EXHIBIT (d)(1)
NOVELL MUTUAL NON-DISCLOSURE AGREEMENT
Effective Date: January 30, 2002
Company: Silver Stream Software
Address: 0 Xxxxxxx Xxxxxx
Xxxx: Xxxxxxxxx,
Xxxxx/Xxx: XX 00000
Novel Contact Person:
Name: Xxxx Xxxxx
Phone: (000) 000-0000 Fax: (000) 000-0000
Company Contact Person:
Name: XXXXX XXXXX
Phone: (000) 000-0000
In order to protect certain Confidential Information which the parties desire to
disclose hereunder, Novell, Inc. ("Novell") and the "Company" identified above
agree to the following terms and conditions. The terms Discloser and Recipient
as used herein apply to both parties to this Agreement in their respective roles
as discloser of Confidential Information and recipient of Confidential
Information.
1. Confidential Information. The "Confidential Information" of the respective
pathos disclosed under this Agreement is described as follows:
Novell: Any information and materials disclosed in relation to a potential
business transaction between the parties.
Company: Any information and materials disclosed in relation to a potential
business transaction between the parties.
Confidential Information may be disclosed in oral/verbal or tangible form.
Discloser shall xxxx all Confidential Information disclosed in tangible form
with a restrictive legend. Designated below is each party's representative for
coordinating the exchange of Confidential Information.
2. Obligation of Confidentiality. For a period of three (3) years from the date
of disclosure, Recipient agrees to use the same care and discretion to avoid
disclosure, publication, or dissemination of Discloser's Confidential
Information as it uses with its own similar information that it does not wish to
disclose publish, or disseminate, but in no event shall Recipient use less than
reasonable care to protect Discloser's Confidential Information. Recipient may
disclose Confidential Information to its employees and information which may be
retained in non-tangible form by persons who have had access to the Confidential
Information, including without limitation general ideas, concepts, know-how
provided that prior agreement with such parties sufficient to require that party
to treat the Confidential Information in accordance with this Agreement.
3. Exception. No obligation of confidentiality applies to a Confidential
Information that Recipient can show: (i) is or becomes, publicly available
without breach of this Agreement but only from such date as it becomes so
available; (ii) was rightfully in the possession of Recipient without obligation
confidentiality prior to receipt thereof from Discloser (iii) was rightfully
disclosed to Recipient by a third party with obligation of confidentiality; (iv)
is independently developed Recipient without use of the Confidential
Information; or (v) disclosed by Recipient with Discloser's prior written
consent.
4. Recipient may use the Confidential Information solely for evaluation purposes
in connection with Recipient business discussions with Discloser. If software is
provided Recipient under this Agreement, Recipient agrees not to reverse compile
or disassemble the software to discover the human perceivable portions of the
code.
5. Ownership: All Confidential Information remains the property of Disclosure
and/or its licensors.
6. Freedom of Use. Notwithstanding anything to the contrary, Recipient shall be
free to use for any purposes the Residuals resulting from access to or work with
Discloser's Confidential Information. However, the foregoing does not give
Recipient the right to disclose (except as set forth in Section 3) the
financial, statistical, or personnel information or the business plans of
Discloser, and the foregoing shall not be deemed to grant to either party a
license under the other party's copyright or patents. The term "Residuals" means
information which may be retained in non-tangible form by person who have had
access to the Confidential Information, including without limitation general
ideas, concepts, know-how or techniques contained therein. Neither party shall
have any obligation to limit or restrict the assignment or reassignment of
personnel.
Except as otherwise provided in this Agreement, the parties acknowledge that the
communications hereunder will not serve to impair the right of either party to
independently develop, make, use, procure or market products or services now or
in the future that may be similar to or competitive with those offered by
Discloser, nor require Recipient to disclose any planning or other information
to Discloser. This Section shall survive termination of this Agreement.
7. Termination. This Agreement shall begin on the Effective Date above. Either
party may terminate this Agreement upon written notice to the other. Upon
termination of this Agreement, or earlier upon Discloser's request, Recipient
shall promptly return or destroy all documents and tangible items in its
possession which contain any part of the Confidential Information of Discloser.
In the event of termination of this Agreement, all obligations of
confidentiality shall survive and continue to bind Recipient in accordance with
their terms.
8. Disclaimer. All Confidential Information is provided "AS IS", WITHOUT
WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. Discloser does not represent
or warrant the accuracy or completeness of the Confidential Information, that it
will release any product related to the Confidential Information, or that target
dates will be met. The entire risk arising out of the use of the Confidential
Information remains with Recipient. Discloser may change or cancel its plans at
any time.
9. Limitation of Liability. IN NO EVENT SHALL DISCLOSER BE LIABLE FOR ANY
DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS
PROFITS, BUSINESS INTERRUPTION, OR OTHER PECUNIARY LOSS) ARISING OUT OF
RECIPIENTS USE OF OR INABILITY TO USE THE CONFIDENTIAL INFORMATION.
10. General.
a. This Agreement shall be governed and construed in accordance with the laws
of Utah (without regard to conflicts of laws provisions). In any legal
proceeding arising out of this Agreement, the prevailing party shall be
entitled to an award of its costs and reasonable attorneys' fees. The
parties agree that Utah state and federal courts shall have jurisdiction
and venue in any such proceeding.
b. Export Constraints. Recipient certifies that the Confidential Information
will only be used for the purposes expressly stated herein and will not be
rented, leased, sold, sublicensed, assigned, or otherwise transferred.
Recipient shall adhere to the U.S. Export Administration laws and
regulations and shall not export or re-export any technical data or
products received from Discloser or the direct product of such technical
data to any proscribed country listed in the U.S. Export Administration
regulations unless properly authorized by the U.S. government.
c. Neither party may assign its rights or delegate its duties or obligations
under this Agreement without prior written consent, which shall not be
unreasonably withheld. The parties acknowledge that they have read this
Agreement, understand it, and agree to be bound by the 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.
Any reproduction of this Agreement by reliable means will be considered an
original of this document. This Agreement is executed in English.
COMPANY: SILVERSTRAM SOFTWARE, INC.
SIGNATURE: /s/ Xxxxx Xxxxx
NAME: XXXXX XXXXX
TITLE: VP/CFO
DATE: January 30, 2002
NOVELL, INC.
SIGNATURE: /s/ Xxxx Xxxxx
NAME: XXXX XXXXX
TITLE: VP, MERGERS & ACQUISITIONS
DATE: January 30, 2002
