PUBLISHED OR OTHERWISE BECOMES A MATTER OF PUBLIC KNOWLEDGE BY ANY MEANS OTHER
THAN THE OTHER PARTY'S DEFAULT IN THE OBSERVANCE OR PERFORMANCE OF ANY TERM OR
PROVISION OF THIS AGREEMENT OR ANY OTHER OBLIGATION ON ITS PART TO BE OBSERVED
AND PERFORMED; (II) WAS KNOWN TO THE OTHER PARTY AT THE TIME OF SUCH DISCLOSURE
WITHOUT A REQUIREMENT OF CONFIDENTIALITY, AS EVIDENCED BY ITS WRITTEN BUSINESS
RECORDS; (III) IS AT ANY TIME DISCLOSED TO THE OTHER PARTY BY ANY PERSON OR
ENTITY NOT A PARTY HERETO WHOM THE OTHER PARTY BELIEVES, AFTER REASONABLE
INQUIRY, HAS THE RIGHT TO SO DISCLOSE THE SAME; OR (IV) IS REQUIRED TO BE
DISCLOSED IN COMPLIANCE WITH ANY LAW GOVERNMENTAL REGULATION, OR COURT ORDER,
PROVIDED THAT THE PARTY DISCLOSING THE SAME SHALL NOTIFY THE PARTY TO WHICH SUCH
INFORMATION BELONGS TEN (10) DAYS IN ADVANCE OF ANY SUCH DISCLOSURE, IF
FEASIBLE.
9
(B)
NUVASIVE'S CONFIDENTIAL INFORMATION.
(I)
BTC HEREBY CONFIRMS THAT NUVASIVE HAS AND SHALL RETAIN THE SOLE
RIGHT, TITLE AND INTEREST IN AND TO NUVASIVE'S CONFIDENTIAL INFORMATION.
SUBJECT TO THE CONDITIONS, RESTRICTIONS AND OBLIGATIONS CONTAINED IN THIS
AGREEMENT, NUVASIVE HEREBY GRANTS TO BTC A LIMITED, NON-EXCLUSIVE, WORLDWIDE,
ROYALTY FREE LICENSE (WITHOUT THE RIGHT TO SUBLICENSE OR TRANSFER) TO USE
NUVASIVE'S CONFIDENTIAL INFORMATION SOLELY FOR THE PURPOSES OF PERFORMING BTC'S
OBLIGATIONS UNDER THIS AGREEMENT.
NO OTHER RIGHTS OR LICENSES ARE GRANTED BY
NUVASIVE TO BTC RELATING TO NUVASIVE'S CONFIDENTIAL INFORMATION OR ANY OTHER
PROPRIETARY RIGHTS OF NUVASIVE.
UPON THE TERMINATION OR EXPIRATION OF THIS
AGREEMENT, THE LICENSES GRANTED HEREIN BY NUVASIVE SHALL TERMINATE, AND BTC
SHALL CEASE ALL FURTHER USE OF NUVASIVE'S CONFIDENTIAL INFORMATION OR ANY OTHER
PROPRIETARY RIGHTS OF NUVASIVE EXCEPT WITH RESPECT TO TISSUES THAT CONFORM TO
THE SPECIFICATIONS AND WHICH WERE BEING HELD BY BTC IN ITS WORK-IN-PROCESS OR
FINISHED INVENTORY AT THE TIME OF TERMINATION.
ANY SUCH WORK-IN-PROCESS
INVENTORY, TO THE EXTENT IT CANNOT BE SALVAGED FOR ANOTHER USE (AS DETERMINED IN
GOOD FAITH BY THE PARTIES), SHALL BE FINISHED, AND ALL SUCH FINISHED INVENTORY
SHALL BE SHIPPED TO NUVASIVE.
NUVASIVE SHALL PAY FOR SUCH INVENTORY ACCORDING
TO THE TERMS OF THIS AGREEMENT.
(II)
BTC SHALL MAINTAIN THE NUVASIVE'S CONFIDENTIAL INFORMATION IN
CONFIDENCE AND SHALL NOT DISCLOSE IT TO ANY PERSON OR ENTITY NOT A PARTY HERETO
OR USE THE SAME FOR ITS BENEFIT OR THE BENEFIT OF ANY PERSON OR ENTITY OTHER
THAN NUVASIVE.
BTC SHALL MAINTAIN COMPLETE AND ACCURATE WRITTEN RECORDS OF
NUVASIVE'S CONFIDENTIAL INFORMATION, MARK SAME WITH SUCH LEGENDS AS NUVASIVE MAY
REASONABLY DIRECT, AND PROMPTLY DELIVER THE SAME TO NUVASIVE UPON WRITTEN
REQUEST UPON THE EXPIRATION OR TERMINATION HEREOF OR AT SUCH OTHER TIMES AS
NUVASIVE MAY REQUEST, EXCEPT THAT IN ANY SUCH EVENT, COUNSEL FOR BTC MAY RETAIN
ONE COPY THEREOF SOLELY FOR USE SHOULD ANY DISPUTE BETWEEN THE PARTIES ARISE.
IN ADDITION, BOTH DURING THE TERM AND AFTER THE EXPIRATION OR TERMINATION OF
THIS AGREEMENT, BTC SHALL TAKE SUCH OTHER REASONABLE ACTIONS AS NUVASIVE MAY
REQUEST TO ENABLE NUVASIVE TO PUBLISH, PROTECT BY