CONFIDENTIALITY AGREEMENT

(Mutual)

 

This Confidentiality Agreement (the “Agreement”) is made and entered into on the date of user’s account registration on the website investintalon.net.  This agreement is between Talon BioVentures, a Delaware corporation with an address at 110 South Jefferson Road, Suite 104, Whippany, NJ 07981 (“Talon”) and the company requesting an account on investintalon.com (the “Other Party”). Each of Talon and Other Party are referred to herein individually as a “Party” and collectively as “Parties”.
 

Recitals

WHEREAS, the Parties wish to engage in discussions (i) to consider strategic partnering opportunities; and (ii) regarding investment in Talon efforts (the “Purpose”); and

WHEREAS, prior to entering into discussions and negotiations relating to the Purpose, the Parties wish to set out herein the terms and conditions under which the Disclosing Party (as defined below) may disclose Confidential Information to the Receiving Party (as defined below) and under which the Receiving Party may use Confidential Information.

NOW THEREFORE, in consideration of the foregoing, of the mutual promises herein contained, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending legally to be bound, hereby agree as follows:
 

Agreement

1)  Under this Agreement, the Party receiving Confidential Information shall be referred to as the “Receiving Party” and the Party disclosing such Confidential Information shall be referred to as the “Disclosing Party.”
 

2)  Definition. As used herein, “Confidential Information” means, and includes, but is not limited to, all information and data in whatever form disclosed to the Receiving Party by or on behalf of the Disclosing Party, including, without limitation, information concerning the Disclosing Party’s business, financial condition, operations, assets, inventions, know-how, ideas, procedures, formulations, compounds, biologics, developmental or experimental work, clinical or other programs, and plans for research and development information.
 

3)  Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by competent evidence that:
 

1. a) was in the public domain at the time of its receipt from or on behalf of the Disclosing Party or thereafter enters into the public domain through no fault of the Receiving Party;

​

1. b) was already in the Receiving Party’s possession prior to receipt from or on behalf of the Disclosing Party, as evidenced by the Receiving Party’s written records, and under no obligation of confidentiality to the Disclosing Party;
    

2. c) was or is furnished to the Receiving Party by a third party not bound by any obligation of confidentiality; or
    

 

1. d) is developed by or for the Receiving Party without use of the Confidential Information and such independent development can be shown by documentary evidence.

​4)  Compelled Disclosures. Any disclosure made in response to a valid order by a court or other governmental body, or otherwise required by law, or necessary to establish the rights of either Party under this Agreement shall not be deemed a breach of this Agreement, provided that prior to any such disclosure, Receiving Party shall promptly notify Disclosing Party in writing and reasonably cooperate with Disclosing Party to enable Disclosing Party to avoid or limit such disclosure to the extent legally permitted, and to obtain a protective order or other available protections to the extent such disclosure is required. Furthermore, the foregoing notwithstanding, Confidential Information of Disclosing Party shall not be disclosed by Receiving Party, nor otherwise be admissible or be subject to discovery in any legal action or proceeding except as legally compelled, or as otherwise mutually agreed to in writing by the Parties, and any such disclosure by Receiving Party shall be limited to the minimum disclosure legally required to be made in accordance with the respective governmental or court order.
 

5)  Term; Obligations of the Receiving Party; This Agreement shall remain in effect for one (1) year from the Effective Date (the “Term”). During the Term and for a period of four (4) years thereafter, the Receiving Party shall maintain in confidence and shall not, without the prior written consent of the Disclosing Party, (a) use the Confidential Information for any purpose other than the Purpose, (b) disclose, permit the disclosure, or give to any third parties any Confidential Information, or (c) make any copies of Confidential Information, except as reasonably necessary to fulfill the Purpose. Notwithstanding the foregoing, if any Confidential Information constitutes a trade secret of the Disclosing Party, then the confidentiality obligations herein will remain in effect for as long as such information remains a trade secret. The Receiving Party will use at least the same level of care in safeguarding the Confidential Information that it uses with its own confidential material of a similar nature (but in no event less than reasonable care). To fulfill the Purpose, the Receiving Party may disclose Confidential Information to the following persons or entities that have a reasonable need to know the Confidential Information in connection with the Purpose: (i) the Receiving Party’s directors, officers, employees or agents, all of whom are bound by obligations of confidentiality and non-use substantially similar to the obligations set forth in this Agreement (collectively, the “Representatives”) and (ii) or any Affiliate of the Receiving Party who have a need to know such information. The Receiving Party will be responsible for any act or omission of any Representative that would be a breach of this Agreement by the Receiving Party. The Receiving Party will promptly notify the Disclosing Party in writing if it becomes aware of any unauthorized use or disclosure of the Confidential Information.

​

6)  Prohibited Actions. Receiving Party agrees not to, either directly or indirectly, (i) seek patent protection or any other form of intellectual property rights for Disclosing Party’s Confidential Information or any part thereof (including by amending or adding any claim in any existing patent application of Receiving Party to allow such claim to read on, cover or dominate any invention, whether or not patentable, disclosed in Disclosing Party’s Confidential Information); (ii) use Disclosing Party’s Confidential Information to circumvent, bypass, or design around Disclosing Party’s Confidential Information; or (iii) use Disclosing Party’s Confidential Information to compete against Disclosing Party and/or its Affiliates.

 

7)  Return. Upon the completion or termination of any discussions between the Parties, or at any time within fourteen (14) days of receipt of a written request of the Disclosing Party, the Receiving Party shall at its election either (i) promptly return to the Disclosing Party all Confidential Information disclosed in tangible form and copies thereof or (ii) promptly destroy such Confidential Information (including all copies thereof) and certify such destruction to the Disclosing Party.

8)  Disclosing Party’s Property. The Confidential Information disclosed by or on behalf of the Disclosing Party pursuant to this Agreement shall remain the sole and exclusive property of the Disclosing Party. Nothing contained in this Agreement shall be construed as a grant of right or of license, whether express or implied, by the Disclosing Party to the Receiving Party, with respect to the Confidential Information, or to any patent, copyright, trademark, or any other intellectual property rights.

​9)  No Obligation. The disclosure of Confidential Information by either Party shall not result in any obligation on the part of either Party to enter into any further agreement relating thereto or to undertake any other obligation not set forth in a written agreement.

​10)  Injunctive Relief. The Receiving Party agrees and acknowledges that, in the event of any breach of this Agreement by the Receiving Party or its Affiliates or Representatives, the Disclosing Party may be irreparably and immediately harmed and may not be made whole by monetary damages. Accordingly, it is agreed that, in addition to any other remedy to which it may be entitled in law or in equity the Disclosing Party, shall be entitled to seek an injunction or injunctions in a court of competent jurisdiction to prevent breaches or threatened breaches of this Agreement and/or to seek to compel specific performance of this Agreement. Nothing herein shall be construed as prohibiting the Disclosing Party from pursuing any other remedies available to it for such breach or threatened breach, including the recovery of damages.

11)  No Warranties. The Confidential Information provided hereunder is provided “AS IS” and without any warranty, express, implied or otherwise, regarding its accuracy or performance. No warranty or representation is made by the Disclosing Party to the Receiving Party that any information transmitted by it hereunder is true and correct, patentable or copyrightable, or that any such information involves concepts or embodiments that are free of infringement of other rights.

 

12)  Assignment. This Agreement may not be assigned by the Other Party without the prior written consent of Interro. This Agreement will be binding upon the successors and/or assigns of the Parties.
 

13)  Governing Law; Venue. This Agreement shall be governed by the laws of the State of Delaware, without giving effect to the conflicts of laws provisions thereof.
 

14)  Amendments; Waiver. No amendment, alteration or modification of any of the provisions of this Agreement shall be valid or effective unless made in writing and signed by the duly authorized representatives of the Parties. No waiver of any provision of this Agreement shall be valid or effective unless made in writing and signed by a duly authorized representative of the Party to be bound by such waiver. Failure of the Disclosing Party to exercise any right to enforce any provision, or to require strict performance by the Receiving Party of any provision, shall not release the Receiving Party of its obligations under this Agreement and shall not operate as a waiver of any right to insist upon strict performance, or of the Disclosing Party’s rights or remedies under this Agreement or at law.

15)  Compliance with Laws and Policy. Each Party agrees that it shall comply and act in accordance with all applicable provisions of federal and state laws and regulations concerning such Confidential Information. The Parties recognize that communication or transfer of any information received pursuant to the Purpose may be subject to specific government export approval. Each Party agrees to comply with all applicable export control legislation with respect to Confidential Information received hereunder.

16)  Severability. If any provision of this Agreement is held invalid by any law, rule, order, or regulation of any government or by the final determination of any court of competent jurisdiction, such invalidity shall not affect the enforceability of any other provisions and such provisions shall be interpreted so as to best accomplish the objectives of such invalid provisions within the limits of applicable law or court decision.

17)  Affiliates. For purposes of this Agreement, "Affiliates" means with respect to a Party, any Person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such Party. For the purposes hereof, the term “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as used with respect to any Person, means possession, directly or indirectly, of (a) the power to direct the management or policies of a Person, whether through ownership of voting securities or by contract relating to voting rights or corporate governance, resolution, regulation or otherwise, or (b) ownership of 50% or more of the outstanding voting securities or other ownership interest of such Person. “Person” means an individual, sole proprietorship, partnership, limited partnership, limited liability partnership, corporation, limited liability company, business trust, joint stock company, trust, incorporated association, joint venture or similar entity or organization, including a government or a department or agency of a government.

 

18)  Notices. All notices, requests and other communications hereunder must be in writing and delivered personally, sent by certified mail (postage paid and signature required), or by overnight courier (signature required), to the Parties at the addresses set forth on the first page or such other addresses as may be designated in writing by the Parties.

19)  Entire Agreement. This Agreement contains the entire agreement of the Parties and there are no other promises or conditions in any other agreement between the Parties, whether oral or written, concerning the subject matter hereof. This Agreement supersedes any prior written or oral agreements between the Parties concerning the subject matter hereof.

20)  Headings. The headings used in this Agreement are for convenience only and will not affect in any way the meaning or interpretation of this Agreement.

21)  Authority to Execute. By signing below, each signatory executing this Agreement (electronically or otherwise) on behalf of a Party certifies and represents that he or she has full requisite power and authority to execute and deliver this Agreement on behalf of such Party and to legally bind such Party to the performance of its obligations under this Agreement.

22)  Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which when taken together shall be deemed one and the same agreement, it being understood that the Parties need not sign the same counterpart. Any signature delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file shall create a valid and binding obligation of the Party executing (or on whose behalf such signature is executed) and such electronic copy may be used in lieu of the original copy for all purposes with the same legal force and effect. Any Agreement accepted, executed or agreed to through the use of an electronic signature system in conformity with applicable laws (e.g., DocuSign or Adobe Acrobat Sign) shall be of the same legal effect, validity and enforceability as a manually executed copy to the fullest extent permitted by law.