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[Xxxxx Systems Group, Inc. letterhead]
EXHIBIT (D)(2)
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT (this "Agreement") is made and entered
into this 3rd day of March 3, 2000, by and between Xxxxx Systems Group, Inc.,
located at 0000 Xxxxx Xxxxxx Xxxxx, Xxxxxx, Xx 00000 ("ASG"), and the person or
entity signing as "Company" below.
1. DEFINITIONS. For purposes of this Agreement, "Information"
shall mean any information labeled or referred to as "Confidential" by ASG or
provided to Company by ASG with reference to this Agreement. Such Information
includes any information exchanged during the course of discussions concerning
any potential acquisition or financing opportunity. Such Information excludes,
however, any information that (1) has been or is known to Company or obtained by
Company from a source independent of ASG without obligation of confidence and
without breach of this Agreement, (2) is or becomes generally available to the
public other than as a result of an unauthorized disclosure by Company or its
personnel, or (3) is independently developed by Company without reliance in any
way on the Information or Materials provided by ASG. "Materials" shall mean all
memoranda, notes, records, drawings, manuals, disks, or other documents and
media, including all copies, extracts, and summaries thereof, containing any
Information or provided to Company by ASG with reference to this Agreement.
"Authorized Use" means use for the purpose of evaluating a potential business
relationship with ASG.
2. LIMITED USE. Company acknowledges that it is to be given
access to the Information and Materials solely for purposes of Authorized Use.
Company agrees that (1) it will not use the Information, (2) will keep the
Information confidential at all times, and (3) will not copy or modify the
Materials, or any copy, adaptation, transcription, or merged portion thereof,
except as expressly authorized by ASG. Company shall limit its disclosure of the
Information and Materials to employees within its own organization and within
its advisors' organizations whom Company could reasonably expect to have a
legitimate need to receive such Information and Materials in order to accomplish
the Authorized Use.
3. PROPRIETARY PROTECTION. ASG shall have sole and exclusive
ownership of all right, title, and interest in and to the Information and
Materials, including ownership of all copyrights and trade secrets pertaining
thereto, subject only to the rights and privileges expressly granted by ASG.
ASG claims and reserves all rights and benefits afforded under federal
and international copyright law in all software programs and documentation
included in the Materials as copyrighted works. The binary or object code
version of such software programs may under no circumstances be
reverse-engineered or reverse-compiled without ASG's further written consent.
The Information, including the source code version of all software
programs that may be included in the Materials, is considered to include
valuable trade secrets of ASG. Company acknowledges that, in the event of any
breach of this Agreement, ASG will not have an adequate remedy in money or
damages. ASG therefore shall be entitled in such event to obtain an
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injunction against such breach from any court of competent jurisdiction
immediately upon request. ASG's right to obtain such relief shall not limit its
right to obtain other remedies.
4. DISCLAIMER. Except as may otherwise be set forth in a signed,
written agreement between parties, ASG makes no representation or warranty as to
accuracy, completeness, condition, suitability, or performance of the
Information or Materials, and ASG shall have no liability whatsoever to Company
resulting from its use of the Information and Materials, except that Company
shall hold ASG harmless from all claims by and against ASG regarding authorized
use of the Information and Materials. ASG shall hold Company harmless from all
claims by and against Company regarding authorized use of the Information and
Materials.
5. TERM AND TERMINATION. Upon the earlier of ASG's request or the
completion of the Authorized Use, Company shall promptly return or destroy all
Materials and discontinue all further use of the Information. Upon ASG's
request, Company shall promptly certify that such action has been taken. The
restrictions contained in this Agreement shall remain in effect until three (3)
years after the return or destruction of all Materials.
6. GENERAL. The interpretation and enforcement of this Agreement
shall be governed by the laws of the State of Florida, as it applies to a
contract executed, delivered, and performed solely in such state. Company may
not sell, transfer, assign, sublicense, or subcontract any right or obligation
hereunder without the prior written consent of ASG.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as set forth below.
Xxxxx Systems Group, Inc.
[ASG]
By: /s/ Xxxxxxxx Xxxxxx
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Title: General Counsel
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Date: 3/8/00
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Viasoft, Inc.
[COMPANY]
By: /s/ Xxxxxxxxx Xxxxxxxx
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Title: General Counsel
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Date: 3/8/00
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