the Agreement are
delegated to an agent or other subcontractor, reasonable steps shall be taken to
ensure that such agents and subcontractor adhere to the same requirements.
Borrower and Lender will not make any more copies of the other's written or
graphic materials containing Confidential Information than is necessary for its
use under the terms of the Agreement, and each such copy shall be marked with
the same proprietary notices as appear on the originals.
(C)
CONFIDENTIAL INFORMATION NOT SUBJECT TO RESTRICTIONS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NEITHER BORROWER NOR
LENDER SHALL HAVE ANY OBLIGATION WITH RESPECT TO ANY CONFIDENTIAL INFORMATION OF
THE OTHER PARTY, OR ANY PORTION THEREOF, WHICH THE RECEIVING PARTY CAN ESTABLISH
BY COMPETENT PROOF:
(I)
IS OR BECOMES GENERALLY KNOWN TO COMPANIES ENGAGED IN THE SAME OR
SIMILAR BUSINESSES AS THE PARTIES HERETO ON A NON-CONFIDENTIAL BASIS, THROUGH NO
WRONGFUL ACT OF THE RECEIVING PARTY;
(II)
IS LAWFULLY OBTAINED BY THE RECEIVING PARTY FROM A THIRD PARTY
WHICH HAS NO OBLIGATION TO MAINTAIN THE INFORMATION AS CONFIDENTIAL AND WHICH
PROVIDES IT TO THE RECEIVING PARTY WITHOUT ANY OBLIGATION TO MAINTAIN THE
INFORMATION AS PROPRIETARY OR CONFIDENTIAL;
(III)
WAS KNOWN PRIOR TO ITS DISCLOSURE TO THE RECEIVING PARTY WITHOUT
ANY OBLIGATION TO KEEP IT CONFIDENTIAL AS EVIDENCED BY THE TANGIBLE RECORDS KEPT
BY THE RECEIVING PARTY IN THE ORDINARY COURSE OF ITS BUSINESS;
(IV)
IS INDEPENDENTLY DEVELOPED BY THE RECEIVING PARTY WITHOUT
REFERENCE TO THE DISCLOSING PARTY'S CONFIDENTIAL INFORMATION; OR
(V)
IS THE SUBJECT OF A WRITTEN AGREEMENT WHEREBY THE DISCLOSING PARTY
CONSENTS TO THE USE OR DISCLOSURE OF SUCH CONFIDENTIAL INFORMATION.
(D)
REQUIRED DISCLOSURES.
IF A RECEIVING PARTY OR ANY OF ITS
REPRESENTATIVES SHALL BE UNDER A LEGAL OBLIGATION IN ANY ADMINISTRATIVE OR
JUDICIAL CIRCUMSTANCE TO DISCLOSE ANY CONFIDENTIAL INFORMATION, THE RECEIVING
PARTY SHALL, TO THE EXTENT NOT PROHIBITED, GIVE THE DISCLOSING PARTY PROMPT
NOTICE SO THAT THE DISCLOSING PARTY MAY SEEK A PROTECTIVE ORDER AND/OR WAIVE THE
DUTY OF NONDISCLOSURE; PROVIDED THAT IN THE ABSENCE OF SUCH ORDER OR WAIVER, IF
THE RECEIVING PARTY OR ANY SUCH REPRESENTATIVE SHALL, IN THE OPINION OF ITS
COUNSEL, STAND LIABLE FOR CONTEMPT OR SUFFER OTHER CENSURE OR PENALTY FOR
FAILURE TO DISCLOSE, DISCLOSURE PURSUANT TO THE ORDER OF SUCH TRIBUNAL MAY BE
MADE BY THE RECEIVING PARTY OR ITS REPRESENTATIVE WITHOUT LIABILITY HEREUNDER.
(E)
CONTINUED RESTRICTIONS.
FOR AS LONG AS BORROWER OR LENDER
CONTINUES TO POSSESS OR CONTROL CONFIDENTIAL INFORMATION FURNISHED BY THE OTHER,
AND FOR SO LONG AS THE CONFIDENTIAL
47
Information remains unpublished, confidential and legally protectable as the
property of the disclosing party, except as otherwise specified herein, the
receiving party shall make no use of such Confidential Information whatsoever,
notwithstanding the termination or expiration of the Agreement.
Borrower and
Lender acknowledge their understanding that the termination or expiration of the
Agreement shall not be deemed to give either a right or license to use or
disclose the Confidential Information of the other.
Any materials or documents,
including copies that contain Confidential Information,