OTHER RELEVANT FACTORS AFFECTING THE
COST, RISK AND TIMING OF DEVELOPMENT AND THE TOTAL POTENTIAL REWARD TO BE
OBTAINED IF A PRODUCT IS COMMERCIALIZED. THE PARTIES AGREE THAT COMMERCIALLY
REASONABLE EFFORTS SHALL REQUIRE A PARTY TO EXPEND EFFORTS, EXPERTISE AND
RESOURCES THAT SUCH PARTY WOULD NORMALLY EXPEND TO DEVELOP, USE, MANUFACTURE AND
COMMERCIALIZE A PRODUCT OWNED BY IT OR TO WHICH IT HAS RIGHTS, TAKING INTO
ACCOUNT THE FOREGOING FACTORS.
SECTION 1.9
"CONFIDENTIAL INFORMATION" SHALL MEAN, WITH RESPECT TO A
DISCLOSING PARTY, ALL KNOW-HOW OR OTHER INFORMATION (WHETHER OR NOT PATENTABLE)
REGARDING SUCH PARTY'S TECHNOLOGY, PRODUCTS, BUSINESS INFORMATION OR OBJECTIVES
(WHETHER DISCLOSED BEFORE OR AFTER THE EFFECTIVE DATE) THAT IS OF A CONFIDENTIAL
AND PROPRIETARY NATURE, INCLUDING REPORTS AND AUDITS UNDER SECTION 4.3, THE
DEVELOPMENT PLAN, THE COMMERCIALIZATION PLAN, THE TERMS OF THIS AGREEMENT, AND
ALL PROPRIETARY TANGIBLE MATERIALS (AND DATA AND INFORMATION ASSOCIATED
THEREWITH) OF SUCH PARTY.
NOTWITHSTANDING THE FOREGOING, CONFIDENTIAL
INFORMATION SHALL NOT INCLUDE KNOW-HOW OR OTHER INFORMATION THAT:
2
(A)
WAS RIGHTFULLY KNOWN OR USED BY THE RECEIVING PARTY OR ITS
AFFILIATES WITHOUT AN OBLIGATION OF CONFIDENTIALITY PRIOR TO ITS DATE OF
DISCLOSURE TO THE RECEIVING PARTY AS DEMONSTRATED BY CONTEMPORANEOUS WRITTEN
RECORDS; OR
(B)
EITHER BEFORE OR AFTER THE DATE OF THE DISCLOSURE TO THE RECEIVING
PARTY IS LAWFULLY DISCLOSED TO THE RECEIVING PARTY OR ITS AFFILIATES BY SOURCES
OTHER THAN THE DISCLOSING PARTY RIGHTFULLY IN POSSESSION OF SUCH INFORMATION AND
NOT BOUND BY CONFIDENTIALITY OBLIGATIONS TO THE DISCLOSING PARTY; OR
(C)
EITHER BEFORE OR AFTER THE DATE OF THE DISCLOSURE TO THE RECEIVING
PARTY OR ITS AFFILIATES IS OR BECOMES PUBLISHED OR OTHERWISE IS OR BECOMES PART
OF THE PUBLIC DOMAIN THROUGH NO BREACH HEREOF ON THE PART OF THE RECEIVING PARTY
OR ITS AFFILIATES; OR
(D)
IS INDEPENDENTLY DEVELOPED BY OR FOR THE RECEIVING PARTY OR ITS
AFFILIATES WITHOUT REFERENCE TO OR USE OF THE CONFIDENTIAL INFORMATION OF THE
DISCLOSING PARTY AS DEMONSTRATED BY CONTEMPORANEOUS WRITTEN RECORDS.
SECTION 1.10
"CONTROL" SHALL MEAN THE LEGAL AUTHORITY OR RIGHT OF A
PARTY OR ITS AFFILIATES TO GRANT A LICENSE OR SUBLICENSE OF INTELLECTUAL
PROPERTY RIGHTS TO THE OTHER PARTY, OR TO PROVIDE TANGIBLE MATERIAL TO OR
OTHERWISE DISCLOSE PROPRIETARY OR TRADE SECRET INFORMATION TO SUCH OTHER PARTY,
WITHOUT BREACHING THE TERMS OF ANY AGREEMENT WITH A THIRD PARTY.
FOR THE
AVOIDANCE OF DOUBT, BIOLINERX CONTROLS THE SUBLICENSED IP.
SECTION 1.11
"COVER" OR "COVERED" SHALL MEAN, WITH RESPECT TO A PATENT
RIGHT AND A PRODUCT, THAT, IN THE ABSENCE OF OWNERSHIP OF (WITH A RETAINED RIGHT
TO EXPLOIT), OR A LICENSE GRANTED UNDER, A VALID CLAIM INCLUDED IN SUCH PATENT
RIGHT, THE MANUFACTURE, DEVELOPMENT, COMMERCIALIZATION, USE, SALE, IMPORT, OR
OFFER FOR SALE, AS APPLICABLE, OF SUCH PRODUCT WOULD INFRINGE SUCH VALID CLAIM
IN THE COUNTRY WHERE SUCH ACTIVITY OCCURS.
SECTION 1.12
"DEVELOPMENT" OR "DEVELOP" SHALL MEAN DEVELOPMENT
ACTIVITIES, INCLUDING TEST METHOD DEVELOPMENT AND STABILITY TESTING, TOXICOLOGY,
FORMULATION, OPTIMIZATION, QUALITY ASSURANCE/QUALITY CONTROL DEVELOPMENT,
STATISTICAL ANALYSIS, CLINICAL STUDIES, REGULATORY AFFAIRS, PRODUCT APPROVAL,
AND REGISTRATION.
SECTION 1.13
"DEVELOPMENT TERM"