WILL TAKE REASONABLE MEASURES TO
MAINTAIN THE CONFIDENTIALITY OF THE CONFIDENTIAL INFORMATION, BUT NOT LESS THAN
THE MEASURES IT USES FOR ITS CONFIDENTIAL INFORMATION OF SIMILAR TYPE.
RECAPTURE WILL IMMEDIATELY GIVE NOTICE TO THE COMPANY OF ANY UNAUTHORIZED USE OR
DISCLOSURE OF THE CONFIDENTIAL INFORMATION.
RECAPTURE AGREES TO ASSIST THE
COMPANY IN REMEDYING ANY SUCH UNAUTHORIZED USE OR DISCLOSURE OF THE CONFIDENTIAL
INFORMATION.
THIS OBLIGATION WILL NOT APPLY TO THE EXTENT THAT RECAPTURE CAN
DEMONSTRATE:
(A)
THE DISCLOSED INFORMATION AT THE TIME OF DISCLOSURE IS PART OF THE
PUBLIC DOMAIN;
(B)
THE DISCLOSED INFORMATION BECAME PART OF THE PUBLIC DOMAIN, BY
PUBLICATION OR OTHERWISE, EXCEPT BY BREACH OF THE PROVISIONS OF THIS AGREEMENT;
(C)
THE DISCLOSED INFORMATION IS RECEIVED FROM A THIRD PARTY WITHOUT
SIMILAR RESTRICTIONS AND WITHOUT BREACH OF THIS AGREEMENT; OR
(D)
THE DISCLOSED INFORMATION IS REQUIRED TO BE DISCLOSED BY A
GOVERNMENT AGENCY TO FURTHER THE OBJECTIVES OF THIS AGREEMENT OR BY A PROPER
COURT OF COMPETENT JURISDICTION; PROVIDED HOWEVER THAT RECAPTURE WILL USE ITS
BEST EFFORTS TO MINIMIZE THE DISCLOSURE OF SUCH INFORMATION AND WILL CONSULT
WITH THE COMPANY PRIOR TO SUCH DISCLOSURE.
12.3
PUBLICITY.
NEITHER PARTY SHALL MAKE PUBLIC INFORMATION CONCERNING
THE TERMS OF THIS AGREEMENT NOR THE SUPPLIES OR SERVICES PROVIDED HEREUNDER
WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTY EXCEPT AS MAY BE REQUIRED
BY LAW OR PURSUANT TO A LAWFUL REQUEST OF A GOVERNMENTAL AGENCY, OR AS MAY BE
NECESSARY OR ADVISABLE BY THE COMPANY TO FULFILL ITS DISCLOSURE OBLIGATIONS
UNDER APPLICABLE UNITED STATES SECURITIES LAWS.
13.
TERMINATION.
13.1
TERM.
THIS AGREEMENT SHALL COMMENCE ON THE EFFECTIVE DATE AND
SHALL CONTINUE THROUGH THE DELIVERY TERM, UNLESS EARLIER TERMINATED PURSUANT TO
THIS AGREEMENT.
13.2
CAUSES FOR TERMINATION.
THIS AGREEMENT WILL TERMINATE:
(A)
ON THE CONCLUSION OF THE DELIVERY TERM;
5
(B)
BY THE COMPANY, UPON THIRTY (30) DAY'S PRIOR WRITTEN NOTICE TO
RECAPTURE, IF RECAPTURE IS UNABLE TO MEET THE AGREED MONTHLY DELIVERY SCHEDULE
SET FORTH IN THIS AGREEMENT;
(C)
ON THE THIRTIETH (30TH) DAY AFTER EITHER PARTY GIVES THE OTHER
NOTICE OF A MATERIAL BREACH BY THE OTHER OF ANY TERM OR CONDITION OF THIS
AGREEMENT, UNLESS THE BREACH IS CURED BEFORE THAT DAY; PROVIDED THAT ANY BREACH
OF SECTION 12.1 OR 12.2 WILL BE DEEMED A MATERIAL BREACH OF THIS AGREEMENT THAT
CANNOT BE CURED AND THE AGREEMENT MAY BE TERMINATED IMMEDIATELY; OR
(D)
UPON NOTICE BY A PARTY, IMMEDIATELY, IF
(1)
A RECEIVER IS APPOINTED FOR THE OTHER PARTY OR ITS PROPERTY;
(2)
THE OTHER PARTY BECOMES INSOLVENT OR UNABLE TO PAY ITS DEBTS AS
THEY MATURE IN THE ORDINARY COURSE OF BUSINESS OR MAKES AN ASSIGNMENT FOR THE
BENEFIT OF ITS CREDITORS; OR
(3)
ANY PROCEEDINGS ARE COMMENCED AGAINST THE OTHER PARTY UNDER ANY
BANKRUPTCY, INSOLVENCY OR DEBTOR'S RELIEF LAW AND SUCH PROCEEDINGS ARE NOT
VACATED OR SET ASIDE WITHIN SIXTY (60) DAYS FROM THE DATE OF COMMENCEMENT
THEREOF.
13.3
EFFECT OF TERMINATION.
AFTER TERMINATION:
(A)
EXCEPT AS PROVIDED IN SECTION 13.3(B), ALL ORDERS NOT SHIPPED UPON