THIS LIMITATION SHALL NOT APPLY IN
THE EVENT OF FRAUD; AND PROVIDED FURTHER THAT IF AN INDEMNITOR SHALL BREACH OR
THREATEN TO COMMIT A BREACH OF ANY OF ITS RESTRICTIVE COVENANTS SET FORTH IN
THIS AGREEMENT OR ANY OTHER TRANSACTION AGREEMENT (THE "RESTRICTIVE COVENANTS"),
ANY INDEMNITEE SHALL HAVE THE RIGHT IN ADDITION TO, AND NOT IN LIEU OF, ANY
OTHER RIGHTS AND REMEDIES AVAILABLE TO SUCH INDEMNITEE, UNDER LAW OR IN EQUITY,
TO HAVE THE RESTRICTIVE COVENANTS SPECIFICALLY ENFORCED BY ANY COURT, INCLUDING
THE RIGHT TO SEEK ENTRY AGAINST SUCH INDEMNITOR, ANY OF ITS AFFILIATES AND ANY
SHAREHOLDER, OFFICER, DIRECTOR, EMPLOYEE OF EACH OF THE FOREGOING OF RESTRAINING
ORDERS AND INJUNCTIONS (PRELIMINARY, MANDATORY, TEMPORARY AND PERMANENT) AGAINST
VIOLATIONS, THREATENED OR ACTUAL, AND WHETHER OR NOT THEN CONTINUING, OF THE
RESTRICTIVE COVENANTS, IT BEING ACKNOWLEDGED AND AGREED THAT MONEY DAMAGES WILL
NOT PROVIDE SUCH INDEMNITEE AN ADEQUATE REMEDY.
66
(B)
THE PARTIES HERETO INTEND THAT, EVEN THOUGH
INDEMNIFICATION AND OTHER OBLIGATIONS APPEAR IN VARIOUS SECTIONS AND ARTICLES OF
THIS AGREEMENT, THE INDEMNIFICATION PROCEDURES AND LIMITATIONS CONTAINED IN THIS
ARTICLE 11 SHALL APPLY TO ALL INDEMNITY AND OTHER OBLIGATIONS OF THE PARTIES
UNDER THIS AGREEMENT, EXCEPT TO THE EXTENT EXPRESSLY EXCLUDED IN THIS ARTICLE
11.
11.14
NO SPECIAL DAMAGES
IN NO EVENT SHALL ANY PARTY BE LIABLE UNDER THIS ARTICLE 11 OR OTHERWISE IN
RESPECT OF THIS AGREEMENT FOR EXEMPLARY, SPECIAL, PUNITIVE, INDIRECT, REMOTE,
SPECULATIVE OR CONSEQUENTIAL DAMAGES EXCEPT TO THE EXTENT ANY SUCH PARTY SUFFERS
SUCH DAMAGES TO AN UNAFFILIATED THIRD PARTY IN CONNECTION WITH A THIRD PARTY
CLAIM, IN WHICH EVENT SUCH DAMAGES SHALL BE RECOVERABLE.
11.15
EXPRESS NEGLIGENCE
THE INDEMNITIES SET FORTH IN THIS ARTICLE 11 ARE INTENDED TO BE ENFORCEABLE
AGAINST THE PARTIES IN ACCORDANCE WITH THE EXPRESS TERMS AND SCOPE THEREOF
NOTWITHSTANDING TEXAS EXPRESS NEGLIGENCE RULE OR ANY SIMILAR DIRECTIVE THAT
WOULD PROHIBIT OR OTHERWISE LIMIT INDEMNITIES BECAUSE OF THE SIMPLE OR GROSS
NEGLIGENCE (WHETHER SOLE, CONCURRENT, ACTIVE OR PASSIVE) OR OTHER FAULT OR
STRICT LIABILITY OF ANY OF THE INDEMNIFIED PARTIES.
12.
CONFIDENTIALITY
12.1
DEFINITION OF CONFIDENTIAL INFORMATION
(A)
AS USED IN THIS ARTICLE 12, THE TERM
"CONFIDENTIAL INFORMATION" INCLUDES ANY AND ALL OF THE FOLLOWING INFORMATION OF
ANY SELLER OR BUYER THAT HAS BEEN OR MAY HEREAFTER BE DISCLOSED IN ANY FORM,
WHETHER IN WRITING, ORALLY, ELECTRONICALLY OR OTHERWISE, OR OTHERWISE MADE
AVAILABLE BY OBSERVATION, INSPECTION OR OTHERWISE BY EITHER PARTY (BUYER ON THE
ONE HAND OR SELLERS ON THE OTHER HAND) OR ITS REPRESENTATIVES (COLLECTIVELY, A
"DISCLOSING PARTY") TO THE OTHER PARTY OR ITS REPRESENTATIVES (COLLECTIVELY, A
"RECEIVING PARTY"):
(I)
ALL INFORMATION THAT IS A TRADE SECRET
UNDER APPLICABLE TRADE SECRET OR OTHER LAW;
(II)
ALL INFORMATION CONCERNING PRODUCT
SPECIFICATIONS, DATA, KNOW-HOW, FORMULAE, COMPOSITIONS, PROCESSES, DESIGNS,
SKETCHES, PHOTOGRAPHS, GRAPHS, DRAWINGS, SAMPLES, INVENTIONS AND IDEAS, PAST,
CURRENT AND PLANNED RESEARCH AND DEVELOPMENT, CURRENT AND PLANNED MANUFACTURING
OR DISTRIBUTION METHODS AND PROCESSES, CUSTOMER LISTS, CURRENT AND ANTICIPATED
CUSTOMER REQUIREMENTS, PRICE LISTS, MARKET STUDIES, BUSINESS PLANS, COMPUTER
HARDWARE, SOFTWARE AND DATABASE TECHNOLOGIES, SYSTEMS, STRUCTURES AND
ARCHITECTURES;