Exhibit 10.28
Confidential Disclosure Agreement
Customer: Embedded Support Tools Agreement No.: V5807
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This Agreement will provide protection for Information to be exchanged between
us which we do not wish to become public ("Information") while maintaining our
ability to conduct our respective business activities. Each of us agrees that
the following terms shall apply when one of us ("Discloser") discloses
Information to the other ("Recipient") under this Agreement.
1. Disclosure. Each time one of us wishes to disclose specific Information to
the other, or wishes to engage in multiple disclosures relating to a specific
subject matter, Discloser will issue a supplement to this Agreement
("Supplement") before disclosure. The Supplement will contain initial and final
disclosure dates, a non-confidential description of the Information to be
disclosed and any additional or different terms and conditions. The Supplement
must be signed by the Discloser and the Recipient.
Information may be disclosed by: (i) presentation; (ii) delivery; (iii)
authorized access such as to a data base; or (iv) any other express means.
Information must be identified as confidential at the time of disclosure, and
all materials containing Information must have a restrictive marking. The
Discloser shall not disclose any Information not described in a signed
Supplement or which Discloser does not have the right to disclose to the
Recipient.
Disclosure may take place through the Discloser or its Related Companies. A
Related Company is any corporation, company, or other entity which: (i) is
Controlled by a party hereto, (ii) Controls a party hereto; or (iii) is under
common Control with a party hereto. For this purpose, "Control" means that more
than fifty percent (50%) of the controlled entity's shares or ownership interest
representing the right to make decisions for such entity are owned or
controlled, directly or indirectly, by the controlling entity. An entity is
considered to be a Related Company only so long as such ownership or control
exists.
2. Protection. For two (2) years after the date of disclosure, the Recipient
will use the same care and discretion to avoid disclosure of the Discloser's
Information as the Recipient uses with its own similar Information which it does
not wish to disclose. Subject to this obligation, the Recipient may use
Discloser's Information for any purpose.
3. Exceptions. The Recipient may disclose Discloser's Information to: (i) its
employees and contractors, and employees and contractors of its Related
Companies, who have a need to know, and (ii) any other party with the
Discloser's prior written consent. Upon request of the Recipient, the Discloser
may make disclosures directly to such parties on behalf of the Recipient. Prior
to any such disclosure or such request by Recipient, the Recipient must have an
appropriate agreement with any such party sufficient to require the party to
treat Information in accordance with this Agreement. The Recipient may disclose
Information to the extent required by law, but
must give the Discloser reasonable prior notice to allow the Discloser an
opportunity to obtain a protective order.
Notwithstanding the foregoing, no obligation shall apply to Information that is:
(i) already rightfully the Recipient's possession or rightfully received by the
Recipient without a nondisclosure obligation; (ii) developed independently by
the Recipient; (iii) publicly available when received, or thereafter becomes
publicly available through no fault of the Recipient; (iv) disclosed by the
Discloser without a signed Supplement as required by Section 1; (v) disclosed by
the Discloser to a third party without a nondisclosure obligation; or (vi)
inherently disclosed by the Recipient in the use, distribution or marketing of
any product or service.
4. Disclaimers. THE DISCLOSER PROVIDES INFORMATION SOLELY ON AN "AS IS"
BASIS.
Neither this Agreement, nor any disclosure of Information hereunder, in any way:
(i) grants to either of us any right or license under an copyright, patent, mask
work or trademark now or hereafter owned or controlled by the other; (ii)
obligates either of us to disclose or receive any Information, perform any work,
enter into any license, business engagement or other agreement; (iii) limits
either of us from developing, manufacturing. or marketing products or services
which may be competitive with those of the other; (iv) limits either of us from
assigning or reassigning its employees in any way; (v) creates any joint
relationship or authorizes either of us to act or speak on behalf of the other;
or (vi) limits either of us from entering into any business relationship with
any other parties.
5. General. Neither of us may assign or otherwise transfer our rights or
delegate our duties or obligations under this Agreement without the prior
written consent of the other. Any attempt to do so will be void.
The Recipient must comply with all applicable United States and foreign export
laws and regulations.
Only a written agreement signed by both or us can modify this Agreement.
Either of us may terminate this Agreement by providing one month's written
notice to the other. Any provisions of this Agreement which by their nature
extend beyond its termination remain in effect until fulfilled and apply to our
respective successors and authorized assigns.
If there is a conflict between the terms of this Agreement and a Supplement,
those of the Supplement will prevail.
This Agreement will be governed by the substantive law of the State of New York.
Discloser and Recipient may communicate with each other by facsimile and such
communication is acceptable as a writing. The autographs of representatives of
Discloser and Recipient, as
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received by facsimile machine, shall constitute "original" signatures. Any
reproduction of this Agreement by reliable means will be considered an original
of this Agreement.
This Agreement, including any Supplements, is the complete and exclusive
agreement regarding our disclosures hereunder.
Agreed To: Agreed To:
International Business Machines Corporation Embedded Support Tools
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Administration
Essex Junction Vermont 05452-4299 ▇▇▇▇▇ ▇▇▇▇▇▇, President
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Director of PowerPC
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May 9, 1999 April 22, 1999
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Confidential Disclosure Agreement
Supplement for Disclosure
Customer: Embedded Support Tools Referenced Agreement No.: V5807
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With respect to the Information identified below, the terms and conditions in
the referenced Agreement, as modified by any terms and conditions identified
below, shall apply to disclosures hereunder:
Discloser: XIBM - Embedded Support Tools
Initial Disclosure Date: April 19, 1999 Final Disclosure Date: April 18, 2001
Non-confidential description of information to be disclosed:
From IBM: IBM RISCWatch Drivers' Source Code.
From Embedded Support Tools: None. at this time.
Additional or different terms and conditions (if any):
This Supplement and the referenced Agreement are the complete and exclusive
agreement regarding disclosures hereunder.
Agreed To: Agreed To:
International Business Machines Corporation Embedded Support Tools
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 120 Royal Street
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Administration
Essex Junction Vermont 05452-4299 ▇▇▇▇▇ ▇▇▇▇▇▇, President
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Director of PowerPC
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Signature Signature
May 9, 1999 April 22, 1999
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Date (month spelled out) Date (month spelled out)
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