PARTY OR ITS AFFILIATES WHICH IS NOT READILY AVAILABLE TO THE
PUBLIC THAT THE OTHER PARTY LEARNS DURING THE COURSE OF THE EXERCISE OF ITS
RIGHTS AND PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT, INCLUDING WITH
RESPECT TO A PARTY'S PAST, PRESENT OR FUTURE CUSTOMERS, STRATEGIC PARTNERS,
VENDORS OR SUPPLIERS, THE MANNER IN WHICH A PARTY CONDUCTS ITS BUSINESS, THE
TYPES AND LEVELS OF STAFFING UTILIZED BY A PARTY OR A PARTY'S OPERATIONAL OR
FINANCIAL PLANS AND/OR EXPECTATIONS; AND (VI) ALL INFORMATION CLEARLY IDENTIFIED
BY EITHER PARTY AS CONFIDENTIAL, PROPRIETARY OR SECRET AT THE TIME OF
DISCLOSURE.
IN ADDITION, CUSTOMER'S CONFIDENTIAL INFORMATION SHALL INCLUDE THE
FOLLOWING: ALL INFORMATION OF OR REGARDING CUSTOMER'S PAST, PRESENT OR
PROSPECTIVE ENROLLEES, PROVIDERS, MEMBERS, INSUREDS, CUSTOMERS, AFFILIATES,
STRATEGIC PARTNERS, PAYORS OR OTHER SUPPLIERS OR SERVICE PROVIDERS
(COLLECTIVELY, "RELATED PARTY"), THE EXTENT TO WHICH HEALTH CARE OR OTHER
SERVICES ARE OFFERED TO OR USED BY ANY RELATED PARTY, OR THE COSTS TO PROVIDE
SUCH SERVICES.
THE PARTIES AGREE THAT THE CONFIDENTIAL INFORMATION IS PROVIDED
TO THE RECEIVING PARTY IN CONFIDENCE AND FOR USE BY THE RECEIVING PARTY
EXCLUSIVELY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
BOTH PARTIES AGREE
TO TAKE ALL COMMERCIALLY REASONABLE STEPS (INCLUDING, BUT NOT LIMITED TO, THOSE
STEPS EACH PARTY TAKES TO PROTECT ITS OWN DATA OR OTHER PROPERTY IT CONSIDERS
PROPRIETARY OR CONFIDENTIAL) TO PROTECT THE CONFIDENTIALITY OF THE CONFIDENTIAL
INFORMATION, TO PREVENT THE CONFIDENTIAL INFORMATION FROM BEING DISCLOSED TO ANY
THIRD PARTY WITHOUT THE DISCLOSING PARTY'S PRIOR WRITTEN CONSENT, AND TO USE
COMMERCIALLY REASONABLE MEASURES TO ENSURE THAT THE CONFIDENTIAL INFORMATION IS
NOT, IN WHOLE OR IN PART, DISCLOSED TO OR DUPLICATED BY OR FOR OTHER PARTIES
WITHOUT THE DISCLOSING PARTY'S PRIOR WRITTEN CONSENT.
NOTWITHSTANDING THE
FOREGOING, CUSTOMER MAY DISCLOSE MEDECISION CONFIDENTIAL INFORMATION TO ITS
AFFILIATES, AND CUSTOMER MAY DISCLOSE TO (II) INTERNATIONAL BUSINESS MACHINES
("IBM"), (II) KEANE, INC. ("KEANE"), AND (III) ANY OTHER OUTSOURCER,
MEDECISION'S CONFIDENTIAL INFORMATION FOR THE SOLE PURPOSE OF DELIVERING
INFORMATION TECHNOLOGY, DATA PROCESSING AND RELATED SERVICES TO CUSTOMER AND ITS
AFFILIATES PROVIDED THAT EACH SUCH OUTSOURCER HAS EXECUTED AN AGREEMENT WITH
TERMS AT LEAST AS PROTECTIVE OF MEDECISION CONFIDENTIAL INFORMATION AS THOSE
CONTAINED IN THIS AGREEMENT AND ALSO PROVIDED THAT CUSTOMER IS LIABLE FOR ALL
ACTS AND OMISSIONS OF SUCH ENTITIES RELATED TO SUCH DISCLOSURE AND/OR USE.
MOREOVER, EACH PARTY WILL NOT USE THE CONFIDENTIAL INFORMATION EXCEPT IN THE
PERFORMANCE OF THIS AGREEMENT OR AS OTHERWISE EXPRESSLY PERMITTED BY THIS
AGREEMENT.
THE REQUIREMENTS IN THIS SECTION 4.1 SHALL NOT APPLY TO ANY SUCH
INFORMATION THAT (I) WAS PREVIOUSLY KNOWN TO THE RECEIVING PARTY WITHOUT AN
OBLIGATION OF CONFIDENTIALITY, (II) IS OR BECOMES GENERALLY AVAILABLE TO THE
PUBLIC WITHOUT BREACH OF THE PROVISIONS OF THIS AGREEMENT, (III) IS RECEIVED BY
THE RECEIVING PARTY FROM A THIRD PARTY WITH A LEGAL OR CONTRACTUAL RIGHT TO
DISCLOSE SUCH DATA WITHOUT A FIDUCIARY, CONFIDENTIAL OR CONTRACTUAL DUTY TO THE
DISCLOSING PARTY TO KEEP SUCH INFORMATION CONFIDENTIAL, OR (IV) IS INDEPENDENTLY
DEVELOPED BY THE RECEIVING PARTY WITHOUT REFERENCE TO THE