RESPECT TO THE STATUS OF TDCC'S
EFFORTS TO DEVELOP AND COMMERCIALIZE AGREEMENT COMPOUNDS AND PRODUCTS DURING THE
PROGRAM TERM AND FOR * THEREAFTER, AND AT SYMYX'S REQUEST, * DURING THE
REMAINING PERIOD THAT ROYALTY PAYMENTS MAY BE DUE TO SYMYX TECH.
ANY
INFORMATION TO BE PROVIDED TO SYMYX TECH MAY BE SUBJECT TO ENHANCED SECRECY
OBLIGATIONS TO BE NEGOTIATED. ALL REPORTS AND INFORMATION PROVIDED UNDER THIS
SECTION 11.3 SHALL BE DEEMED CONFIDENTIAL INFORMATION OF TDCC.
Article 12
CONFIDENTIALITY
12.1
CONFIDENTIALITY.
EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED HEREIN, THE PARTIES AGREE THAT, UNTIL THE LATER OF: (I) * FROM THE
EFFECTIVE DATE OF THE AGREEMENT, OR (II* FROM THE END OF THE PROGRAM TERM, THE
RECEIVING PARTY SHALL NOT, EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE 12,
DISCLOSE TO ANY THIRD PARTY OR USE FOR ANY PURPOSE, ANY CONFIDENTIAL INFORMATION
FURNISHED TO IT BY THE DISCLOSING PARTY PURSUANT TO THIS AGREEMENT, EXCEPT IN
EACH CASE TO THE EXTENT THAT IT CAN BE ESTABLISHED BY THE RECEIVING PARTY BY
COMPETENT PROOF THAT SUCH INFORMATION:
(A)
WAS ALREADY KNOWN TO THE RECEIVING PARTY,
OTHER THAN UNDER AN OBLIGATION OF CONFIDENTIALITY, AT THE TIME OF DISCLOSURE;
(B)
WAS GENERALLY AVAILABLE TO THE PUBLIC OR
OTHERWISE PART OF THE PUBLIC DOMAIN AT THE TIME OF ITS DISCLOSURE TO THE
RECEIVING PARTY;
Confidential
45
(C)
BECAME GENERALLY AVAILABLE TO THE PUBLIC OR
OTHERWISE PART OF THE PUBLIC DOMAIN AFTER IT DISCLOSURE AND OTHER THAN THROUGH
ANY ACT OR OMISSION OF THE RECEIVING PARTY IN BREACH OF THIS AGREEMENT;
(D)
WAS INDEPENDENTLY DEVELOPED BY THE RECEIVING
PARTY WITHOUT USE OF, OR REFERENCE TO, THE OTHER PARTY'S CONFIDENTIAL
INFORMATION, AS DEMONSTRATED BY DOCUMENTED EVIDENCE; OR
(E)
WAS DISCLOSED TO THE RECEIVING PARTY, OTHER
THAN UNDER AN OBLIGATION OF CONFIDENTIALITY, BY A THIRD PARTY AUTHORIZED AND
ENTITLED TO DISCLOSE SUCH INFORMATION TO OTHERS.
Confidential Information shall not be considered within the above exceptions
merely because the Confidential Information is embraced by more general
information within the exceptions.
Any combination of features of Confidential
Information shall not be considered within the above exceptions merely because
individual features, as opposed to the combination itself and its principles of
operation, are within the exception.
Program Know-How to the extent that it is
exclusively licensed to TDCC pursuant to Section 4.1 shall be treated by Symyx
as if it were Confidential Information disclosed to it by TDCC for purposes of
Sections 12.1, 12.2, 12.4 and 12.5.
12.2
PERMITTED USE AND DISCLOSURES.
EACH PARTY HERETO
MAY (I) USE CONFIDENTIAL INFORMATION DISCLOSED TO IT BY THE OTHER PARTY IN
CONDUCTING THE RESEARCH PROGRAM OR OTHERWISE PERFORMING THEIR OBLIGATIONS
HEREUNDER, AND (II) USE OR DISCLOSE CONFIDENTIAL INFORMATION DISCLOSED TO IT BY
THE OTHER PARTY TO THE EXTENT SUCH USE AND DISCLOSURE IS REASONABLY NECESSARY IN
(A) EXERCISING THE RIGHTS AND LICENSES GRANTED HEREUNDER, (B) PROSECUTING OR
DEFENDING LITIGATION, (C) COMPLYING WITH APPLICABLE STOCK MARKET RULES, LAWS,
GOVERNMENTAL REGULATIONS OR COURT ORDERS OR SUBMITTING MANDATORY INFORMATION TO
TAX OR OTHER GOVERNMENTAL AUTHORITIES, (D) FILING AND PROSECUTING PATENT