Dell SMA 200 Administration Manual page 508

CONSTITUTING IN PART THE CONSIDERATION FOR DELL PROVIDING PRODUCTS AND SERVICES TO
CUSTOMER, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
LIABILITIES OR FAILURES.
Dell's Affiliates and suppliers and Customer's Affiliates shall be beneficiaries of this Limitation of
Liability Section and Customer's Clients and Service Providers are entitled to the rights granted under
the MSP License and Use by Service Providers Sections of this Agreement; otherwise, no third-party
beneficiaries exist under this Agreement. Dell expressly excludes any and all liability to Customer's
Service Providers, Clients and to any other third-party.
15 Confidential Information.
a Definition. "Confidential Information" means information or materials disclosed by one party
(the "Disclosing Party") to the other party (the "Receiving Party") that are not generally
available to the public and which, due to their character and nature, a reasonable person under
like circumstances would treat as confidential, including, without limitation, financial,
marketing, and pricing information, trade secrets, know-how, proprietary tools, knowledge and
methodologies, the Software (in source code and/or object code form), information or
benchmark test results regarding the functionality and performance of the Software, any
Software license keys provided to Customer, and the terms and conditions of this Agreement.
Confidential Information shall not include information or materials that (i) are generally known to
the public, other than as a result of an unpermitted disclosure by the Receiving Party after the
date that Customer accepts the Agreement (the "Effective Date"); (ii) were known to the
Receiving Party without an obligation of confidentiality prior to receipt from the Disclosing Party;
(iii) the Receiving Party lawfully received from a third-party without that third-party's breach of
agreement or obligation of trust; (iv) are protected by Dell in accordance with its obligations
under the Protected Data Section below, or (v) are or were independently developed by the
Receiving Party without access to or use of the Disclosing Party's Confidential Information.
b Obligations. The Receiving Party shall (i) not disclose or permit disclosure of the Disclosing
Party's Confidential Information to any third-party, except as permitted in subsection (c) below,
(ii) only use the Disclosing Party's Confidential Information to exercise the rights granted to it
under this Agreement, and (iii) protect the Disclosing Party's Confidential Information from
unauthorized use or disclosure by exercising at least the same degree of care it uses to protect its
own similar information, but in no event less than a reasonable degree of care. The Receiving
Party shall promptly notify the Disclosing Party of any known unauthorized use or disclosure of
the Disclosing Party's Confidential Information and will cooperate with the Disclosing Party in any
litigation brought by the Disclosing Party against third parties to protect its proprietary rights. For
the avoidance of doubt, this Section shall apply to all disclosures of the parties' Confidential
Information as of the Effective Date, whether or not specifically arising from a party's
performance under this Agreement.
c Permitted Disclosures. Notwithstanding the foregoing, the Receiving Party may disclose the
Disclosing Party's Confidential Information without the Disclosing Party's prior written consent to
any of its Affiliates, directors, officers, employees, consultants, contractors or representatives
(collectively, the "Representatives"), but only to those Representatives that (i) have a "need to
know" in order to carry out the purposes of this Agreement or to provide professional advice in
connection with this Agreement, (ii) are legally bound to the Receiving Party to protect
information such as the Confidential Information under terms at least as restrictive as those
provided herein, and (iii) have been informed by the Receiving Party of the confidential nature of
the Confidential Information and the requirements regarding restrictions on disclosure and use as
set forth in this Section. The Receiving Party shall be liable to the Disclosing Party for the acts or
omissions of any Representatives to which it discloses Confidential Information which, if done by
the Receiving Party, would be a breach of this Agreement.
Additionally, it shall not be a breach of this Section for the Receiving Party to disclose the
Disclosing Party's Confidential Information as may be required by operation of law or legal
process, provided that the Receiving Party provides prior notice of such disclosure to the
Disclosing Party unless expressly prohibited from doing so by a court, arbitration panel or other
legal authority of competent jurisdiction.
16 Protected Data. For purposes of this Section, "Protected Data" means any information or data that is
provided by Customer to Dell during this Agreement that alone or together with any other information
Dell SonicWALL Secure Mobile Access 8.5
Administration Guide
508