definiens: shall mean any and all proprietary or confidentialinformation of TSRI or Licensee ( which shall include, for purposes of this Section 1.4, proprietary or confidential informationof its Affiliates and Sublicensees ) that such Party ( the ) discloses to the other Party ( the ) at any time and from time to time during the term of this Agreement . In addition, Confidential Information of a Party shallinclude any and all proprietary or confidential information of such Party that it disclosed to the other Party prior to theEffective Date pursuant to the Mutual Non - Disclosure Agreement between Licensee and TSRI, dated December 19, 2006, orthe Mutual Non - Disclosure Agreement between Licensee and TSRI, dated August 7, 2008 ( collectively, the ) . ThisAgreement, including its terms and conditions, shall be considered Confidential Information of both Parties . Information shallnot be considered confidential to the extent that the Receiving Party can establish by competent proof that it:(a ) Is publicly disclosed through no fault of the Receiving Party, either before or after it becomes known to theReceiving Party ; or(b ) Was known to the Receiving Party prior to the date of this Agreement, which knowledge was acquiredindependently and not from the Disclosing Party ( or such Disclosing Party ’s employees ) ; or 2EXECUTION COPY ( c ) Is subsequently disclosed to the Receiving Party in good faith by a third party who is not under any obligation tomaintain the confidentiality of such information, and without breach of this Agreement by the Receiving Party ; or(d ) Has been published by a third party as a matter of right