OF THIS AGREEMENT BY SUCH OFFICERS, AGENTS, AND
EMPLOYEES, INCLUDING OBTAINING AN ENFORCEABLE CONFIDENTIALITY AGREEMENT FROM
SUCH OFFICER, AGENT, EMPLOYEE OR CONTRACTOR.
NOTWITHSTANDING ANYTHING TO THE
CONTRARY HEREIN, THE OBLIGATIONS IN THIS SECTION 7 DO NOT RESTRICT ANY
DISCLOSURE BY EITHER PARTY REQUIRED BY ANY APPLICABLE LAW, OR BY ORDER OF ANY
COURT OR GOVERNMENT AGENCY; PROVIDED THAT LICENSEE PROVIDES PRIOR WRITTEN NOTICE
OF SUCH DISCLOSURE TO LICENSOR AND ASSISTS LICENSOR IN ITS REASONABLE AND LAWFUL
EFFORTS TO AVOID OR MINIMIZE THE DEGREE OF SUCH DISCLOSURE.
7.3.
"CONFIDENTIAL INFORMATION" MEANS ANY AND ALL CONFIDENTIAL OR
PROPRIETARY INFORMATION AND DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, TRADE
SECRETS, KNOW-HOW, LICENSED TECHNOLOGY AND THE TERMS AND CONDITIONS OF THIS
AGREEMENT (EXCEPT AS REQUIRED BY A PARTY TO ENFORCE ITS RIGHTS HEREUNDER), BUT
EXCLUDING CONFIDENTIAL OR PROPRIETARY INFORMATION THAT (AS DETERMINED BY
COMPETENT DOCUMENTATION):
(I)
WAS KNOWN OR USED BY LICENSEE PRIOR TO ITS DATE OF DISCLOSURE TO
LICENSEE;
(II)
EITHER BEFORE OR AFTER THE DATE OF THE DISCLOSURE TO LICENSEE, IS
LAWFULLY DISCLOSED TO LICENSEE BY SOURCES OTHER THAN THE LICENSOR RIGHTFULLY IN
POSSESSION OF THE CONFIDENTIAL INFORMATION;
(III)
EITHER BEFORE OR AFTER THE DATE OF THE DISCLOSURE TO LICENSEE,
BECOMES PUBLISHED OR GENERALLY KNOWN TO THE PUBLIC, WITHOUT THE LICENSEE
VIOLATING THIS SECTION 7; OR
5
(IV)
IS INDEPENDENTLY DEVELOPED BY OR FOR LICENSEE WITHOUT REFERENCE TO
OR RELIANCE UPON THE CONFIDENTIAL INFORMATION OR ANY LICENSED TECHNOLOGY.
8.
INDEMNIFICATION
8.1.
INDEMNIFICATION.
LICENSEE WILL INDEMNIFY, DEFEND AND HOLD
HARMLESS LICENSOR, ITS AFFILIATES AND ALL OF THEIR RESPECTIVE OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS (EACH, A "LICENSOR
INDEMNIFIED PERSON") FROM AND AGAINST ANY DAMAGES ARISING FROM OR INCURRED IN
CONNECTION WITH (A) ANY BREACH OF THIS AGREEMENT BY LICENSEE, ANY OF ITS
AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,
SUCCESSORS OR ASSIGNS ("LICENSEE PERSONS"); (B) ANY NEGLIGENCE OR INTENTIONAL
MISCONDUCT OF ANY LICENSEE PERSON; OR (C) ANY PRODUCT LIABILITY, PERSONAL
INJURY, WRONGFUL DEATH, PROPERTY DAMAGE OR OTHER CLAIMS, WHETHER MADE BY
EMPLOYEES, SUBCONTRACTORS, AGENTS OR THE GENERAL PUBLIC WITH RESPECT TO ANY
PRODUCTS.
8.2.
PROCEDURE.
THE INDEMNIFICATION PROCEDURES CONTAINED IN
SECTION 10.9 OF THE SPA SHALL APPLY TO ALL CLAIMS FOR INDEMNIFICATION MADE BY
ANY LICENSOR INDEMNIFIED PERSON UNDER SECTION 8.1.
8.3.
NO LIMITATIONS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE
SPA, THE LIMITATIONS ON LICENSEE'S INDEMNIFICATION LIABILITY UNDER THE SPA
CONTAINED IN SECTIONS 10.4 AND 10.5 OF THE SPA SHALL NOT APPLY TO ANY CLAIM FOR
INDEMNIFICATION MADE BY ANY LICENSOR INDEMNIFIED PERSON UNDER SECTION 8.1.
9.
GENERAL PROVISIONS
9.1.
NOTICES.
ALL NOTICES, CONSENTS, WAIVERS, AND OTHER COMMUNICATIONS
UNDER THIS AGREEMENT MUST BE IN WRITING AND WILL BE DEEMED TO HAVE BEEN DULY
GIVEN WHEN (A) DELIVERED BY HAND (WITH WRITTEN CONFIRMATION OF RECEIPT), (B)
SENT BY FACSIMILE (WITH WRITTEN CONFIRMATION OF RECEIPT), PROVIDED THAT A COPY
IS MAILED BY REGISTERED MAIL, RETURN RECEIPT REQUESTED, OR (C) WHEN RECEIVED BY
THE ADDRESSEE, IF SENT BY A NATIONALLY RECOGNIZED OVERNIGHT DELIVERY SERVICE
(RECEIPT REQUESTED), IN EACH CASE TO THE APPROPRIATE ADDRESSES