DISCLOSURE AND MARKED "CONFIDENTIAL", IT SHALL, EFFECTIVE FROM THE TIME
OF INITIAL DISCLOSURE BE CONSIDERED (ALSO "CONFIDENTIAL INFORMATION").
NOTWITHSTANDING, HOWEVER, THE PRESENCE OR ABSENCE OF A MARKING AS INDICATED
ABOVE, CONFIDENTIAL INFORMATION SHALL INCLUDE ALL INFORMATION, REGARDLESS OF THE
FORM IN WHICH IT IS TRANSMITTED, RELATING TO THE OWNER'S (OR ANOTHER PARTY WHOSE
INFORMATION OWNER HAS IN ITS POSSESSION UNDER OBLIGATIONS OF CONFIDENTIALITY)
PAST, PRESENT OR FUTURE RESEARCH, DEVELOPMENT OR BUSINESS PLANS, SOFTWARE,
OPERATIONS OR SYSTEMS (INCLUDING, WITHOUT LIMITATION, THE TERMS AND CONDITIONS
OF THIS AGREEMENT, STUDIES OR REPORTS, SOFTWARE, MEMORANDA, DRAFTS AND OTHER
INFORMATION IN EITHER TANGIBLE OR INTANGIBLE FORM).
(B)
FOR A PERIOD OF TWO (2) YEARS FROM THE DATE OF DISCLOSURE TO THE
PARTY RECEIVING THE CONFIDENTIAL INFORMATION (THE "RECIPIENT"), RECIPIENT SHALL
NOT DISCLOSE ANY CONFIDENTIAL INFORMATION IT RECEIVES FROM OWNER TO ANY PERSON,
FIRM OR CORPORATION EXCEPT: (I) EMPLOYEES OF RECIPIENT AND ITS AFFILIATED
COMPANIES WHO HAVE A NEED TO KNOW AND WHO HAVE BEEN INFORMED OF RECIPIENT'S
OBLIGATION HEREUNDER; (II) CONTRACTORS OR CONSULTANTS UNDER CONTRACT TO
RECIPIENT WHO HAVE A NEED TO KNOW, WHO HAVE BEEN INFORMED OF RECIPIENT'S
OBLIGATIONS HEREUNDER, AND WHO HAVE AGREED IN WRITING NOT TO DISCLOSE
CONFIDENTIAL INFORMATION FOR A PERIOD NOT SHORTER THAN THE NONDISCLOSURE PERIOD
PROVIDED ABOVE; AND (III) AS PROVIDED IN SUBPARAGRAPH (C) BELOW.
NOTWITHSTANDING THE FOREGOING, THE OBLIGATIONS SET FORTH IN THIS SECTION 11.2
SHALL, FOR ANY CONFIDENTIAL INFORMATION WHICH CONSTITUTES AS TRADE SECRET UNDER
APPLICABLE LAW, CONTINUE SO LONG AS SUCH INFORMATION CONSTITUTES A TRADE SECRET
AND THE RECIPIENT HAS NOT DISPOSED OF THE CONFIDENTIAL INFORMATION PURSUANT TO
ITS DOCUMENT RETENTION POLICIES.
RECIPIENT SHALL USE THE SAME DEGREE OF CARE,
BUT IN NO CASE LESS THAN REASONABLE CARE, TO AVOID DISCLOSURE OF SUCH
CONFIDENTIAL INFORMATION AS RECIPIENT USES WITH RESPECT TO ITS OWN CONFIDENTIAL
INFORMATION OF LIKE IMPORTANCE.
(C)
INFORMATION SHALL NOT BE DEEMED CONFIDENTIAL OR PROPRIETARY FOR
PURPOSES OF THIS AGREEMENT, AND RECIPIENT SHALL HAVE NO OBLIGATION WITH RESPECT
TO ANY SUCH INFORMATION, WHICH: (I) IS ALREADY KNOWN TO RECIPIENT AT THE TIME OF
ITS DISCLOSURE WITHOUT RESTRICTION; (II) IS OR BECOMES PUBLICLY KNOWN THROUGH NO
WRONGFUL ACT OF RECIPIENT; (III) IS RECEIVED FROM A THIRD PARTY WITHOUT SIMILAR
RESTRICTIONS AND WITHOUT BREACH OF THIS AGREEMENT; (IV) IS INDEPENDENTLY
DEVELOPED BY RECIPIENT WITHOUT USE OF OR REFERENCE TO THE CONFIDENTIAL
INFORMATION; OR (V) IS LAWFULLY REQUIRED TO BE DISCLOSED TO ANY GOVERNMENT
AGENCY OR IS OTHERWISE REQUIRED TO BE DISCLOSED BY LAW PROVIDED THAT THE
RECIPIENT PROVIDES PROMPT NOTICE TO THE OWNER AND USES REASONABLE EFFORTS TO
PROTECT THE CONFIDENTIALITY OF SUCH INFORMATION.
(D)
ALL CONFIDENTIAL INFORMATION DISCLOSED BY OWNER TO RECIPIENT
PURSUANT TO THIS AGREEMENT IN TANGIBLE FORM (INCLUDING, WITHOUT LIMITATION,
INFORMATION INCORPORATED IN COMPUTER SOFTWARE) SHALL BE AND REMAIN IN THE
PROPERTY OF OWNER, AND ALL SUCH CONFIDENTIAL INFORMATION SHALL BE PROMPTLY
RETURNED TO OWNER OR CERTIFIED AS DESTROYED, AS THE OWNER MAY SO DESIGNATE, UPON
WRITTEN REQUEST.
(E)
NEITHER PARTY SHALL BE LIABLE FOR ANY ERRORS OR OMISSIONS IN THE
CONFIDENTIAL INFORMATION