Confidential Information

Definition. “Confidential Information” means any information disclosed by either party to the other party under this Agreement, either directly or indirectly, in writing, orally or by inspection of tangible objects (including, without limitation, documents, Personal Information, software, facilities, equipment and operating plans).  Confidential Information may also include information disclosed to a disclosing party by third parties.  Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already rightfully in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party's files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party's obligations of confidentiality; (v) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information, as shown by documents and other competent evidence in the receiving party's possession; or (vi) is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure and discloses only so much of the Confidential Information as is required.

Non-use and Non-disclosure. Each party agrees not to use any Confidential Information of the other party except as expressly permitted in this Agreement or as expressly authorized.  Each party agrees not to disclose any Confidential Information of the other party, to third parties except as provided in Sections 9.3 and 9.4 below. 

Terms of Agreement. Each party agrees that the specific commercial terms and conditions of this Agreement including but not limited too Price, Dates, Deliverables will be treated as the other parties’ Confidential Information and that no reference to the terms and conditions of this Agreement may be made in any form of press release or public statement without first consulting with the other party; provided, however, that each party may disclose the terms and conditions of this Agreement:  (i) as may be required by law, if such party notifies the other party of such requirement prior to such disclosure in sufficient time to enable the other party to seek a protective order covering such disclosure; (ii) to legal counsel of the parties, provided such counsel is informed of his/her obligation to keep such disclosure in confidence with the same degree of care as the party’s other Confidential Information; (iii) in connection with the requirements of an initial public offering or securities filing provided such party seeks confidential treatment of the terms and conditions of this Agreement as appropriate; (iv) to accountants, banks and financing sources and their advisors, provided such persons and/or entities are informed of the obligation to keep such disclosure in confidence with the same degree of care as the party's other Confidential Information; and (v) in connection with a merger or acquisition or proposed merger or acquisition or the like provided such party seeks confidential treatment of the terms and conditions of this Agreement as appropriate and provided that the person to whom the Confidential Information is disclosed are informed of the obligation to keep such disclosure in confidence with the same degree of care as the party's other Confidential Information.

Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party.  Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information but in no circumstances less than reasonable care.  Neither party shall disclose the other party’s Confidential Information to any person or entity other than its officers, employees, consultants and legal advisors who need access to such Confidential Information in order to effect the intent of this Agreement and who are informed of the obligation to keep such disclosure in confidence, and each party shall be responsible to ensure that its officers, employees, consultants and legal advisors comply with the restrictions set forth herein.  Neither party shall make any copies of the Confidential Information of the other party except as appropriate to perform its obligations pursuant to this Agreement.  Each party shall reproduce the other party's proprietary rights notices on any such copies, in the same manner in which such notices were set forth in or on the original. 

Remedies. Each party acknowledges that a breach of this Section 9 would cause irreparable harm to the non-breaching party, the extent of which would be difficult to ascertain.  Accordingly, the parties agree that, in addition to any other remedies to which the non-breaching party may be legally entitled, the non-breaching party shall have the right to seek immediate injunctive relief from a court of competent jurisdiction in the event of a breach of this Section 9 by the other party or any of its officers, employees, consultants or other agents.  The parties further agree that no bond or other security shall be required in obtaining such equitable relief and the parties hereby consent to the issuance of any such injunctive relief.