1. As used herein:
(a) "Affiliate" of a specified corporation or entity, for the purpose of this Agreement, shall mean any corporation or other entity directly or indirectly, controlling, controlled by or under common control with such corporation or entity.
For the purpose of the above, “control” shall mean (i) the ownership or control, directly or indirectly, of fifty percent (50%) or more of the equity capital or the shares or voting rights in the corporation or other entity in question or (ii) the control of the composition of the board of directors of the corporation or other entity in question.
(b) "Confidential information" shall encompass, without limitation, any and all business, financial, accounting, marketing, commercial and/or technical information, know-how, trade secrets, inventions, research & development programs, processes, methods, software programs (in source code or compiled form), hardware and software product information disclosed under this Agreement, provided that any and all such information, when disclosed in writing or in printed or electronic form, is at the time of disclosure clearly marked as confidential or, when disclosed orally or by visual observation or inspection, is at the time of disclosure identified to the receiving party as confidential and the subject matter and its confidential nature is subsequently confirmed to the receiving party in writing within thirty (30) days after the date of first disclosure. The use of a copyright notice on any Confidential Information disclosed hereunder shall not be construed as an indication that such Confidential Information has been or will be published.
(c) "Disclosing party" shall mean the party providing Confidential Information and "receiving party" shall mean the party receiving Confidential Information.
(d) "Effective Date" shall mean the date specified first above.
(e) "Representative" of a specified party shall mean its directors, employees, Affiliates and its suppliers of goods and/or services.
2. During the Disclosure Period as specified in Article 8 below and for a period of _____years from the expiration or termination of this Agreement (the "Protection Period") the receiving party shall (a) refrain from disclosing any Confidential Information, (b) refrain from reverse engineering, decompiling or disassembling any of the Confidential Information, (c) use no less than a reasonable degree of care to prevent unauthorized disclosure of the Confidential Information and (d) not utilize any of the Confidential Information for any purpose other than the Project, except when, after and to the extent such Confidential Information:
(i) is or becomes generally available to the public through no act or failure to act by the receiving party; or
(ii) was already in the receiving party's possession at the time of its disclosure as shown by the receiving party's prior written records; or
(iii) is subsequently disclosed to the receiving party on a non-confidential basis by a third party without violating any obligation of secrecy relating to the information disclosed; or
(iv) is independently developed by a Representative of the receiving party who did not have access to the Confidential Information.
3. Each party shall have the sole discretion to determine the extent of disclosure of its own Confidential Information hereunder, which is provided on a "as is" basis without any representation or warranty, implied or otherwise, and in no event shall the disclosing party be liable for any damage whatsoever arising from any use of its Confidential Information by the receiving party.
4. Nothing herein shall prohibit the receiving party from disclosing Confidential Information to those of its Representatives who have a need to know such Confidential Information in connection with the Project, provided such Representatives are first obligated in writing to (i) use the Confidential Information only in connection with the Project; and (ii) keep the Confidential Information secret at least to the same extent as provided for herein.
5. The receiving party shall promptly notify the disclosing party in the event the receiving party is required to disclose Confidential Information in a judicial, regulatory or administrative process and shall allow the disclosing party an opportunity to oppose such requirement. The receiving party shall take all the steps provided for in such judicial, regulatory or administrative process to preserve the confidentiality of the Confidential Information.
6. Nothing herein shall be construed as conferring on the receiving party by implication or otherwise, any right, title or interest in, or any license under any patent, Confidential Information or other trade secret now or subsequently owned by the disclosing party.
7. At the disclosing party's request, the receiving party shall promptly (i) at the disclosing party's discretion either return to the disclosing party, or destroy, all documents and other tangible items containing Confidential Information and (ii) immediately cease the use of the Confidential Information.
8. The term of this Agreement shall commence on the Effective Date and shall continue until the earlier of ____months from the Effective Date or thirty (30) days from receipt of a prior written notice of termination by either party (the "Disclosure Period"), provided, however, that neither the expiration nor the termination of this Agreement shall release either party from any of the obligations of confidentiality and non-use set out above with respect to any disclosure made during the term of this Agreement.
9. During the Protection Period neither party hereto shall issue any publicity, release, or announcement concerning the Project and/or the results thereof without the other party's prior written approval of the timing, form and content thereof.
10. Nothing in this Agreement shall be construed as obligating any party hereto to develop, to release, to purchase, to sell or to offer for sale any product or service.
11. Any assignment by either party of this Agreement or any interest herein or part hereof without the prior written consent of the other party shall be void, which consent shall not be unreasonably withheld.
12. This Agreement contains the entire understanding between the parties with respect to the disclosure of Confidential Information made during its term and no modification or waiver of its terms and conditions shall be binding unless approved in writing by an authorized representative of each of the parties.
13. This Agreement shall in all respects be governed by the laws of Taiwan, Republic of China, without recourse to its conflict of law principles. All disputes arising out of or in connection with this Agreement shall be exclusively referred to the courts of Tainan, but without prejudice to enforcement of any judgment or order thereof in any other jurisdiction.