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equipment or communications, or otherwise interfere with operations.

In

addition,

NASDAQ

intercept

and block

OMX shall implement a commercially reasonable method to or delete any such viruses, worms, time bombs, time locks,

drop dead devices or other malicious or harmful mechanisms, and carry out on a regular basis,

programs, procedures, routines or no less frequently than monthly,

and

more

frequently

as

reasonably

required,

a

commercially

reasonable

method

to

scan its computer system and programs, procedures, routines

eliminate from it or mechanisms;.

any

such

malicious

or

harmful

C.

NASDAQ OMX shall keep confidential the information related to the Service provided by Subscriber pursuant to this Agreement, as well as any findings arising from any NASDAQ OMX audit of Subscriber’s transactions that may be conducted on a regular basis for the purposes of establishing and verifying Subscriber’s eligibility.

D.

NASDAQ OMX and Subscriber each acknowledge that, in the course of performance of this Agreement, each may obtain the other Party’s confidential

data, information or techniques.

(Such confidential data, information or

techniques Subscriber

along with information related to information identified in Section

the Authorized Devices and the 9.A above shall collectively be

referred

to

herein

as

Confidential

Information”).

All

such

Confidential

Information shall be deemed confidential upon disclosure to the other Party and

any

related

oral

information

received

from

NASDAQ

OMX

shall

be

deemed

confidential Confidential

upon disclosure to the Subscriber. Information of the other Party solely

Each Party shall for use consistent

use with

the the

purposes

of

this

Agreement;

shall

hold

such

Confidential

Information

in

confidence; Information

and shall not use, disclose, copy, or publish without the prior written approval of the other

any such Party.

Confidential

  • E.

    Notwithstanding the foregoing, NASDAQ OMX or Subscriber may disclose Confidential Information: (i) to the extent requested by a court, the NASDFINRA or a government agency with regulatory jurisdiction over NASDAQ OMX or Subscriber; (ii) to their respective employees, directors, and other agents solely for use consistent with the purposes of this Agreement; or (iii) in the case of NASDAQ OMX, in the course of fulfilling its regulatory responsibilities, including responsibilities over members and associated persons under the Act. The duties in this section do not apply to data, information or techniques that are:

    • (i)

      lawfully within a Party’s possession prior to the date of this Agreement and not under a duty of non-disclosure; (ii) voluntarily disclosed to a Party by a third- party so long as the receiving Party does not know that the third-party has breached any obligation not to reveal such data, information or techniques; (iii) developed by a Party independently of the disclosure; or (iv) generally known or revealed to the public. Further, nothing shall prevent NASDAQ OMX from freely disclosing the audit findings to the extent that (i) the findings are used in the aggregate with other information and such aggregation does not specifically identify Subscriber; and (ii) NASDAQ OMX needs to disclose the findings in

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