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EXHIBIT 10N
JOINT DEVELOPMENT AND MARKETING AGREEMENT
This Agreement, made and entered into as of the 6th day of August, 1996, by
and between CyberGuard Corporation, a Florida corporation ("CyberGuard"), whose
address is 0000 Xxxx Xxxxxxx Xxxxx Xxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000; and
Information Resource Engineering, Inc., a Delaware corporation ("IRE"), whose
address is 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000:
WHEREAS, CyberGuard designs, manufactures and markets network security
products, including the CyberGuard(TM) Firewall, for Internet, intranet and
commercial networking environments;
WHEREAS, IRE has developed, manufactures and markets an encrypting
modem-related hardware, software and documentation, and key management services
through its SafeNet Security Center ("S/SC")(TM);
WHEREAS, CyberGuard and IRE desire to jointly develop and market a proposed
product offering consisting of a combination of the CyberGuard Firewall and IRE
SafeNet(TM) products in an interoperable centrally managed system configured for
use with a virtual private network ("VPN") and in applications that combine VPNs
with public Internet access and/or legacy network use;
NOW THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable considerations, the receipt and sufficiency of which
are hereby acknowledged, and intending to be legally bound, CyberGuard and IRE
enter into this Agreement in order to provide for the initial phase of joint
development and marketing activities for the proposed joint product offering.
I. DEFINITIONS
As used herein, the following words or phrases have the following meanings:
1.1 "CyberGuard Products" shall mean the software and manuals to be incorporated
with an Intel-based personal computer to be supplied by a third party vendor.
1.2 "CyberGuard Property" means any and all Intellectual Property owned by
CyberGuard as of the Effective Date or developed thereafter solely by or on
behalf of CyberGuard, and expressly excludes any IRE Property.
1.3 "CyberGuard Firewall" shall mean a product comprised of an Intel-based
personal computer to be supplied by a third party vendor and software and
manuals supplied by CyberGuard.
1.4 "Effective Date" means August 6th, 1996.
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1.5 "Hereof," "herein, and "hereunder" when used in this Agreement shall refer
to the Agreement as a whole, unless the context otherwise requires.
1.6 "Intellectual Property" means any and all inventions, improvements,
enhancements, methods, designs, know-how, trade secrets, software, hardware,
circuits, products, documentation, mask works, layouts, ornamental designs,
trademarks, service marks, trade dress, company names, brand names, logos, and
fictitious names, together with any and all worldwide vested and/or inchoate
rights in and to any or all of the foregoing under any issued, pending and/or
later filed applications for patent or copyright registration, trademark and/or
service xxxx registration, utility models and/or any other form of protection of
various forms of intellectual and/or industrial property recognized anywhere in
the world including any and all rights of domestic and/or foreign priority, the
right to xxx and recover damages for infringements including, without
limitation, any past infringements.
1.7 "IRE Property" means any and all Intellectual Property owned by IRE as of
the Effective Date or developed thereafter solely by or on behalf of IRE, and
expressly excludes any CyberGuard Property.
1.8 "IRE/SafeNet Products" shall consist of the SafeNet/Dial, SafeNet/LAN,
SafeNet/Security Center and SafeNet/Security Services.
1.9 "Joint Developments" means any and all Intellectual Property written,
invented, developed or otherwise created jointly by CyberGuard and IRE in the
course of the Project during the Term of this Agreement. Joint Developments
shall not include any CyberGuard Property or any IRE Property.
1.10 "Prepaid License Fee" shall have the meaning as set forth in Section 2.3
of this Agreement.
1.11 "Product" or "Products" shall mean any combination of the CyberGuard
Firewall and IRE SafeNet Products, developed in accordance with this Agreement,
having an interoperable centrally managed system configured for use with a VPN
and for use in applications that combine VPNs with public Internet access and/or
legacy network use and having the characteristics set forth in the
Specifications.
1.12 "Project" means all activity relating to the design, development,
implementation, testing, modification and/or improvement of any Product and/or
components thereof, whether hardware, software, electronic, mechanical or
otherwise.
1.13 "Proprietary Information" means proprietary rights in, and to, all computer
programs, source code, algorithms, software routines, microcode and other
similar data pertaining to
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CyberGuard Products, the IRE/SafeNet Products, or the Product, as the case may
be.
1.14 "Specifications" means the criteria for and description of the Product set
forth on Exhibit A hereto.
1.15 "Term" means the period from the Effective Date through the Termination
Date.
1.16 "Termination Date" means any date upon which this Agreement shall terminate
in accordance with the terms hereof, or two years from the Effective Date,
whichever is earlier.
II. JOINT DEVELOPMENT; PREPAID LICENSE
2.1 Development of the Product. Subject to the terms and conditions of this
Agreement, CyberGuard and IRE agree to cooperate with and assist each other in
the joint design and development of the Product. The Product is intended to
address the markets and include the functionalities in accordance with Exhibits
A and B attached hereto.
2.2 Enhancements to the Product. IRE and CyberGuard each acknowledge
that from time to time it may be advantageous to develop enhancements to their
respective product offerings that are components of the Product. Each of the
parties hereto agrees that, at the request of the other party, it will work with
the other party to jointly develop enhancements or revisions to the CyberGuard
Firewall and/or the IRE SafeNet products. In the event that the parties hereto
fail to agree on the timing, extent or nature of such enhancements and/or
revisions, or on the sharing of expense with respect to such enhancements and/or
revisions, the party that does not wish to proceed with such enhancements and/or
revisions shall provide to the other party a price quotation (on an actual time
and materials basis) and schedule for implementing such enhancements
or revision. Such enhancements and/or revisions shall be effectuated upon
acceptance of such proposal by the party requesting the enhancements and/or
revisions. In the event that such enhancements and/or revisions result in any
new Intellectual Property, such Intellectual Property shall become the property
of the party or parties which fund(s) the enhancements and/or revisions.
2.3 Prepaid License. CyberGuard acknowledges that IRE, on the Effective
Date, has paid to CyberGuard a prepaid license fee in the amount of $1 million
("Prepaid License Feel"). The Prepaid License Fee shall represent a prepayment
of the amounts that will become due under Section 3.1.2 hereof, and shall be
credited to the account of IRE on a dollar-for-dollar basis against such amounts
that otherwise would become due to CyberGuard under Section 3.1.2 hereof. In the
event that this Agreement is terminated prior to such credit aggregating the $1
million, then CyberGuard shall repay to IRE the balance of the $1 million
prepaid license fee within one year of the date of such
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termination, with interest at the prime rate of interest as is in effect as of
the date of such termination and announced by Chase Bank of New York.
III. MANUFACTURE AND ASSEMBLY
3.1 Delivery of CyberGuard Products to IRE.
3.1.1 Subject to the terms and conditions hereof, CyberGuard shall use
commercially reasonable efforts to supply to IRE such number of CyberGuard
Products as may be required during the term of this Agreement to fill orders for
the Product.
3.1.2 CyberGuard shall sell CyberGuard Products, F.O.B. CyberGuard's place
of business in Fort Lauderdale, Florida, at the prices set forth on Exhibit C.
Payment terms are net 30 days from the date of IRE shipment to its customers for
CyberGuard Products sold.
3.1.3 All prices quoted by CyberGuard are exclusive of all excise, sales
and similar taxes of whatever jurisdiction and of any other taxes, customs,
duties, fees or charges that may be imposed on the sale of CyberGuard Products
to IRE.
3.2 Manufacture of the Product. IRE shall assemble and configure the
Product by integrating the CyberGuard Firewall and IRE/SafeNet Products in
accordance with the Specifications, as such Specifications may be modified or
supplemented in a writing agreed to by the parties hereto from time to time. The
parties agree that the PC platform and the vendor that will supply the platform
will be selected by IRE, from time to time, so long as such selection meets the
technical requirements of CyberGuard. The parties agree that for this purpose
the Intel-based PC platform manufactured by Advanced Logic Research, Inc. is
acceptable to both IRE and CyberGuard.
3.3 Costs of Manufacture. All costs and expenses, including taxes,
related to the assembly and configuration as described in Section 3.2 of the
Product shall be borne solely by IRE.
3.4. No License Fee. Except for the Prepaid License Fee, the fees
payable in accordance with Section 3.1.2 hereof and a fee payable under the
license described in Exhibit D hereto, no license fee under this Agreement shall
be payable by either IRE or CyberGuard with respect to CyberGuard Products or
IRE/SafeNet Products incorporated into the Product for sale in accordance with
this Agreement.
IV. MARKETING AND SALES
4.1 Terms and Conditions of Sales. The parties agree to negotiate in
good faith and to reach agreement on the following matters within 15 days after
the Effective Date: the initial List Prices for the Product, the discounts that
will be available to the various sales channels, the other terms and conditions
of the
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sales of the Product to third parties, and the terms, conditions and pricing
under which CyberGuard will act as reseller of the Product. IRE and CyberGuard
agree to cooperate in the future to establish different List Prices and
discounts as needed to address cost changes or market conditions. All other
terms and conditions of sales of the Product that are not addressed in the
mutually agreed-to terms shall be set by IRE.
4.2 Marketing Assistance/Assignment of Sales Personnel. IRE and
CyberGuard shall cooperate in marketing and selling the Product. For each sales
lead generated by or becoming known to a party hereto, the parties agree that
for a preliminary time period to be agreed upon by IRE and CyberGuard, each of
them will use reasonable best efforts to jointly assign a sales team consisting
of a representative from each corporation (consisting of a sales representative
from one corporation and a customer support representative from the other) to
pursue such leads with a view toward generating a sale.
4.3 Marketing Fees. In consideration of the sales support to be provided
by CyberGuard under Section 4.2 hereof, for each Product sold, in addition to
the payment for CyberGuard Products as set forth in Section 3.1 hereof, IRE
shall pay CyberGuard a marketing fee as set forth in Exhibit C hereto. The
marketing fee shall be paid monthly based upon payments received by IRE from the
purchasers of the Product during the previous month.
4.4 Order Flow and Fulfillment. Orders for the Product, whether
generated by CyberGuard or IRE, shall be submitted to IRE for fulfillment. IRE
shall have the sole discretion to determine whether to extend credit to any
potential purchaser of a Product. IRE shall process orders for shipment in
accordance with commercially reasonable standards. IRE shall submit invoices to
purchasers for products shipped and shall be responsible for collection of such
invoices. IRE shall provide to CyberGuard written monthly reports that describe
the identity of the purchasers, the Products sold, quantities, discounts and
prices for all sales of Products. Revenue from sales of Product shall be
considered solely the revenue of IRE for all accounting and other purposes.
4.5 Compliance With Laws and Business Practices. It is expressly
understood and agreed that this Agreement, and any exports, sales, transfers, or
any other disposition of CyberGuard Products or IRE/SafeNet Products, to the
extent incorporated in the Product, are subject to the laws and regulations of
the United States. Specifically, contracts and orders placed for the Product may
require advance U.S. Government Export approval or licensing, and, therefore all
such contracts and orders are subject to the receipt of any necessary approvals
and licenses. The parties hereto agree to solicit orders, and IRE agrees to
process and ship orders, in accordance with all applicable laws and regulations.
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V. CUSTOMER SUPPORT
5.1 Initial Contact. IRE shall be the initial point of contact for
customer support of the Product and shall establish and maintain support
facilities sufficient to provide primary support for the Product. Primary
support requires that IRE provide all necessary resources to provide initial
diagnosis of both hardware and software problems and providing reasonable
assistance to purchasers to resolve problems with the Product.
5.2 Maintenance. Following receipt of support requests from a customer
and an assessment by IRE of the customer's additional support requirements, if
it is determined that the customer requires maintenance services, CyberGuard
shall provide such maintenance for CyberGuard Products and IRE shall provide
such maintenance in all other instances. Each party hereto agrees to maintain
support services sufficient to discharge the duty set forth in the preceding
sentence, and shall provide such services in its usual and customary manner, and
at customary rates, as provided to other customers (which, in all cases, shall
be a commercially reasonable manner and rate). Each party agrees to maintain the
availability of support services for a period of at least two years after the
termination of this Agreement. The term "support," for purposes of this section
5.2, means verifying, diagnosing and resolving hardware and software problems
and delivery of software patches and applicable release notes.
VI. INTELLECTUAL PROPERTY RIGHTS
6.1 Ownership of Intellectual Property; Property Tradename.
6.1.1 CyberGuard Property. Subject to the provisions of Section 6.2, the
parties acknowledge and agree that all CyberGuard Property is and shall remain
at all times the exclusive property of CyberGuard, its successors and assigns.
6.1.2 IRE Property. Subject to the provisions of Section 6.2, the parties
acknowledge and agree that all IRE Property is and shall remain at all times the
exclusive property of IRE, its successors and assigns.
6.1.3 Joint Developments. Joint Developments shall be owned jointly by
CyberGuard and IRE, their successors and assigns, as tenants in common.
6.1.4 Property Tradename. CyberGuard and IRE agree that the Product shall
be branded with a name or names and marks that are acceptable to both IRE and
CyberGuard (the "Product Tradename"). The Product Tradename shall be used only
for purposes of marketing and selling the Product. Notwithstanding the
foregoing, there shall be no restriction with respect to IRE's use of the
"SafeNet" xxxx for any and all purposes. The parties agree that the Product
Tradename shall be solely and exclusively IRE Property; provided, however, that
CyberGuard
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shall have the right to use the Product Tradename to the limited extent
necessary to act as a seller of the Product.
6.2 Cross License. Subject to the terms and conditions contained herein,
CyberGuard hereby grants to IRE a nontransferable, non-exclusive license to use
the CyberGuard Property solely to the extent as is required to develop,
manufacture and market the Product. Subject to the terms and conditions
contained herein, IRE hereby grants to CyberGuard a nontransferable,
non-exclusive license to use the IRE/SafeNet Property solely to the extent as is
required to develop, manufacture and market the Product. Each party hereto
acknowledges and agrees that the other has expended considerable time, effort
and funds in developing and generating the Intellectual Property owned by it,
and has and will continue to have a substantial proprietary interest and
valuable trade secret therein. The license granted by each party to the other
herein is granted as part of the consideration of entering into this Agreement.
6.3 Limitation. CyberGuard shall have no interest in any of the
trademarks, service marks, trade dress, company names, or logos of IRE or the
Product; without limiting the generality of the foregoing clause of this
sentence, CyberGuard shall have no rights with respect to the tradename
"SafeNet" and related tradenames, except to the limited extent necessary to act
as a seller of the Product. IRE shall have no interest in any of the trademarks,
service marks, trade dress, company names, or logos of CyberGuard; without
limiting the generality of the foregoing clause of this sentence, IRE shall have
no rights with respect to the tradename "CyberGuard" and related tradenames,
except to the limited extent necessary to act as a seller of the Product.
6.4 Protection of Intellectual Property.
6.4.1 Each of the parties hereto agrees to make full and complete
disclosure to the other of all Joint Developments it believes may be
copyrightable, patentable or of commercial value.
6.4.2 With respect to all Joint Developments believed by either party to be
copyrightable, patentable or of commercial value, the parties agree to decide
jointly whether and where to apply for copyright, patent or other appropriate
forms of protection. To the extent the parties agree to protect a Joint
Development, the parties shall do so at their joint expense using counsel as
mutually agreed.
6.4.3 In the event the parties elect not to jointly pursue protection of
any Joint Development, either party (the "Electing Party") may seek such
protection in its own name and at its sole expense using counsel of its choice.
As to Joint Developments with respect to which the Electing Party elects to seek
protection, the non-electing party shall assign its intellectual property rights
in and to such Joint Development to the Electing Party and the Electing Party
shall grant to the non-
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electing party a fully paid-up, worldwide, extendible, nonexclusive perpetual
license to use the Joint Development and any and all Intellectual Property
therein for any and all purposes.
6.4.4 All expenses of renewing and or maintaining intellectual property
protection of any Joint Development shall be borne by the party seeking
protection, or, in the case of protection sought jointly by the parties hereto,
by both parties sharing equally in such expenses.
6.5 Enforcement of Intellectual Property Rights.
6.5.1 CyberGuard shall be solely responsible for enforcing any and all
CyberGuard Property, and IRE shall be, solely responsible for enforcing any and
all IRE Property, whether or not such CyberGuard Property or IRE Property is
incorporated into the Product. In the event that it is unclear whether
CyberGuard Property or IRE Property is being infringed upon, the parties shall
treat such infringement as if the infringement were on a Joint Development in
accordance with the provisions below.
6.5.2 Each party agrees promptly to advise the other of suspected or known
infringements on any Joint Development.
6.5.3 The parties agree to consult as to the appropriate action to be taken
with respect to any infringement of any Joint Development. If the parties agree
to settle or jointly prosecute any claim for misappropriation and/or
infringement, the parties shall share equally in the costs and expenses,
including attorney's fees, incurred in connection with such prosecution and
shall share equally in any settlements or other recoveries thereon.
6.5.4 If one of the parties hereto does not agree to be responsible for its
full share of the costs and expenses of prosecuting an infringement claim
jointly, then either party may xxx it its own name and at its sole expense and,
in such case, the other party agrees to be joined as a plaintiff for standing
purposes and to cooperate as reasonably requested in prosecuting such action
(subject to reimbursement for reasonable costs, expenses, and attorneys' fees).
In such event, any recovery shall inure to the party prosecuting the
infringement and not to the other, whether or not such other party joins as a
plaintiff as provided herein.
6.6 Defense of Intellectual Property.
6.6.1 CyberGuard shall be solely responsible for defending any and all
claims of third parties against CyberGuard Products for infringement, and IRE
shall be solely responsible for defending any and all claims of third parties
against IRE/SafeNet Products for infringement, whether or not the CyberGuard
Product or IRE/SafeNet Product at issue in any claim is incorporated into the
Product.
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6.6.2 Each party agrees promptly to advise the other of claims of
infringement brought or threatened against any Joint Development.
6.6.3 The parties agree to consult as to the appropriate action to be taken
with respect to any claims of infringement by any Joint Development. If the
parties agree to jointly defend any claim for misappropriation and/or
infringement, the parties shall share equally in the costs and expenses,
including attorney's fees, incurred in connection with such defense. Each party
shall bear only such damages as are awarded against it.
6.6.4 If one of the parties hereto does not agree to be responsible for its
full share of the costs and expenses of defending an infringement claim jointly,
then the other party may defend at its sole expense and the defending party
shall have a lien upon the Intellectual Property of the other in the full amount
of damages and costs and expenses of defense.
VII. WARRANTIES OF THE PARTIES TO THE OTHER
7.1 Ownership of CyberGuard Products. CyberGuard warrants to IRE that it
owns or otherwise holds all rights necessary to make, use, sell, offer for sale,
advertise and distribute the CyberGuard Products free and clear from all claims,
liens and encumbrances of third parties, except for the obligations under those
agreements and licenses listed on Exhibit D hereto.
7.2 Ownership of IRE Products. IRE warrants to CyberGuard that it owns
or otherwise holds all rights necessary to make, use, sell, offer for sale,
advertise and distribute the IRE/SafeNet Products free and clear from all
claims, liens and encumbrances of third parties.
7.3 Warranty. CyberGuard hereby warrants to IRE that under normal use
and service, CyberGuard Products are free from defects in design and
workmanship. IRE hereby warrants to CyberGuard that under normal use and
service, IRE/SafeNet Products are free from defects in design and workmanship.
Each party warrants to the other that the products delivered by such party for
use in connection with the Product will be complete and in conformity with the
products regularly supplied by each to purchasers and lessees of its products.
CyberGuard's warranty under this Section 7.3 shall not include a warranty for
the Intel-based PC that is a component of the CyberGuard Firewall and is
supplied by a third party vendor.
7.4 Product Warranty. The Product shall be sold with a warranty to be
agreed upon between the parties hereto, essentially to the effect that the
Product will be free from defects in design, workmanship and material, with a
time period (not to exceed one year) and on such other terms and conditions as
are to be agreed upon between the parties. Subject to the limitations on
warranty contained in this Agreement, CyberGuard agrees to assume all liability
for breach of such warranty to the extent that a breach
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of warranty relates solely to CyberGuard Products incorporated into the Product.
Subject to the limitations on warranty contained in this Agreement, IRE agrees
to assume all liability for breach of such warranty to the extent that such
breach relates to the assembly or configuration of the Product or solely to
IRE/SafeNet Products. CyberGuard and IRE agree to jointly assume all liability
for breach of such warranty to the extent that a breach of warranty relates to
the design of the Product or other matters that are not covered by either of the
two preceding sentences.
7.5 Limitation on Warranty. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH
HEREIN AND EXCEPT FOR WARRANTY OF TITLE, NEITHER PARTY MAKES ANY OTHER
WARRANTIES, EXPRESS OR IMPLIED TO THE OTHER WITH RESPECT TO ITS PRODUCTS. EXCEPT
AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THERE ARE NO WARRANTIES OR ANY
AFFIRMATIONS OF FACT OR PROMISES BY EITHER PARTY HERETO AS TO MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, INFRINGEMENT OR OTHERWISE. USE OF SUCH
PRODUCTS CONSTITUTES THE CONSENT OF THE OTHER PARTY HERETO TO ASSUME ALL RISKS
OF SUCH USE AND TO HOLD THE OTHER HARMLESS FOR ANY DAMAGES OR CLAIM OF DAMAGES
ARISING IN ANY MANNER FROM SUCH USE. THE EMPLOYEES OR AGENTS OF NEITHER PARTY
HAVE ANY AUTHORITY TO MAKE ANY WARRANTY OR REPRESENTATION REGARDING THE MANNER
OR BENEFITS OF USE OF ANY PRODUCT OTHER THAN THOSE EXPRESSLY SET FORTH IN THE
SPECIFICATION FOR SUCH PRODUCT.
VIII. TERMINATION
8.1 Conditions for Termination. This Agreement shall terminate upon any of the
conditions contained in this Section 8.1.
8.1.1 This Agreement shall terminate upon the occurrence of a material
breach of this Agreement by either party hereto, provided:
8.1.1.1 The breaching party is given notice by the other party hereto
containing a claim of breach and setting forth the nature of the breach and
circumstances giving rise to such a claim; and
8.1.1.2 The party to whom notice is given fails to remedy such
circumstances within sixty days after receipt of the notice.
8.1.2 This Agreement shall terminate upon the written notice of either
party to the other that such party is unable to perform as provided hereunder
due to labor disputes, fire, casualties and accidents, acts of the elements,
acts of a public enemy, sovereign acts or regulations and any other causes
beyond the control of such party, its agents, employees or officers.
8.1.3 This Agreement shall terminate if any of the following events occur
as to one party hereto and the other party does not provide written notice
within thirty days after it becomes aware of such event that it intends to waive
termination
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of this Agreement: a party makes an assignment for the benefit of its creditors,
requests or permits a proposal, arrangement or reorganization under or, as an
insolvent debtor, takes the benefit of any legislation now or hereafter in force
for bankrupt or insolvent debtors; a receiver or other officer with like powers
is appointed for a party for a substantial part of its assets; a lienholder
takes possession of a substantial part of a party's property; or an order is
made for the winding up, liquidation, revocation, or cancellation of
incorporation of a party; or a party ceases carrying on its business as a going
concern.
8.1.4 This Agreement shall terminate at the expiration of two years
from its Effective Date.
8.2 Effects of Termination/Liability.
8.2.1 If this Agreement is terminated for reasons set forth in Section 8.1,
then a breaching party shall indemnify the non-breaching party from and against
all actual costs and expenses incurred or resulting from the breach, including
reasonable attorneys' fees and costs of dispute resolution (collectively
"Damages"); provided, however, that neither party hereto shall be liable under
any circumstances, for indirect, special, incidental or consequential damages;
and provided further that the amount of Damages payable by either party hereto
to the other shall be limited to the amount that the party entitled to such
Damages has incurred in connection with the performance of its obligations under
this Agreement or to enforce the obligations of the other party hereunder.
8.2.2 Except as set forth herein, neither party shall be liable to the
other for any claims, damages, costs, expenses or other charges incurred in
connection with the entering into, performance, breach, or termination of this
Agreement unless specifically provided for herein.
8.2.3 Notwithstanding the Termination Date of this Agreement, the
provisions of Sections 5.2, 6.1, and 9.2 shall survive the Termination Date
indefinitely, and the provisions of Article III and Section 6.2 shall survive
until the second anniversary of the Termination Date. Without limiting the
generality of the foregoing sentence, for two years after the Termination Date,
CyberGuard shall continue to use commercially reasonable efforts to supply to
IRE such number of CyberGuard Products as may be required for IRE to fulfill its
orders for the Product and IRE shall continue to use commercially reasonable
efforts to assemble and configure the number of Products as may be required for
CyberGuard to fulfill its orders for the Product. The prices to be charged by
IRE and CyberGuard to the other in fulfillment of the obligations stated in the
foregoing sentence are described in Exhibit C and Section 4.1 hereto.
8.2.4 The parties hereto agree to deposit with mutually agreeable
escrow agents in the case of (i) CyberGuard, a
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current version of its software source code which incorporates all necessary and
appropriate improvements, revisions, enhancements, or updates for the source
code for the CyberGuard Products so that at all times, such source code will
correspond with the software actually in use by CyberGuard (subject to the
rights of Santa Xxxx Operation, Inc. as set forth in the licenses and agreements
described in Exhibit D hereto); (ii) IRE, all necessary schematics, diagrams and
source code for the IRE/SafeNet Products (excluding SafeNet/Services) and all
documentation reasonably necessary to manufacture the Product so that at all
times, the source code, schematics and diagrams will correspond with the
products and software actually in use by IRE. The parties hereto agree to
negotiate and enter into escrow agreements to effectuate the purposes of the
foregoing and to place the source codes and, as the case may be, schematics and
diagrams for the CyberGuard Products and IRE/SafeNet Products in escrow so as to
provide each party with access to such information in the event that the other
party does not perform its obligations under this Agreement.
IX. MISCELLANEOUS PROVISIONS
9.1 Assignment. Neither party shall assign this Agreement or any
interest therein without the prior written consent of the other party.
9.2 Confidentiality. Neither party hereto shall, without the express
written consent of the other, provide, disclose, transfer or otherwise make
available any Proprietary Information, or parts or copies thereof, to any third
party. Each party shall ensure that it, its employees and third party agents
having access to any Proprietary Information, or to the CyberGuard Products or
IRE/SafeNet Products of the other, will restrict and control the use, copying,
modification, disclosure, transfer, protection and security of such items, in
accordance with these provisions. Each party hereto agrees to protect all
Proprietary Information with the same standard of care that it uses to protect
its own like information.
9.3 Nonsolicitation. The parties hereto agree that they will not, at any
time during the term this Agreement and for a period of one year thereafter,
directly or indirectly, for itself or for any other person, firm, corporation,
partnership, association or other entity, attempt to employ, employ or enter
into any contractual arrangement with any employee or former employee of the
other party, its subsidiaries or predecessors in interest, unless such employee
or former employee has not been employed by the other party, its subsidiaries or
its predecessors in interest, for a period in excess of six months.
9.4 Publicity. The parties hereto agree to cooperate in the drafting of
any press releases or other public disclosure that relates to the Project.
Neither shall make any public disclosure relating to the Project or the other
party without the consent of such other party. Notwithstanding the foregoing, in
the event
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that a party hereto (the "Disclosing Party") is advised by counsel that public
disclosure relating to the Project or the other party is required, the
Disclosing Party shall provide to the other party a copy of the proposed
disclosure in advance of its public release and shall use all reasonable efforts
to seek the comments of the other party prior to its publication.
9.5 Notices. All notices permitted or required hereunder shall be
effective: upon receipt if delivered personally; on the third business after
sending if sent via registered or certified U.S. mail, return receipt requested;
on the second business day after sending, charges prepaid for next day delivery,
via a nationally recognized overnight delivery service (Federal Express,
Purolator Courier, DHL and UPS are acceptable for these purposes); and upon
acknowledgment of receipt by the party to be charged with notice if sent via any
other means. Notice shall be given to the following address or to such other
address as to which a party shall give notice:
If to CyberGuard:
CyberGuard Corporation
0000 X. Xxxxxxx Xxxxx Xxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: President
If to IRE:
Information Resource Engineering, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Chairman
9.6 Disputes.
9.6.1 Any controversy or claim related to or arising out of this Agreement
shall be settled by binding arbitration conducted under the Commercial
Arbitration Rules of the American Arbitration Association. Judgment on the
arbitrator's award may be entered and enforced in any court of competent
jurisdiction. Neither party will be precluded from seeking provisional remedies
in the courts including, but not limited to, temporary restraining orders and
preliminary injunctions, to protect its rights and interests, but such relief
will not be sought as a means to avoid or stay arbitration.
9.6.2 This Section 9.6 provides the sole recourse for the settlement of any
dispute arising under or in connection with this Agreement. In any arbitration
between the parties, the prevailing party shall be entitled to reasonable
attorneys' fees and all costs of proceedings incurred in enforcing this
Agreement in addition to any other amount of recovery ordered in such
arbitration.
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9.6.3 IRE and CyberGuard each agree that if either of them determine to
begin an arbitration action, then such action may be brought only in the city or
county in which the corporate headquarters of the defendant to such action is
located, and each agree that venue is proper in such location.
9.7 Relationship of the Parties. The parties hereto agree that no
agency, employment, partnership, joint venture or franchise relationship is
created or shall be deemed to be created hereunder. Neither party shall have,
and neither shall represent to have, any power, right or authority to bind the
other or to assume or create any obligation or responsibility, express or
implied, on behalf of the other party or in the other party's name, except as
herein expressly permitted.
9.8 Entire Agreement. This Agreement constitutes the entire agreement
and supersedes any prior agreements or understandings between the parties hereto
regarding the subject matter hereof, and no amendment, alteration or waiver of
this Agreement shall be valid or binding unless made in writing and signed by
both parties.
9.9 Governing Law. This Agreement shall be governed by, and interpreted
and construed in accordance with the laws of the State of New York.
9.10 Further Agreements. The parties hereto agree to enter into good
faith negotiations for the purposes of executing and delivering an appropriate
agreement or agreements providing for CyberGuard's ability to resell the IRE
SafeNet family of products and for IRE's ability to resell the CyberGuard
Firewall family of products, now or hereafter developed during the term of this
Agreement.
9.11 Severability. Any provision in this Agreement found to be void,
voidable or unenforceable shall not affect the validity or enforceability of any
other provision in this Agreement. In the event that any provision of this
Agreement shall be declared void, voidable or unenforceable by a court of
competent jurisdiction, said provision shall be deemed to be amended to provide
the party seeking to enforce this Agreement the greatest protection available
under law.
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IN WITNESS WHEREOF the undersigned have executed and delivered this
Agreement as of the date and year first above written.
INFORMATION RESOURCE CYBERGUARD CORPORATION
ENGINEERING, INC.
By: /s/ XXXXXXX X. XXXXXX By: /s/ XXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxx
Its: Chairman, Chief Executive Its: Chairman,President
Officer and President and Chief Executive Officer
