CONFIDENTIAL DISCLOSURE AGREEMENT
This Agreement is made by and between Ophidian Pharmaceuticals, Inc.
(hereinafter "OPHIDIAN"), a Delaware corporation with offices at 0000 Xxxx
Xxxxxx Xxxxxxx, Xxxxxxx, WI., 53711 and Biosyntech Ltd., (hereinafter
"BIOSYNTECH") a Canadian corporation with offices at 000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx (Xxxxx) XX, XXXXXX X0X 0X0. This Agreement will confirm the
mutual interest of OPHIDIAN and BIOSYNTECH in sharing certain information and
providing for protection of that information. Each party shall disclose to the
other certain confidential business and technology information for the sole
purpose of evaluating a business relationship.
RECITALS
Each undersigned party, intending to be legally bound, understands that the
other party (the Disclosing Party) intends to disclose information relating to
the Disclosing Party's business so that the other party (the Receiving Party)
may evaluate such information on the following terms and conditions:
1. Following the full execution of this Agreement, each party will disclose to
the other party certain of its confidential, proprietary information, and
other Confidential Information, relating to pharmaceutical research,
development, manufacturing and marketing. Such Confidential Information may
include, but is not necessarily limited to, business concepts, market
analysis, technology, processes, data, materials, patent applications and
medical or other applications, except any portion thereof which:
(a) at the time of disclosure is in the public domain;
(b) after disclosure becomes part of the public domain, except by breach
of this Agreement;
(c) was in the possession of the recipient at the time of disclosure and
was not acquired, directly or indirectly, under an obligation of
confidentiality, as established by competent written evidence;
(d) was received by recipient from a third party who is not, directly or
indirectly, under an obligation for confidentiality to the Disclosing
Party with respect to such information;
(e) is required by a judicial or administrative agency of competent
jurisdiction to be disclosed, after maximum practicable notice by the
receiving party to the disclosing party; or,
(f) was developed by or for the Recipient independent of disclosure
hereunder as evidence by Recipient's written records.
2. The Receiving Party agrees not to use the Confidential Information provided
by the Disclosing Party for any purpose other than the evaluation of the
aforementioned business relationship.
3. The Receiving Party agrees to limit distribution of and access to
Confidential Information only to employees, officers, and directors within
the Receiving Party's immediate organization (and within any parent,
subsidiary or affiliated entity) and outside, third party consultants bound
by confidentiality requirements no less stringent than those contain within
this agreement, and then only to those individuals who have a legitimate
"need to know" for the above described evaluation purpose. Each party shall
take all reasonable steps to ensure that
such employees, whether during or after their employment with the Receiving
party, shall keep the Disclosing Party's Confidential Information secret from
other entities.
4. Receipt and evaluation of information shall be limited to a one (1) year
period following the date of full execution of this Agreement, unless
extended by written agreement signed by the parties. Upon thirty (30) days
written notice to the other party, either party may terminate this
agreement; provided, however, that all obligations of nondisclosure and
non-use, as well as those provisions which by their nature should survive
termination, shall so survive for a period of three (3) years from the date
hereof.
5. The existence, terms, nature, or subject matter of this Agreement are
confidential and shall be treated as Confidential Information pursuant to
the terms of this Agreement.
6 Confidential Information received from the Disclosing Party and any
developments materially derived therefrom are and shall remain the sole
property of the Disclosing Party. Nothing herein shall be deemed to
constitute by implication or otherwise the license or grant to the
Receiving Party by the Disclosing party, except as anticipated for the
purpose of this Agreement, of any intellectual property right to or
interest in the Disclosing Party's information and/or any information,
technology and/or products materially derived or developed therefrom,
notwithstanding the exceptions set forth in Paragraph 1 herein. The
Receiving Party shall not use, develop, disclose to any third party, and/or
commercials e any of the foregoing without the Disclosing Party s written
consent. No agency or partnership relationship is created by this
Agreement; no warranties, right to use or fitness for any purpose or of any
other kind are made by either Disclosing Party; and it is understood that
neither party has any obligation to enter into any further agreements with
the other related to any business or any other matter.
7. Nothing in this Agreement shall be deemed, by implication or otherwise to
convey to the Receiving Party any rights under any patents, patents
application, copyrights, trademarks, trade secrets, inventions or any other
intellectual property in which the Disclosing Party has rights or
interests, nor shall this Agreement be deemed a commitment of any kind by
either the Receiving Party or the Disclosing Party to enter in to an future
agreement with the other.
8. Each Receiving Party shall exercise due care--not less than the care
accorded its own valuable Confidential Information--to prevent the
unauthorized disclosure of Confidential Information received from the
Disclosing Party hereunder, or its use for any purpose other than
evaluation and consultation with the Disclosing party.
9. Each party represents that it has the right to make disclosures under this
Agreement; that it will not disclose to the other any information
confidential to any third party; and that the terms of this Agreement are
not inconsistent with other contractual and/or other legal obligations it
may have, or with the policies of any institution with which it is
associated.
10. Upon termination of either mutual evaluations or business relations between
parties, or within thirty (30) days, if otherwise requested by either
parry, each Receiving Party shall, upon written return to the Disclosing
Party all written or other physical embodiments of Confidential Information
(including tangible materials, unless requested by the Disclosing Party to
properly destroy or dispose thereof), together with all full or partial
copies thereof, as shall then be in the Receiving Party's possession,
except that each party may retain one complete record copy of the other
party's Confidential Information for archival purposes and to assure
compliance with this Agreement.
11. This Agreement shall be governed and construed in accordance with the laws
of the State of Delaware, United States of America without regard to
principles of conflict of laws, and this original English language version
of the Agreement shall be controlling in all respects. In the event legal
action becomes necessary for the enforcement or interpretation of this
Agreement such action will be brought in the US District Court for the
Western District of Wisconsin, and the parties will submit to the venue and
jurisdiction of said courts.
12. No course of conduct or dealing between the parties shall act as a
modification or waiver of any provision of this Agreement, unless such
modification or waivers are- contained in writing and signed by duly
authorized representative of each party
Ophidian Pharmaceuticals, Inc. BIOSYNTECH LTD.
By: /s/ Xxxxxxx X. Xxxxxxxx, Ph.D. By: /s/ Xxxxxxxx Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx, Ph.D. Name: Xxxxxxxx Xxxxxxx
Title: President and CEO Title: Vice President R&D
Date: 12 August 1999 Date: 8/16/99
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