COMPLIANCE WITH THE TERMS OF THIS AGREEMENT, AS WELL AS THE ACCURACY OF THE
REPORTS HEREUNDER.
VICAL SHALL CERTIFY ANY STATEMENTS BY VICAL PERSONNEL AS TO
THEIR ACCURACY AND CORRECTNESS.
ARTICLE 3.
IMPROVEMENTS
Valentis shall be free to research, develop and patent any improvements to the
Licensed Technology and, except as expressly set forth herein, no rights shall
be or are to be construed as granted under this Agreement to Vical to any
patents or patent applications arising from such activities.
ARTICLE 4.
REPORTS AND RECORDS
4.1
REPORTS.
VICAL SHALL MAKE A WRITTEN REPORT TO VALENTIS WITHIN
THIRTY (30) DAYS AFTER EACH ANNIVERSARY OF THE EFFECTIVE DATE DESCRIBING VICAL'
ACTIVITIES UNDER THE RIGHTS GRANTED TO VICAL PURSUANT TO SECTION 2.1.
EACH SUCH
REPORT SHALL ALSO CONTAIN A WRITTEN CERTIFICATION THAT VICAL IS IN MATERIAL
COMPLIANCE WITH ALL RELEVANT TERMS AND CONDITIONS OF THIS AGREEMENT.
VALENTIS
SHALL TREAT ALL SUCH REPORTS AS CONFIDENTIAL INFORMATION OF VICAL.
ARTICLE 5.
CONFIDENTIALITY
5.1
CONFIDENTIAL INFORMATION.
EXCEPT AS EXPRESSLY PROVIDED HEREIN,
THE PARTIES AGREE THAT, FOR THE TERM OF THIS AGREEMENT AND FOR FIVE (5) YEARS
THEREAFTER, THE RECEIVING PARTY SHALL KEEP CONFIDENTIAL AND SHALL NOT PUBLISH OR
OTHERWISE DISCLOSE, AND SHALL NOT USE FOR ANY PURPOSE EXCEPT FOR THE PURPOSES
CONTEMPLATED BY THIS AGREEMENT, ANY CONFIDENTIAL INFORMATION
3
FURNISHED TO SUCH RECEIVING PARTY BY A DISCLOSING PARTY HERETO, EXCEPT TO THE
EXTENT THAT IT CAN BE ESTABLISHED BY THE RECEIVING PARTY BY WRITTEN PROOF THAT
SUCH CONFIDENTIAL INFORMATION:
(A)
WAS ALREADY KNOWN TO THE RECEIVING PARTY, OTHER THAN UNDER AN
OBLIGATION OF CONFIDENTIALITY TO THE DISCLOSING PARTY, 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;
(C)
BECAME GENERALLY AVAILABLE TO THE PUBLIC OR OTHERWISE PART OF THE
PUBLIC DOMAIN AFTER ITS DISCLOSURE OTHER THAN THROUGH ANY ACT OR OMISSION OF THE
RECEIVING PARTY IN BREACH OF THIS AGREEMENT; OR
(D)
WAS SUBSEQUENTLY DISCLOSED TO THE RECEIVING PARTY BY A PERSON OR
ENTITY WITH NO OBLIGATION TO THE DISCLOSING PARTY WITH RESPECT TO SUCH
INFORMATION.
5.2
PERMITTED USE AND DISCLOSURES.
EACH PARTY HERETO MAY USE OR
DISCLOSE INFORMATION DISCLOSED TO IT BY THE OTHER PARTY TO THE EXTENT SUCH USE
OR DISCLOSURE IS REASONABLY NECESSARY FOR THE PURPOSES CONTEMPLATED BY THIS
AGREEMENT, AND IN SUCH CASE PURSUANT TO A CONFIDENTIALITY AGREEMENT NO LESS
RESTRICTIVE THAN THE TERMS SET FORTH IN THIS ARTICLE 6, OR IN COMPLYING WITH
APPLICABLE LAW OR GOVERNMENT REGULATIONS; PROVIDED, HOWEVER, THAT IF A PARTY IS
REQUIRED TO MAKE ANY SUCH DISCLOSURE OF THE OTHER PARTY'S CONFIDENTIAL
INFORMATION, OTHER THAN PURSUANT TO SUCH A CONFIDENTIALITY AGREEMENT, IT WILL
GIVE REASONABLE ADVANCE NOTICE TO SUCH OTHER PARTY OF SUCH DISCLOSURE.
5.3
CONFIDENTIAL TERMS.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, EACH
PARTY AGREES THAT THE TERMS OF THIS AGREEMENT AND THE TRANSACTION AND
RELATIONSHIP WITH VALENTIS CONSTITUTE CONFIDENTIAL INFORMATION AND ARE NOT TO BE
DISCLOSED TO ANY THIRD PARTY WITHOUT THE CONSENT OF