ANY GOVERNMENTAL
OR REGULATORY AUTHORITY (OTHER THAN THOSE RELATING TO THE GRANTING OF APPROVALS
BY THE FDA AS CONTEMPLATED HEREIN); AND (C) THE RIGHTS GRANTED BY EACH OF THEM
DOES NOT CONFLICT WITH ANY RIGHTS GRANTED BY EITHER OF THEM TO ANY THIRD PARTY.
IN ADDITION, CEPHALON WARRANTS THAT IT HAS RIGHTS TO LICENSE OR SUBLICENSE, AS
THE CASE MAY BE, THE LISTED PATENTS AS LICENSED HEREUNDER.
6.2
DISCLAIMER OF WARRANTY. EXCEPT AS EXPRESSLY SET FORTH HEREIN IN
SECTION 6.1, NO GUARANTEE, WARRANTY, CONDITION, UNDERTAKING OR TERM, EXPRESS OR
IMPLIED, STATUTORY OR OTHERWISE, IS GIVEN OR ASSUMED BY CEPHALON, AND ALL SUCH
GUARANTEES, WARRANTIES, CONDITIONS, UNDERTAKINGS AND TERMS ARE HEREBY EXCLUDED.
7.
CONFIDENTIALITY
7.1
CONFIDENTIAL INFORMATION. DURING THE TERM OF THIS AGREEMENT, AND
FOR TEN (10) YEARS AFTER ITS TERMINATION OR EXPIRATION, EACH PARTY SHALL
MAINTAIN IN CONFIDENCE ANY INFORMATION CONCERNING THE SUBJECT MATTER HEREOF
PROVIDED BY THE OTHER PARTY (THE "PROVIDING PARTY"), AND THAT IS CONSIDERED TO
BE CONFIDENTIAL BY THE PROVIDING PARTY, REGARDLESS OF WHETHER PROVIDED PRIOR TO
OR AFTER THE DATE OF THIS AGREEMENT. SUCH INFORMATION (COLLECTIVELY, THE
"CONFIDENTIAL INFORMATION") INCLUDES BUT IS NOT LIMITED TO DOCUMENTATION,
BUSINESS PLANS, COST AND OPERATIONAL INFORMATION, WHETHER OR NOT RELATED TO
PROVIGIL OR BARR GENERIC MODAFINIL PRODUCT. CONFIDENTIAL INFORMATION SHALL NOT
BE USED OR DISCLOSED TO OTHERS EXCEPT FOR CARRYING OUT THE PURPOSE OF THIS
AGREEMENT. THE FOREGOING OBLIGATION OF CONFIDENTIALITY SHALL NOT APPLY TO ANY
PORTION OF THE CONFIDENTIAL INFORMATION THAT A PARTY ("RECEIVING PARTY") CAN
DEMONSTRATE:
(A)
WAS ALREADY KNOWN TO THE RECEIVING PARTY;
(B)
WAS GENERALLY AVAILABLE TO THE PUBLIC OR OTHERWISE PART OF THE
PUBLIC DOMAIN AT THE TIME OF ITS DISCLOSURE;
(C)
BECAME GENERALLY AVAILABLE TO THE PUBLIC OR OTHERWISE PART OF THE
PUBLIC DOMAIN AFTER ITS DISCLOSURE TO THE RECEIVING PARTY, OTHER THAN THROUGH
ANY ACT OR OMISSION OF THE RECEIVING PARTY IN BREACH OF THIS AGREEMENT;
(D)
WAS SUBSEQUENTLY LAWFULLY DISCLOSED TO THE RECEIVING PARTY BY A
THIRD PARTY; OR
(E)
THE RECEIVING PARTY WAS COMPELLED TO DISCLOSE BY GOVERNMENTAL
ADMINISTRATIVE AGENCY OR JUDICIAL REQUIREMENTS; PROVIDED, HOWEVER, THAT ANY
DISCLOSURE UNDER THIS SECTION 7.1(E) SHALL NEITHER RELIEVE THE RECEIVING PARTY
FROM ATTEMPTING TO IMPOSE CONFIDENTIALITY
**Portions of the Exhibit have been omitted and have been filed separately
pursuant to an application for confidential treatment filed with the Securities
and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act
of 1934, as amended.
10
obligations on the governmental administrative agency or judicial body, to the
extent feasible, nor shall it relieve the Receiving Party from maintaining the
confidentiality of the Confidential Information with respect to third parties
other than the agency or body as to which such compelled disclosure has been
made.
7.2
PROTECTION OF CONFIDENTIAL INFORMATION. THE PARTIES SHALL TAKE ALL
REASONABLE STEPS TO ELIMINATE THE RISK OF DISCLOSURE OF CONFIDENTIAL
INFORMATION, INCLUDING, WITHOUT LIMITATION, ENSURING THAT ONLY EMPLOYEES,
AGENTS, AND REPRESENTATIVES WITH A NEED TO KNOW THE CONFIDENTIAL INFORMATION
HAVE ACCESS THERETO. THE PARTIES ACKNOWLEDGE BY THE SIGNING