1. Unless the context indicates otherwise, the term “Confidential Information” means all information of the disclosing Party revealed, directly or indirectly, to the receiving Party in connection with the Parity Certification, regardless of the form in which it appears, or under which it is communicated.
2. Each Party agrees that the Confidential Information it receives from the other Party is proprietary, the property of the disclosing Party, and shall be kept strictly confidential. The Confidential Information shall not be sold, traded, published, or otherwise disclosed by the receiving Party to anyone in any manner whatsoever, except as may be expressly provided for herein. The receiving Party shall not use the Confidential Information for any purpose, without the consent of the disclosing Party, other than to analyze and discuss the results of the Parity Certification.
3. Confidential Information does not include any information which:
(a) was known to the receiving Party prior to the date of its disclosure pursuant to this Agreement and to which there is no existing obligation of confidentiality; or
(b) is or becomes generally available to the public other than through the act or omission of the receiving Party or its Representatives;
(c) becomes available to the receiving Party on a non-confidential basis from a source other than the disclosing Party or its Representatives, provided that such source is not bound by a confidentiality agreement with the disclosing Party or its Representatives or otherwise prohibited from transmitting such Confidential Information to the receiving Party or the receiving Party’s Representatives by a contractual, legal or fiduciary obligation; or
(d) is independently developed by the receiving Party or any of its Affiliates without the use of or reliance upon the Confidential Information.
4. The receiving Party shall be entitled to disclose the Confidential Information of the disclosing Party and provide copies of the same, without the disclosing Party’s prior written consent, to its Representatives for the purpose of analyzing and discussing the Parity Certification, and who are informed by the receiving Party of the confidential nature of such Confidential Information. The receiving Party shall be responsible for any violations of the provisions of this Agreement caused by any of the receiving Party’s Representatives. In this Agreement, “Representatives” means a Party’s parent companies, Affiliates, and its and their respective directors, officers, employees (permanent or contract), agents or representatives, including, without limitation, its and their respective attorneys, accountants, consultants, and financial advisors. “Affiliates” of any Party shall mean any company or legal entity which (a) controls, either directly or indirectly, such Party; or (b) which is controlled, directly or indirectly, by such Party; or (c) is directly or indirectly controlled by a company or entity which directly or indirectly controls such Party. “Control” means the right to exercise 50% or more of the voting rights in the appointment of the directors (or other managers having duties similar to those of directors) of such company.
5. In the event that a receiving Party or anyone to whom the receiving Party transmits such Confidential Information pursuant to this Agreement is legally requested or required (by oral questions, interrogatories, request for information or documents, subpoena, civil or criminal investigative demand or similar process) to disclose any Confidential Information of a disclosing Party, or if such disclosure is necessary in order to obtain or maintain regulatory or governmental approvals, applications, or exemptions, the receiving Party will provide the disclosing Party with notice, to the extent that such notice is legally permissible and reasonably practical, prior to disclosing such information, so that the disclosing Party may seek an appropriate protective order and/or waive compliance with this Article. If, in the absence of a protective order or the receipt of a waiver hereunder, a receiving Party is nonetheless legally compelled to disclose such information or needs to disclose such information in order to obtain or maintain regulatory or governmental approvals, it may, without liability hereunder, furnish that portion of such Confidential Information that is legally required and will exercise its reasonable efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential Information.
6. The Confidential Information shall remain the property of the disclosing Party, and the disclosing Party may demand the return thereof at any time, upon giving thirty (30) days prior written notice to the receiving Party. Upon receipt of such notice, the receiving Party shall return all of the Confidential Information and all copies in its possession to the disclosing Party as soon as is reasonably practical, but in no event shall the receiving Party have fewer than thirty (30) days to return such Confidential Information to the disclosing Party. In the event that the receiving Party has destroyed any copies, such receiving Party shall confirm the destruction of such copies in the letter accompanying the return of the documents and copies that were not destroyed. Notwithstanding the foregoing, (i) the receiving Party shall not be obligated to return or destroy any documents created by it that may reflect or refer to Confidential Information; (ii) the receiving Party may create and retain an abstract describing the type of Confidential Information that it receives sufficient to document the nature and scope of the Parties’ discussions pertaining to the Parity Certification; (iii) the receiving Party shall not be obligated to return or destroy any Confidential Information that the receiving Party is retaining pursuant to a document retention hold established in connection with any civil or criminal investigations or litigation, in which event the Confidential Information shall be retained by the receiving Party until such time as the document retention hold is no longer in effect, at which time the Confidential Information shall be returned to the disclosing Party or destroyed as aforesaid; and (iv) to the extent that receiving Party’s computer back-up procedures create copies of the Confidential Information, the receiving Party may retain such copies in its archival or back-up computer storage for the period the receiving Party normally archives backed-up computer records. Any such documents or abstract so created will be retained subject to this Agreement until they are destroyed or erased.
7. In the event of any breach or threatened breach by a Party of the terms hereof, the other Party shall be entitled to seek injunctive and other equitable relief, and the Party shall not plead in defense thereto that there would be an adequate remedy at law. Such remedy shall be cumulative and in addition to all other remedies available. The Parties acknowledge that the Confidential Information is valuable and unique and that disclosure in breach of this Agreement may result in irreparable injury to the disclosing Party.
8. Notwithstanding anything to the contrary in this Agreement, neither party shall be liable for any indirect, incidental, punitive, exemplary, special, or consequential damages.