CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT
1. THIS AGREEMENT is effective 09/18/95 ("Effective Date"), and is made
by and between Compaq Computer Corporation ("COMPAQ"), a Delaware,
U.S.A. corporation and NetWorth, Inc. ("NETWORTH"), a Delaware,
U.S.A. corporation.
2. It is contemplated that NETWORTH may be disclosing certain
confidential and/or proprietary information to COMPAQ regarding a
Product Roadmap of NETWORTH's Hub and Switch Product Line
(hereinafter referred to as "Information"). COMPAQ and NETWORTH
agree that the terms of this Agreement shall apply to any Information
that may be disclosed between the Effective Date and 9/18/96, and
that such Information shall be treated in the manner described in
this Agreement.
3. COMPAQ acknowledges that the above-described Information is
confidential and/or proprietary to NETWORTH and is claimed to be a
valuable, special, and unique asset of NETWORTH. Accordingly,
NETWORTH and COMPAQ agree that, for a period of three (3) years from
the date any such Information is disclosed, COMPAQ will:
(a) maintain the Information in confidence;
(b) disclose such Information received from NETWORTH only to
its employees and subcontractors that have a need to know
such Information; and
(c) not disclose any portion of the Information received from
NETWORTH to any other third party without the prior
written consent of NETWORTH, even if such third party is
under similar restriction on disclosure with NETWORTH.
4. COMPAQ agrees to use the same degree of care to protect the
confidentiality of all Information it receives as it uses to protect
its own confidential and proprietary Information that it does not
wish to have published or disseminated. However, in no event shall
COMPAQ use less than a reasonable degree of care to protect the
Information received from NETWORTH.
5. Information disclosed by NETWORTH that NETWORTH, in good faith,
regards as confidential and/or proprietary shall be clearly marked as
"Confidential," "Proprietary," or bear any other appropriate notice
indicating the sensitive nature of such Information. Any Information
not easily marked, including Information that may be orally
disclosed, shall, at the time of disclosure, be identified as
confidential and, within thirty (30) days of its disclosure, be
summarized in writing and designated confidential by NETWORTH.
6. Information shall not be afforded the protection of this Agreement if
such Information:
(a) has been, is now, or later becomes publicly available through
no fault of COMPAQ;
(b) has been, is now, or later becomes rightfully learned by COMPAQ
from a third party who is not under restriction or duty imposed
by NETWORTH;
(c) has been, is now, or later is furnished to third parties by
NETWORTH if such disclosure is, or has been, made to third
parties without similar restriction;
(d) was known to COMPAQ prior to the date it received such
Information from NETWORTH; or,
(e) has been, is now, or later is independently developed by COMPAQ
without use of or resort to such Information.
7. If only a portion of the Information falls under one of the above
Subsections 6(a) - 6(e), then only that portion shall be excluded
from the terms and conditions of this Agreement.
8. If COMPAQ is confronted with legal action to disclose Information
received under this Agreement, COMPAQ shall promptly notify NETWORTH,
and reasonably assist NETWORTH in obtaining a protective order
requiring that any portion of the Information required to be
disclosed be used only for the purpose for which a court issues an
order, or for such other purposes as required by law.
9. All Information disclosed under this Agreement shall remain the
property of NETWORTH. At NETWORTH's request, all information
received by COMPAQ in tangible form shall be promptly returned or
destroyed.
10. The terms of confidentiality under this Agreement shall not be
construed to limit COMPAQ's right to independently develop or acquire
products, as long as such development or acquisition is not in
violation of the obligations of confidence of this Agreement.
Further, COMPAQ shall be free to use for any purpose (including but
not limited to, use in the development, manufacture, marketing, and
maintenance of its own products and services) the Residuals resulting
from access to or work with such Information, provided that COMPAQ
maintains the confidentiality of the Information as provided herein.
The term "Residuals" shall mean information in non-tangible form that
may be retained by persons who have had rightful access to the
Information, including ideas, concepts, know-how, or techniques
contained therein. Notwithstanding the provisions of this Section,
during the term of this Agreement, COMPAQ may not avoid its
obligations toward a particular item of Information merely by having
a person commit such item to memory so as to reduce it to a
non-tangible form. COMPAQ shall not have any obligation to limit or
restrict the assignment of any person, who has had access to the
Information, or to pay royalties for anything resulting from the use
of Residuals. However, the foregoing shall not be deemed to grant
COMPAQ a license under the NETWORTH's copyrights or patents.
11. Nothing in this Agreement shall be construed as granting a license to
any patent or copyright. The disclosure of Information shall
likewise not be construed as any representation, warranty, assurance,
guaranty, or inducement by NETWORTH with respect to infringement of
any patent or other proprietary right.
12. All notices required to be given shall be considered as given upon
certified or registered mailing, if postpaid and addressed as follows
(unless the addresses have been changed by written notice):
COMPAQ Computer Corporation
Attention: Xxxxx Xxxxxxxxxx
Xxxx Xxxx 000000
X.X. Xxx 000000
Xxxxxxx, XX 00000-0000
NetWorth, Inc.
Attention: Xxxx XxXxxx
0000 Xxxxxx Xxxxxxxxx
Xxxxxx, XX 00000
13. This Agreement shall be interpreted in accordance with the laws of
the State of Texas.
14. COMPAQ covenants that, absent any required prior authorization from
the Office of Export Licensing, U.S. Department of Commerce, it will
not knowingly export or re-export (as defined in Part 779 of the
Export Administration Regulations ("Regulations")), directly or
indirectly, through its affiliates, licensees, or subsidiaries, any
of the Information (or any product, process, or service resulting
directly therefrom) it receives hereunder, or under any ancillary
agreements, in violation of any applicable portion of the export rules
or Regulations.
15. This Agreement embodies the entire understanding between the parties
pertaining to the subject matter hereof. The parties acknowledge
that they are not relying on any representation, promise, or other
statement, whether written or oral, that is not expressly contained
in this Agreement. Neither party shall be obliged by this Agreement
to purchase the goods and/or services of the other party. This
Agreement shall not be modified except by a writing duly executed by,
or on behalf of, the party against whom such modification is sought
to be enforced.
16. IN WITNESS WHEREOF, the persons signing below warrant that they are
duly authorized to sign for, and on behalf of, the respective
parties. This Agreement has been executed in duplicate originals.
COMPAQ COMPUTER CORPORATION NETWORTH, INC.
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxx Xxxx
___________________________ _______________________________
Name: Xxxx Xxxxxxx Print Name:
___________________________ _______________________________
Title: Vice President Print Title:
___________________________ _______________________________
Internetworking Products
___________________________ _______________________________
Date:_________________________ Date:__________________________
