EXERCISE ITS
RIGHTS OR TO CARRY OUT ITS RESPONSIBILITIES UNDER THIS AGREEMENT; PROVIDED,
THAT, ANY SUCH DISCLOSURE OR TRANSFER SHALL ONLY BE MADE TO PERSONS WHO ARE
BOUND BY THE WRITTEN OBLIGATIONS DESCRIBED IN SECTION 6.1.3.
IN ADDITION,
ARQULE AND DS EACH AGREES THAT THE OTHER PARTY MAY DISCLOSE ITS CONFIDENTIAL
INFORMATION (A) ON A NEED-TO-KNOW BASIS TO SUCH OTHER PARTY'S LEGAL AND
FINANCIAL ADVISORS, (B) TO ANY THIRD PARTY AS REASONABLY NECESSARY IN CONNECTION
WITH AN ACTUAL OR POTENTIAL PERMITTED SUBLICENSE OF SUCH OTHER PARTY'S RIGHTS
HEREUNDER OR IN CONNECTION WITH AN ACTUAL OR POTENTIAL COLLABORATION BETWEEN
SUCH PARTY AND A THIRD PARTY OR ANY DEBT OR EQUITY FINANCING OF SUCH OTHER
PARTY, SUBJECT IN EACH CASE, TO THE EXECUTION OF WRITTEN OBLIGATIONS OF
CONFIDENTIALITY SUBSTANTIALLY SIMILAR TO THOSE OF SUCH PARTY HEREUNDER, AND
PROVIDED THAT ANY CONFIDENTIAL INFORMATION SO PROVIDED BY ARQULE IN CONNECTION
WITH A COLLABORATION WILL IN NO EVENT INCLUDE INFORMATION IDENTIFYING ANY DS
TARGETS UNLESS SUCH DISCLOSURE IS SUBJECT TO A
49
MECHANISM SIMILAR TO THE GATEKEEPER MECHANISM CONTAINED IN SECTION 3.5.2, (C) IF
SUCH OTHER PARTY IS ARQULE, TO ANY THIRD PARTY THAT IS OR MAY BE ENGAGED BY
ARQULE TO PERFORM SERVICES IN CONNECTION WITH THE RESEARCH PROGRAM, AND (D) FOR
ANY OTHER PURPOSE WITH THE OTHER PARTY'S WRITTEN CONSENT, WHICH CONSENT SHALL
NOT BE UNREASONABLY WITHHELD, CONDITIONED OR DELAYED.
IN ADDITION, EACH PARTY
AGREES THAT THE OTHER PARTY MAY DISCLOSE SUCH PARTY'S CONFIDENTIAL INFORMATION
OR PROPRIETARY MATERIALS (A) AS REASONABLY NECESSARY TO FILE, PROSECUTE OR
MAINTAIN PATENT RIGHTS, OR TO FILE, PROSECUTE OR DEFEND LITIGATION RELATED TO
PATENT RIGHTS, IN ACCORDANCE WITH THIS AGREEMENT; OR (B) AS REQUIRED BY
APPLICABLE LAWS; PROVIDED, THAT, IN THE CASE OF ANY DISCLOSURE UNDER THIS CLAUSE
(B), THE DISCLOSING PARTY SHALL (1) IF PRACTICABLE, PROVIDE THE OTHER PARTY WITH
REASONABLE ADVANCE NOTICE OF AND AN OPPORTUNITY TO COMMENT ON ANY SUCH REQUIRED
DISCLOSURE AND (2) IF REQUESTED BY THE OTHER PARTY, COOPERATE IN ALL REASONABLE
RESPECTS WITH THE OTHER PARTY'S EFFORTS TO OBTAIN CONFIDENTIAL TREATMENT OR A
PROTECTIVE ORDER WITH RESPECT TO ANY SUCH DISCLOSURE, AT THE OTHER PARTY'S
EXPENSE.
6.1.3
EMPLOYEES AND CONSULTANTS.
ARQULE AND DS
EACH HEREBY REPRESENTS THAT ALL OF ITS EMPLOYEES AND CONSULTANTS, AND ALL OF THE
EMPLOYEES AND CONSULTANTS OF ITS AFFILIATES, WHO PARTICIPATE IN THE ACTIVITIES
OF THE COLLABORATION OR HAVE ACCESS TO CONFIDENTIAL INFORMATION OR PROPRIETARY
MATERIALS OF THE OTHER PARTY ARE OR WILL, PRIOR TO THEIR PARTICIPATION OR
ACCESS, BE BOUND BY WRITTEN OBLIGATIONS TO MAINTAIN SUCH CONFIDENTIAL
INFORMATION OR PROPRIETARY MATERIALS IN CONFIDENCE AND NOT TO USE SUCH
INFORMATION EXCEPT AS EXPRESSLY PERMITTED HEREUNDER.
EACH PARTY AGREES TO USE,
AND TO CAUSE ITS AFFILIATES TO USE, REASONABLE EFFORTS TO ENFORCE SUCH
OBLIGATIONS.
6.2
PUBLICITY.
THE PARTIES ACKNOWLEDGE THAT THE
TERMS OF THIS AGREEMENT CONSTITUTE CONFIDENTIAL INFORMATION OF EACH PARTY AND
MAY NOT BE DISCLOSED EXCEPT AS PERMITTED BY SECTION 6.1.2 AND THIS SECTION 6.2.
NOTWITHSTANDING THE FOREGOING, THE TERMS OF THIS AGREEMENT MAY BE DISCLOSED BY