Exhibit 10.29
Power PC Confidential IBM
Disclosure Agreement
_____________________________________________________________________________
[IBM LETTERHEAD APPEARS HERE]
Embedded Support Tools ("Embedded Support"), ("Recipient") and International
Business Machines Corporation ("IBM") agree that the following terms and
conditions apply when IBM discloses, to Recipient under this Agreement,
confidential Information ("Information") that may include Information considered
to be confidential to Motorola, Incorporated. Recipient and IBM agree that our
mutual objective under this Agreement is to provide appropriate protection for
Information while maintaining our ability to conduct our respective business
activities.
1. ASSOCIATED CONTRACT DOCUMENTS
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Each time IBM wishes to disclose specific Information to Recipient, IBM will
issue a Supplement to this Agreement ("Supplement") before disclosure. The
Supplement will identify Recipient's person designated to be its Point of
Contact for the disclosure and will contain the initial and Final Disclosure
Dates. If either of these dates is omitted from the Supplement, such data will
be deemed to be the actual date of disclosure. Confidential Information becomes
subject to this Agreement on the Initial Disclosure Date. The Supplement will
also contain a non-confidential description of the specific Information to be
disclosed and any additional terms and conditions for that Information.
The only time Recipient and IBM are required to sign the Supplement is when it
contains additional terms and conditions. When signatures are not required, and
except as hereinafter provided, Recipient indicates acceptance of Information
under the terms and conditions of this Agreement by participating in the
disclosure, after receipt of the Supplement. If Recipient provides IBM prior
notice that it objects to the receipt of any Information corresponding to the
respective non-confidential description thereof in the Supplement, IBM shall not
make the particular disclosure. Otherwise, the disclosure shall proceed as
provided herein.
2. DISCLOSURE
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IBM's and Recipient's Points of Contact will coordinate and control the
disclosure.
Confidential Information will be disclosed either:
(a) in writing;
(b) by delivery of items;
(c) by initiation of access to Information, such as may be contained in a
database; or
(d) by oral and/or visual presentation.
Confidential Information shall be marked with a restrictive legend, such as "IBM
Confidential", "Motorola Confidential Proprietary" or IBM Confidential/Motorola
Confidential Proprietary. If INFORMATION is not marked with such legend or is
disclosed orally and/or visually, (1) the Information will be identified as
confidential at the time of disclosure, and (2) IBM will promptly provide
Recipient with written confirmation.
3. OBLIGATION OF CONFIDENTIALITY
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Recipient will use the same care and discretion to avoid disclosure, publication
or dissemination of Information as it uses with its own similar information that
it does not wish to disclose, publish or disseminate. The obligation of
confidentiality applies to the
tangible and intangible forms of the Information including any ideas, concepts,
know-how or techniques contained in Information. Subject to Section 5, Recipient
may use the tangible forms of Information only: (1) to determine the feasibility
of entering into a mutually beneficial business arrangement with IBM and for
purposes of negotiating such an arrangement, and (2) to design, develop, market,
sell, lease, or otherwise dispose of software and hardware tools, for use in the
design or development of microprocessor or other integrated circuits; provided,
however, that Recipient may not incorporate tangible Information into any
software or hardware tool that would be made available to other than IBM or
Motorola. Recipient is not authorized to use the tangible forms of Information
in any way other than as described in the preceding sentence. Recipient's
obligation of confidentiality extends to all Residuals contained in the
Information. The term "Residuals" shall mean Information in intangible form,
including ideas, concepts, techniques and know-how contained therein, which may
be retained in the minds of those who have had rightful access the Information.
Subject to Recipient's obligation of confidentiality, as described above, and
subject to Section 5, Recipient is free to use such Residuals for any purpose.
Recipient may disclose Information to:
a) its employees who have a need to know to permit Recipient to use the
Information as authorized by this Agreement; and b) any other party with IBM's
prior written consent.
Before disclosure to any of the above parties, Recipient will secure appropriate
written agreements with each such party sufficient to enable Recipient to comply
with its obligations undertaken in this Agreement.
Recipient may disclose Information to the extent required by law. However,
Recipient must give IBM prompt notice and make a reasonable effort to obtain a
protective court order.
Recipient agrees that all Information received is and will remain the property
of IBM and/or of Motorola and that such shall not be copied or reproduced
without the express written permission of IBM. After the authorized activities
described in this Agreement are completed or upon termination or expiration of
this Agreement, and upon written request, Recipient will return all the
Information to IBM along with all copies or certify by written memorandum that
all such Information has been destroyed, except that Recipient may retain
archival copies of the Information, which are to be used only in case of
resolving a dispute concerning this Agreement.
Nothing in this Agreement creates any obligation in any way limiting or
restricting assignment and/or reassignment of employees.
4. CONFIDENTIALITY PERIOD
----------------------
Disclosed Information continues to be subject to this Agreement for five years
following the Final Disclosure Date.
5. EXCEPTIONS
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No obligation of confidentiality applies to any Information that Recipient:
a) already rightfully possesses without obligation of confidentiality; b)
develops independently; or c) rightfully receives without obligation of
confidentiality from a third party.
No obligation of confidentiality applies to any Information that is, or becomes,
publicly available without breach of this Agreement.
Neither this Agreement nor any disclosure of Information grants Recipient any
license or immunity from IBM, Motorola or any other third party, either directly
or by implication, estoppel or otherwise, under any patents, trademarks, trade
names, service marks, trade secrets (except as might be permitted elsewhere in
this Agreement), mask works, copyrights, or any other intellectual property
rights.
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6. DISCLAIMERS
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IBM PROVIDES ALL INFORMATION ON AN "AS IS" BASIS.
Neither IBM nor Motorola will be liable for any damages arising out of the use
of Information. Disclosure of Information containing business plans is for
planning purposes only. IBM and Motorola may change or cancel their plans at any
time. Therefore, use of such Information is at Recipient's own risk. None of the
Information which may be disclosed by IBM to Recipient hereunder will constitute
any representation, warranty, assurance or guarantee by IBM or Motorola with
respect to infringement, misappropriation or violation of any of the
intellectual property rights of third parties.
7. EXPORT LAW COMPLIANCE
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Technology, software and/or commodities furnished under this Agreement are
subject to United States export/reexport control laws and regulations. Recipient
agrees to comply with such laws and regulations. Including complying with the
terms of the U.S. license authorizing IBM to furnish the technology, software
and/or commodities to Recipient. Unless authorized by appropriate government
license or regulations, Recipient agrees not to export, directly or indirectly,
any technology, software and/or commodities provided by IBM or their direct
product to the following countries or to nationals of any of the following
countries. Albania, Bulgaria, Cambodia, Cuba, Estonia, Iran, Iraq, Laos, Latvia,
Libya, Lithuania, Mongolia, North Korea, People's Republic of China, Romania,
Syria, Bosnian-Serb occupied area of Bosnia/Herzegovina, the geographic area
formerly known as the Union of Soviet Socialist Republics, Vietnam and Federal
Republic of Yugoslavia (Serbia and Montenegro). The foregoing obligations
survive the termination of any agreement or other arrangement under which the
technology, software, or commodities were provided to Recipient.
8. MOTOROLA CONFIDENTIAL INFORMATION
---------------------------------
Recipient acknowledges that Motorola is a third party beneficially to this
Agreement, having all the rights to enforce the terms and conditions of this
Agreement as regards Information considered to be confidential to Motorola.
To the extent that any Information disclosed to Recipient under this Agreement
comprises software which is subject to the terms of an IBM or Motorola software
licensing agreement, Recipient will be required to execute such a software
licensing agreement prior to receipt of such Information. In the event of a
conflict between the terms of such a software licensing agreement and the terms
of this Agreement, the terms of the software licensing agreement shall prevail.
9. TERM
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This Agreement shall commence on the date it is fully executed by the parties
and will continue for one (1) year thereafter, unless terminated by either
party; however, the duty to protect Information and to comply with all
applicable export laws as stated in this Agreement shall survive the termination
or expiration of this Agreement, and shall apply to Recipient's successors and
assigns.
10. GENERAL
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This Agreement does not require either party to disclose or to receive
information.
No other rights, express or implied, are granted to Recipient by this Agreement.
Neither party may assign its rights or delegate its duties or obligations under
this Agreement without the other party's prior written consent. Any attempt to
do so is void.
IBM may modify the terms and conditions of this Agreement by giving Recipient
three months' written notice. Any such modification will apply only to
Information for which the initial disclosure Date is on or after the
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effective date specified in the notice. Otherwise, only a written agreement
signed by Recipient and IMB can modify this Agreement.
Either party may terminate this Agreement by providing on month's written notice
to the other. Any provisions of this Agreement which by their nature extend
beyond its termination will remain in effect beyond such termination until
fulfilled and will apply to either party's successors and assigns.
If there is a conflict between the terms and conditions of this Agreement and
Supplement, those of the Supplement prevail. Except as modified by a Supplement,
the terms and conditions of this Agreement remain in full force and effect.
The laws of the State of New York govern this Agreement.
The parties acknowledge that they have read this Agreement, understand it, and
agree to be bound by its terms and conditions. Further, they agree that the
complete and exclusive statement of the agreement between the parties relating
to this subject shall consist of this Agreement and its Supplements. This
statement of the agreement supersedes all proposals or other prior agreements,
oral or written, and all other communications between the parties relating to
this subject. Any reproduction of this Agreement by reliable means will be
considered an original of this document.
Embedded Support Tools International Business Machines Corporation
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------- -----------------------------
Name: Xxxxx Xxxxxx Name: Xxxxxx X. Xxxxxxxxx
Title: President Title: Director of Embedded
PowerPC Product Solutions
Date: 6/5/98 Date: 6/25/98
Phone: 000-000-0000 Fax 000-000-000
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SUPPLEMENT TO POWERPC
CONFIDENTIAL DISCLOSURE AGREEMENT
Referenced Agreement: V3757 Supplement Number: 1
Initial Disclosure Date: June 1, 1998 Final Disclosure Date: June 1, 1999
Recipient's Point of Contact: IBM's Point of Contact:
Embedded Support Tools Xxxxxxx Xxxxxxxx
Xxx X'Xxxxx 00000 Xxxxxx Xxxx
000 Xxxxx Xxxxxx Xxxxxxxx Xxx 0000
Xxxxxx, XX 00000 Xxxxxx, Xxxxx 00000
Confidential Information:
IBM RISCWatch drivers' source code
Additional Terms and Conditions
Notwithstanding the use restriction contained in first paragraph of Section 3 of
the Referenced Agreement, Recipient is authorized to use the Information
identified in the Supplement only to facilitate the design of systems that will
use microprocessors designed by Motorola and/or IBM using the information;
provided, however, that Recipient shall not be authorized, without the prior
written consent of Motorola and/or IBM, to use the Information to design,
develop, market, sell, lease, or otherwise dispose of any data processing
system, or any portion thereof, that implements, either in hardware or in
software, any portion of any data processor architecture, any portion of any
data processing system design or any other Information disclosed to Recipient
under this Agreement, unless the only portions of the data processing system
which embody, incorporate or are based upon any portion of the information are
one or more integrated circuits designed by IBM and/or Motorola using the
information and manufactured by IBM, Motorola, or an IBM-authorized license.
The parties acknowledge that they have read this Supplement, understand it and
agree to be bound by its terms and conditions. Further they agree that this
Supplement and the referenced Agreement are the complete and exclusive statement
of the agreement between the parties relating to this subject, superseding all
proposals or other prior agreements, oral or written, and all other
communications between the parties relating to this subject. Any reproduction of
this Supplement by reliable means will be considered an original of this
document.
Embedded Support Tools International Business Machines Corporation
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
------------------ --------------------------
Name: Xxxxx Xxxxxx Name: Xxxxxx X. Xxxxxxxxx
Title: President Title: Director of Embedded
PowerPC Product Solutions
Date: 6/5/98 Date: 6/25/98
Phone: 000-000-0000 Fax 000-000-0000
