WITH, BREACH,
VIOLATE OR CAUSE A DEFAULT UNDER ANY CONTRACT, AGREEMENT, INSTRUMENT, ORDER,
JUDGMENT OR DECREE TO WHICH THE COMPANY IS A PARTY OR BY WHICH IT IS BOUND AND
(II) UPON THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY SFM, THIS AGREEMENT
SHALL BE THE VALID AND BINDING OBLIGATION OF THE COMPANY, ENFORCEABLE IN
ACCORDANCE WITH ITS TERMS.
10.
CONFIDENTIALITY.
10.1
PROPRIETARY INFORMATION.
"PROPRIETARY
INFORMATION" MEANS ALL INFORMATION WHICH IS DIRECTLY OR INDIRECTLY DISCLOSED TO
ANY PARTY HEREUNDER, REGARDLESS OF THE FORM IN WHICH IT IS DISCLOSED, RELATING
IN ANY WAY TO A PARTY'S CUSTOMERS, DISTRIBUTORS, PRODUCTS, MARKETS, PROCEDURES,
PROCESSES, METHODS, DESIGNS, STRATEGIES, KNOW-HOW, PLANS, INTELLECTUAL PROPERTY,
ASSETS, LIABILITIES, COSTS, EXPENSES, REVENUES, PROFITS (EXCEPT TO THE EXTENT
REQUIRED TO BE DISCLOSED
3
IN ACCORDANCE WITH APPLICABLE LAW), OR OTHER INFORMATION PROVIDED BY OR RELATED
TO THE OFFICERS, DIRECTORS, AND PERSONNEL OF EITHER PARTY OR THE PARTY'S
BUSINESS IN GENERAL.
10.2
NON-DISCLOSURE.
SFM AND COMPANY ACKNOWLEDGE AND
AGREE THAT EACH OTHER'S PROPRIETARY INFORMATION IS CONFIDENTIAL AND
PROPRIETARY.
WITHOUT A PARTY'S EXPRESS PRIOR WRITTEN CONSENT, THE PARTIES AGREE
NOT TO USE ANY OF SUCH PARTY'S PROPRIETARY INFORMATION FOR ANY PURPOSE OTHER
THAN AS REQUIRED FOR PERFORMANCE HEREUNDER.
WITHOUT A PARTY'S EXPRESS PRIOR
WRITTEN CONSENT, THE PARTIES FURTHER AGREE NOT TO DISCLOSE OR PROVIDE ANY OF
SUCH PARTY'S PROPRIETARY INFORMATION TO ANY THIRD PARTY AND TO TAKE ALL
NECESSARY MEASURES TO PREVENT ANY SUCH DISCLOSURE BY THEIR RESPECTIVE OFFICERS,
DIRECTORS, MANAGERS, OR PERSONNEL.
THE FOREGOING OBLIGATIONS OF NON-DISCLOSURE
AND CONFIDENTIALITY WILL SURVIVE TERMINATION OF THIS AGREEMENT.
FOLLOWING
TERMINATION OF THIS AGREEMENT, THE PARTIES WILL PROMPTLY RETURN ALL PROPRIETARY
INFORMATION (AND REPRODUCTIONS THEREOF) OBTAINED HEREUNDER.
10.3
PUBLIC INFORMATION; COURT ORDER.
"PROPRIETARY
INFORMATION" DOES NOT INCLUDE ANY INFORMATION:
(I) THAT WAS GENERALLY KNOWN TO
THE PUBLIC AT THE TIME OF DISCLOSURE, OR THEREAFTER BECOMES PUBLICLY KNOWN OTHER
THAN AS THE RESULT OF A BREACH BY THE RECEIVING PARTY OF ITS OBLIGATIONS UNDER
THIS AGREEMENT OR ANY OTHER CONFIDENTIALITY OBLIGATION BETWEEN THE PARTIES;
(II) THAT WAS ALREADY KNOWN TO THE RECEIVING PARTY AT THE TIME OF DISCLOSURE
OTHER THAN AS A RESULT OF ANY PERSON'S BREACH (INCLUDING THE RECEIVING PARTY'S)
OF ANY LEGAL OBLIGATION TO THE DISCLOSING PARTY; (III) THAT BECOMES KNOWN TO THE
RECEIVING PARTY THROUGH DISCLOSURE BY SOURCES OTHER THAN THE DISCLOSING PARTY
HAVING A LEGAL RIGHT TO DISCLOSE SUCH PROPRIETARY INFORMATION; OR (IV) THAT IS
REQUIRED TO BE DISCLOSED BY THE RECEIVING PARTY TO COMPLY WITH APPLICABLE LAW;
PROVIDED, HOWEVER, THAT IN SUCH CASE THE RECEIVING PARTY SHALL PROMPTLY NOTIFY
THE DISCLOSING PARTY SO THAT THE DISCLOSING PARTY MAY SEEK AN APPROPRIATE
PROTECTIVE ORDER OR OTHER REMEDY AND TAKE REASONABLE AND LAWFUL ACTION TO AVOID
OR MINIMIZE THE EXTENT OF SUCH DISCLOSURE.
10.4
LEGAL ACTION.
AT THE REQUEST OF A PARTY, THE
PARTIES WILL COOPERATE FULLY WITH EACH OTHER IN ANY AND ALL LEGAL ACTIONS TAKEN
BY THE OTHER TO PROTECT THE REQUESTING PARTY'S RIGHTS IN ITS PROPRIETARY
INFORMATION.
THE PARTY SEEKING TO PROTECT SUCH RIGHTS WILL BEAR ALL COSTS AND