EACH CASE SOLELY WITH RESPECT TO ACTIVITIES PERFORMED UNDER THE
ALLIANCE AGREEMENTS;
28
PROVIDED THAT, PRIOR TO ANY SUCH DISCLOSURE PURSUANT TO CLAUSE (III) ABOVE, THE
RECEIVING PARTY MUST HAVE A WRITTEN AGREEMENT IN A CUSTOMARY FORM WITH SUCH
PARTY SUFFICIENT TO REQUIRE THAT PARTY TO TREAT SUCH CONFIDENTIAL INFORMATION IN
ACCORDANCE WITH THIS ARTICLE IX.
(B)
THE RECEIVING PARTY MAY DISCLOSE THE DISCLOSING PARTY'S CONFIDENTIAL
INFORMATION AS REQUIRED BY APPLICABLE LAW; PROVIDED THAT (I) IF REASONABLY
PRACTICABLE, THE RECEIVING PARTY GIVES THE DISCLOSING PARTY REASONABLE NOTICE
AND OPPORTUNITY TO SEEK AN APPROPRIATE PROTECTIVE ORDER OR WAIVE COMPLIANCE WITH
THIS ARTICLE IX AND (II) SUCH RECEIVING PARTY SHALL COMPLY WITH THE PROVISIONS
UNDER SECTION 6.02(B), IF APPLICABLE. IF THE DISCLOSING PARTY WAIVES COMPLIANCE
WITH THIS ARTICLE IX IN ACCORDANCE WITH CLAUSE (I) OF THIS SECTION 9.02(B), OR
AFTER A REASONABLE AMOUNT OF TIME HAS ELAPSED FROM THE RECEIVING PARTY'S NOTICE,
A PROTECTIVE ORDER HAS NOT BEEN ENTERED (AND, IF APPLICABLE, THE PARTIES HAVE
COMPLIED WITH SECTION 6.02(B)), THE RECEIVING PARTY MAY DISCLOSE THAT PORTION OF
SUCH CONFIDENTIAL INFORMATION WHICH ITS IN-HOUSE OR OUTSIDE COUNSEL ADVISES THAT
IT IS COMPELLED TO DISCLOSE.
(C)
NON-PUBLIC INFORMATION OF ACI MAY ALSO BE CONSIDERED MATERIAL TO ACI FOR
PURPOSES OF FEDERAL AND STATE SECURITIES LAWS AND COMMISSION RULES AND
REGULATIONS.
IBM ACKNOWLEDGES THAT IT IS AWARE OF THE UNITED STATES SECURITIES
LAWS REGARDING THE POSSESSION OF MATERIAL NON-PUBLIC INFORMATION CONCERNING A
COMPANY WHOSE SHARES ARE PUBLICLY TRADED ON AN EXCHANGE.
(D)
(I) ACI ACKNOWLEDGES THAT IBM IS IN THE BUSINESS OF PROVIDING CONSULTING
SERVICES AND DEVELOPING COMPUTER SOFTWARE FOR A WIDE VARIETY OF CLIENTS AND ACI
UNDERSTANDS THAT IBM WILL CONTINUE THESE ACTIVITIES AND (II) IBM ACKNOWLEDGES
THAT ACI IS IN THE BUSINESS OF DEVELOPING ELECTRONIC PAYMENT SOFTWARE
APPLICATIONS AND IBM UNDERSTANDS THAT ACI WILL CONTINUE THESE ACTIVITIES.
ACCORDINGLY, NOTHING IN THIS ARTICLE IX SHALL PRECLUDE OR LIMIT IBM FROM
PROVIDING CONSULTING SERVICES AND/OR DEVELOPING SOFTWARE OR MATERIALS FOR ITSELF
OR OTHER ENTITIES, OR ACI FROM DEVELOPING ELECTRONIC PAYMENT SOFTWARE
APPLICATIONS, IRRESPECTIVE OF THE POSSIBLE SIMILARITY TO MATERIALS WHICH MIGHT
BE DELIVERED TO OR RECEIVED FROM THE OTHER PARTY, INCLUDING SCREEN FORMATS,
STRUCTURE, SEQUENCE AND ORGANIZATION.
(E)
THE RECEIVING PARTY SHALL, UPON WRITTEN REQUEST BY THE DISCLOSING PARTY, AT
ANY TIME, INSTRUCT ITS PERSONNEL THAT HAVE BEEN GRANTED ACCESS TO CONFIDENTIAL
INFORMATION TO PROMPTLY DESTROY ANY CONFIDENTIAL INFORMATION IN THEIR
POSSESSION; PROVIDED THAT THE RECEIVING PARTY SHALL BE PERMITTED TO RETAIN A
COPY OF SUCH CONFIDENTIAL INFORMATION SOLELY FOR ARCHIVAL PURPOSES.
NOTWITHSTANDING THE DESTRUCTION OF CONFIDENTIAL INFORMATION, OR THE FAILURE TO
SO DESTROY CONFIDENTIAL INFORMATION, THE PARTIES SHALL CONTINUE TO BE BOUND, FOR
ANY REMAINING TERM HEREUNDER, BY THE RIGHTS AND OBLIGATIONS OF CONFIDENTIALITY
HEREUNDER.
(F)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS ARTICLE IX, IN THE EVENT
OF ANY BREACH OR THREATENED BREACH OF ANY OF THE PROVISIONS OF THIS ARTICLE IX,
THE AGGRIEVED PARTY, IN ADDITION TO ANY OTHER REMEDIES IT MAY HAVE AT LAW OR IN
EQUITY, IS ENTITLED TO