Nautilus 2009 Annual Report Download - page 202

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confidential or proprietary. Confidential Information shall not include: (i) information that is publicly available at the time of
disclosure by the Disclosing Party to the Receiving Party or its Representatives; (ii) information that becomes publicly
available other than through actions of the Receiving Party or any of its Representatives in violation of this Agreement;
(iii) information already known to the Receiving Party as documented by written records that predate the disclosure;
(iv) information from the Disclosing Party that becomes owned by the Receiving Party; (v) information rightfully obtained
from third parties and not subject to any obligation of confidentiality to the Disclosing Party; (vi) information independently
developed by the Receiving Party without use of, reference to, or reliance on the Disclosing Party’s Confidential Information;
and (vii) any information following the expiration of five (5) years from the date of the first disclosure thereof to the
Receiving Party.
1.13. “
Direct Channel
” shall mean bona fide sales of Fitness Products and Accessories directly to customers (end users) who are
not in the Commercial Channel or Retail Channel, such as to individuals who will use or gift the products, and who will not
make the products available to additional users in a commercial, business, government, or group setting.
1.14.
“
Discontinued Products
”
shall mean end of life products that were distributed or sold by Buyer as Fitness Products bearing
a Nautilus Mark or Commercial Mark for at least 12 months and are in inventory or WIP and are (a) discontinued with no
comparable product offering planned for at least 12 months or (b) substantially modified such that an average consumer
would visually see a difference between a Discontinued Product and its modified version.
1.15.
“
Fitness Products
”
shall mean Strength Products and Cardio Products and does not include products having a primary
intended function of enabling users to play sports (e.g., tennis racquets, bats, gloves, and similar) or to be used in
transportation (e.g., bicycles, skateboards, and etc.).
1.16. “
Gross Sales
” “Gross Sales” shall mean the total invoice price of all Nautilus Branded and Commercial Branded Fitness
Products and Accessories, and all related charges of any type whether separately invoiced (including, but not limited to,
shipping charges, taxes, and delivery charges) and whether the referenced products are sold, leased or otherwise distributed.