SUBJECT TO
THE APPROVAL OF ANY APPLICABLE INFOLOGIX CUSTOMERS, FUTURA SHALL BE ALLOWED TO
USE AS A REFERRAL SOURCE CUSTOMERS OF INFOLOGIX THAT FUTURA IS PROVIDING
SERVICES TO UNDER THIS AGREEMENT AND SHALL BE PERMITTED TO ADVERTISE THAT FUTURA
IS PROVIDING SERVICES TO SUCH CUSTOMERS, PROVIDED THAT SUCH ADVERTISEMENTS ARE
CONSISTENT WITH PAST PRACTICE.
5.2
CONFIDENTIALITY OBLIGATIONS.
CLIENT AND FUTURA SHALL EACH (A) HOLD THE
CONFIDENTIAL INFORMATION (AS DEFINED BELOW) OF THE OTHER PARTY IN CONFIDENCE AND
AVOID THE DISCLOSURE THEREOF TO ANY OTHER PARTY BY USING THE SAME DEGREE OF CARE
AS IT USES TO AVOID UNAUTHORIZED USE OR DISCLOSURE OF ITS OWN CONFIDENTIAL
INFORMATION OF A SIMILAR NATURE, BUT NOT LESS THAN REASONABLE CARE, AND (B) NOT
USE THE CONFIDENTIAL INFORMATION OF THE OTHER PARTY FOR ANY PURPOSE WHATSOEVER
EXCEPT AS EXPRESSLY CONTEMPLATED UNDER THIS AGREEMENT.
EACH PARTY SHALL
DISCLOSE THE CONFIDENTIAL INFORMATION OF THE OTHER ONLY TO THOSE OF ITS
EMPLOYEES AND CONSULTANTS HAVING A NEED TO KNOW SUCH CONFIDENTIAL INFORMATION
AND HAVE AGREED TO APPROPRIATE CONFIDENTIALITY OBLIGATIONS AND SHALL TAKE ALL
REASONABLE PRECAUTIONS TO ENSURE THAT ITS EMPLOYEES COMPLY WITH THE PROVISIONS
OF THIS SECTION 5.2.
6
5.3
CONFIDENTIAL INFORMATION.
THE TERM "CONFIDENTIAL INFORMATION" SHALL MEAN
ANY AND ALL INFORMATION OR PROPRIETARY MATERIALS (IN EVERY FORM AND MEDIA) NOT
KNOWN TO THE PUBLIC AND WHICH HAS BEEN OR IS HEREAFTER DISCLOSED OR MADE
AVAILABLE BY EITHER PARTY (THE "DISCLOSING PARTY") TO THE OTHER (THE "RECEIVING
PARTY") IN WRITING OR, IF DISCLOSED ORALLY OR BY OTHER MEANS, SUMMARIZED IN
WRITING AND DESIGNATED CONFIDENTIAL WITHIN THIRTY (30) DAYS AFTER SUCH
DISCLOSURE, IN CONNECTION WITH THE SERVICES CONTEMPLATED HEREUNDER, INCLUDING
(A) ALL TRADE SECRETS, (B) EXISTING OR CONTEMPLATED PRODUCTS OR SOFTWARE OWNED
BY CLIENT PURSUANT TO THIS AGREEMENT, SERVICES, DESIGNS, TECHNOLOGY, PROCESSES,
TECHNICAL DATA, ENGINEERING TECHNIQUES, METHODOLOGIES AND CONCEPTS AND ANY
INFORMATION RELATED THERETO, (C) INFORMATION REGARDING CLIENT'S INFORMATION
TECHNOLOGY INFRASTRUCTURE AND DATA, INCLUDING ANY CUSTOMER OR THIRD PARTY DATA
TO WHICH FUTURA MAY BE EXPOSED TO IN PERFORMING ITS OBLIGATIONS HEREUNDER, AND
(D) INFORMATION RELATING TO BUSINESS PLANS, SALES OR MARKETING METHODS AND
CUSTOMER LISTS OR REQUIREMENTS
5.4
EXCLUSIONS.
THE OBLIGATIONS OF EITHER PARTY UNDER SECTION 5.2 SHALL NOT
APPLY TO INFORMATION THAT THE RECEIVING PARTY CAN DEMONSTRATE (A) WAS IN ITS
POSSESSION AT THE TIME OF DISCLOSURE AND WITHOUT RESTRICTION AS TO
CONFIDENTIALITY, AS SHOWN BY ITS PRIOR WRITTEN RECORDS, (B) AT THE TIME OF
DISCLOSURE WAS GENERALLY AVAILABLE TO THE PUBLIC OR AFTER DISCLOSURE BECOMES
GENERALLY AVAILABLE TO THE PUBLIC THROUGH NO BREACH OF THIS AGREEMENT OR OTHER
WRONGFUL ACT BY THE RECEIVING PARTY, (C) HAS BEEN RECEIVED FROM A THIRD PARTY
WITHOUT RESTRICTION ON DISCLOSURE AND WITHOUT BREACH OF AGREEMENT BY THE
RECEIVING PARTY, OR (D) IS REQUIRED TO BE DISCLOSED BY LAW OR ORDER OF A COURT
OF COMPETENT JURISDICTION OR REGULATORY AUTHORITY, PROVIDED THAT THE RECEIVING
PARTY SHALL FURNISH PROMPT WRITTEN NOTICE OF SUCH REQUIRED DISCLOSURE TO AND
REASONABLY COOPERATE WITH THE DISCLOSING PARTY, AT THE DISCLOSING PARTY'S
EXPENSE, IN ANY EFFORT