EXHIBIT (d)(4)
CONFIDENTIALITY AGREEMENT
This confidentiality agreement ("Agreement") is entered into by and between
Invitrogen Corporation ("Invitrogen") and InforMax, Inc. ("Participant"). In
consideration of the mutual agreements contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties intending to be legally bound agree that:
1. The parties' representatives for disclosing or receiving Information are:
For Invitrogen: Xxxx Xxxxxxxx or his designee;
For Participant: Xxxx Xxxxx or his designee.
2. The term "Information" under this Agreement means information disclosed by
either party ("Disclosing Party") to the other ("Receiving Party") that has been
derived through research or development activities, and other technology,
including materials, business, financial, or marketing plans or information,
relating, but not limited to, the following: creation of computer software code
and related computer programming for Invitrogen's business purposes.
3. The burdens of non-use and confidentiality on the Receiving Party under this
Agreement will continue until terminated by mutual agreement between the parties
hereto.
4. The Receiving Party shall use the Information only for purposes of discussion
and evaluation. The Receiving Party will not disclose the Information to any
person except its employees, consultants, and subcontractors, to whom it is
necessary to disclose the Information for such discussion and evaluation, and
any such disclosure shall be under a written agreement with terms at least as
restrictive as those specified herein. Any of the persons mentioned above who
are given access to the Information shall be informed by the Receiving Party of
the Agreement. The Receiving Party shall protect the Information by using the
same degree of care as the Receiving Party uses to protect its own confidential
Information, but in any event no less than a reasonable degree of care.
5. The Receiving Party's duties under this Agreement shall apply to any and all
Information, including, but not limited to that disclosed in any oral disclosure
or any written document, memorandum, report, correspondence, drawing or other
material, computer readable media, developed or prepared by the Disclosing Party
or any of its representatives.
6. Notwithstanding any other provision of this Agreement, Information shall not
include any item of information which: (a) is within the public domain prior to
the time of the disclosure by the Disclosing Party to the Receiving Party or
thereafter becomes within the public domain other than as a result of disclosure
by the Receiving Party or any of its representatives in violation of this
Agreement; (b) was, on or before the date of disclosure in the possession of the
Receiving Party, as evidenced by records, however maintained; (c) is acquired by
the Receiving Party from a third party not under an obligation of
confidentiality; or (d) is hereafter independently developed by the Receiving
Party, as evidenced by records, however maintained.
7. The Receiving Party agrees to return all Information, including materials,
received from the Disclosing Party at the request of the Disclosing Party except
that the Receiving Party may retain in its confidential files one copy of
written Information for record purposes only.
8. In the event that the Receiving Party or anyone to whom it transmits the
Information pursuant to this Agreement becomes legally required to disclose any
such Information, the Receiving Party shall provide the Disclosing Party with
prompt notice so that the Disclosing Party may seek a protective order or other
appropriate remedy and/or waive compliance with the provisions of this
Agreement. In the event that such protective order or other remedy is not
obtained, the Receiving Party shall furnish only that portion of the Information
which is legally required to be furnished in the opinion of the Receiving
Party's counsel.
9. This Agreement constitutes the entire understanding between the parties
hereto with respect to the subject matter hereof and merges any and all prior
agreements, understandings and representations related to such subject matter.
This Agreement may not be superseded, amended or modified except by written
agreement between the parties hereto. This Agreement may not be assigned or
transferred without the prior written consent of both parties, which consent
shall not be unreasonably withheld; provided, however, that either party may
assign this Agreement to any person or entity which acquires all or
substantially all of its business or assets (or of the business division or
product line of such party to which the Information primarily relates).
10. Each of the parties hereto has caused this Agreement to be executed on its
behalf by its authorized representative.
INFORMAX, INC. INVITROGEN CORPORATION
0000 XXXXXXXXX XXXXXX, XXXXX 0000 0000 XXXXXXX XXXXXX
XXXXXXXX, XXXXXXXX 00000 XXXXXXXX, XXXXXXXXXX 00000
/s/ Xxxx X. Xxxxx 10/23/02 /s/ Xxxx X. Xxxxxxxx 10/24/02
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Authorized Signature Date Authorized Signature Date
Vice President,
Corporate
Xxxx X. Xxxxx COO/CFO Xxxx X. Xxxxxxxx Development
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Name Title Name Title
