(a) Evaluator hereby acknowledges that the Technology and associated documentation embodies confidential and proprietary information, including trade secrets, owned by Ansys or its affiliates or suppliers (the “Technology Confidential Information”). Excluding the Technology Confidential Information, each party acknowledges and agrees that, except as specifically provided below, any and all information concerning the other's business and technology which it (the “Recipient”) receives from the other (the “Disclosing Party”), including without limitation, documents, data, plans, prices, and other material and information and knowledge (“Other Confidential Information”) and, together with the Technology Confidential Information, (“Confidential Information”) is the confidential, and proprietary information of the Disclosing Party. Information disclosed in tangible form will only be considered “Other Confidential Information” if it bears an appropriate legend indicating its confidential or proprietary nature. Information not disclosed in tangible form, such as that disclosed orally or visually, will only be considered “Other Confidential Information” if it is identified as confidential at the time of disclosure and a written summary thereof, marked with an appropriate legend indicating its confidential or proprietary nature, is provided to the Recipient within fifteen (15) days of the initial disclosure.
(b) The parties shall use all reasonable efforts to identify Other Confidential Information as provided above; however, Other Confidential Information shall also include information which, given the circumstances surrounding the disclosure or the nature of the information itself, can be reasonably understood to be confidential or proprietary even if such information is not so marked. The Recipient agrees (i) to hold the Confidential Information in strict confidence; (ii) not to use it in any way (except as is necessary in support of the Purpose), commercially or otherwise; and (iii) not to disclose it to any unauthorized person, either before or after expiration or termination of this Agreement, without the Disclosing Party's prior written consent. The Recipient further agrees to protect the Confidential Information, using either the same degree of care used to protect its own confidential or proprietary information of like importance or a reasonable degree of care, whichever degree of care is higher. Notwithstanding the foregoing, Recipient may disclose Confidential Information to its and its Affiliate’s employees who have a need to know in connection with the exercise of Recipient’s rights and obligations under this Agreement. “Affiliate” means any person or entity directly or indirectly controlling, controlled by, or under common control with such party. “Personal Data” means any information relating to an identified or identifiable natural person.
(c) The Recipient's obligation of confidence and non-disclosure shall not apply to information that (i) was in the Recipient's possession before receipt from the Disclosing Party, (ii) is or becomes a matter of public knowledge through no fault of the Recipient, (iii) is rightfully received by the Recipient from a third party without a duty of confidentiality, (iv) is independently developed by the Recipient without the use of the Disclosing Party’s Confidential Information, (v) is rightfully obtained by the Recipient from third parties authorized to make such disclosure without restriction. Recipient may disclose Confidential Information if required by law, regulation or court order to be disclosed, so long as Recipient notifies Disclosing Party in writing prior to disclosing the Confidential Information so that Disclosing Party has an opportunity to seek a protective order or other appropriate remedy from the proper authority. Recipient agrees to cooperate with Disclosing Party in seeking such order or other remedy. Recipient further agrees that if Disclosing Party is not successful in precluding the requesting legal body from requiring the disclosure of the Confidential Information, it will furnish only that portion of the Confidential Information which is legally required and will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be accorded the Confidential Information.
(d) The obligations of the parties with regard to Other Confidential Information will survive for a period of five (5) years from the date of the first disclosure of such Other Confidential Information. Notwithstanding the foregoing, the obligations respecting the Technology Confidential Information will survive any termination or expiration of this Agreement and will remain in effect until one of the exceptions listed in Section 7(c) applies.
(e) Evaluator hereby gives assurance that unless notice is given to Ansys, and prior authorization is obtained as required by applicable export laws, Evaluator will not knowingly re-export, directly or indirectly, the Technology or any technical data transferred by Ansys to Evaluator to any destination or person or entity in violation of U.S. export laws.
(f) Upon the earlier of Disclosing Party's written request or termination of this Agreement, the Recipient agrees to promptly a) return to the Disclosing Party all materials furnished by the Disclosing Party which contain Confidential Information together with all copies, reproductions and summaries thereof made by the Recipient; or b) destroy such items and deliver to Disclosing Party written certification that they have been destroyed. Notwithstanding the above, the Recipient may retain copies of Other Confidential Information stored on backup disks or in backup storage facilities automatically produced in the ordinary course of business which are not, in the ordinary course of business, accessible from employee workstations. Any Other Confidential Information so retained will be held subject to the confidentiality and use limitations of this Agreement and will not be accessed by any person except information technology systems administrators or used for any purpose except necessary data storage systems maintenance.