definiens: means, with respect to a Party, all information of any kind whatsoever ( including without limitation, data, compilations, formulae, models, patent disclosures, procedures, processes, projections, protocols, results of experimentation and testing, specifications, strategies, techniques and all non - public [COMPANY] Intellectual Property ( defined below ), and all tangible and intangible embodiments thereof of any kind whatsoever ( including without limitation, apparatus, compositions, documents, drawings, machinery, patent applications, records and reports ), which is disclosed by such Party or such Party 's Affiliates to the other Party or its Affiliates and is marked, identified 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 which the other Party can establish by competent evidence ( a ) to have been publicly known prior to disclosure of such information by the disclosing Party to the other Party, ( b ) to have become publicly known, without fault on the part of the other Party, subsequent to disclosure of such information by the disclosing Party to the other Party, ( c ) to have been received by the other Party free of an obligation of confidentiality at any time from a source, other than the disclosing Party, rightfully having possession of and the right to disclose such information free of an obligation of confidentiality, or ( d ) to have been otherwise known by the other Party prior to disclosure of such information by the disclosing Party to the other Party