UNDER SECTION 15.1, BREACH OF CONFIDENTIALITY OBLIGATIONS, IN NO
EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL,
SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, AND ON
ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING WITHOUT
LIMITATION NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS
AGREEMENT, INCLUDING WITHOUT LIMITATION LOSS OF ANTICIPATED PROFITS, EVEN IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING
THIS ARTICLE 13, NOTHING IN THIS AGREEMENT SHALL EXCLUDE LIABILITY TO THE EXTENT
THAT SUCH LIABILITY MAY NOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.
14.
CONFIDENTIALITY.
14.1
CONFIDENTIAL INFORMATION.
"CONFIDENTIAL INFORMATION" SHALL MEAN
ANY TRADE SECRETS, CONFIDENTIAL DATA OR OTHER CONFIDENTIAL INFORMATION THAT IS
DISCLOSED BY ONE PARTY ("DISCLOSING PARTY") TO THE OTHER PARTY ("RECEIVING
PARTY"), WHICH (I) IF DISCLOSED IN WRITING, IS MARKED "CONFIDENTIAL,"
"PROPRIETARY," OR IN SOME OTHER MANNER TO INDICATE ITS CONFIDENTIAL NATURE,
(II) IF DISCLOSED ORALLY, IS DESIGNATED AS CONFIDENTIAL AT THE TIME OF
DISCLOSURE AND CONFIRMED IN WRITING AS CONFIDENTIAL WITHIN THIRTY (30) DAYS
AFTER ITS ORAL DISCLOSURE, WHICH CONFIRMATION IS MARKED IN A MANNER TO INDICATE
ITS CONFIDENTIAL NATURE AND DELIVERED TO THE RECEIVING PARTY WITHIN SUCH THIRTY
(30) DAY PERIOD, OR (III) GIVEN THE CONTENTS THEREOF OR CIRCUMSTANCES
SURROUNDING ITS DISCLOSURE, WOULD REASONABLY BE CONSIDERED BY AN OBJECTIVE THIRD
PARTY TO BE THE OTHER PARTY'S CONFIDENTIAL INFORMATION.
39
14.2
EXCLUSIONS.
NOTWITHSTANDING THE FOREGOING, CONFIDENTIAL
INFORMATION SHALL NOT INCLUDE ANY INFORMATION WHICH THE RECEIVING PARTY CAN
ESTABLISH (I) WAS PUBLICLY KNOWN OR MADE AVAILABLE IN THE PUBLIC DOMAIN PRIOR TO
THE TIME OF DISCLOSURE BY THE DISCLOSING PARTY; (II) BECOMES PUBLICLY KNOWN OR
MADE AVAILABLE AFTER DISCLOSURE TO THE RECEIVING PARTY THROUGH NO ACTION OR
INACTION OF THE RECEIVING PARTY; (III) IS IN THE POSSESSION OF THE RECEIVING
PARTY, WITHOUT CONFIDENTIALITY RESTRICTIONS, AT THE TIME OF DISCLOSURE BY THE
DISCLOSING PARTY AS SHOWN BY THE RECEIVING PARTY'S FILES AND RECORDS IMMEDIATELY
PRIOR TO THE TIME OF DISCLOSURE; (IV) DISCLOSED TO THE RECEIVING PARTY WITHOUT
RESTRICTION BY A THIRD PARTY WHO HAD A RIGHT TO DISCLOSE AND WAS NOT UNDER AN
OBLIGATION OF CONFIDENCE TO THE DISCLOSING PARTY; OR (V) IS INDEPENDENTLY
DEVELOPED BY THE RECEIVING PARTY WITHOUT USE OF OR REFERENCE TO THE CONFIDENTIAL
INFORMATION OF THE DISCLOSING PARTY.
14.3
NON-USE AND NON-DISCLOSURE.
EACH PARTY AGREES TO USE THE
CONFIDENTIAL INFORMATION OF THE OTHER PARTY SOLELY FOR THE PURPOSES OF
EXERCISING ITS RIGHTS OR PERFORMING ITS OBLIGATIONS UNDER THIS AGREEMENT.
EACH
PARTY FURTHER AGREES NOT TO DISCLOSE ANY CONFIDENTIAL INFORMATION OF THE OTHER
PARTY TO ANY THIRD PARTIES OTHER THAN THOSE THIRD PARTIES WHO ARE BOUND, PRIOR
TO RECEIVING ANY CONFIDENTIAL INFORMATION, BY CONFIDENTIALITY OBLIGATIONS AT
LEAST AS PROTECTIVE AS THOSE IN THIS AGREEMENT.
14.4
MAINTENANCE OF CONFIDENTIALITY.
EACH PARTY AGREES THAT IT SHALL
TAKE REASONABLE MEASURES TO PROTECT THE SECRECY OF AND AVOID UNAUTHORIZED
DISCLOSURE AND UNAUTHORIZED USE OF THE CONFIDENTIAL INFORMATION OF THE OTHER
PARTY.
WITHOUT LIMITING THE FOREGOING, EACH PARTY SHALL TAKE AT LEAST