Provision Language
Definitions
“Confidential Information” shall mean all information that would reasonably be regarded as, or is designated as, of a confidential or commercially sensitive nature by the person to which the information relates including, without limitation, the Know-How and any matter relating to, or arising in connection with, this Agreement or the business or affairs of any of the Parties or any of their Affiliates, as amended from time to time.
8. EXCHANGE OF INFORMATION AND CONFIDENTIALITY
8.1 Each Party shall hold the Confidential Information disclosed to it under or in connection with this Agreement in strict confidence, and shall not use such Confidential Information for any other purpose than the performance of this Agreement.
8.2 The Party that releases, exchanges, or discloses Confidential Information (the “Disclosing Party”) shall use reasonable efforts to mark such Confidential Information as “Confidential.” In the event that Confidential Information is disclosed and not so marked, the receiving Party agrees to treat such information as confidential to the extent that a reasonable person would consider such information to be confidential given the content and circumstances of the disclosure.
8.3 Neither Party shall disclose any Confidential Information received from the other Party under or in connection with this Agreement, or otherwise developed by any Party in the performance of activities in furtherance of this Agreement, except to such of its officers, employees, agents, representatives, Affiliates, advisors and consultants, governing bodies to whom disclosure is necessary to exercise the Party’s rights or perform the Party’s obligations under this, and who are bound by confidentiality and non-use obligations no less onerous than those contained in this Section 8.
8.4 The obligations in Sections 8.1, 8.2 and 8.3 shall not apply to the following as established by reasonable, written proof:
(a) information which at the time of disclosure is in the public domain; or
(b) information which, after its disclosure, becomes part of the public domain by publication or otherwise, except by breach of this Agreement; or
(c) information that a Party can demonstrate was lawfully possessed by it prior to disclosure under or in connection with this Agreement; or
(d) information that a Party receives from a Third Party which is not legally prohibited from disclosing such information; or
(e) information a Party is required by law to disclose, provided that the other Party is promptly notified of any such requirement: or
(f) information which is independently developed by the receiving Party or its Affiliates who had no knowledge of the Disclosing Party’s Confidential Information.
8.5 If a receiving Party becomes obligated by law to disclose Confidential Information received under or in connection with this Agreement, or any portion thereof, to any Third Party, governmental authority or court, that Party shall immediately notify the Disclosing Party of each such requirement and identify the Confidential Information to be disclosed so that such Disclosing Party may seek an appropriate protective order or other remedy with respect to narrowing the scope of such requirement and, to the extent necessary, waive the receiving Party’s compliance with the confidentiality obligations of this Agreement.
8.6 The Parties acknowledge that disclosure of any Confidential Information in breach of this Agreement could give rise to irreparable injury to the non-breaching Party and that such injury will not be adequately compensated by damages. Accordingly, the non-breaching Party shall be entitled to the remedies of specific performance and injunctive relief or other equitable relief for any threatened or actual breach of this Section 8. Such relief shall be in addition to all other remedies available to the non-breaching Party at law or in equity.
8.7 All Confidential Information shall remain the property of the Disclosing Party. In the event that a court or other legal or administrative tribunal of competent jurisdiction, directly or through an appointed master, trustee or receiver, assumes partial or complete control over the assets of a Party to this Agreement, based on the insolvency or bankruptcy of such Party (or based on any other analogous or similar status of that Party under foreign laws), the bankrupt or insolvent Party shall promptly notify the court or other tribunal:
(a) that Confidential Information remains the property of the Disclosing Party; and
(b) of the confidentiality obligations under this Agreement.