MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT THIS MUTUAL CONFIDENTIAL DISCLOSURE

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CONFIDENTIAL DISCLOSURE AGREEMENT

MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT

This mutual confidential disclosure agreement (“Agreement”) is entered into and made effective as of ____________, 2017, between The University of Texas Health Science Center at San Antonio (“University”) a member institution of The University of Texas System (“System”) having a business address at 7703 Floyd Curl Drive, MSC 7828, San Antonio, TX 78229-3900 and _________________ (“Company”), a corporation having a business address at ____________________.

RECITALS

Whereas, Company and University (collectively the “Parties”) desire to engage in discussions regarding a potential agreement or other transaction between the Parties; and


Whereas, the Parties wish to disclose Confidential Information (as defined below) to each other, which they wish to remain confidential and proprietary, for the sole purpose of determining whether the Parties want to enter into a study related to ­_____________________ (“Purpose”).

AGREEMENTS

Now therefore, in consideration of the foregoing, the Parties agree as follows:

1. Confidential Information. For purposes of this Agreement, “Confidential Information” means any information or materials related to the Purpose disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”), that: (i) if disclosed in writing or in the form of tangible materials, is marked “confidential” or “proprietary” at the time of such disclosure; (ii) if disclosed orally or by visual presentation, is identified as “confidential” or “proprietary” at the time of such disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within thirty (30) days after any such disclosure; or (iii) due to its nature or the circumstances of its disclosure, a person exercising reasonable business judgment would understand to be confidential or proprietary.

2. Obligations and Restrictions. The disclosure of Confidential Information by the Parties is in confidence and thus the Parties agree to: (i) not disclose the Confidential Information to any third party; (ii) use at least the same degree of care to maintain the Confidential Information as the Receiving Party uses in maintaining as confidential its own confidential information, but always at least a reasonable degree of care; (iii) use the Confidential Information only for the Purpose; (iv) restrict disclosure of the Confidential Information solely to those employees and consultants of the Receiving Party having a need to know such Confidential Information in order to accomplish the Purpose; (v) advise each such employee or consultant, before he or she receives access to the Confidential Information, of the obligations of the Parties under this Agreement, and require each such employee or consultant to maintain those obligations. The Confidential Information may be communicated to the University's scientific and/or institutional review committee(s) under a similar, appropriate understanding of the confidential and/or proprietary nature of the Confidential Information supplied and to further the Purpose. Each Party will remain responsible to the other Party for any failure of its directors, officers, employees, contractors, and agents to comply with the terms of this Agreement.


3. Exceptions. This Agreement imposes no obligation on the Receiving Party with respect to any portion of the Confidential Information received from the Disclosing Party which (i) was known to Receiving Party prior to disclosure by Disclosing Party, (ii) is lawfully obtained by Receiving Party from a third party under no obligation of confidentiality, (iii) is or becomes generally known or publicly available other than by unauthorized disclosure, (iv) is independently developed by Receiving Party without use of or reliance upon the Confidential Information, or (v) is not disclosed in writing or reduced to writing and marked with an appropriate confidentiality legend within thirty (30) days after disclosure. Nothing in this Agreement will be deemed to restrict a party from disclosing the other party’s Confidential Information to the minimal extent such disclosure is required by any order, subpoena, law, statute or regulation; provided that the party required to make such a disclosure uses reasonable efforts to give the other party reasonable advance notice of such required disclosure in order to enable the other party to assert any exclusions or exemptions that may be available to it and/or seek a protective order with respect thereto.


4. Return of Confidential Information. Immediately upon written request of the Disclosing Party, the Receiving Party shall return to the Disclosing Party all documentation, copies, notes, diagrams, computer memory media and other materials containing any portion of the Confidential Information which was provided by the Disclosing Party, or confirm to Disclosing Party, in writing, the destruction of such materials. The Parties shall have the right to retain one (1) copy in a secure location for the sole purpose of determining any continuing obligations of confidentiality under this Agreement.


5. No License. All Confidential Information remains the sole and exclusive property of the Disclosing Party. Each Party acknowledges and agrees that nothing in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, in or to any Confidential Information of the Disclosing Party, or any patent, copyright or other intellectual property or proprietary rights of the Disclosing Party, except as specified in this Agreement.


6. No Warranty. All Confidential Information is provided by the Disclosing Party “AS IS”. Each Party disclaims any implied warranty, including any warranty of merchantability or fitness for a particular purpose.


7. Export Compliance. The Receiving Party agrees it will not export, directly or indirectly, any technical data acquired from the Disclosing Party or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval, without first obtaining such license or approval.


8. Term. This Agreement will remain in effect for a period of one (1) year unless terminated by either Party by giving thirty (30) days’ written notice to the other Party. The obligations of confidentiality in this Agreement will survive termination of the Agreement and will continue for a period of three (3) years thereafter.


9. Governing Law. The validity, construction, and performance of this Agreement are governed by the laws of the State of Texas without regard to its conflicts of laws provisions. The courts of the State of Texas have legal jurisdiction.


10. No Assignment. The rights and obligations of the Parties under this Agreement may not be sold, assigned, or otherwise transferred, without the other Party’s prior written consent.


11. Electronic Transmission. Signatures to this Agreement transmitted by fax, by electronic mail in “portable document format” (“.pdf”), or by any other electronic means intended to preserve the original graphic and pictorial appearance of the Agreement, shall have the same effect as physical delivery of the paper document bearing the original signature.


12. Miscellaneous. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. If any provision of this Agreement is invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. This Agreement supersedes all prior discussions and writings, and constitutes the entire agreement between the Parties, with respect to the subject matter hereof. No waiver or modification of this Agreement will be binding upon either Party unless made in writing and signed by a duly authorized representative of such Party and no failure or delay in enforcing any right will be deemed a waiver.


[Signatures appear on the following page]



COMPANY: _____________________________________

The University of Texas Health Science Center at San Antonio



By___________________________________



By___________________________________

(name and title)

Chris G. Green, CPA

Senior Director, Office of Sponsored Programs

(date)


(date)



PRINCIPAL INVESTIGATOR

I have read this agreement and understand my obligations hereunder:

By____________________________

(name and title)







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