BEST EFFORTS TO PREVENT THE UNAUTHORIZED USE, EXPLOITATION, RELEASE,
DISSEMINATION, TRANSFER, OR DISCLOSURE OF SUCH OTHER PARTY'S CONFIDENTIAL
INFORMATION BY IMPLEMENTING MANAGEMENT AND TECHNOLOGICAL SECURITY SAFEGUARDS
(INCLUDING, FOR ILLUSTRATION PURPOSES, AUDIT TRAILS, CONTROLLED ACCESS USER
MENUS, USE OF ENCRYPTION SOFTWARE AND CONFIDENTIALITY AGREEMENTS WITH EMPLOYEES
THAT HAVE ACCESS TO SUCH INFORMATION).
IN ADDITION, CLIENT AND VENDOR
RESPECTIVELY AGREE THAT IT SHALL NOT, EXCEPT WITH THE PRIOR WRITTEN CONSENT OF
THE DISCLOSING PARTY, DIRECTLY OR INDIRECTLY, DIVULGE, REPORT, PUBLISH, REVEAL,
TRANSFER OR DISCLOSE ANY OF THE DISCLOSING PARTY'S CONFIDENTIAL INFORMATION TO
ANY OTHER PERSON OR ENTITY, NOR SHALL IT USE, EXPLOIT OR PERMIT OTHERS WITHIN
ITS REASONABLE CONTROL TO USE OR EXPLOIT SUCH DISCLOSING PARTY'S CONFIDENTIAL
INFORMATION IN A WAY WHICH WOULD BE DETRIMENTAL TO THE DISCLOSING PARTY.
"CONFIDENTIAL INFORMATION" MEANS INFORMATION, DATA AND MATERIALS WHICH RELATE TO
THE BUSINESS, OPERATIONS, FINANCES, RESEARCH, DEVELOPMENTS, OR ACTIVITIES OF A
PARTY: (I) WHICH HAS BEEN OR ARE DISCLOSED TO THE NON-DISCLOSING PARTY OR OF
WHICH THE NON-DISCLOSING HAS BECOME OR BECOMES AWARE THROUGH THE PERFORMANCE OF
THIS AGREEMENT; (II) WHICH HAS VALUE TO THE NON-DISCLOSING PARTY AND IS NOT
GENERALLY KNOWN TO ITS COMPETITORS; AND (III) WHICH IS TREATED BY THE
NON-DISCLOSING PARTY AS CONFIDENTIAL, WHETHER OR NOT
7
MARKED "CONFIDENTIAL."
NOTWITHSTANDING THE ABOVE, "CONFIDENTIAL INFORMATION"
EXCLUDES INFORMATION: (T) REQUIRED TO BE DISCLOSED BY COURT ORDER,
PROVIDED THE
NON-DISCLOSING PARTY GIVES THE DISCLOSING PARTY REASONABLE PRIOR WRITTEN NOTICE
SO THAT IT MAY SEEK A PROTECTIVE ORDER, (U) THAT WAS PUBLICLY KNOWN OR AVAILABLE
TO RECEIVING PARTY ON A NON-CONFIDENTIAL BASIS AT THE TIME DISCLOSED TO THE
NON-DISCLOSING PARTY BY THE DISCLOSING PARTY, (V) BECOMES GENERALLY AVAILABLE TO
THE PUBLIC OTHER THAN AS A RESULT OF A DISCLOSURE BY THE RECEIVING PARTY,
(W) BECOMES AVAILABLE TO RECEIVING PARTY FROM A SOURCE OTHER THAN THE DISCLOSING
PARTY, WITHOUT SUCH SOURCE BEING TO THE RECEIVING PARTY'S KNOWLEDGE IN BREACH OF
AN APPLICABLE CONFIDENTIALITY AGREEMENT, IF ANY, (X) IS ALREADY IN RECEIVING
PARTY'S POSSESSION OR IN THE POSSESSION OF ANY OF ITS AFFILIATES OR
REPRESENTATIVES, (Y) IS INDEPENDENTLY DEVELOPED BY THE RECEIVING PARTY, ITS
AFFILIATES OR REPRESENTATIVES WITHOUT REFERENCE TO THE CONFIDENTIAL MATERIAL, OR
(Z) THAT BOTH PARTIES AGREE IN WRITING IS NOT CONFIDENTIAL.
Section 10.6
NON-SOLICITATION OF EMPLOYEES.
Unless the Client or Vendor consents in writing, during the term of this
Agreement and for a period of one (1) year following the expiration or
termination of the term of this Agreement, regardless of the reason for or
manner or method of same, neither party shall, directly or indirectly, on such
party's own behalf or on behalf of any other person, firm or entity, solicit,
induce, or divert away from the other party (or attempt to solicit, induce, or
divert away from the other party) any person who is at that time, and was, at
any time during the term of this Agreement: (i) an employee, agent, or
independent contractor of such other party; and (ii) with whom such party had
material contact during the term