2. DEFINITION OF CONFIDENTIAL INFORMATION
“Confidential Information” means any information, technical data, or know-how, including, but not limited to, that which relates to research, product plans, products, services, customers, markets, software, developments, inventions, processes, designs, drawings, engineering, hardware configuration information, marketing or finances of the disclosing party, which is designated in writing to be confidential or proprietary, or if given orally, is confirmed promptly in writing as having been disclosed as confidential or proprietary. Confidential Information also includes all source code of the disclosing party, whether or not specifically identified as confidential or proprietary. Confidential Information does not include information, technical data, or know-how which (a) is in the possession of the receiving party at the time of disclosure as shown by the receiving party’s files and records immediately prior to the time of disclosure; (b) prior to or after the time of disclosure becomes part of the public knowledge or literature other than as a result of any improper inaction or action of the receiving party; (c) is approved by the disclosing party, in writing, for release; (d) is required to be disclosed by applicable law or proper legal, governmental or other competent authority (provided that the party whose information is to be disclosed shall be notified sufficiently in advance of such requirement so that it may seek a protective order (or equivalent) with respect to such disclosure, with which the other party shall fully comply): (e) is independently developed by the receiving party as shown by the receiving party’s files and records.
“Exclusions” Confidential Information shall not include information which: (i) was known by The Receiving Party prior to receiving the Confidential Information from the Disclosing Party; (ii) becomes rightfully known to The Receiving Party from a third-party source not known by The Receiving Party to be under an obligation to Disclosing Party to maintain confidentiality; (iii) is or becomes publicly available through no fault of or failure to act by The Receiving Party in breach of this Agreement; (iv) is required to be disclosed in a judicial or administrative proceeding, or is otherwise requested or required to be disclosed by law or regulation; or (v) is or has been independently developed by employees, consultants or agents of The Receiving Party without violation of the terms of this Agreement or reference or access to any Confidential Information.