DISCLOSE, PUBLISH OR DISTRIBUTE ANY CONFIDENTIAL INFORMATION
OF THE OTHER PARTY TO ANY THIRD PARTY OTHER THAN ITS ATTORNEYS, ACCOUNTANTS,
EMPLOYEES AND AGENTS WHO ARE UNDER AN OBLIGATION OF CONFIDENTIALITY ON TERMS
SUBSTANTIALLY SIMILAR TO THOSE SET OUT IN THIS AGREEMENT, WHO HAVE BEEN INFORMED
OF THE CONFIDENTIAL NATURE OF THE CONFIDENTIAL INFORMATION AND WHO REQUIRE SUCH
INFORMATION IN THE PERFORMANCE OF THEIR DUTIES;
(B)
NOT TO USE, COPY, DUPLICATE, REPRODUCE,
TRANSLATE OR ADAPT, EITHER DIRECTLY OR INDIRECTLY, ANY OF THE CONFIDENTIAL
INFORMATION OF THE OTHER PARTY FOR ANY PURPOSE OTHER THAN THE PERFORMANCE OF
THIS AGREEMENT, WITHOUT THE OTHER PARTY'S PRIOR WRITTEN APPROVAL; AND
(C)
TO TAKE ALL REASONABLE STEPS TO PREVENT
MATERIAL IN ITS POSSESSION THAT CONTAINS OR REFERS TO CONFIDENTIAL INFORMATION
OF THE OTHER PARTY FROM BEING DISCOVERED, USED OR COPIED BY THIRD
13
PARTIES AND THAT IT SHALL USE REASONABLE STEPS TO PROTECT AND SAFEGUARD ALL
CONFIDENTIAL INFORMATION OF THE OTHER PARTY IN ITS POSSESSION FROM ALL
UNAUTHORIZED USE OR DISCLOSURE.
8.2
DISCLOSURE WITH CONSENT
A party receiving Confidential Information may, with the written consent of the
disclosing party, disclose such Confidential Information to entities or persons
other than its attorneys, accountants, employees and agents on such terms and
conditions as the disclosing party may specify.
8.3
PUBLICITY
During the term of this Agreement, the parties agree that no press release or
public announcement regarding this Agreement or the relationship of the parties
(except to the extent that it may be legally required) shall be made unless
mutually agreed to prior to the release or dissemination of any such press
release or public announcement.
8.4
DISCLOSURE REQUIRED BY LAW
No provision of this Agreement shall be construed so as to preclude any
disclosure of Confidential Information of Heraeus by PONIARD as may be inherent
in or reasonably necessary to the securing from any Regulatory Authority of any
necessary approval or license, including, without limitation, the filing of a
NDA or a Validation Report with the FDA or its foreign equivalents.
8.5
DURATION OF OBLIGATION
Unless otherwise agreed between the parties, the obligations of the parties
relating to Confidential Information set out in this Article 8 shall expire ***
(***) years after expiration or earlier termination of this Agreement.
8.6
Terms of the Agreement
The terms and existence of this Agreement shall be deemed the Confidential
Information of PONIARD.
ARTICLE 9 REPRESENTATIONS AND WARRANTIES
9.1
HERAEUS'S REPRESENTATIONS AND WARRANTIES
Heraeus hereby represents and warrants to PONIARD as follows:
(A)
HERAEUS HAS BEEN DULY ORGANIZED AND IS
VALIDLY SUBSISTING AND IN GOOD STANDING IN ITS JURISDICTION OF ORGANIZATION, HAS
THE POWER TO ENTER THIS AGREEMENT AND TO CARRY ON THE BUSINESS AS NOW BEING
CONDUCTED;
(B)
THE FINANCIAL STATEMENTS OF HERAEUS
FURNISHED TO PONIARD HAVE BEEN PREPARED BY HERAEUS'S ACCOUNTANTS, ARE TRUE,
CORRECT AND COMPLETE IN ALL MATERIAL RESPECTS AND PRESENT FAIRLY THE FINANCIAL
CONDITION OF HERAEUS AS OF THE DATE THEREOF, INCLUDING HERAEUS'S ASSETS AND
LIABILITIES AS OF SUCH DATE AND THE REVENUES, EXPENSES AND RESULTS