TERMINATION.
IN ADDITION, THE FOLLOWING PROVISIONS SHALL
SURVIVE THE TERMINATION OF THE BASE ALLIANCE AGREEMENTS AND REMAIN IN FULL FORCE
AND EFFECT IN ACCORDANCE WITH THEIR TERMS:
(I) ARTICLE II (REPRESENTATIONS AND WARRANTIES OF ACI);
(II) ARTICLE III (REPRESENTATIONS AND WARRANTIES OF IBM);
(III) SECTION 6.02 (RELATING TO PUBLICITY AND DISCLOSURE);
(IV) [_*_]
(V) SECTION 6.09 (RELATING TO TRANSITION OBLIGATIONS);
(VI) SECTION 6.10 (RELATING TO INTELLECTUAL PROPERTY)
(VII) THIS ARTICLE VIII;
(VIII)
ARTICLE IX (CONFIDENTIALITY);
(IX) ARTICLE X (INDEMNIFICATION AND LIMITATION ON LIABILITY);
(X) ARTICLE XI (DISPUTE RESOLUTION);
(XI) ARTICLE XII (MISCELLANEOUS); AND
(XII) EACH PROVISION OF EACH OTHER BASE ALLIANCE AGREEMENT THAT, BY THE EXPRESS
TERMS OF SUCH BASE ALLIANCE AGREEMENT, SURVIVES THE TERMINATION OF THE BASE
ALLIANCE AGREEMENTS.
27
ARTICLE IX
CONFIDENTIALITY
SECTION 9.01.
CONFIDENTIAL INFORMATION.
IBM AND ACI AGREE THAT (A) INFORMATION
DISCLOSED BY THE DISCLOSING PARTY (THE "DISCLOSING PARTY") TO THE OTHER PARTY
(THE "RECEIVING PARTY"), BOTH PRIOR TO AND AFTER THE DATE HEREOF, IN CONNECTION
WITH THE ALLIANCE INCLUDES TECHNICAL, MARKETING, FINANCIAL, COMMERCIAL AND OTHER
PROPRIETARY INFORMATION AND IS DISCLOSED FOR THE SOLE PURPOSE OF SUCCESSFULLY
EFFECTING THE ALLIANCE AND (B) THE MUTUAL OBJECTIVE OF THE PARTIES PURSUANT TO
THIS ARTICLE IX IS TO PROVIDE APPROPRIATE PROTECTION OF SUCH CONFIDENTIAL
INFORMATION WHILE MAINTAINING THE ABILITY OF THE PARTIES TO CONDUCT THEIR
RESPECTIVE BUSINESS ACTIVITIES.
ANY SUCH TECHNICAL, MARKETING, FINANCIAL,
COMMERCIAL AND OTHER PROPRIETARY INFORMATION DISCLOSED BY A DISCLOSING PARTY
SHALL BE DEEMED TO BE CONFIDENTIAL INFORMATION IF IT IS DISCLOSED (I) IN WRITING
AND MARKED "CONFIDENTIAL" AT THE TIME OF SUCH DISCLOSURE BY THE DISCLOSING
PARTY, OR (II) BY ORAL AND/OR VISUAL PRESENTATION AND EITHER DESIGNATED IN
ADVANCE AS "CONFIDENTIAL" BY THE DISCLOSING PARTY OR READILY APPARENT AS
CONFIDENTIAL DISCLOSURE (ANY SUCH INFORMATION, "CONFIDENTIAL INFORMATION").
SECTION 9.02.
CONFIDENTIALITY OBLIGATIONS.
(A)
THE RECEIVING PARTY AGREES TO USE THE SAME CARE AND DISCRETION TO AVOID
DISCLOSURE, PUBLICATION OR DISSEMINATION OF THE DISCLOSING PARTY'S CONFIDENTIAL
INFORMATION AS IT USES WITH ITS OWN SIMILAR INFORMATION THAT IT DOES NOT WISH TO
DISCLOSE, PUBLISH OR DISSEMINATE; PROVIDED THAT THE INHERENT DISCLOSURE OF
IDEAS, CONCEPTS, KNOW-HOW OR TECHNIQUES CONTAINED IN THE DISCLOSING PARTY'S
CONFIDENTIAL INFORMATION BY THE RECEIVING PARTY IN THE USE, DISTRIBUTION OR
MARKETING OF ANY PRODUCT OR SERVICE IN CONNECTION WITH ACTIVITIES PERFORMED
UNDER THE ENABLEMENT ASSISTANCE AGREEMENT SHALL NOT BE DEEMED TO BE IN VIOLATION
OF THE RECEIVING PARTY'S OBLIGATIONS UNDER THIS SECTION 9.02(A).
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN ANY ALLIANCE AGREEMENT, THE
RECEIVING PARTY MAY USE THE DISCLOSING PARTY'S CONFIDENTIAL INFORMATION SOLELY
IN CONNECTION WITH ACTIVITIES CONTEMPLATED BY THE ALLIANCE.
THE RECEIVING PARTY
MAY DISCLOSE THE DISCLOSING PARTY'S CONFIDENTIAL INFORMATION TO THE FOLLOWING
PARTIES:
(I) ITS EMPLOYEES AND EMPLOYEES OF ITS SUBSIDIARIES WHO HAVE A NEED TO KNOW;
(II) ANY OTHER PARTY WITH THE DISCLOSING PARTY'S PRIOR WRITTEN CONSENT; AND
(III) WHERE IBM IS THE RECEIVING PARTY, IBM MAY DISCLOSE ACI'S CONFIDENTIAL
INFORMATION TO IBM'S BUSINESS PARTNERS AND, WHERE ACI IS THE RECEIVING PARTY,
ACI MAY DISCLOSE IBM'S CONFIDENTIAL INFORMATION TO ACI'S AUTHORIZED
DISTRIBUTORS, IN