COST AND EXPENSE OF DEFENSE, INCLUDING ATTORNEYS
FEES BUT NO SETTLEMENT MAY BE ENTERED INTO WITHOUT THE WRITTEN CONSENT OF BOTH
PARTIES, WHICH SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED.
SUBJECT TO THE
PRECEDING SENTENCE, SONUS AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS SCHERING
FROM AND AGAINST ALL LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES INCURRED
BY SCHERING IN CONNECTION WITH ANY JUDICIAL OR ADMINISTRATIVE PROCEEDING
INSTITUTED BY A THIRD PARTY AGAINST SCHERING BASED ON THE MANUFACTURE, USE OR
SALE BY SCHERING OF THE PRODUCT.
.THE PARTIES AGREE THAT, IF ANY THIRD PARTY IS
SUCCESSFUL IN ANY SUCH CLAIM, AND SCHERING IS ORDERED TO MAKE ANY PAYMENTS TO
SUCH THIRD PARTY IN CONNECTION THEREWITH, THEN (WITHOUT PREJUDICE TO ANY OTHER
REMEDIES AVAILABLE TO SCHERING PURSUANT TO THIS AGREEMENT), ANY SUCH PAYMENTS
MAY BE OFFSET OR DEDUCTED FROM THE PAYMENT OBLIGATIONS OF SCHERING TO SONUS
UNDER THE AGREEMENT.
ARTICLE X
CONFIDENTIALITY
SECTION 10.01
CONFIDENTIALITY.
DURING THE TERM AND FOR
A PERIOD OF TEN (10) YEARS THEREAFTER, EACH PARTY SHALL MAINTAIN ALL
CONFIDENTIAL INFORMATION OF THE OTHER PARTY AS CONFIDENTIAL AND SHALL NOT
DISCLOSE ANY SUCH CONFIDENTIAL INFORMATION TO ANY THIRD PARTY OR USE ANY SUCH
CONFIDENTIAL INFORMATION FOR ANY PURPOSE, EXCEPT (A) AS EXPRESSLY AUTHORIZED BY
THIS AGREEMENT, (B) AS REQUIRED BY LAW, RULE, REGULATION OR COURT ORDER
(PROVIDED THAT THE DISCLOSING PARTY SHALL FIRST NOTIFY THE OTHER PARTY AND SHALL
USE COMMERCIALLY REASONABLE EFFORTS TO OBTAIN CONFIDENTIAL TREATMENT OF ANY SUCH
INFORMATION REQUIRED TO BE DISCLOSED), OR (C) TO ITS AFFILIATES AND ITS
EMPLOYEES, AGENTS, CONSULTANTS AND OTHER REPRESENTATIVES ("REPRESENTATIVES") TO
ACCOMPLISH THE PURPOSES OF THIS AGREEMENT, SO LONG AS SUCH PERSONS ARE UNDER AN
OBLIGATION OF CONFIDENTIALITY NO LESS STRINGENT THAN AS SET FORTH HEREIN.
EACH
PARTY MAY USE SUCH CONFIDENTIAL INFORMATION ONLY TO THE EXTENT REQUIRED TO
ACCOMPLISH THE PURPOSES OF THIS AGREEMENT.
EACH PARTY SHALL USE AT LEAST THE
SAME STANDARD OF CARE AS IT USES TO PROTECT ITS OWN CONFIDENTIAL INFORMATION TO
ENSURE THAT IT AND ITS AFFILIATES AND REPRESENTATIVES DO NOT DISCLOSE OR MAKE
ANY UNAUTHORIZED USE OF THE OTHER PARTY'S CONFIDENTIAL INFORMATION.
EACH PARTY
SHALL BE RESPONSIBLE FOR ANY BREACH OF THIS AGREEMENT BY ITS REPRESENTATIVES.
EACH PARTY SHALL PROMPTLY NOTIFY THE OTHER PARTY UPON DISCOVERY OF ANY
UNAUTHORIZED USE OR DISCLOSURE OF THE OTHER PARTY'S CONFIDENTIAL INFORMATION,
SECTION 10.02
DISCLOSURE OF AGREEMENT.
NEITHER PARTY
SHALL RELEASE TO ANY THIRD PARTY OR PUBLISH IN ANY WAY ANY NON-PUBLIC
INFORMATION WITH RESPECT TO THE TERMS OF THIS AGREEMENT WITHOUT
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THE PRIOR WRITTEN CONSENT OF THE OTHER PARTY, WHICH CONSENT SHALL NOT BE
UNREASONABLY WITHHELD, EXCEPT FOR THE DISCLOSURE BY A PARTY OF THE TERMS OF THIS
AGREEMENT TO LENDERS, INVESTMENT BANKERS AND OTHER FINANCIAL INSTITUTIONS OF ITS
CHOICE SOLELY FOR PURPOSES OF FINANCING THE BUSINESS OPERATIONS OF SUCH PARTY,
PROVIDED SUCH PARTY OBTAINS A SIGNED CONFIDENTIALITY AGREEMENT WITH ANY SUCH
FINANCIAL INSTITUTION WITH RESPECT TO SUCH INFORMATION ON TERMS SUBSTANTIALLY
SIMILAR TO THOSE CONTAINED IN THIS ARTICLE X, AND EITHER PARTY, IN ITS SOLE