EXHIBIT (C)(8)
MUTUAL CONFIDENTIALITY AND
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NON-DISCLOSURE AGREEMENT
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This Agreement is made and entered into on the 18th day of October,
1996.
BETWEEN:-
(1) Creative Labs, Inc. having its principal offices at 0000 XxXxxxxx
Xxxxxxxxx, Xxxxxxxx, XX 00000 ("Creative").
(2) Cambridge SoundWorks, a Massachusetts corporation having its principal
offices at 000 Xxxxxxx Xx., Xxxxxx, XX 00000 ("CSW").
WHEREAS:
1. Creative and CSW are engaged in discussions with respect to a possible
business or financial arrangement or venture between them relating to
multimedia technology, and speakers, and amplifiers.
2. In connection therewith disclosure of certain information which is
proprietary/confidential to the parties may become necessary or
desirable.
3. Each party is willing to disclose such Proprietary/Confidential
Information to the other parties upon the terms and conditions herein
set forth and each party is willing to maintain the confidentiality of
such information disclosed to it by the other parties in accordance with
the terms and conditions hereof.
NOW THEREFORE, in consideration of the disclosure of such
Proprietary/Confidential Information and the mutual covenants and promises
herein contained, it is agreed as follows:-
1. INTERPRETATION
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For the purposes of this Agreement "Proprietary /Confidential
Information" shall mean any and all proprietary, secret information,
technical data or know-how related to any aspect of either party's
business or technology including, without limitation, data, know-how,
formulae, designs, photographs, drawings specification, software
programs and samples and any other material bearing or incorporating any
such information which is disclosed by one party to the other, which
information, data or know-how is marked or stipulated as being
"Proprietary," "Confidential," "Strictly Private" or otherwise, using
words of similar significance. Such disclosure may be made either
directly or indirectly, in writing, orally or by drawings, plans or
inspection of products, materials parts or equipment.
2. UNDERTAKINGS OF THE PARTIES
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Each party hereby undertakes to treat and maintain all
Proprietary/Confidential Information received from any of the other
parties in confidence. With respect thereto, each party hereby
undertakes and agrees as follows:-
i) For a period of 5 years from the date of this Agreement, the
receiving party shall not publish, disseminate nor disclose any
Proprietary/Confidential Information received from any of the
other parties to any third party except to those of its own
employees having a valid need to know the information in the
course of employment and such disclosure shall be on terms not
less restrictive than those herein contained.
ii) The receiving party shall use the same degree of care to avoid
disclosure or use of the Proprietary/Confidential Information as
it uses in respect of its own information of like importance but
in no case less than a reasonable degree of care.
iii) The receiving party shall in accordance with the request of the
other parties, either return all copies, recording and tangible
manifestations of Proprietary/Confidential Information or
destroy the same following a determination by any of the parties
not to enter into any arrangement or venture with each other of
the kind contemplated herein or upon the termination of any
related memorandum of understanding or agreement entered into
between the parties or upon the written request of the
disclosing party.
3. EXCEPTIONS
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The aforesaid restrictions on the parties shall not apply to any
Proprietary/Confidential Information which:-
i) can be proved by documentary evidence to be such
Proprietary/Confidential Information that was already in the
possession of the receiving party and at its free disposal
before the disclosure hereunder to it;
ii) is received by the receiving party from third parties without
accompanying secrecy or confidentiality obligations and not in
violation of any duty of confidence under this agreement;
iii) is independently developed by the receiving party;
iv) is or becomes generally available to the public in printed
publications in general circulation through no act or default on the
part of the receiving party or its agents or employees;
v) is furnished to a third party by a party hereto who owns such
Proprietary/Confidential Information without similar restriction on
the third party's rights;
vi) is approved for release by written authorisation of the other party;
or
vii) is disclosed pursuant to any requirement or request by operation of
law provided that the receiving party shall prior to disclosure
notify the disclosing party of any such requirement or request.
4. OWNERSHIP
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All Proprietary/Confidential Information disclosed pursuant to this
Agreement, shall be and remain the property of the disclosing party. Nothing
in this Agreement shall be construed as granting or conferring any rights by
license or otherwise, expressly, impliedly or otherwise for any of the
Proprietary/Confidential Information disclosed by the disclosing party
hereunder. All Proprietary/Confidential Information, existing in written
form or recorded in any other tangible medium, shall be returned to the
disclosing party upon its request, together with any reproductions or
copies thereof. Further, upon the disclosing party's requests, notes,
memoranda and reports which incorporates the Proprietary/Confidential
Information shall, without exception, be destroyed.
5. ORAL DISCLOSURE
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In the event the disclosing party of such Proprietary/Confidential
Information orally discloses the information to the receiving party, the
disclosing party agrees to promptly notify the receiving party of the
confidentiality of such oral disclosure and reduce to writing such
Proprietary/Confidential Information and submit the same to the receiving
party within 15 days of such oral disclosure, failing which the receiving
party shall not be bound by the confidentiality obligations as herein
provided as regards the said Proprietary/Confidential Information
disclosed orally.
6. AUTHORISATION
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Each party agrees that necessary authorisations, permits or licenses
including export licenses as may be required will be obtained prior to the
exportation/disclosure of any Proprietary/Confidential Information
relating to the technology of the other party. The disclosing party shall
notify the receiving party of the need to obtain any required
authorisations, permits and licenses and/or the need to comply with any
relevant laws or regulations relating to the disclosure. The disclosing
party shall obtain the required authorisations, permits and licenses.
7. SURVIVAL
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The aforesaid obligations of the receiving party shall survive the
termination of this Agreement.
8. LIMITED WARRANTY
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Each party hereto warrants that it has the right to disclose the
Proprietary/Confidential Information which it discloses to the other
parties and that the Proprietary/Confidential Information disclosed is, to
the best of its knowledge, correct. Nothing contained in this agreement
shall be construed to obligate any party to disclose any information to
the other parties.
9. REMEDY FOR BREACH
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It is understood and agreed between the parties that any breach of the
obligations of confidentially contained in this Agreement may cause the
disclosing party irreparable loss. Accordingly, and in addition to any
other remedies a party may have at law or equity, the disclosing party
shall be entitled to obtain injunctive relief against the receiving party
to prevent any further or continuing breach of the receiving party's
obligations or additional damage to the disclosing party in the event such
loss is in fact incurred by the disclosing party as a result of the breach
or is imminent.
10. SEVERABILITY
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If, for any reason, a court of competent jurisdiction finds any provision
of this Agreement, or any portion hereof, to be unenforceable, such
decision shall not affect the validity of the remaining portion, which
remaining portion shall continue in full force and effect as if this
Agreement had been executed with the invalid portion thereof eliminated
therefrom.
In the event that a portion of this Agreement shall be declared to be
invalid, then the parties agree, that they shall, in good faith, negotiate
with one another to replace such invalid provision with a valid provision
as similar as possible to that which had been held to be invalid.
11. TERMINATION
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This Agreement shall govern all matters referred to herein until
terminated by either party upon thirty days written notice to the other or
in accordance with this Agreement. Upon termination, all information and
derivatives shall be returned to the respective parties. Notwithstanding
the termination, each party shall continue to fulfil its obligations
hereunder for a period of five (5) years thereafter.
12. MISCELLANEOUS
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Any notice or communication to be given under this Agreement shall be
given if delivered in writing to the intended recipient at the address and
marked for the attention of the person set out in this Agreement or as may
be notified from time to time by the party concerned.
This Agreement shall be fully binding upon, inure to the benefit of and be
enforceable by the parties hereto, their legal representatives and other
respective successors and assigns. Each party shall not make any
assignment of this Agreement or any interest therein without the prior
written consent of the other party.
The failure of any party to insist upon or enforce strict performance of
any of the provisions of this Agreement or to exercise any rights or
remedies under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such party's rights to assert or rely upon
any such provisions, rights or remedies in that or any other instance;
rather the same shall remain in full force and effect.
The terms of this Agreement are confidential and shall not be disclosed to
third parties without the written consent of all parties, except to the
extent required by a court or regulatory agency of competent jurisdiction.
13. GOVERNING LAW
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This Agreement shall be governed by, construed and enforced in accordance
with California Law.
IN WITNESS WHEREOF, the parties have hereunto set their hands the day and year
first written above.
CREATIVE LABS, INC. CAMBRIDGE SOUNDWORKS
Signature: /s/ Xxx Xxxxxxx Signature: /s/ Xxxxxx X. Xxxxxxxx
______________________ _______________________
Name: Xxx Xxxxxxx Name: /s/ Xxxxxx X. Xxxxxxxx
___________________________ ____________________________
Designation: Director, OEM Sales Designation:
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October 27, 1996