CONFIDENTIALITY AGREEMENT
This Agreement is entered into this day May 31, 1999, between
Biosyntech ("Biosyntech" or the "receiving party") located at 000, xxxx. Xxxxxx
Xxxxxxxx, Xxxxxxxx (Xxxxx) XX, XXXXXX X0X 0X0 and Reprogenesis, Inc.
("Reprogenesis" or the "communicating party") located at 00 Xxxx Xxxxxx,
Xxxxxxxxx, XX 00000.
WHEREAS, Reprogenesis and Biosyntech, either directly or through their
agents, are engaged in discussions concerning Reprogenesis' programs for use by
Reprogenesis or its affiliates and consultants, or both, in its business
operations, potential business operations, facility management, research and
manufacturing or production (including but not limited to new products,
improvements to existing products, business strategies, processes, and
accessories) of tissue engineered applications (hereinafter, the "Project"); and
WHEREAS, during such discussions Reprogenesis has communicated or will
communicate, i.e., in writing, orally, electronically, or otherwise, to
Biosyntech, Confidential Information (as hereafter defined) considered by
Reprogenesis to be confidential or proprietary;
NOW, THEREFORE, in consideration of the mutual covenants herein, and
other good and valuable consideration, receipt of which is hereby acknowledged,
Reprogenesis and Biosyntech hereby agree as follows:
1. CONFIDENTIAL INFORMATION. As used herein "Confidential
Information" shall include any technical or nontechnical information, data,
reports, studies, findings, formulae, specifications, designs, drawings,
sketches, photographs, plans, samples, inventions, ideas, or other material of
any kind (collectively "Information") in written, oral, tangible, or
electronically or magnetically stored form in connection with the Project
communicated by Reprogenesis to Biosyntech which Reprogenesis considers to be
confidential or proprietary and which (a) is so marked if communicated in
written, tangible, or electronically or magnetically stored form and (b), if
communicated orally, is stated by the communicating party to be confidential or
proprietary at the time of communication.
2. CONFIDENTIAL TREATMENt. Biosyntech agrees not to disclose the
Confidential Information of Reprogenesis to any third party or use the
Confidential Information of Reprogenesis in any manner or for any purpose other
than in the course of activities relating to the Project, unless receiving party
can establish by written evidence that such Confidential Information:
(a) was known to the receiving party prior to disclosure hereunder by
the other
party; or
(b) is at the time it is received or becomes available to the public
without restriction or limitation on use or disclosure through no fault or
omission attributable to the receiving party; or
(c) is rightfully obtained by the receiving party from third parties
which rightfully possess such information and are not under obligations of
confidentiality to the other party; or
(d) was independently derived by the receiving party in activities not
related to the Project and not as a result of any disclosure under this
Agreement.
Biosyntech only may divulge Confidential Information of Reprogenesis
only to its employees, agents and consultants (1) who have a need to know as
part of such Martyrs use of the Confidential Information hereunder in activities
related to the Project and (2) who are under appropriate confidentiality
restrictions. In the event that a court or governmental agency legally compels
Biosyntech to disclose communicated information, such as that associated with a
valid discovery request, Biosyntech shall promptly inform Reprogenesis of the
compelled disclosure, so that Reprogenesis may seek a protective order or other
remedy or waive compliance with this Agreement, or both. Nevertheless,
Biosyntech shall limit any compelled disclosure of Confidential Information to
that legally required.
3. NO OTHER RIGHTs. The Confidential Information will remain the
exclusive property of Reprogenesis and this Agreement shall not be construed to
grant the receiving party any license or other right regarding the Confidential
Information of Reprogenesis.
4. RETURN OF CONFIDENTIAL INFORMATION. Upon written request, the
receiving party will return to the communicating party all embodiments of
Information in each case containing or constituting Confidential Information of
the communicating party disclosed to it in connection with this Agreement,
except one copy of such embodiments of Information may be retained for the sole
purpose of determining the receiving party's continuing obligations under this
agreement.
5. TERM. This agreement shall become effective as of the date hereof
and be valid for two (2) years thereafter. Thereafter, this Agreement shall be
automatically extended for additional one (1 ) year terms, except that either
party may terminate this Agreement upon written notice thirty (30) days prior to
the end of the initial two (2) year term or any additional one (1) year term.
Nevertheless, the obligations of limited use and non-disclosure shall remain in
effect for three (3) years from the date of the termination of the initial term
or the final additional term(s), unless further extended by a subsequent written
agreement between the parties.
6. MISCELLANEOUS. This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts. This Agreement sets forth the entire agreement
and understanding between the parties hereto as to the subject matter hereof and
has priority over all documents, verbal consents, or understanding made between
the parties with respect to the subject matter hereof. None of the terms of this
Agreement shall be amended or modified except pursuant to a written document
signed by the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
Biosyntech, Inc.
/s/ Xxxxxxxx Xxxxxxx, PHD 5/31/99
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Xxxxxxxx Xxxxxxx, PHD Date
Vice President R & D
Reprogenesis, Inc.
/s/ Xxxxxx X. Xxxxxxx, Eng. ScD 6/2/99
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Xxxxxx X. Xxxxxxx, Eng. ScD Date
