"Confidential Information" shall mean any information disclosed by one party to the other which is marked or identified as "Confidential", "Proprietary" or in some other manner to indicate its confidential nature, or information which the receiving party should know that the disclosing party would reasonably regard as confidential. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except as set forth herein, and shall use reasonable efforts not to disclose such Confidential Information to any third party. Without limiting the foregoing, each of the parties shall use at least the same degree of care, which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information disclosed to it by the other party under this Agreement. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party's Confidential Information. Notwithstanding the above, neither party shall have liability to the other with regard to any Confidential Information of the other which the receiving party can prove:
- was in the public domain at the time it was disclosed or has entered the public domain through no fault of the receiving party;
- was known to the receiving party, without restriction, at the time of disclosure;
- is disclosed with the prior written approval of the disclosing party;
- was independently developed by the receiving party without any use of the Confidential Information;
- became known to the receiving party, without restriction, from a source other than the disclosing party, without breach of this Agreement by the receiving party and otherwise not in violation of the disclosing party's rights; or
TERMS AND CONDITIONS OF USE
THE TERMS AND CONDITIONS SET FORTH ON THIS FORM (THE "TERMS") AND ANY WRITTEN AGREEMENT EXECUTED BY BUYER AND MIDCO INC. ("AGREEMENT") CONSTITUTE THE ENTIRE AGREEMENT BETWEEN MIDCO INC., BY AND ON BEHALF OF ITS SUBSIDIARIES AND AFFILIATES, ("MIDCO") AND BUYER ("BUYER"). MIDCO WILL NOT BE BOUND BY ANY ADDITIONAL OR DIFFERENT TERMS ON BUYER'S ORDER OR OTHER DOCUMENTS THAT ARE INCONSISTENT WITH THESE TERMS. ACCEPTANCE BY BUYER OF THESE TERMS MAY BE MADE BY (1) WRITTEN ACCEPTANCE, (2) USE OF MIDCO ONLINE ORDERING SYSTEM OR (3) RECEIPT BY BUYER OF DELIVERY OF ANY PRODUCTS FROM MIDCO, WHICHEVER FIRST OCCURS.