the Parties shall equally bear the fees, costs, and
expenses of the arbitrator(s) and the arbitration proceedings; provided,
however, that the arbitrator(s) may exercise discretion to award costs,
including attorney's fees, to the prevailing Party.
Without limiting any other
remedies that may be available under Applicable Laws, the arbitrator(s) shall
have no authority to award provisional remedies of any nature whatsoever, or
punitive, special, consequential, or any other similar form of damages.
9.5
Preliminary Injunctions.
Notwithstanding anything in this
Agreement to the contrary, a Party may seek a temporary restraining order or a
preliminary injunction or other equitable remedy from any court of competent
jurisdiction in order to prevent immediate and irreparable injury, loss, or
damage on a provisional basis, pending the decision of the arbitrator(s) on the
ultimate merits of any Dispute.
9.6
Patent Disputes.
Notwithstanding anything in this Agreement to the
contrary, any and all issues regarding the scope, construction, validity, and
enforceability of any Patent Rights in a country within the Territory shall be
determined in a court or other Governmental Authority of competent jurisdiction
under the applicable patent laws of such country.
9.7
Confidentiality.
All proceedings and decisions of the
arbitrator(s) shall be deemed Confidential Information of each of the Parties,
and shall be subject to Article 10.
ARTICLE 10
CONFIDENTIALITY
10.1
CONFIDENTIAL INFORMATION DEFINED.
DURING THE PERFORMANCE OF THIS
AGREEMENT, IT IS ANTICIPATED THAT EACH PARTY WILL LEARN OF INFORMATION THAT THE
OTHER REGARDS AS CONFIDENTIAL OR PROPRIETARY, INCLUDING, BUT NOT LIMITED TO,
COMMERCIAL, FINANCIAL, AND TECHNICAL INFORMATION, SUBSTANCES, FORMULATIONS,
TECHNIQUES, METHODOLOGIES, CUSTOMER OR CLIENT LISTS, PROGRAMS, PROCEDURES, DATA,
DOCUMENTS, PROTOCOLS, RESULTS OF EXPERIMENTATION AND TESTING, SPECIFICATIONS,
DATABASES, BUSINESS PLANS, TRADE SECRETS, BUDGET FORECASTS, BUSINESS
ARRANGEMENTS, INFORMATION REGARDING SPECIFIC TRANSACTIONS, FINANCIAL INFORMATION
AND ESTIMATES, LONG-TERM PLANS AND GOALS, INFORMATION RELATING TO THE PRODUCT,
KNOW-HOW (TECHNICAL OR OTHERWISE), PROCESSES, CUSTOMERS, SUPPLIERS, PRICING
PROGRAMS, AND STRATEGIES ("CONFIDENTIAL INFORMATION").
35
Confidential Information, indicated by [***] has been omitted from this filing
and filed separately with the Securities Exchange Commission
10.2
OBLIGATIONS.
EXCEPT AS EXPRESSLY PERMITTED IN THIS AGREEMENT, EACH
PARTY AGREES NOT TO USE OR DISCLOSE THE OTHER PARTY'S CONFIDENTIAL INFORMATION
FOR ANY PURPOSE OTHER THAN THE PERFORMANCE OF THIS AGREEMENT.
EACH PARTY WILL
TREAT CONFIDENTIAL INFORMATION FURNISHED BY THE OTHER PARTY WITH THE SAME DEGREE
OF CARE AS IF IT WERE ITS OWN CONFIDENTIAL INFORMATION (BUT UNDER NO
CIRCUMSTANCES LESS THAN REASONABLE CARE).
EXCEPT AS EXPRESSLY PERMITTED BY THIS
AGREEMENT, A RECEIVING PARTY WILL NOT DISCLOSE CONFIDENTIAL INFORMATION TO ANY
THIRD PARTY, OTHER THAN THE RECEIVING PARTY'S AFFILIATES, EMPLOYEES, AGENTS,
CONTRACTORS, OR CONSULTANTS WHO HAVE A NEED TO KNOW THE CONFIDENTIAL INFORMATION
IN ORDER TO PERFORM THE RECEIVING PARTY'S OBLIGATIONS UNDER THIS AGREEMENT.
THE
RECEIVING PARTY WILL BE RESPONSIBLE FOR THE COMPLIANCE OF ALL AFFILIATES,
EMPLOYEES, AGENTS, CONTRACTORS, AND CONSULTANTS THAT ARE PROVIDED THE
CONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY WITH THE OBLIGATIONS OF THIS
SECTION 10.2.
10.3
EXCEPTIONS TO OBLIGATIONS.
THE RESTRICTIONS ON THE USE AND
DISCLOSURE OF CONFIDENTIAL INFORMATION AS SET FORTH ABOVE SHALL