ARTICLE 5: CONFIDENTIALITY
5.1 During the period of Industrial Members’ participation in BSAC under the terms of this Agreement, California may provide Industrial Member certain Prepublication Data and Invention Disclosures (collectively “BSAC Data”) related to the research activities of BSAC Researchers. As used herein, Prepublication Data means results of research including but not limited to that presented by BSAC to Industrial Member at BSAC research review meetings, that has not yet been published by the researchers at the time of such presentation. Prepublication Data may be oral, visual, or written, and may also include information provided or delivered by electronic means. If written, it shall be clearly marked “Prepublication Data.” If disclosed orally or visually, the material considered Prepublication Data shall be identified at the time of disclosure and shall be so designated in writing to Industrial Member within thirty (30) days of its original disclosure. As used herein, Invention Disclosure means written descriptions of inventions or discoveries provided by California to Industrial Member.
5.2 Industrial Member will maintain BSAC Data (comprising Prepublication Data and Invention Disclosures) in confidence for one (1) year from the date such BSAC Data is disclosed, even if Industrial Member is no longer a member of BSAC.
5.3 With regard to BSAC Data, Industrial Member agrees:
a. to receive Prepublication Data in order to provide advice and direction as to BSAC research programs;
b. to receive Invention Disclosures for the sole purpose of evaluating its interest in obtaining a commercial license from California;
c. to safeguard BSAC Data against disclosure to others with the same degree of care as it exercises with its own data of similar nature; and
d. not to disclose BSAC Data to others (except to its employees, agents, or consultants who are bound to Industrial Member by a like obligation of confidentiality) without express written permission of California except that Industrial Member shall not be prevented from using or disclosing any of the BSAC Data which:
i. Industrial Member can demonstrate by written record was in its possession prior to receipt from California;
ii. is now, or becomes in the future, public knowledge other than through acts or omissions of Industrial Member;
iii. is lawfully obtained by Industrial Member from sources independent of California;
iv. is required to be disclosed by operation of law, provided that California has received advanced written notice of the proposed disclosure by the Industrial Member; or
v. is disclosed by California to a third party without a nondisclosure obligation.
vi. is independently developed by or for Industrial Member
To the extent such does not infringe California’s valid copyright and patent rights, and subject to Industrial Member’s obligation of nondisclosure set forth in paragraph 5.2, Industrial Member shall be free to use for any purpose any intangible residual ideas, concepts, know-how or techniques (as distinguished from the tangible implementation of such know-how, ideas, concepts and techniques) contained in California’s BSAC Data (the “Residual Information”) retained in the unaided memories of Industrial Member’s employees. The marketing of products or services which inherently disclose Residual Information shall not be deemed a publication or disclosure of Confidential Information.
It is further agreed that the furnishing of BSAC Data to Industrial Member will not constitute any grant or license to Industrial Member under any legal rights now or hereinafter held by California.