(30) DAYS OF GILEAD'S BECOMING AWARE OF
SUCH INFRINGEMENT OR POTENTIAL INFRINGEMENT, THEN BMS SHALL HAVE THE RIGHT AND
OPTION TO RESPOND TO SUCH INFRINGEMENT OR POTENTIAL INFRINGEMENT BY APPROPRIATE
STEPS, INCLUDING, WITHOUT LIMITATION, FILING AN INFRINGEMENT SUIT OR TAKING
OTHER SIMILAR ACTION, AND SHALL NOTIFY GILEAD OF, AND CONSULT WITH GILEAD FROM
TIME TO TIME REGARDING, ANY SUCH SUIT OR OTHER ACTION.
THE MEMBER PARTY NOT
TAKING ACTION TO RESPOND TO THE INFRINGEMENT OR POTENTIAL INFRINGEMENT SHALL
PROVIDE REASONABLE ASSISTANCE TO THE MEMBER PARTY TAKING SUCH ACTION, INCLUDING,
WITHOUT LIMITATION, PROVIDING ACCESS TO RELEVANT DOCUMENTS AND OTHER EVIDENCE,
MAKING ITS EMPLOYEES AVAILABLE AT REASONABLE BUSINESS HOURS, AND JOINING THE
ACTION TO THE EXTENT NECESSARY TO ALLOW THE MEMBER PARTY TAKING SUCH ACTION TO
MAINTAIN THE ACTION.
ANY AMOUNTS RECOVERED BY A MEMBER PARTY PURSUANT TO THIS
SECTION 11.5(C), WHETHER BY SETTLEMENT OR JUDGMENT, SHALL BE DEEMED TO BE
RECOVERED ON BEHALF OF (AND SHALL BE PAID OVER TO) THE JV; AND THE REASONABLE
OUT-OF-POCKET COSTS, INCLUDING REASONABLE ATTORNEYS' FEES, WITHOUT ANY MARKUP,
73
INCURRED BY THE MEMBER PARTIES IN MAKING SUCH RECOVERY SHALL BE TREATED AS
AUTHORIZED OTHER EXPENSES.
SECTION 12.
CONFIDENTIALITY
12.1
TREATMENT OF CONFIDENTIAL INFORMATION.
EXCEPT AS PROVIDED IN THIS
SECTION 12, DURING THE TERM OF THIS AGREEMENT AND FOR FIVE (5) YEARS AFTER THIS
AGREEMENT'S EXPIRATION OR TERMINATION, EACH PARTY (THE "RECEIVING PARTY") (A)
SHALL HOLD IN STRICT CONFIDENCE AND SHALL NOT PUBLISH OR OTHERWISE DISCLOSE,
DIRECTLY OR INDIRECTLY, TO ANY THIRD PARTY ANY CONFIDENTIAL INFORMATION OF
ANOTHER PARTY OR ITS AFFILIATES (COLLECTIVELY, THE "DISCLOSING PARTY"), (B)
EXCEPT AS PERMITTED PURSUANT TO SECTION 12.7, SHALL NOT DIRECTLY OR INDIRECTLY
USE CONFIDENTIAL INFORMATION OF A DISCLOSING PARTY FOR ANY PURPOSE OTHER THAN
PERFORMANCE OF ITS OBLIGATIONS OR EXERCISE OF ITS RIGHTS UNDER THIS AGREEMENT,
OR AS OTHERWISE PERMITTED UNDER THIS AGREEMENT, THE OPERATING AGREEMENT OR ANY
ANCILLARY AGREEMENT, AND (C) SHALL USE THE SAME LEVEL OF EFFORT TO MAINTAIN THE
CONFIDENTIALITY OF CONFIDENTIAL INFORMATION OF A DISCLOSING PARTY AS IT USES FOR
ITS OWN CONFIDENTIAL OR PROPRIETARY INFORMATION, BUT IN ANY EVENT AT LEAST
COMMERCIALLY REASONABLE EFFORTS.
12.2
PERMITTED DISCLOSURE.
EACH PARTY MAY DISCLOSE CONFIDENTIAL
INFORMATION OF A DISCLOSING PARTY TO THE EXTENT THAT SUCH DISCLOSURE IS:
(A)
MADE ONLY AS REQUIRED TO SPECIFIC PERSONS OR ENTITIES UNDER
APPLICABLE LAWS, RULES, REGULATIONS OR ORDERS OF A COURT OF COMPETENT
JURISDICTION OR OTHER SUPRA-NATIONAL, FEDERAL, NATIONAL, REGIONAL, STATE,
PROVINCIAL OR LOCAL GOVERNMENTAL OR REGULATORY BODY OF COMPETENT JURISDICTION;
PROVIDED, HOWEVER, THAT THE RECEIVING PARTY SHALL FIRST HAVE GIVEN NOTICE TO THE
DISCLOSING PARTY AND GIVEN THE DISCLOSING PARTY A REASONABLE OPPORTUNITY TO SEEK
ANY AVAILABLE LIMITATIONS ON, EXEMPTIONS FROM OR PROTECTIONS AVAILABLE UNDER
SUCH DISCLOSURE REQUIREMENT AND REASONABLY COOPERATE IN ANY SUCH EFFORTS BY THE
DISCLOSING PARTY; AND PROVIDED FURTHER THAT IF AN EXEMPTION FROM SUCH DISCLOSURE
REQUIREMENT IS NOT OBTAINED, THE CONFIDENTIAL INFORMATION DISCLOSED IN RESPONSE
TO SUCH REQUIREMENT SHALL BE LIMITED TO THAT INFORMATION WHICH IS LEGALLY
REQUIRED TO BE DISCLOSED;
(B)
OTHERWISE REQUIRED BY