OR SECONDARY, DIRECT OR INDIRECT, ABSOLUTE OR CONTINGENT,
KNOWN OR UNKNOWN, INCLUDING, WITHOUT LIMITATION, COSTS OF SETTLEMENT, REASONABLE
ATTORNEYS' FEES AND RELATED COSTS AND EXPENSES AND ANY LIABILITIES FOR CLAIMS OF
PERSONAL INJURY, ILLNESS, DEATH OR PROPERTY DAMAGE SUFFERED OR INCURRED BY AN
INDEMNIFIED PARTY HEREUNDER.
1.7 "COMMERCIALIZE" OR "COMMERCIALIZATION" SHALL MEAN THOSE ACTIVITIES RELATING
TO THE PROMOTION, MARKETING AND SALE OF PRODUCTS FOLLOWING GOVERNMENTAL APPROVAL
TO MARKET PRODUCTS, BUT WITH RESPECT TO NK SHALL NOT INCLUDE MANUFACTURING OF
IL13 OR ANY PRODUCT.
1.8 "COMMERCIALLY REASONABLE EFFORTS" SHALL MEAN REASONABLE BEST EFFORTS AND
RESOURCES COMMONLY USED IN THE RESEARCH-BASED PHARMACEUTICAL INDUSTRY FOR A
PRODUCT AT A SIMILAR STAGE IN ITS PRODUCT LIFE OF SIMILAR MARKET POTENTIAL
TAKING INTO ACCOUNT THE COMPETITIVENESS OF ALTERNATIVE PRODUCTS IN THE
MARKETPLACE, THE PATENT AND OTHER PROPRIETARY POSITION OF THE PRODUCT, THE
LIKELIHOOD OF REGULATORY APPROVAL GIVEN THE REGULATORY STRUCTURE INVOLVED, THE
PROFITABILITY OF THE PRODUCT AND ALTERNATIVE PRODUCTS AND OTHER RELEVANT
FACTORS. COMMERCIALLY REASONABLE EFFORTS SHALL BE DETERMINED ON A MARKET BY
MARKET BASIS FOR A PARTICULAR PRODUCT, AND IT IS ANTICIPATED THAT THE LEVEL OF
EFFORT WILL CHANGE OVER TIME REFLECTING CHANGES IN THE STATUS OF THE PRODUCT AND
THE MARKET INVOLVED.
1.9 "CONFIDENTIAL INFORMATION" SHALL MEAN ANY AND ALL DATA AND INFORMATION OF A
PROPRIETARY OR CONFIDENTIAL NATURE THAT ARE OWNED OR CONTROLLED BY ANY PARTY OR
THEIR RESPECTIVE AFFILIATES AND ARE MADE AVAILABLE BY ONE PARTY OR ITS
AFFILIATES TO THE OTHER PARTY OR ITS AFFILIATES PRIOR TO THE TERM OR DURING THE
TERM AND THE ADDITIONAL TERM AND THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE
IL13 AND/OR PRODUCTS OR THE DEVELOPMENT, USE OR SALE THEREOF, INCLUDING, BUT
WITHOUT LIMITATION, CLINICAL OR NON-CLINICAL DATA, FORMULATIONS, CUSTOMER LISTS,
SUPPLIER LISTS AND PRICING INFORMATION.
CONFIDENTIAL INFORMATION SHALL NOT
INCLUDE INFORMATION WHICH:
2
(a)
was known or used by the receiving Party or its Affiliates prior
to its date of disclosure to the receiving Party, as evidenced by the prior
written records of the receiving Party or its Affiliates; or
(b)
either before or after the date of the disclosure to the receiving
Party, is lawfully disclosed without restriction on disclosure to the receiving
Party or its Affiliates by an independent, unaffiliated Third Party whose
disclosure of such information does not violate any obligation to, or right of,
the Party owning or controlling the Confidential Information; or
(c)
either before or after the date of the disclosure to the receiving
Party, becomes published or generally known in the industry through no fault or
admission on the part of the receiving Party or its Affiliates or their
employees or agents; or
(d)
can be shown by written documents to have been independently
developed by the receiving Party or its Affiliates without breach of any of the
provisions of this Agreement; or
(e)
is disclosed by the receiving Party pursuant to oral questions,
interrogatories, requests for information or documents, subpoena, or a civil
investigative demand of a court or governmental agency; provided that the