RECEIVING PARTY WILL PROVIDE
DISCLOSING PARTY WITH PROMPT WRITTEN NOTICE SO THAT THE DISCLOSING PARTY MAY
SEEK A PROTECTIVE ORDER OR OTHER APPROPRIATE REMEDY OR WAIVE COMPLIANCE WITH THE
PROVISIONS OF THIS AGREEMENT.
IF, IN THE ABSENCE OF A PROTECTIVE ORDER OR OTHER
REMEDY OR THE RECEIPT OF A WAIVER BY THE DISCLOSING PARTY, THE RECEIVING PARTY
OR ITS REPRESENTATIVES ARE NONETHELESS, IN THE WRITTEN OPINION OF COUNSEL,
LEGALLY COMPELLED TO MAKE A DISCLOSURE OF ANY OF THE CONFIDENTIAL INFORMATION,
THE RECEIVING PARTY OR ITS REPRESENTATIVES MAY, WITHOUT LIABILITY HEREUNDER,
DISCLOSE ONLY THAT PORTION OF THE CONFIDENTIAL INFORMATION WHICH SUCH COUNSEL
ADVISES THE RECEIVING PARTY OR ITS REPRESENTATIVES IS LEGALLY REQUIRED TO BE
DISCLOSED.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, PROGINET
SHALL NOT BE REQUIRED TO HOLD AS CONFIDENTIAL ANY CONFIDENTIAL INFORMATION
RELATING TO THE ASSETS.
10.3
FOR PURPOSES OF THIS AGREEMENT, "CONFIDENTIAL INFORMATION" MEANS ANY AND
ALL MATERIAL AND INFORMATION OF A DISCLOSING PARTY OR ANY OF ITS AFFILIATES
WHICH HAS OR WILL COME INTO THE POSSESSION OR KNOWLEDGE OF THE RECEIVING PARTY
OR ANY OF ITS AFFILIATES IN CONNECTION WITH OR AS A RESULT OF ENTERING INTO THIS
AGREEMENT INCLUDING INFORMATION CONCERNING THE DISCLOSING PARTY'S PAST, PRESENT
AND FUTURE CUSTOMERS, SUPPLIERS, TECHNOLOGY, AND BUSINESS. FOR THE PURPOSES OF
THIS DEFINITION, "INFORMATION" AND "MATERIAL" INCLUDES KNOW-HOW, DATA, PATENTS,
COPYRIGHTS, TRADE SECRETS, PROCESSES, TECHNIQUES, PROGRAMS, DESIGNS, FORMULAE,
MARKETING, ADVERTISING, FINANCIAL, COMMERCIAL, SALES OR PROGRAMMING MATERIALS,
WRITTEN MATERIALS, COMPOSITIONS, DRAWINGS, DIAGRAMS, COMPUTER PROGRAMS, STUDIES,
WORK IN PROGRESS, VISUAL DEMONSTRATIONS, IDEAS, CONCEPTS, AND OTHER DATA, IN
ORAL, WRITTEN, GRAPHIC, ELECTRONIC, OR ANY OTHER FORM OR MEDIUM WHATSOEVER.
NOTWITHSTANDING THE FOREGOING, "CONFIDENTIAL INFORMATION" DOES NOT INCLUDE THE
FOLLOWING INFORMATION:
10.3.1
INFORMATION WHICH IS IN THE PUBLIC DOMAIN WHEN IT IS RECEIVED BY OR
BECOMES KNOWN TO THE RECEIVING PARTY OR WHICH SUBSEQUENTLY ENTERS THE PUBLIC
DOMAIN THROUGH NO FAULT OF THE RECEIVING PARTY (BUT ONLY AFTER IT ENTERS THE
PUBLIC DOMAIN);
12
10.3.2
INFORMATION WHICH IS ALREADY KNOWN TO THE RECEIVING PARTY AT THE
TIME OF ITS DISCLOSURE TO THE RECEIVING PARTY BY THE DISCLOSING PARTY AND IS NOT
KNOWN BY THE RECEIVING PARTY TO BE THE SUBJECT OF AN OBLIGATION OF CONFIDENCE OF
ANY KIND;
10.3.3
INFORMATION WHICH IS INDEPENDENTLY DEVELOPED BY THE RECEIVING PARTY
WITHOUT ANY USE OF OR REFERENCE TO THE CONFIDENTIAL INFORMATION OF THE
DISCLOSING PARTY AND WHICH SUCH INDEPENDENT DEVELOPMENT CAN BE ESTABLISHED BY
EVIDENCE THAT WOULD BE ACCEPTABLE TO A COURT OF COMPETENT JURISDICTION; AND
10.3.4
INFORMATION WHICH IS RECEIVED BY THE RECEIVING PARTY IN GOOD FAITH
WITHOUT AN OBLIGATION OF CONFIDENCE OF ANY KIND FROM A THIRD PARTY WHO THE
RECEIVING PARTY HAD NO REASON TO BELIEVE WAS NOT LAWFULLY IN POSSESSION OF SUCH
INFORMATION FREE OF ANY OBLIGATION OF CONFIDENCE OF ANY KIND, BUT ONLY UNTIL THE
RECEIVING PARTY SUBSEQUENTLY COMES TO HAVE REASON TO BELIEVE THAT SUCH
INFORMATION WAS SUBJECT TO AN OBLIGATION OF CONFIDENCE OF ANY KIND WHEN
ORIGINALLY RECEIVED.
10.4
EACH PARTY WILL SUBMIT TO THE OTHER PARTY, FOR ITS