TSRI will provide one or more of the following services ("Authorized Purpose"), as reasonably requested by Company. This may involve disclosure by Company of certain confidential and proprietary inventions, ideas, processes, trade secrets, research and development activities, information technology systems, specifications, designs, know-how, drawings, business and marketing plans, financial data, policies, procedures, and other information in written, oral and/or physical/sample form (collectively "Confidential Information"). The parties desire to protect the Company’s Confidential Information pursuant to the terms of this Agreement. NOW, THEREFORE, in consideration of the mutual provisions contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Confidential Information
All information, including materials provided, or disclosed by Company to TSRI shall be deemed “Confidential Information” if, given the circumstances surrounding such disclosure, such information would be considered “confidential” or “proprietary”, if designated as such at the time of disclosure by an appropriate legend. Neither party is obligated to disclose any information (except TSRI’s analysis of the Company’s provided materials) or to enter into any further agreement or business relationship with the other party. Neither party is prohibited from entering into any discussions or agreements with third parties with respect to the same or similar purposes as this Agreement. This Agreement is not an inducement for either party to expend funds or resources.
TSRI shall use the Confidential Information only for the Authorized Purpose, and for no other purpose. Company retains the exclusive ownership and intellectual property rights to its Confidential Information, and no license or any other interest in a party's Confidential Information is granted or implied by this Agreement. Any Confidential Information disclosed hereunder is provided without any express or implied representation or warranty by the disclosing party whatsoever, including without limitation that it does not infringe any third party’s intellectual property rights, that it is accurate or complete, or that such information, including the Results (as defined hereinafter), will be suitable for the receiving party’s purposes. Any data/results generated by TSRI under the Authorized Purpose solely related to the Company’s provided materials shall be considered Confidential Information of Company, shall be the sole and exclusive property of Company, and are provided to the Company for their use with no restrictions (defined as “Results”). For the avoidance of doubt, any and all intellectual property rights covering or embodied by the Company provided materials and the Results shall be the sole and exclusive property of Company. In addition, Company agrees that the Results shall not include any of TSRI’s procedures, methods, technologies, know-how, intellectual property rights or other information that TSRI will use in generating the Results, all of which shall remain the sole and exclusive property of TSRI. If applicable, TSRI shall provide the Results of the Authorized Purpose to the Company via email or on a CD, or its equivalent. Payment for the Authorized Purpose is at a cost of agreed upon by both parties at the time of service or at TSRI's advertised price where Authorized Purpose falls under routine services. Payment is due by Company within 30 days of the invoice date on the TSRI provided invoice. TSRI agrees to use reasonable efforts to complete the Authorized Purpose and shall comply with all the applicable guidelines set forth by the National Institutes of Health (NIH) or other governmental agencies regarding the use of the materials. The fourth, fifth, and sixth sentences of this Section 2 shall survive expiration or termination of this Agreement.
TSRI agrees to protect Company's Confidential Information with the same degree of care that it uses to protect its own Confidential Information. In addition, TSRI shall not in any way (a) disclose or otherwise distribute Company's Confidential Information to any third party at any time; (b) modify or merge Company's Confidential Information with any other technology, software or materials except as required to complete the Authorized Purpose; and (c) disclose the parties' discussions about Company’s Confidential Information and/or their potential business relationship to any third party. TSRI agrees that it will disclose the Confidential Information of Company only to its employees who have a specific need to know regarding the Authorized Purpose and only to the extent necessary for such purpose.
The obligations and restrictions herein shall not apply to Confidential Information that falls within any of the following exceptions, provided TSRI proves by credible written evidence that such information:
- is or becomes part of the public domain through no fault of TSRI;
- was known by TSRI prior to the disclosure by Company;
- was independently developed without use of or reference to Company’s Confidential Information by TSRI’s employees who had no access to Company’s Confidential Information; and/or
- has been properly received from a third party who is not under any obligation to maintain the confidentiality of such information, and without breach of this Agreement by TSRI.
If Confidential Information is required to be disclosed by law or by an order or notice from a court or regulatory agency, TSRI shall (i) promptly send a copy of the notice to Company; (ii) cooperate with Company if the Company wishes to object or condition such disclosure through a protective order or otherwise; and (iii) limit the extent of such disclosure to the minimum required to comply with the notice and will use commercially reasonable efforts to seek confidential treatment (i.e., filing “under seal”) for that disclosure.
TSRI agrees that Company may be irreparably harmed and money damages may be inadequate compensation in the event TSRI breaches any provision of this Agreement. In such event, Company may have the right, in addition to other available remedies, to seek specific performance and injunctive and other equitable relief.
6. Return of Materials
Upon Company’s request, TSRI shall promptly return all copies of Company provided materials and Company's Confidential Information, whether in tangible or machine readable form. TSRI shall thereafter retain no copies, transcriptions or summaries of the Company's Confidential Information, except that TSRI may retain one (1) archival copy of such information for purposes of enforcing or complying with this Agreement. Company will be able to continue its use of the Results beyond the expiration or termination of this Agreement.
Company hereby agrees to indemnify, defend (by counsel reasonably acceptable to TSRI) and hold harmless TSRI and any parent, subsidiary or other affiliated entity of TSRI and their trustees, directors, officers, employees, scientists, agents, successors, assigns and other representatives (collectively, the “Indemnitees”) from and against all claims, suits, actions, damages, liabilities, losses and other expenses, including without limitation reasonable attorney’s fees, expert witness fees and costs incurred by or asserted against the Indemnitees, whether or not a lawsuit or other proceeding is filed (collectively “Claim”), that arises out of or relates to Company’s use of the Results in any way, or results in any damage to TSRI’s equipment, property or personnel caused by the hazardous or other nature of Company’s samples or materials. Company’s obligation to defend such Claims shall apply to any allegations or disputes that arise out of or relate to Company’s use of the Results in any manner. Company shall not enter into any settlement of such Claims that imposes any obligation on TSRI, that does not unconditionally release TSRI from all liability or that would have an adverse effect on TSRI’s reputation or business without TSRI’s prior written consent. Notwithstanding the above, Indemnitees, at their expense, shall have the right to retain separate independent counsel to assist in defending any such Claims. In the event Company fails to promptly indemnify and defend such Claims and/or pay Indemnitees’ expenses as provided above, Indemnitees shall have the right to defend themselves, and in that case, Company shall reimburse Indemnitees for all of their reasonable attorney’s fees, costs and damages incurred in settling or defending such Claims within thirty (30) days of each of Indemnitees’ written requests. This indemnity shall be a direct payment obligation and not merely a reimbursement obligation of Company to Indemnitees.
8. No Warranty
The results of the Authorized Purpose are being supplied to Company as-is and with no warranties or representations of any kind by TSRI, either express, implied or statutory, including without limitation any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights. Title, accuracy or arising out of course of conduct or trade custom or usage, all which are disclaimed. TSRI makes no representations or warranties that the use of the results will not infringe any patent or proprietary rights of third parties or that the results will be suitable for company purposes.
9. Governing Law/Venue
This Agreement shall be interpreted and enforced according to the substantive laws of the State of California without application of its conflicts or choice of law rules. Both parties irrevocably submit to the jurisdiction of the state and/or Federal courts in San Diego County, California for any action or proceeding regarding this Agreement.
10. Entire Agreement
This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous understandings, oral or written. This Agreement can only be amended by a writing signed by both parties.
Neither party shall have the right to assign or otherwise transfer, in whole or in part, any of its rights or obligations under this Agreement, except that a party may assign this Agreement without such consent to its successor in interest by way of merger, acquisition or sale of all or substantially all of its assets.
If any provision hereof is found by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall remain in full force and effect, and the affected provisions shall be revised so as to reflect the original intent of the parties hereunder to the maximum extent permitted by applicable law.
Sections 1, 2, 3, 4, 5, 7, 8, and 9 shall survive termination or expiration of this Agreement.
14. Attorney's Fees
n the event a dispute arises regarding this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees and costs in addition to any other relief to which it is entitled.
The failure to enforce any provisions of this Agreement shall not be deemed a waiver or a continuing waiver of the same or other provision of this Agreement unless such waiver is in writing and signed by the party to be charged.
This Agreement may be executed in several counterparts that together shall constitute one and the same instrument.
The term of this Agreement shall be for a period of one (1) year from the date of this Agreement. However, the parties’ nondisclosure obligations hereunder shall continue and survive for five (5) years after the date of final disclosure of Confidential Information hereunder.
Last Update: 2020-05-28