AND IS HEREBY DEEMED TO BE CONFIDENTIAL AND PROPRIETARY
INFORMATION ("PROPRIETARY INFORMATION").
16.2
EXCEPT AS SET FORTH IN SECTION 15.3 BELOW, A PARTY RECEIVING
PROPRIETARY INFORMATION PURSUANT HERETO (THE "RECEIVING PARTY," WHICH SHALL
INCLUDE THE FINAL END USER CUSTOMERS) WILL NOT, WITHOUT THE PRIOR WRITTEN
CONSENT OF THE PARTY DISCLOSING SUCH INFORMATION (THE "DISCLOSING PARTY"),
(I) USE ANY PORTION OF THE PROPRIETARY INFORMATION FOR ANY PURPOSE OTHER THAN
THE PURPOSE OF THESE TERMS AND CONDITIONS, OR (II) DISCLOSE ANY PORTION OF THE
PROPRIETARY INFORMATION TO ANY PERSON OR ENTITIES OTHER THAN THE EMPLOYEES AND
CONSULTANTS OF THE RECEIVING PARTY (AND UTSI' SUBCONTRACTORS) WHO REASONABLY
NEED TO HAVE ACCESS TO THE PROPRIETARY INFORMATION IN CONNECTION WITH THE
PURPOSES OF THESE TERMS AND CONDITIONS AND WHO HAVE AGREED TO PROTECT
PROPRIETARY INFORMATION AS THOUGH THEY WERE A PARTY TO THESE TERMS AND
CONDITIONS.
16.3
A RECEIVING PARTY WILL NOT BE LIABLE FOR DISCLOSURE OF PROPRIETARY
INFORMATION, OR PART THEREOF, IF THE RECEIVING PARTY CAN DEMONSTRATE THAT SUCH
PROPRIETARY INFORMATION (I) WAS IN THE PUBLIC DOMAIN AT THE TIME IT WAS RECEIVED
OR SUBSEQUENTLY ENTERED THE PUBLIC DOMAIN THROUGH NO FAULT OF THE RECEIVING
PARTY; (II) WAS KNOWN TO OR IS IN THE LAWFUL POSSESSION OF THE RECEIVING PARTY
AT THE TIME OF RECEIPT; OR (III) IS DISCLOSED MORE THAN [***] YEARS, EXCEPT
[***] YEARS FOR SOFTWARE, AFTER THE DATE OF RECEIPT OF THE PARTICULAR
PROPRIETARY INFORMATION BY THE RECEIVING PARTY.
IN THE EVENT OF ANY LEGAL
ACTION OR PROCEEDING OR ASSERTED LEGAL REQUIREMENT FOR DISCLOSURE OF PROPRIETARY
INFORMATION FURNISHED HEREUNDER, THE RECEIVING PARTY WILL PROMPTLY NOTIFY THE
DISCLOSING PARTY AND, UPON THE REQUEST AND AT THE EXPENSE OF THE DISCLOSING
PARTY, WILL COOPERATE WITH THE DISCLOSING PARTY IN LAWFULLY CONTESTING SUCH
DISCLOSURE.
EXCEPT IN CONNECTION WITH ANY FAILURE TO DISCHARGE ITS
RESPONSIBILITIES UNDER THE PRECEDING SENTENCE, THE RECEIVING PARTY WILL NOT BE
LIABLE FOR ANY DISCLOSURE PURSUANT TO COURT ORDER.
16.4
PROPRIETARY INFORMATION WILL REMAIN THE PROPERTY OF THE DISCLOSING
PARTY AND WILL, AT THE DISCLOSING PARTY'S REQUEST AND AFTER IT IS NO LONGER
NEEDED FOR THE PURPOSES OF THESE TERMS AND CONDITIONS, PROMPTLY BE RETURNED
THERETO OR BE DESTROYED, TOGETHER WITH ALL COPIES MADE BY THE RECEIVING PARTY
AND BY ANYONE TO WHOM SUCH PROPRIETARY INFORMATION HAS BEEN MADE AVAILABLE BY
THE RECEIVING PARTY IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION.
14
17.
TERMINATION
This Agreement may be terminated by either party:
a)
if the other party is in material breach
of this Agreement and fails to cure such breach within [***] days of receiving
written notice of the breach.
Provided that the breaching party continues to
make diligent and good faith efforts to cure the breach, the breaching party
shall be granted a reasonable extension of time to cure the breach.
b)
upon [***] days prior written notice if
any of the following circumstances remain uncured: (i)if the other party becomes
insolvent or unable to pay its debts
in the ordinary course of its business;
(ii) if a