ࡱ> TVU9 R@bjbj+c<%lhhhhhhh|8D(<|vpp"hjjjjjj$_ h~hhT~~~|hhh~h~~ThhTd 0(B}|0 bTT0TdT~||hhhh Form Agreement Unilateral (the University Discloses) 1/23/2009 CONFIDENTIALITY AGREEMENT This Confidentiality Agreement (this Agreement) is made and entered into on this _____ day of _________, 200_ (the Effective Date), by and between 鶹AV, a national university corporation organized and existing under the laws of Japan, with its principal place of business at 1-3-2 Kagamiyama, Higashi-Hiroshima City, Hiroshima Pref. 739-8511, Japan (hereinafter the University), and _________________, a company organized and existing under the laws of ___________, with its principal place of business at ___________________ (the "Receiving Party). Each of the University and the Company is sometimes called a Party and both of them are sometimes called the Parties. RECITALS The Parties are considering the possibility of forming a business relationship [entering into a consulting agreement, a sponsored research agreement, a collaborative research agreement, a license agreement] between the Parties. In order to assist the Receiving Party in its evaluation and assessment of forming such business relationship [of entering into such agreement] (such evaluation and assessment, the Purpose), the Receiving Party has requested from the University certain confidential information. The University is willing to disclose to the Receiving Party such information of a confidential and proprietary nature in connection with the Purpose, but only on a confidential basis and subject to the conditions hereinafter set forth. NOW, THEREFORE, in consideration of the foregoing premises and covenants hereinafter contained, the Parties agree as follows: Article 1. Definition Confidential Information means (a) any information disclosed by the University to the Receiving Party that is in written, electronic or other tangible form and is identified by notice or legend on the face of such form, or in a separate written notice accompanying such form, indicating that the information contained therein is confidential or proprietary; (b) any information disclosed by the University to the Receiving Party orally or in other intangible form if within thirty (30) days of such disclosure the University sends the Receiving Party a written notice that identifies such information and indicates that it is confidential or proprietary; and (c) any information disclosed by the University under the circumstances in which a reasonable person would conclude that such disclosure is intended as confidential. Confidential Information may include without limitation concept, data, drawings, specifications, sketches, developments, experiment results, technical information, strategies, technology, know-how, trade secret and software; provided, however, that any of the following shall not be Confidential Information when the Receiving Party can establish by written evidence: (1) information that was known to the Receiving Party or in its possession prior to or at the time of disclosure; (2) information that was already publicly known prior to receipt thereof or thereafter becomes publicly known through no fault of the Receiving Party; (3) information identical to disclosed information that is subsequently lawfully obtained by the Receiving Party without any duty of confidentiality or restriction on disclosure or use from a third party who is free to disclose the same; and (4) information that is independently developed by the Receiving Party without access to, or use of, any Confidential Information disclosed hereunder. For purposes of the foregoing, Confidential Information disclosed by the University shall not be deemed to be information known to the Receiving Party or in its possession or publicly known merely because it is embraced by more general information that is already known to the Receiving Party or in its possession or publicly known, nor shall Confidential Information containing assembled or combined elements be deemed to be already known to the Receiving Party or in its possession or publicly known merely because information containing individual items of such elements are already known to the Receiving Party or in its possession or publicly known. Effective Date has the meaning ascribed thereto in the Preamble above. Purpose has the meaning ascribed thereto in the Recital above. Article 2. Non-Disclosure, etc. 2.01 The Receiving Party shall maintain the confidentiality of any Confidential Information disclosed by the University or learned by the Receiving Party at the Universitys premises, shall not disclose, without the prior written consent of the University, any Confidential Information to any entity or person other than those officers, employees or representatives of the Receiving Party who have a need to know such Confidential Information for carrying out the Purpose and have agreed in writing to the same obligations of confidentiality and restrictions on use as those to which the Receiving Party is bound hereby, shall not copy or reproduce any Confidential Information without the written authorization of the University except to the extent reasonably required for internal circulation for the Purpose, and shall not use any Confidential Information for itself or others for any purpose other than in connection with the Purpose. 2.02 Notwithstanding the foregoing, the Receiving Party may disclose to any third party Confidential Information that is required to be disclosed to such party by law or regulation or in response to a valid order of a court or other governmental body, but only to the extent of and for the purpose of such law, regulation or order, and only if the Receiving Party first notifies the University in writing of such required disclosure and uses its best efforts to seek an appropriate legal remedy including without limitation a protective order to maintain the confidentiality of Confidential Information or minimize disclosure thereof, and permits the University, at its expense, to seek such legal remedy. 2.02 In protecting Confidential Information, the Receiving Party shall take all necessary precautions and Confidential Information shall be treated in the same manner and with the same degree of care as the Receiving Party applies with respect to its own confidential information but in no event less than reasonable care. 2.03 The Receiving Party shall designate at least one (1) of its employees as the person responsible for receiving Confidential Information and enforcing the obligations of confidentiality and restrictions on use thereof. The Receiving Party shall notify the University of the designation and replacement of such responsible personnel in writing. 2.04 The Confidential Information may be controlled by export regulations of Japan, the United States and/or other foreign jurisdictions (the Export Regulations). The export, re-export or disclosure by a Party to its foreign employees, subsidiaries, branches (and employees of those companies) may require government approval. The Receiving Party shall insure that all activities involving its distribution and export/re-export of Confidential Information are in compliance with all laws, regulations, orders or other restrictions of the Export Regulations. The Receiving Party agrees that neither it nor any of its subsidiaries will use, export, transfer, make available or otherwise disclose any Confidential Information in violation of any Export Regulations, including without limitation any use or development in nuclear, missile, and chemical or biological weapons activities. Article 3. No Warranties; No License; No Duty of Further Dealing 3.01 The disclosure of Confidential Information hereunder and the extent of any such disclosure shall be at the complete discretion of the University. Nothing contained in this Agreement shall be construed as an obligation of the University to furnish any specific Confidential Information. 3.02 The Receiving Party acknowledges that Confidential Information shall be provided on an as is basis hereunder. The University makes no warranty, express or implied, with respect to Confidential Information disclosed hereunder, including without limitation any warranty as to the accuracy, reliability or completeness of such Confidential Information. The Parties agree that neither the University nor any of its officers, employees, students and representatives shall have any liability to the Receiving Party or any of its officers, employees and representatives resulting from the use of Confidential Information disclosed hereunder in connection with the Purpose. 3.03 Nothing contained herein shall be construed as granting, whether expressly or implicitly, to the Receiving Party any licenses under or rights in any present or future patents, patent applications, utility models, trademarks, designs, copyright, know-how, trade secret or other industrial or intellectual property rights. 3.04 Nothing contained herein shall be construed, by implication or otherwise, as an obligation to enter into any further agreement including without limitation [a consulting agreement, a sponsored research agreement, a collaborative research agreement or a license agreement]. Article 4. Term of Agreement This Agreement shall become effective on the Effective Date and remain in force for a period of one (1) year, unless otherwise terminated earlier by written agreement of the Parties; provided, however, that the obligations of non-disclosure and non-use set forth herein and related provisions hereof shall survive the expiration or termination of this Agreement. Article 5. Ownership; Return of Materials All Confidential Information shall remain the property of the University. Promptly upon demand by the University at any time, the Receiving Party shall return to the University or destroy, as demanded, all Confidential Information, and all notes, summaries, extracts, copies and other similar materials containing or referring to any Confidential Information. Article 6. Miscellaneous 6.01 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of Japan, without regard to the principles of conflict of law thereof. 6.02 Severability. If one or more provisions of this Agreement or any part thereof shall be declared or adjudged to be illegal, invalid, or unenforceable under any applicable law by any court, governmental agency or arbitrational tribunal with jurisdiction over the Parties, such illegal, invalid or unenforceable provision shall be omitted, or upon the request of either Party, the provision may be reformed and construed in a manner that will be valid and enforceable to the maximum extent permitted by law. All other provisions or requirements shall continue without regard to the omitted clause. 6.03 Equitable Relief. The Receiving Party acknowledges that its breach of this Agreement may result in immediate and irreparable harm to the University, and the University shall be entitled to seek equitable relief, including but not limited to a temporary restraining order and preliminary injunction, to compel the Receiving Party to cease and desist all unauthorized use and disclosure of the Confidential Information. If the Receiving Party becomes aware of any breach or threatened breach of this Agreement by the Receiving Party or by any of the Receiving Partys officers, employees or representatives (whether or not such person is then still in such capacity), the Receiving Party shall forthwith notify the University in writing thereof, giving all available details, and the Receiving Party shall at its own cost and at the Universitys direction, take such steps as the University may reasonably require in order to minimize the loss which the University may otherwise suffer as a result of such breach, whether by court proceedings or otherwise. 6.04 Notices. All notices, requests, service of process and other communications to the Parties shall be in writing and sufficient if delivered by hand, by facsimile or e-mail (with confirmation of receipt), by registered and certified mail (postage prepaid with return receipt requested) or by overnight courier service, in each case addressed as set forth below or to such other address or facsimile number as the Party to whom notice is to be given may have furnished to the other Party in writing upon at least five (5) days notice. Each such notice, request or communication shall be effective only (i) if by letter, when delivered personally or on actual receipt; and (ii) if by facsimile or e-mail when sent (provided that the Party sending the facsimile or e-mail shall have received a confirmation of receipt). Any notice given under or in connection with this Agreement shall be in the English language. To the University: 鶹AV 1-3-2 Kagamiyama, Higashi-Hiroshima City, Hiroshima Pref. 739-8511, Japan Attention: ______________ Phone: ______________ Fax: ______________ e-mail: ____________ To the Receiving Party: _____________________ _____________________ Attention: ______________ Phone: ______________ Fax: ______________ e-mail: ____________ 6.05 No Assignment. All obligations of the Receiving Party provided under this Agreement are personal to the University and neither Party shall assign any rights or delegate any obligations hereunder without the other Partys prior written consent. Any attempted assignment by either Party without the required consent from the other Party shall be null and void. 6.06 Binding Effect. This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective successors and, in the event of a permitted assignment, any such assigns. 6.07 Entire Agreement. This Agreement contains the entire agreement between the Parties relating to the subject matter hereof and supersedes all prior written or oral agreements, contracts or promises between the Parties with respect to such subject matter. 6.08 Amendments. No provision of this Agreement shall be deemed modified, amended, waived or revoked except by a writing signed by both Parties. The failure or delay by either Party at any time or from time to time to require performance by the other Party of any provision hereof shall in no manner affect the right of such Party thereafter to enforce such provision. 6.09 No Announcements. Without the prior written consent of the other Party, neither Party shall publicly announce or disclose the existence of this Agreement or its terms, nor the fact that the Parties are discussing a possible business relationship, except as required to be disclosed by law or regulation or in response to a valid order of a court or other governmental body, but only to the extent of and for the purpose of such law, regulation or order. 6.10 Indemnification. The Receiving Party hereby agrees to indemnify and hold harmless the University from any damage, loss, cost or liability including without limitation attorneys fees and the cost of enforcing this indemnity arising out of or resulting from any unauthorized disclosure or use by the Receiving Party or any of its officers, employees and representatives of the Confidential Information. IN WITNESS WHEREOF, the Parties have executed this Agreement on the date first set forth above. 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