This excerpt taken from the NDAQ 8-K filed Sep 9, 2005.
18.a. Accidental Disclosure.
i. Nasdaq acknowledges that it may be given access to areas in which it may observe or acquire private, regulatory or material non-public information about entities listed, employed, or regulated by NASD (including but not limited to information relating to: investigatory matters, personnel matters, regulatory matters, matters involving broker/dealers, issuers, or issues) in performing its obligations under this Agreement. Nasdaq will consider such information to be Confidential Information; and shall not use, disclose, copy, or publish any such information without the prior written approval of NASD unless such information is: (1) lawfully within its possession either prior to this Agreement or via a source other than the disclosing Party; (2) voluntarily disclosed by a third party so long as that party does not breach any obligation not to reveal such information; (3) voluntarily disclosed to the public by NASD; or (4) is generally known to the public.
ii. NASD acknowledges that it may be given access to areas in which it may observe or acquire private, regulatory or material non-public information about Nasdaq in performing its obligations under this Agreement. NASD will consider such information to be Confidential Information; and shall not use, disclose, copy, or publish any such information without the prior written approval of Nasdaq unless such information is: (1) lawfully within its possession prior to this Agreement; (2) voluntarily disclosed by a third party so long as that party does not breach any obligation not to reveal such information; (3) voluntarily disclosed to the public by the Nasdaq; or (4) is generally known to the public.
18.b. Standard of Care. The Parties acknowledge the sensitive and secret nature of the Confidential Information they will have access to and agree that they will treat such Confidential Information as strictly confidential and shall exercise the same degree of care in the protection of the Confidential Information as they each exercise with respect to their own proprietary property and trade secrets, but in no event less than a reasonable degree of care given the nature of the Confidential Information.
18.c. Subcontractors. The parties agree not to disclose Confidential Information to any person or entity, except their employees and subcontractors involved in the performance of this Agreement, or to use the Confidential Information for any purpose other than the performance of this Agreement. Access to Confidential Information will be limited to those subcontractors and employees with a need to know and who are covered by a then effective legal obligation with the recipient party that prohibits the disclosure or unauthorized use of confidential information at least to the same extent as this Section 18. The existence of such an obligation by an employee or subcontractor shall not operate to relieve the party from liability for acts of such employee or subcontractor that result in a breach of this Section 18.
18.d. Return of Confidential Information. Each party agrees that, other than as specifically set out herein or to effectuate the purpose of this Agreement, all Confidential Information, including any copies, notes and other documents referencing or relating to the Confidential Information, shall be returned to the owner of such
Confidential Information or destroyed upon request within ten (10) calendar days of the completion or termination of this Agreement at the sole discretion of the owner of such Confidential Information, provided, however, that either party may keep one copy of such Confidential Information to the extent necessary to satisfy legal and/or regulatory obligations.
18.e. Intellectual Property. All Intellectual Property Rights associated with the Confidential Information, including without limitation, patent, trademark, copyright, trade secret rights, and moral rights shall remain in the party owning the Confidential Information.
18.f. Limitations. The obligation of non-disclosure contained in this Section 18 shall not extend to disclosures required by law or a governmental agency with regulatory authority over the discloser.
Section 19. Independent Contractor. Nasdaq and its personnel, in performance of this Agreement, are acting as independent contractors and not as employees or agents of NASD. All individuals assigned by Nasdaq to participate in the performance of this Agreement will be employees or subcontractors of Nasdaq. Nasdaq shall provide all insurance coverage required by applicable laws, regulations, or employment agreements, including, without limitation, medical and workmans compensation. Nasdaq represents and warrants that neither Nasdaq nor any individual employed by or associated with Nasdaq shall be an employee of NASD for any purpose whatsoever. Nasdaq shall be responsible for payment of all costs associated with the hiring and employment of all subcontractors for the amount of time that the subcontractors will be needed and all unemployment, social security and other payroll taxes of all individuals who are engaged in the performance of the Services, except for those individuals employed by NASD and providing services to Nasdaq pursuant to an agreement between the Parties. If, at any time, any liability is asserted against NASD for unemployment, social security or any other payroll tax related to Nasdaq or any individuals or subcontractors employed by or associated with Nasdaq, then Nasdaq shall indemnify and hold harmless NASD from any such liability, including, without limitation, any such taxes, any interest or penalties related thereto, and reasonable attorneys fees and costs.
Section 20. Indemnification. Except as otherwise set forth herein, each party agrees to indemnify and hold harmless the other party against all losses, costs and expenses (including reasonable attorneys fees) that the other party may incur by reason of any third party suit arising from the breach of any terms, provisions, covenants, warranties or representations contained herein and/or in connection with the enforcement of this Agreement or any provision hereof
20.a. Intellectual Property Indemnification. Except as otherwise set forth herein, Nasdaq will indemnify, defend and hold harmless NASD against any damages, liabilities, costs and expenses (including reasonable attorneys fees) incurred by NASD as a result of any third party claim that the software and services rendered by
Nasdaq to NASD under this Agreement, including without limitation, OTC Systems, Enhancements, modifications, bug fixes, error corrections, Other Services or the Core Services, when used within the scope of this Agreement, infringes on any US patent or any copyright, trademark, trade secret or other intellectual property right of any third party. Notwithstanding the foregoing, Nasdaq will not be liable for indemnifying, defending or holding NASD harmless against any damages, liabilities, costs and expenses (including reasonable attorneys fees) for a claim under this section up to and to the extent it results from modification of the Nasdaq Systems by Nasdaq at the request of NASD (unless Nasdaqs project team working on the relevant development knew or should have known such modifications would violate the claiming partys intellectual property rights at issue) or from modification of the Nasdaq Systems by NASD. Nasdaq shall be given prompt notice of such claim and shall be given information, reasonable assistance and sole authority to defend or settle the claim. Notwithstanding the foregoing, NASD has the right to retain separate counsel in any such matter of its own choosing and at its own cost, and Nasdaq agrees to allow NASDs counsel reasonable access to all matters pertaining to the claim which affect NASD.
20.a.i. In the defense or settlement of a claim for which it provides indemnification hereunder, Nasdaq will have the right at its sole option and expense to (i) obtain the right to continue using the OTC Systems, Core Services or other services or (ii) replace or modify the OTC Systems, Core Services or other services so that they become non-infringing while giving equivalent performance. If neither option (i) or (ii) is commercially reasonable, Nasdaq may upon reasonable notice to NASD cease using the affected part of the OTC Systems, Core Services or Other Services and NASD shall not be obligated to make further payments under the Core Services or hourly rates relating to such discontinuation and shall be entitled to a refund, on a pro rata basis, of any monies paid by it for an Enhancement that no longer can be used because of such discontinuation along with a reduction of Core Services fees attributable to such discontinued part of the OTC Systems, Core Services or Other Services and return of any prepaid Core Services fees attributable to the discontinued part of the OTC Systems, Core Services or Other Services, if any. In the event such termination of service materially affects Nasdaqs ability to provide the Services hereunder, NASD shall be entitled to terminate this Agreement upon thirty (30) days notice to Nasdaq, such notice to be delivered within thirty (30) days of receiving Nasdaqs notice as described in the immediately preceding sentence, with no further liability or obligation (other than any obligations arising under the Transition Period). In the event of termination by NASD under this Section 20.a. Nasdaq shall be considered to be in breach solely for purpose of Section 15.i (Liquidated Damages). Indemnification will also extend to claims and losses against NASD as an aider, abetter or contributory infringer.
20.b. Physical Injuries. Each party shall be solely responsible for any physical injuries, including death, to its own employees and any damage to their own tangible personal or real property occurring on account of or in connection with its performance of this Agreement unless such personal or real property is under the control of one party which does have rightful title to such personal or real property in which case the party with custody over such personal or real property shall be liable for damage
therefore and shall indemnify and hold harmless the other party from any and all loss and liability related thereto, including, but not limited to, liability for the payment of workmans compensation and disability benefits, any and all claims on account of such injuries to persons or physical damage to property, and all costs and expenses in suits (including reasonable attorneys fees and costs) that may be brought against the other party on account of any such injuries to persons or physical damage to property, provided, however, that the indemnifying party shall not be obligated to indemnify and hold harmless the other party from any loss or liability arising out of injuries or damage caused by or resulting from the negligence or willful misconduct of the other party, its agents, employees, officers or subcontractors.
20.c. Prior Claims. Nasdaq shall retain responsibility for all third party liabilities and third party claims made relating to or arising from the Businesses prior to the Effective Date and shall indemnify, defend and hold harmless NASD, its directors, officers, employees, affiliate, members representatives and agents against any damages, liabilities, costs and expenses (including reasonable attorneys fees) incurred there from by NASD.
20.d. Subcontractors. Nasdaq hereby agrees that it will indemnify and hold harmless NASD from and against any liability arising from the acts of any subcontractor that Nasdaq uses to provide the services and fulfill its obligations to under the terms of this Agreement. NASD hereby agrees that it will indemnify and hold harmless Nasdaq from and against any liability arising from the acts of any subcontractor that NASD uses to provide services and fulfill its obligations to Nasdaq under the terms of this Agreement. Nasdaq further agrees that it will use commercially reasonable efforts to ensure that each subcontractor that it uses in the performance of this Agreement and that have contracted with Nasdaq after the execution date of this Agreement maintains workers compensation insurance coverage in an amount not less than the applicable statutory minimum. Notwithstanding the foregoing, Nasdaq shall not be obligated to retroactively ensure that its current and former subcontractors (Prior Subcontractors), as of the execution date of this Agreement, maintain any specific type or level of insurance. In the event that Nasdaqs Prior Subcontractors do not have the type or level of insurance required by this Agreement, Nasdaq hereby agrees to give NASD the full benefit of any insurance carried by such Prior Subcontractor. The indemnification obligations set forth herein shall be subject to the indemnification procedures and limitations set forth in Section 20.e.