TO TRADE SECRETS, PRODUCT FORMULATIONS AND MANUFACTURING METHODS
AND PROCESSES, OR FOR THE LONGEST PERIOD OF TIME PERMITTED UNDER APPLICABLE LAW,
AND FOR A PERIOD OF FIVE (5) YEARS FOR ALL OTHER CONFIDENTIAL INFORMATION, AND
EACH OF THE FOREGOING OBLIGATIONS SHALL SURVIVE EXPIRATION OR TERMINATION OF
THIS AGREEMENT FOR ANY REASON.
14.03
NON-DISCLOSURE OF AGREEMENT.
THE EXISTENCE OF THIS AGREEMENT, EACH
OF ITS TERMS AND CONDITIONS, AND ALL INFORMATION REQUIRED TO BE PROVIDED FROM
ONE PARTY TO ANOTHER UNDER THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING
WITHOUT LIMITATION, THE CONTENTS OF RECORDS AND REPORTS, SHALL BE DEEMED
CONFIDENTIAL INFORMATION THAT IS SUBJECT TO THE NON-DISCLOSURE PROVISIONS OF
SECTION 14.02, EXCEPT THAT THIS AGREEMENT MAY BE DISCLOSED AS REQUIRED BY
APPLICABLE LAW (INCLUDING THE DISCLOSURE REQUIREMENTS OF THE SECURITIES LAWS)
AND TO ACTUAL OR
21
POTENTIAL INVESTORS, PROVIDED THAT SUCH INVESTORS AGREE TO BE BOUND BY
CONFIDENTIALITY RESTRICTIONS SUBSTANTIALLY EQUIVALENT TO THOSE CONTAINED IN THIS
AGREEMENT.
14.04
EXCEPTIONS.
THE CONFIDENTIALITY OBLIGATIONS OF THE RECEIVING PARTY
UNDER THIS ARTICLE XIV SHALL NOT APPLY TO ANY INFORMATION THAT:
A.
IS, OR BECOMES, PUBLICLY KNOWN THROUGH NO WRONGFUL ACT OF THE
RECEIVING PARTY OR ITS OFFICERS, EMPLOYEES OR THIRD PARTY CONSULTANTS;
B.
IS RECEIVED BY THE RECEIVING PARTY WITHOUT RESTRICTION FROM A
THIRD PARTY WITHOUT BREACH OF ANY OBLIGATION OF NONDISCLOSURE;
C.
IS REQUIRED TO BE PUBLICLY DISCLOSED PURSUANT TO A GOVERNMENTAL
OR JUDICIAL REQUIREMENT OR OTHER REQUIREMENT OF LAW, BUT ONLY AFTER NOTIFYING
THE PARTY OWNING SUCH INFORMATION OF SUCH REQUIREMENT, INCLUDING THE CONTENT OF
SUCH DISCLOSURE, THE REASONS THAT SUCH DISCLOSURE IS REQUIRED BY LAW AND THE
TIME AND PLACE THAT SUCH DISCLOSURE IS TO BE MADE AND, IF REQUESTED BY THE
OWNING PARTY, USING REASONABLE EFFORTS TO MINIMIZE SUCH DISCLOSURE AND TO OBTAIN
CONFIDENTIAL TREATMENT FOR ALL OR RELEVANT PORTIONS OF THE CONFIDENTIAL
INFORMATION TO BE DISCLOSED;
D.
THE RECEIVING PARTY CAN SHOW WAS ALREADY IN ITS POSSESSION AT THE
TIME OF DISCLOSURE HEREUNDER AND WAS NOT PREVIOUSLY OBTAINED FROM THE DISCLOSING
PARTY UNDER A CONTINUING OBLIGATION OF CONFIDENTIALITY; OR
E.
IS DEVELOPED BY THE RECIPIENT PARTY WITHOUT THE USE OF
CONFIDENTIAL INFORMATION OBTAINED FROM THE DISCLOSING PARTY.
14.05
RETURN OF CONFIDENTIAL INFORMATION.
UPON REQUEST OF EITHER PARTY,
AND IN ANY CASE UPON EXPIRATION OR TERMINATION OF THIS AGREEMENT, EACH PARTY
SHALL PROMPTLY RETURN TO THE OTHER PARTY ALL COPIES OF THE OTHER PARTY'S
CONFIDENTIAL INFORMATION IN ITS POSSESSION OR CONTROL, EXCEPT THAT EACH PARTY
MAY RETAIN ITS COPIES OF THIS AGREEMENT AND COPIES OF ANY REPORTS RECEIVED FROM
OR PROVIDED TO THE OTHER PARTY.
ARTICLE XV.
NOTICES
15.01
NOTICES. ALL NOTICES OR OTHER COMMUNICATIONS REQUIRED OR PERMITTED
UNDER THIS AGREEMENT SHALL BE IN WRITING AND SHALL BE DELIVERED PERSONALLY,
TRANSMITTED BY FACSIMILE, OR SENT BY REGISTERED, CERTIFIED OR EXPRESS MAIL,
POSTAGE PREPAID OR SENT BY A REPUTABLE AIR COURIER FOR OVERNIGHT DELIVERY;
PROVIDED, HOWEVER, THAT NOTIFICATION BY FACSIMILE SHALL BE EFFECTIVE ON THE DATE
OF CONFIRMED TRANSMISSION OF SUCH FACSIMILE ONLY IF A COPY OF SUCH NOTICE IS