During the term of this Agreement, Symbol Technologies, Inc., having a place of
business at Xxx Xxxxxx Xxxxx, Xxxxxxxxxx, XX 00000-0000 (hereinafter referred to
as "Symbol") and @pos, having a place of business at: Xxxxx Xxxxx Xx, Xxx Xxxx,
XX 00000; agree to receive information and data (hereinafter referred to as
"Confidential Information") from each other for the sole purpose of evaluating
the technologies, products, and product specifications of each party. Such data
shall include, but not be limited to technical information, including,
preliminary product descriptions and specifications, financial information and
forecasts, business plans and trade secrets.
IN CONSIDERATION OF THE MUTUAL PROMISES HEREIN CONTAINED, PARTIES AGREE AS
FOLLOWS:
1. As between the parties hereto, the provisions of this agreement shall
supersede the provisions of any legend which may be affixed to the
Confidential Information by the disclosing party and the provisions of such
legend shall, to the extent they are inconsistent herewith, be without any
force or effect.
2. Notwithstanding that this Agreement shall have terminated or expired, each
party agrees to keep in confidence and prevent the unauthorized use or
disclosure to any unauthorized person or persons of all Confidential
Information which is designated in writing, or by an appropriate stamp or
legend by the disclosing party to be of a proprietary or confidential
nature, which is received under this Agreement and to use such data only
for the above stated purpose. Confidential Information shall include
information disclosed orally only if identified as proprietary information
at the time of the first oral disclosure and reduced to writing and so
designated within thirty (30) days thereof. Neither party shall be liable
for use or disclosure of any such Confidential Information if the same:
a. is in the public domain at the time it is disclosed; or
b. is known to the receiving party at the time of disclosure; or
c. is used or disclosed with the prior, written approval of the disclosing
party; or
d. is used or disclosed after five (5) years from the date of this Agreement;
or
e. is independently developed by the receiving party; or
f. becomes known to the receiving party from a source other than the
disclosing party without a breach of this Agreement by the receiving party.
3. In maintaining the confidentiality of Confidential Information received
hereunder, each party shall exercise the same degree of care that the
receiving party takes to safeguard its own proprietary information.
4. Neither the execution of this Agreement nor the disclosure of Confidential
Information hereunder by either party hereto shall be construed as granting
to the other, either expressly or otherwise, any license under any
invention or patent now or hereafter owned or controlled by such party, nor
shall such Agreement or disclosure constitute any representation, warranty
or assurance by the disclosing party with respect to any infringement of
patents or other rights of third parties.
5. The term of this Agreement, during which Confidential Information may be
furnished shall be from the date hereof to one year after such date.
6. Each party shall perform its obligations hereunder without charge to the
other. Nothing in this Agreement shall:
x. xxxxx either party the right to make any commitment of any kind for or on
behalf of the other party without the prior written consent of the other
party; or
b. create or be interpreted in any way as a joint venture, partnership or
formal business organization of any kind.
7. Each party shall designate the following individual as a Contract
Coordinator responsible for handling Confidential Information as herein
described:
For Symbol:
Name: Xxxx Xxxxxxxxx Phone: 000-000-0000
For @POS:
Name: Xxxx Xxxx or Phone: 000-000-0000
Xxxxxx Xxxxxxxx
8. Upon expiration or termination of this Agreement, or upon breach of any
obligation of this Agreement by the receiving party, or upon request of the
disclosing party, all recorded copies of the Confidential Information and
portions thereof remaining in the receiving party's possession shall be
returned to the disclosing party or destroyed, and such return or
destruction certified to the disclosing party.
9. This Agreement constitutes the entire Agreement and understanding between
the parties as to the subject matter hereof, and supersedes and replaces
all prior and contemporaneous agreements, written or oral, as to such
subject matter.
10. The parties acknowledge that this Agreement is personal in nature and agree
that this Agreement shall not be assigned, in whole or in part, by either
party without the written consent of the other party. Any purported
assignment of this Agreement or any interest therein without the written
consent of both parties shall be void.
11. No subsequent agreement, arrangement, relationship or understanding between
the parties shall be valid, effective or enforceable and no obligation or
liability shall be created on behalf of either party hereto unless and
until it is contained in a writing, signed by duly authorized
representatives of each party.
12. If any legal proceedings are commenced to resolve any disputes or
difference which may arise between the parties hereto, out of or in
connection with this Agreement, the prevailing party shall be entitled, in
addition to any other award that may be made, to recover costs, attorneys
fees, and expert witness fees, including any costs or attorneys fees
incurred in connection with any appeals.
13. This Agreement shall be governed by, performed under, and construed in
accordance with the commercial laws but not the conflict of law provisions
of the State of New York.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the date below
@pos SYMBOL TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxxxxx By: Xxxx Xxxxxxxxx
Name:Xxxxxx Xxxxxxxx Name: /s/ Xxxx Xxxxxxxxx
Title: CEO Title: VP Mobile Commerce
Date: 6/20/02 Date: 6/20/02
