definiens: shall mean, with respect to a party, all information ( and all tangible and intangible embodiments thereof ) that is disclosed by such party to the other party and is marked, identified as or otherwise acknowledged to be confidential at the time of disclosure to the other party . Notwithstanding the foregoing, Confidential Information of a party shall not include information that the other party can establish by written documentation ( a ) to have been publicly known prior to disclosure of such information by the disclosing party to the receiving party ; ( b ) to have become publicly known, without the fault of the receiving party, subsequent to disclosure of such information by the disclosing party to the receiving party ; ( c ) to have been received by the receiving party at any time from a source, other than the disclosing party, rightfully having possession of and the right to disclose such information ; ( d ) to have been otherwise known by the receiving party prior to disclosure of such information by the disclosing party to the receiving party ; or ( e ) to have been independently developed by employees or agents on behalf of the receiving party without access to or use of such information disclosed by the disclosing party to the receiving party