22 WM-OM-E Rev I
3.3 Confidentiality. Except for the specific rights granted by this EULA, neither party shall use or
disclose any Confidential Information (as defined below) of the other party without the written
consent of the disclosing party. A party receiving Confidential Information from the other shall use
the highest commercially reasonable degree of care to protect the Confidential Information,
including ensuring that its employees and consultants with access to such Confidential Information
have agreed in writing not to disclose the Confidential Information. You shall bear the responsibility
for any breaches of confidentiality by your employees and consultants. Within ten (10) days after
request of the disclosing party, and in the disclosing party's sole discretion, the receiving party shall
either return to the disclosing party originals and copies of any Confidential Information and all
information, records and materials developed therefrom by the receiving party, or destroy the same,
other than such Confidential Information as to which this EULA expressly provides a continuing
right to the receiving party to retain at the time of the request. Either party may only disclose the
general nature, but not the specific financial terms, of this EULA without the prior consent of the
other party; provided either party may provide a copy of this EULA to any finance provider in
conjunction with a financing transaction, if such provider agrees to keep this EULA confidential.
Nothing herein shall prevent a receiving party from disclosing all or part of the Confidential
Information as necessary pursuant to the lawful requirement of a governmental agency or when
disclosure is required by operation of law; provided that prior to any such disclosure, the receiving
party shall use reasonable efforts to (a) promptly notify the disclosing party in writing of such
requirement to disclose, and (b) cooperate fully with the disclosing party in protecting against any
such disclosure or obtaining a protective order. Money damages will not be an adequate remedy if
this Section 4.3 is breached and, therefore, either party shall, in addition to any other legal or
equitable remedies, be entitled to seek an injunction or similar equitable relief against such breach
or threatened breach without the necessity of posting any bond. As used herein, “Confidential
Information” means LeCroy pricing or information concerning new LeCroy products, trade secrets
(including without limitation all internal header information contained in or created by the Software
Product, all benchmark and performance test results and all Documentation) and other proprietary
information of LeCroy; and any business, marketing or technical information disclosed by LeCroy,
or its representatives, or you in relation to this EULA, and either (i) disclosed in writing and marked
as confidential at the time of disclosure or (ii) disclosed in any other manner such that a reasonable
person would understand the nature and confidentiality of the information. Confidential Information
does not include information (A) already in the possession of the receiving party without an
obligation of confidentiality to the disclosing party, (B) hereafter rightfully furnished to the receiving
party by a third party without a breach of any separate nondisclosure obligation to the disclosing
party, (C) publicly known without breach of this EULA, (d) furnished by the disclosing party to a third
party without restriction on subsequent disclosure, or (e) independently developed by the receiving
party without reference to or reliance on the Confidential Information.
4. TERMINATION.
This EULA will remain in force until termination pursuant to the terms hereof. You may terminate
this EULA at any time. This EULA will also terminate if you breach any of the terms or conditions of
this EULA. You agree that if this EULA terminates for any reason, the License will immediately
terminate and you will destroy all copies of the Software Product (and all Derivatives), installed or
otherwise, the Documentation, and the Confidential Information (and all derivatives of any of the
foregoing) that are in your possession or under your control. The provisions of Sections 1.3, 4, 6, 7,
8, and 9 will survive any termination or expiration hereof.
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