Confidentiality and Publication 7.1 Except as provided herein, each party shall maintain in confidence during the term of this Agreement and for seven (7) years thereafter, and shall not use for any [*] Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. purpose or disclose to any third party, any Technology or other information disclosed by the other party in writing and marked "Confidential" or that is disclosed orally and confirmed in writing as confidential within forty-five (45) days following such disclosure (collectively, 'CONFIDENTIAL INFORMATION'), except to the extent that any such Confidential Information -
(a) is at the time of being so provided or after that time through no fault of the party to whom it was so provided becomes public knowledge; or
(b) was lawfully available on a non-confidential basis to the party to whom it was so provided before that time; or
(c) can be shown by the party to whom it was so provided to have been independently produced by that party without any use of such confidential information provided to it by the other party; or
(d) is made available to the party to whom it was so provided otherwise than in breach of an obligation of confidentiality owed to the other party.
7.2 The results of the Project may be made public by either party (or, in the case of ICRT, by ICRF) except to the extent that -
(a) publication would include any Confidential Information of the other party; or
(b) publication would prejudice the obtaining of patent protection for an invention constituting Project Technology, or the commercial exploitation of any unpatented or unpatentable Project Technology which remains unpublished.
7.3 To allow time for review of any proposed disclosure of any subject matter which may be precluded from being made public under clause 7.2, each of ICRT and Introgen shall provide to the other -
(a) a copy of any manuscript disclosing any results of the Project not less than 45 days notice before submitting the manuscript for publication; and
(b) a copy of any slides to be used in an oral presentation disclosing any results of the Project together with an outline of the presentation not less than 20 working days before making any such oral presentation.
7.4 The party receiving any such material pursuant to clause 7.3 shall promptly and in any event prior to the proposed date of submission for publication review the proposed disclosure and notify the other party in writing of its conclusions, failing which the other party shall be free to make the proposed disclosure.
7.5 If in the reasonable opinion of the party receiving the material the proposed disclosure does not include subject matter which is precluded from being made public under clause 7.2, it shall promptly notify the other party which shall thereupon be free to make the proposed disclosure.
7.6 If in the reasonable opinion of either party -
(a) the proposed disclosure includes subject matter which is precluded from being made public under clause 7.2 and which is patentable, neither party shall publish or otherwise disclose the material in question for a period of three months from the date on which the relevant material was received by the party in question and, if a patent application is made within that period of three months, for a further period as agreed but in any event not exceeding a total of 18 months from that date (including such period of three months), following which the other party shall be free to make the proposed disclosure; or
(b) the proposed disclosure includes unpatented (or unpatentable) Project Technology which that party wishes to maintain as unpublished and which
(c) the proposed disclosure includes Confidential Information of the reviewing party, the disclosing party shall remove such Confidential Information prior to such disclosure.
7.7 Notwithstanding the foregoing provisions of this clause 7 above, the receiving party may use or disclose Confidential Information of the disclosing party
(a) to the extent necessary to exercise its rights hereunder (including providing such information to bona fide licensees or prospective licensees as contemplated by this Agreement or otherwise and to potential investors or partners on reasonable terms of confidentiality) or to fulfil its obligations and/or duties hereunder;
(b) in filing for, prosecuting or maintaining any proprietary rights, prosecuting or defending litigation; and
(c) in complying with applicable governmental regulations and/or submitting information to tax or other governmental authorities; or as otherwise required by law; provided that if the receiving party is required by law to make any public disclosures of Confidential Information of the disclosing party then, to the extent it may legally do so, it shall give reasonable advance notice to the disclosing party of such disclosure and shall use its reasonable efforts to secure confidential treatment of
Confidentiality and Public Announcements (a) Neither Party may disclose the contents of this Agreement or any information concerning negotiations leading to this Agreement and the Transaction, without the prior written consent of the other Party. Nothing contained in this Agreement shall prevent a Party from disclosing such information: (i) to any Governmental Authority or to the public, but in either case, only if and to the extent that such disclosure is required under any Applicable Law or any stock exchange rule or policy to which such Party or its Affiliate is subject; (ii) to obtain consents required under, or to comply with any ROFRs or other preferential, pre- emptive or first purchase rights contained in, the Title and Operating Documents and any other agreements and documents to which the Assets are subject; or (iii) if required to obtain the consent to the Transaction by Vendor’s lenders or other security holders and, if applicable, to obtain their release of Security Interests in, or their acknowledgement of “no interest” in, the Assets; provided that, in each such instance, the Party that proposes to make such a disclosure shall advise the other Party of such proposed disclosure and shall use its reasonable efforts to prevent the disclosure of any such information that is not required to be disclosed for the listed purposes. This Section 9.12(a) shall survive any termination of this Agreement prior to Closing for a period of one (1) year following such termination.
(b) The Parties acknowledge that either or both of them may make press releases concerning the Parties’ entry into this Agreement promptly after the execution hereof and further press releases promptly after Closing, provided that in no circumstances shall either Party disclose the name of the other Party in any such press release or otherwise. Each Party consents to the inclusion of a generic description of its businesses by the other Party in such other Party’s press release(s) in this regard. The Parties agree that a press release issued by either Party may contain some or all of the financial terms of the Transaction. Without derogating from the Parties’ rights to make public disclosures under Section 9.12(a), each of Vendor and Purchaser shall use its reasonable efforts to furnish to the other Party with the proposed content of all press releases concerning this Agreement and the Transaction at least twenty-four (24) hours prior to the release or publication thereof, but in any event prior to the release or publication with reasonably sufficient time for the other Party to review and comment.
SEVERABILITY AND FINAL EXPRESSION This Agreement and the Disclosure are the final expression of the terms and conditions of your account. This written Agreement and Disclosure may not be contradicted by evidence of any alleged oral agreement. Should any part of this Agreement or the Disclosure be found to be invalid or unenforceable, all other parts of this Agreement and Disclosure shall remain in effect and fully enforceable to the fullest extent possible under this Agreement.
Materiality and Waiver of Breach Each requirement, duty, and obligation set forth in this Agreement was bargained for at arm’s-length and is agreed to by the Parties. Each requirement, duty, and obligation set forth in this Agreement is substantial and important to the formation of this Agreement, and each is, therefore, a material term. County’s failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision or modification of this Agreement. A waiver of any breach shall not be deemed a waiver of any subsequent breach and shall not be construed to be a modification of this Agreement. To be effective, any waiver must be in writing signed by an authorized signatory of the Party granting the waiver.
CONFIDENTIALITY AND ANNOUNCEMENTS 14.4.1 This Clause shall be without prejudice to the Confidentiality Agreement dated 10 November 2011, which shall continue notwithstanding this Agreement.
14.4.2 The existence, subject matter and contents of this Agreement are confidential, and subject to Clause 14.4.4, each Party is prohibited from disclosing all or any part of this Agreement, or even its existence, at any time (including after the Closing Date).
14.4.3 Subject to Clauses 14.4.4 and 14.4.5:
(i) each Party shall treat as strictly confidential and not disclose or use any information obtained in connection with the negotiations relating to the Transaction; and
(ii) the Purchaser shall treat as strictly confidential and not disclose or use any information relating to the business and financial affairs (including future plans and targets) of the Seller and the Seller’s Affiliated Companies.
14.4.4 Clauses 14.4.2 and 14.4.3 shall not prohibit disclosure or use of any information if and to the extent that:
(i) the disclosure or use is necessary in order to allow any Party to comply with any legal requirement to make any announcement or to provide information to any public authority or Stock Exchange;
(ii) the disclosure or use is required for the purposes of any judicial or arbitration proceedings arising out of or in connection with this Agreement;
(iii) the disclosure is made to professional advisers of any Party on condition that such professional advisers undertake to comply with the provisions of Clauses 14.4.2 and 14.4.3 in respect of such information as if they were a party to this Agreement;
(iv) the information is or becomes publicly available (other than as a result of any breach of the Confidentiality Agreement or this Agreement);
(v) the information becomes available to the Party bound by this Clause 14.4 from a source which is not bound by any obligation of confidentiality in relation to such information (as can be demonstrated by such Party’s written records and other reasonable evidence); or
(vi) the other Party has given prior written approval to the disclosure or use, it being understood, however, that any Party that intends to disclose information pursuant to this Clause 14.4.4 shall to the extent not prohibited by applicable laws [***] Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to omitted portions. or regulations, prior to making such disclosure, consult with the other Party on the form, content and timing of such disclosure.
14.4.5 On or shortly after the date of this Agreement, the Seller and the Purchaser shall be allowed to issue a press statement announcing the Transaction, substantially in the form as the drafts attached as Schedule 14.4.5.
14.4.6 Without prejudice to Clause 14.4.5, no announcement in connection with the existence or the subject matter of this Agreement (including any announcement to the Target Company’s employees, customers or suppliers) shall be made without the prior written consent of all Parties (which consent shall not be unreasonably withheld or delayed), and the Parties shall consult with each other concerning the means by which the Target Company’s employees, customers and suppliers, and others having dealings with the Target Company, shall be informed of this Agreement. The Purchaser shall have the right to be present when any such communication is made.
14.4.7 The Parties shall take all necessary actions to ensure that no accidental or unauthorised disclosure of the existence or contents of this Agreement occurs.
Confidentiality and Publicity 26.1 All proprietary or confidential information (“Proprietary Information”) disclosed by either Party during the negotiations and the term of this Agreement will be protected by both Parties in accordance with the terms provided herein.
26.2 As used in this Agreement, the term “Proprietary Information” will mean written, recorded, machine readable or other information provided in tangible form to one Party by the other Party regarding the above referenced subject matter and which is marked proprietary or confidential with the appropriate owner corporation name, e.g., “Frontier Proprietary”. Information disclosed orally will not be considered proprietary unless such information is reduced to writing by the disclosing Party and a copy is delivered to the other Party within thirty (30) business days after such oral disclosure. The writing will also state the place, date and person(s) to whom disclosure was made.
26.3 Each Party agrees that it will not disclose any Proprietary Information of the other Party in whole or in part, including derivations, to any third party for a period of three (3) years from the date of disclosure unless the Parties agree to modify this Agreement to provide for a different nondisclosure period for specific materials. Neither Party will be liable for inadvertent or accidental disclosure of Proprietary Information of the other Party provided that:
26.3.1 each Party uses at least the same degree of care in safeguarding such Proprietary Information as it uses for its own proprietary information of like importance, and such degree of care will be reasonably calculated to prevent such inadvertent disclosure;
26.3.2 it limits access to such Proprietary Information to its employees and agents who are directly involved in the consideration of the Proprietary Information and informs its employees and agents who have access to such Proprietary Information of its duty not to disclose; and
26.3.3 upon discovery of any such inadvertent disclosure of Proprietary Information, it will endeavor to prevent any further inadvertent disclosure.
26.4 Information will not be deemed proprietary and the receiving Party will have no obligation with respect to any such information which:
26.4.1 is or becomes publicly known through no wrongful act, fault or negligence of the receiving Party; or
26.4.2 was known by the receiving Party or by any other affiliate or subsidiary of the receiving Party prior to disclosure, or is at any time developed by the receiving Party independently of any such disclosure; or
26.4.3 was disclosed to the receiving Party by a third party who was free of obligations of confidentiality to the disclosing Party; or
26.4.4 is disclosed or used by the receiving Party, not less than three (3) years following its initial disclosure or such other nondisclosure period as may be agreed in writing by the Parties; or
26.4.5 is approved for release by written authorization of the disclosing Party; or
26.4.6 is disclosed pursuant to a requirement or request of a governmental agency or disclosure is required by operation of law; or
26.4.7 is furnished to a third party by the disclosing Party without a similar restriction on the third party’s rights.
26.5 Since either Party may choose not to use or announce any services, products or marketing techniques relating to these discussions or information gained or exchanged during the discussions, both Parties acknowledge that one is not responsible or liable for any business decisions made by the other in reliance upon any disclosures made during any meeting between the Parties or in reliance on any results of the discussions. The furnishing of Proprietary Information to one Party by the other Party will not obligate either Party to enter into any further agreement or negotiation with the other.
26.6 Nothing contained in this Agreement will be construed as granting to one Party a license, either express or implied, under any patent, copyright, or trademark, now or hereafter owned, obtained, controlled, or which is or may be licensable by the other Party.
26.7 All publicity regarding this Agreement and its Attachments is subject to the Parties’ prior written consent.
26.8 Unless otherwise agreed upon, neither Party will publish or use the other Party’s name, language, pictures, or symbols from which the other Party’s name may be reasonably inferred or implied in any advertising, promotion, or any other publicity matter relating directly or indirectly to this Agreement.
Disclaimer of Warranties YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE, APPLE SOFTWARE, AND ANY ASSOCIATED CONTENT, FEATURE, FUNCTIONALITY, OR MATERIALS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. APPLE AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS (COLLECTIVELY, “APPLE” FOR THE PURPOSES OF SECTIONS 9 AND 10 HEREIN) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT. IN PARTICULAR, APPLE MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS; (II) YOUR USE OF THE SERVICE WILL BE TIMELY, UNINTERRUPTED, SECURE, OR FREE FROM ERRORS, LOSS, CORRUPTION, ATTACK, VIRUSES, OR HACKING; (III) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE SERVICE WILL BE ACCURATE OR RELIABLE; AND (IV) ANY DEFECTS OR ERRORS IN THE SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICE WILL BE CORRECTED. YOU AGREE THAT FROM TIME TO TIME APPLE MAY REMOVE THE SERVICE FOR INDEFINITE PERIODS OF TIME, OR CANCEL THE SERVICE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE, COMPUTER, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. YOU FURTHER ACKNOWLEDGE THAT THE SERVICE IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SERVICE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
Limitation of Liability and Warranty XOOM WILL NOT BE RESPONSIBLE FOR ANY SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER. XOOM DOES NOT PROVIDE ANY TYPE OF WARRANTY, EXPRESS OR IMPLIED, AND TO THE FULL EXTENT OF THE LAW, DISCLAIMS ANY WARRANTY OF MERCHANTABLITY OR FITNESS FOR A PARTICULAR PURPOSE. Force Majeure:XOOM will not be responsible for supplying electricity in the event of circumstances beyond its control such as events of Force Majeure, including but not limited to, acts of terrorism, sabotage, or acts of God. XOOM may cancel this Agreement if there is any change in regulation, law, pricing structure, tariff, or change in procedure required by a third party that results in XOOM being prevented, prohibited, or frustrated from carrying out the terms of this Agreement.
Severability and Reformation If any one or more of the terms, provisions, covenants or restrictions of this Agreement shall be determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions shall remain in full force and effect, and the invalid, void or unenforceable provisions shall be deemed severable. Moreover, if any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be reformed by limiting and reducing it to the minimum extent necessary, so as to be enforceable to the extent compatible with the applicable law as it shall then appear.
Entire Agreement, Severability and Force Majeure This Agreement contains the entire agreement between Issuer and Escrow Agent regarding the Escrow Account. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. Furthermore, no party shall be responsible for any failure to perform due to acts beyond its reasonable control, including acts of God, terrorism, shortage of supply, labor difficulties (including strikes), war, civil unrest, fire, floods, electrical outages, equipment or transmission failures, internet interruptions, vendor failures (including information technology providers), or other similar causes.
