorities and other governmental bodies, or which The Parties can document was
available to the public or known to The Parties prior to the date first above
written. These obligations shall cease as to any information which the
disclosing Party can document thereafter became or becomes available to the
public otherwise than as a result of a disclosure by the disclosing Party or was
or is disclosed to the disclosing
Party by a party unrelated to the disclosing Party that does not have a
non-disclosure obligation with respect to it.
If Company Information of the other Party is required to be disclosed by law,
regulation or court order to regulatory authorities or other governmental
bodies, The Party must promptly inform the other Party before disclosing such
Company Information so that the other Party may have a reasonable opportunity to
contest such requirement.
9. RETURN OF COMPANY INFORMATION
At any time, upon one Party's request, the other Party shall promptly redeliver
to the first Party the Company Information and all materials relating to or
involving Company Information of the first Party (whether prepared by the party
or otherwise), and will not retain any copies, extracts or other reproductions
in whole or in part regarding the Company Information. The redelivery of such
material shall not relieve The Parties of their confidentiality or other
obligations hereunder.
10. TERMINATION
The present agreement may be unilaterally terminated by either Party in the
event that the other Party becomes bankrupt or is judged to be insolvent by a
court of law or if either company makes any assignment for the benefit of its
creditors generally. It may also be terminated by written consent of The
Parties.
11. SURVIVAl
Termination of the present agreement, at any time and for any reason whatsoever
shall not extinguish its terms. The terms of this Non-Disclosure and
Confidentiality Agreement will survive for 5 years, for the benefit of The
Parties and their respective successors.
12. ENTIRE AGREEMENT
This agreement, including its Schedule, constitutes the entire agreement of The
Parties relating to the subject matter, supersedes all prior oral or written
understandings or agreements regarding that subject matter and may not be
amended, modified or cancelled except by a written instrument executed by The
Parties.
13. APPLICABLE LAW AND VENUE
This agreement shall be governed by and construed in accordance with the laws
applicable in the province of Quebec and the venue for any dispute arising from
this agreement shall be the courts of competent jurisdiction in the district of
Montreal, Quebec, Canada.
IN WITNESS THEREFORE, THE PARTIES have caused this agreement to be executed in
duplicate by their respective duly authorised representatives.
Sulzer Orthopedics Biologics Inc. BIOSYNTECH LTD.
by /s/ illegible by /s/ illegible
---------------------------------- -----------------------------------
[name of representative and title] [name of representative and title]
PROJECT DEVELOPMENT SUKMIST VICE PRESIDENT R&D
date 3/2/99 date 3/1/99
------------------------------ -----------------------------------
