The Agreement for Exchange of Confidential Information
________________________________________________________________________
___
Uniphase Corporation International Business Machines Corporation
000 Xxxxxxxxx Xxxxxxx c/o Research Division
Xxx Xxxx, XX 00000 Zurich Research Laboratory
CH-8803 Ruschlikon
Uniphase Laser Enterprise AG
x/x Xxxxxxxx xxx Xxxx XX,
Xxxxxxxxxxxxxxxx 00
XX-0000 Xxx
Uniphase Corporation and Uniphase Laser Enterprise AG collectively
(Uniphase) and International Business Machines Corporation (IBM) agree
that the following terms and conditions apply when one of the parties
(Discloser) discloses Confidential Information (Information) to the
other (Recipient) under this Agreement.
Uniphase and IBM agree that our mutual objective under this Agreement is
to provide appropriate protection for Information while maintaining our
ability to conduct our respective business activities.
Information means any and all information disclosed to, or obtained
through observation on other perception at the jointly occupied facility
located at Xxxxxxxxxx, Xxxxxxxxxxxxx 0, by either party pertaining to
the other party (Disclosing Party) which is marked with a restrictive
legend, or which, in the reasonable judgement of an ordinary person,
would appear to be of a proprietary nature and, therefore, in his
judgement, should not be disclosed to a third party without the
Discloser's consent; including business, financial, customer, supplier,
and technical data.
1.DISCLOSURE
The Discloser's and the Recipient's Point of Contact will coordinate and
document as necessary the disclosure. The initial Point of Contact for
Uniphase will be Xxxxxx Xxxx and for IBM will be Xxxxx Xxxxxxx. Either
party may change its Point of Contact by notifying the other party in
writing. Information will be disclosed either:
a) in writing;
b) by delivery of items;
c) by initiation of access to Information, such as may be contained in a
data base; or
d) by oral and/or visual presentation;
e) by accidental observation.
Information should be marked with a restrictive legend of the Discloser.
If Information is not marked with such legend or is disclosed orally or
observed accidentally, 1) the Information will be identified as confidential
at the time of disclosure or within ten (10) working days and 2) the
Discloser will promptly provide the Recipient's Point of Contact with a
written summary including the date disclosed and a brief
non-confidential description of the Information.
2.OBLIGATIONS
The Recipient agrees to use the same care and discretion to avoid
disclosure,
publication or dissemination of the Discloser's Information as it uses
with its own
similar Information that it does not wish to disclose, publish or
disseminate. The
Recipient may use the Discloser's Information for any purpose which does
not violate
such obligation, but will not disclose Information to third parties
without the
permission of the Discloser.
3.CONFIDENTIALITY PERIOD / TERM
Information disclosed pursuant to this Agreement will be subject to the
terms of this Agreement for three years from the date of disclosure. The Term
of this Agreement will begin on March 10, 1997 and will expire upon the
termination or expiration date of the Laboratory Real Estate Lease Agreement
entered into by Uniphase and IBM (the "Lease Agreement") or June 30, 1999
which ever is earlier.
4.EXCEPTIONS TO OBLIGATIONS
The Recipient may disclose, publish, disseminate, and use Information
that is
1) already in its possession without obligation of confidentiality;
2) developed independently;
3) obtained from a source other than the Discloser without obligation of
confidentiality;
4) publicly available when received, or thereafter becomes publicly
available through
no fault of the Recipient; or
5) disclosed by the Discloser to another party without obligation of
confidentiality.
5.RESIDUAL INFORMATION
The Recipient may disclose, publish, disseminate, and use the ideas,
concepts,
know-how and techniques, related to the Recipient's business activities,
which are
contained in the Discloser's Information and retained in the memories of
Recipient's
employees who have had access to the Information pursuant to this
Agreement
(Residual Information).
Nothing contained in this Section gives the Recipient the right to
disclose, publish, or
disseminate, except as set forth elsewhere in this Agreement:
1) the source of Residual Information;
2) any financial, statistical or personnel data of the Discloser; or
3) the business plans of the Discloser.
6.DISCLAIMERS
THE DISCLOSER PROVIDES INFORMATION SOLELY ON AN "AS IS" BASIS.
The Discloser will not be liable for any damages arising out of the use
of Information
disclosed hereunder.
Neither this Agreement nor any disclosure of Information hereunder
grants the
Recipient any right or license under any trademark, copyright or patent
now or
hereafter owned or controlled by the Discloser.
The receipt of Information pursuant to this Agreement will not preclude,
or in any way
limit, the Recipient from:
1) providing to others products or services which may be competitive
with products or
services of the Discloser;
2) providing products or services to others who compete with the
Discloser; or
3) assigning its employees in any way it may choose.
7.GENERAL
This Agreement does not require either party to disclose or to receive
Information.
Neither party may assign, or otherwise transfer, its rights or delegate
its duties or obligations under this Agreement without prior written consent.
Any attempt to do so is void.
This Agreement may only be modified by a written agreement signed by
authorized representatives of both parties.
Neither party may terminate this Agreement unless the Lease Agreement
expires or is terminated. Any provisions of this Agreement which by their
nature extend beyond its termination remain in effect until fulfilled and
apply to both parties' successors and assigns.
Waiver of any breach of this Agreement shall not be a waiver of any
subsequent breach nor shall it be a waiver of the underlying obligations.
The Laws of State of New York, without regard to its principles of conflicts
of lows govern this Agreement.
The parties acknowledge that they have read this Agreement, understand
it, and agree to be bound by its terms and conditions. This Agreement is
the complete and exclusive agreement between the parties regarding
disclosures of Information and replaces any prior oral or written
communications between the parties. Once signed, any reproduction of
this Agreement made by reliable means (for example, photocopy or
facsimile) is considered an original.
Agreed to: Agreed to:
Uniphase Corporation INTERNATIONAL BUSINESS
000 Xxxxxxxxx Xxxxxxx MACHINES CORPORATION
Xxx Xxxx, XX 00000 Research Division
Zurich Research Laboratory
CH-8803 Ruschlikon
By: \s\Xxxxx X. Xxxxxx By: \s\ Xxxxxxx X. Xxxxx
Name: Xxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxx
Title: Vice President, Title: Business Development Consultant
Finance and CFO
Date: 3/10/97 Date: 3/10/97
Uniphase Laser Enterprise AG, Zug
By: \s\ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President, Finance and CFO
Date: 3/10/97
