1. Confidential Information Defined. “Confidential Information” includes, but is not limited to, any information, technical data, or know-how (including, but not limited to, information relating to research, products, software, services, quantity, price, pricing, delivery, development, inventions, processes, engineering, marketing, techniques, customers, internal procedures, business and marketing plans or strategies, finances, employees and business opportunities) concerning a party and its affiliates and disclosed by such party (the “Disclosing Party”) to the other party (the “Receiving Party”) either directly or indirectly in any form whatsoever (including, but not limited to, in writing, in machine readable or other tangible form, orally or visually): (i) that has been marked as “confidential” or “proprietary” or with a similar legend; (ii) whose confidential nature has been made known by Disclosing Party, orally or in writing, to the Receiving Party concurrently with the disclosure of such information; or (iii) that, due to its character and nature, a reasonable person under like circumstances would treat as confidential. Any summaries, compilations or extracts of Confidential Information prepared by the Receiving Party will be deemed Confidential Information and will be subject to the terms of this Agreement.

2. Exceptions. Confidential Information will not include information that: (i) is or becomes publicly available other than through the Receiving Party or its Authorized Representatives (as defined in Section 3 below); (ii) is in the Receiving Party’s possession at the time of disclosure as shown by the Receiving Party’s files and records immediately prior to the time of disclosure; (iii) is acquired by the Receiving Party from a third party, who provides the information without breaching any express or implied obligations or duties to the Disclosing Party; (iv) is disclosed by the Receiving Party with the Disclosing Party’s prior written consent; or (v) is independently developed by the Receiving Party without reference to Confidential Information.

3. Level of Care. The Receiving Party will maintain the confidentiality of, and agrees to use the same care to prevent disclosure of, the Confidential Information as it employs to avoid disclosure, publication, or dissemination of its own information of a similar nature, but in no event less than a reasonable standard of care. The Receiving Party further agrees to use the Confidential Information only in connection with and in furtherance of the business transactions contemplated by this Agreement; provided, however, that any Customer Confidential Information retained in the individual or collective memories of Supplier employees who have had access to said Confidential Information pursuant to this Agreement may freely use such residual information subject to the obligation of nondisclosure as to the source of such residual information. The Receiving Party may disclose Confidential Information to its employees, directors, officers, affiliates, agents, subcontractors, attorneys, accountants, or professional advisors who have a need to have access to the Confidential Information in carrying out the business transactions contemplated by this Agreement (“Authorized Representatives”). The Receiving Party will inform its Authorized Representatives of the confidential nature of the Confidential Information and the applicability of this Agreement thereto and will obligate and direct its Authorized Representatives to maintain the confidentiality of the Confidential Information and otherwise to observe the terms of this Confidentiality Policy.

4. Ownership. All Confidential Information disclosed by the Disclosing Party will remain the property of the Disclosing Party, and except as otherwise provided in this Agreement, the Receiving Party does not acquire any license, right, title, or interest in such Confidential Information.

5. Compelled Disclosure. The Receiving Party may disclose the Disclosing Party’s Confidential Information if it is compelled by law or valid court order to do so as long as the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure or seek a protective order or other appropriate remedy.

6. Termination. Upon the termination or expiration of this Agreement the Receiving Party, upon the written request of the Disclosing Party, will (except to the extent otherwise provided herein): (i) return to the Disclosing Party or destroy all of the Disclosing Party’s Confidential Information, including without limitation, all media, documents, data, and copies thereof in its possession containing the Confidential Information, without retaining any copy or summary thereof; and (ii) deliver to the Disclosing Party a certificate executed by an authorized officer of the Receiving Party certifying compliance with these requirements.

7. Remedies. The Receiving Party acknowledges that improper dissemination of Confidential Information may cause irreparable damage to the Disclosing Party and agrees that the Disclosing Party will have available to it, in addition to any other remedy provided by law, the right to apply for mandatory injunctive relief to enforce compliance by the Receiving Party with the provisions of this Agreement.

8. Nondisclosure Agreements. The terms and conditions of this Confidentiality Policy will supplement the terms and conditions of any nondisclosure or confidentiality agreements entered into between Supplier and Customer prior to the Effective Date (a “Prior NDA”), and the terms and conditions of this Confidentiality Policy will be interpreted, to the extent possible, to be consistent with the terms and conditions of any such nondisclosure or confidentiality agreement. In the event of a conflict between the terms and conditions of this Confidentiality Policy and those of a Prior NDA, the terms and conditions of such Prior NDA will control.