BUSINESS DEVELOPMENT AGREEMENT

 

1.6           “End Users” shall mean users of the PRODUCT who have executed Summit’s end user license agreement, the current version of which is attached hereto as Exhibit A.

 

2.             INTENT AND PURPOSE; STATEMENTS OF WORK.

 

2.1           INTENT AND PURPOSE.  This Agreement contemplates certain joint development activities between MathStar and Summit to develop the PRODUCT and the marketing, sales and support activities for the PRODUCT (the “Activities”).

2.2           STATEMENTS OF WORK.  It is understood and agreed that the parties have attempted to define their respective roles and responsibilities with respect to the PRODUCT; however, the parties agree and acknowledge that an exhaustive definition of each party’s roles and responsibilities at this time is not feasible and therefore the parties may determine that it is appropriate to execute and deliver a separate plan for some Activities undertaken (each, a “Statement of Work”).  If and when executed, each Statement of Work will be attached to and incorporated by reference into this Agreement, and the terms and conditions of the Statement of Work shall control to the extent inconsistent with the terms contained herein.  The parties agree that each Statement of Work may set forth, among other things as the parties shall deem appropriate, the following:

 

-                    a detailed description of the Activity;

-                    any design documents or specifications (unless the Activity contemplates creation or development of the same);

-                    deliverables & delivery milestone dates, if any, that either or both parties will be responsible for creating and developing; and

-            any other terms or conditions that vary from the terms and conditions set forth in this Agreement.

 

3.0           THE ACTIVITIES

 

3.1           PRODUCT DEVELOPMENT.  Summit shall develop and maintain the SUMMIT SOFTWARE and the MATHSTAR-SPECIFIC SOFTWARE.  MathStar shall develop and maintain the MATHSTAR LIBRARY and deliver a copy of the MATHSTAR LIBRARY to Summit as soon as reasonably practicable for incorporation into the PRODUCT.  MathStar hereby grants to Summit the right to incorporate the MATHSTAR LIBRARY with and into the PRODUCT and to grant sublicenses of the MATHSTAR LIBRARY to End Users.  Each party will provide reasonable development support to the other party as needed.

 

3.1.1        PRODUCT RELEASE SCHEDULE.  Summit shall control the master schedule for the development and release of the PRODUCT and new versions thereof and shall be responsible for defining which features and bug fixes will be available within the PRODUCT and each Product release.

 

3.1.2        COMPUTING PLATFORM SUPPORT.  Summit shall release and support the PRODUCT on the PC Windows (NT, 2000, XP), Solaris and Red Hat Linux platforms.  Summit shall specify the support for specific operating system versions as a requirement for each major PRODUCT version to be released.

3.1.3        FIELD TESTING ALPHA AND BETA SOFTWARE RELEASES.  MathStar staff shall assist Summit engineering in the functional testing of alpha and beta versions of new PRODUCT releases, as reasonably requested by Summit.

3.1.4        SOFTWARE QUALITY ASSURANCE.  Summit shall perform software quality assurance testing for each PRODUCT release, except for patch distribution, beta releases and other releases where the PRODUCT is made available prior to full verification.

3.2           MARKET DEVELOPMENT AND DEMAND GENERATION

3.2.1        TRADE SHOW SUPPORT.  Each party shall exhibit the PRODUCT or information about the PRODUCT at trade shows where the party exhibits their products.  In cases where exhibition of the PRODUCT would conflict with the interests of the trade show sponsor, this obligation shall not apply.  When the PRODUCT is being exhibited at trade shows, the exhibiting party may request assistance from the other party in supporting the PRODUCT

 

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exhibition or demonstrations.  The parties shall mutually determine what information about the PRODUCT is to be exhibited and how it is to be exhibited.

3.2.2        TECHNICAL SEMINARS.  Each party may provide technical seminars involving the PRODUCT in the context of FPOA design and each party shall provide reasonable support to the other in furtherance of such seminars.  The parties shall mutually determine the contents of the seminars.

3.2.3        INTERNET PRESENCE AND WEBSITE RESOURCES. Each party shall dedicate a portion of its website to information about the PRODUCT, its primary value points and its role in the FPOA design process.  The parties shall mutually determine the content of such information to be set forth on their websites.  The parties shall cooperate on the development of links between their respective websites, where such links would be helpful to customers.

3.2.4        LEAD GATHERING AND DISSEMINATION. Sales leads regarding the use of the PRODUCT for FPOA design shall be shared by the parties.  Shared leads shall be distributed to the other party on a regular basis.  Points of contact shall be established between the parties in order to facilitate shared lead communication.

3.2.5        ADVERTISING. Advertising developed by either party that includes the PRODUCT or references the PRODUCT shall include the brand identification of both parties within the advertisement.  The brand identification shall include the party’s graphic logo and, if sufficient room, the party’s tag line.  Each presentation of each party’s brand image shall require the prior approval of the marketing leadership of the other party.

3.2.6        PRINTED PRODUCT LITERATURE.  Product data sheets, application guides and other Product literature developed by either party that includes the PRODUCT or references to the PRODUCT shall include the brand identification of both parties within the publication.  The brand identification shall include the party’s graphic logo and, if sufficient room, the party’s tag line.  Each presentation of each party’s brand image shall require the prior approval of the marketing leadership of the other party.

3.3           PRODUCT LICENSE SALES

3.3.1        DIRECT SALES CHANNELS.  The PRODUCT shall be sold through coordinated actions of the MathStar and Summit direct sales staffs, including field sales and inside sales staff.  Either party may initiate customer qualification, prospect for new sales opportunities and perform technical qualification of an opportunity.  MathStar shall bundle the PRODUCT only with other MathStar products and sell the combined product(s).  MathStar shall actively and diligently market and distribute the PRODUCT as provided herein.  MathStar shall purchase a block of one-year term licenses for the PRODUCT per Section 4.2 from Summit and distribute such PRODUCT to End Users bundled as provided above.

3.4           PRODUCT DISTRIBUTION.

3.4.1        PRODUCT LICENSING.  The PRODUCT shall be distributed to End Users by MathStar pursuant to Summit’s then current end user license agreement as a combined product with other MathStar products.  The current version of such end user license agreement is attached hereto as Exhibit A.  If Summit’s form of end user license agreement changes, it shall give notice of such changes to MathStar, and Summit and MathStar shall amend this agreement by attaching the most current form of Summit’s end user license agreement to this Agreement as new Exhibit A.

3.4.2        PACKAGING OF PRODUCT RELEASES.  The PRODUCT and all major versions thereof shall consist of the SUMMIT SOFTWARE, the MATHSTAR-SPECIFIC SOFTWARE and the MATHSTAR LIBRARY, packaged together by Summit as a single part number, downloadable as a single complete file image.  End Users shall have a single installation process that places the PRODUCT in the proper locations in the End User’s environment.

3.4.3        PRODUCT DISTRIBUTION LOGISTICS.  The distribution mechanism for the PRODUCT shall be FTP access via the internet.  The distribution website shall be developed, hosted and maintained by Summit or its supplier with assistance and support from MathStar.  The website shall provide for effective, secure upload of model library releases and patches from MathStar, as well as effective location and retrieval of software and patches by customers.  Qualified resellers of the Product may provide links to the Summit website in order to act as distribution portals.

 

 

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3.5           CUSTOMER SUPPORT.  MathStar shall provide first line support of the PRODUCT to End Users.  If MathStar determines that the problem appears to be located within or caused by the Summit PRODUCT, upon MathStar’s request, Summit shall provide technical customer support either to MathStar or, if requested, directly to an End User.

3.5.1        BUG REPORTING AND TRACKING.  Summit shall provide MathStar access to Summit’s bug tracking system for the purpose of tracking problem reports and bugs in the PRODUCT.  Problems and potential bugs in the PRODUCT shall be entered into Summit’s bug tracking system by technical support staff or application engineers from either party.  Each party shall identify and maintain a technical support point of contact, who shall be responsible for communicating technical problem status and customer impact priority with the other party and for insuring that customer problem reports associated with the PRODUCT are resolved in a timely manner.

3.5.2        BUG CONFIRMATION AND RESOLUTION.  Summit shall confirm and resolve bugs in the SUMMIT SOFTWARE and MATHSTAR-SPECIFIC SOFTWARE in accordance with its customary procedures for support of its products.  MathStar shall confirm and resolve bugs in the MATHSTAR LIBRARY.  Each party shall provide engineering support to the other party upon request in order to expedite the resolution of bugs.

3.5.3        FIELD SALES TECHNICAL STAFF.  Each party shall develop and maintain trained technical staff that will be available in the field to visit End Users and assist with technical problem solving or troubleshooting as required.

3.6           END USER TRAINING.

3.6.1        END USERS TRAINING CLASS DEVELOPMENT.  MathStar and Summit shall collaborate on the development of an End User training course that may be provided by qualified staff members of either party or both parties, depending on resource availability and geographical convenience.  Customer training classes shall consist of the essential training elements necessary for End Users to learn how to use the PRODUCT for the purpose of creating and verifying FPOA designs.  Each party shall own the portion of the course materials such party contributes to the End User training course and hereby grants to the other party a no charge license to use and distribute such materials to End Users attending such training courses.

3.6.2        CUSTOMER TRAINING CLASS DELIVERY.  Each party may deliver the jointly developed training class using their own instructors.  The parties shall explore ways of sharing resources for training delivery or for contracting for training instructors from one party to deliver training to End Users of the other party pursuant to a mutually agreed agreement.  Unless otherwise agreed, the party providing the training services shall be entitled to receive all fees associated with such services.

3.7           USER MANUALS.

3.7.1        USER MANUAL DEVELOPMENT.  Summit shall develop a section or addendum to the SUMMIT SOFTWARE user manual that addresses the use of the MATHSTAR-SPECIFIC SOFTWARE.  MathStar shall develop any user manual documentation required for the MATHSTAR LIBRARY.  Summit shall assemble the user manual for the PRODUCT, consisting of the standard Summit Software user manual, a section or addendum dedicated to the MATHSTAR-SPECIFIC SOFTWARE within the SUMMIT SOFTWARE and a section or addendum with the documentation for the MATHSTAR LIBRARY.  Each party shall own all right, title and interest in and to the portion of the user manual such party contributes to the user manual and hereby grants to the other party a no charge license to incorporate such party’s materials into the user manual for the PRODUCT and to distribute such materials to End Users as part of the user manual for the PRODUCT.  Each party agrees not to remove the copyright notices on any user manual materials of the other party.

3.7.2        USER MANUAL DISTRIBUTION.  User manuals shall be updated and distributed electronically with each major release of the PRODUCT only in PDF file format.  MathStar shall have the responsibility of aligning the user manual information with the functionality of each major release of the PRODUCT.

 

 

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4              FINANCIAL CONSIDERATIONS.

4.1           PRODUCT PRICING

MathStar shall purchase a block of * based PRODUCT licenses for * per license.  MathStar shall pay Summit * for such licenses in accordance with the following schedule:  * on January 20, 2006, * on July 15, 2006 and * on December 15, 2006..  On January 20, 2006, MathStar shall also pay Summit * in consideration of Summit’s support of MathStar pursuant to Section 3.5 hereof.  The term of such support in connection with End User use of the PRODUCT shall be for the initial eighteen (18) month term of this Agreement.  MathStar may purchase incremental * based PRODUCT licenses during the term of this Agreement in blocks of * based PRODUCT licenses for * per license.  Fees for such licenses shall be due and payable upon receipt of an invoice therefor.  Summit agrees that the * will be available for use by MathStar for the term of this Agreement.  *.  All such time based licenses are for distribution to End Users and not for internal use.  The parties agree that the term of any * based PRODUCT licenses commences on the date that the End User licenses the PRODUCT; provided that such licenses if not distributed during the term of this Agreement shall terminate upon the termination or expiration of this Agreement.

4.2           * EVALUATION LICENSES

Summit will provide MathStar a block of * PRODUCT evaluation licenses * after execution of this Agreement.  It is agreed that these * PRODUCT evaluation licenses will be used by MathStar to provide prospective PRODUCT customers an opportunity to evaluate the PRODUCT prior to purchase from MathStar.  Summit also will provide * extensions for *% of these licenses during the period of this Agreement.  For so long as MathStar can demonstrate to Summit that over *% of these * PRODUCT evaluation licenses are converted to PRODUCT purchases, Summit will continue to provide * PRODUCT evaluation licenses * to MathStar.

4.3           ENGINEERING PRODUCT ENHANCEMENTS

4.3.1                        SOURCE CONTROL AND COPY TREE SCRIPTS.  Summit will provide to MathStar, *, * scheme scripts to enable source control, copy tree/copy tree local as part of Summit’s MATHSTAR-SPECIFIC SOFTWARE.  Summit shall use commercially reasonable efforts to make this software available for release in the PRODUCT by March 15, 2006.

4.3.2                        FPOA TEMPLATE:  Summit will provide to MathStar, *, up to * toward the development of the *scripts as part of Summit’s MATHSTAR-SPECIFIC SOFTWARE.   Summit shall use commercially reasonable efforts to make this software available for release in the PRODUCT by March 15, 2006.

4.3.3                        ENGINEERING TRAINING:  Summit will provide to MathStar, *, * on-site advanced training for MathStar software engineers on scheme scripting to enable FPOA template in Visual Elite.

4.3.4                        ADDITIONAL PRODUCT ENHANCEMENTS:  Summit will provide to MathStar *, * for PRODUCT enhancements of MathStar’s choice.  MathStar shall pay Summit engineering fees additional enhancements to the PRODUCT that are requested by MathStar.  The parties shall agree on the amount of the fee, sign a mutually agreed specifications document and sign a Statement of Work prior to Summit performing such services.

4.3.5                        The parties agree that the development efforts set forth in Sections 4.3.1 and 4.3.2 hereof shall be subject to the parties’ mutual agreement on specifications.

4.4           ENGINEERING FEES FOR PRODUCT MAINTENANCE

After * from the Effective Date of this Agreement and on each * anniversary thereafter MathStar shall pay * for continued maintenance for MathStar’s internal use of the SUMMIT SFTWARE unless this Agreement is terminated pursuant to Section 15.2.  Such fee shall be in consideration of Summit’s internal maintenance services to MathStar relating to the MATHSTAR-SPECIFIC SOFTWARE within the context of the constantly evolving SUMMIT SOFTWARE releases.  For purposes of clarity, such fees are not for support of End Users pursuant to Section 3.5 hereof.

4.5           SUMMIT SOFTWARE FOR MATHSTAR INTERNAL USE

Summit hereby grants to MathStar *, worldwide right and license to use Summit Visual Elite ESL, System Architect and Virtual Prototype products for MathStar’s internal use for an unlimited number of users and for the development

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission

 

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of design application examples.  MathStar’s use of such products shall in all events be subject to the terms and conditions of Summit’s end user license agreement attached hereto as Exhibit A.

4.6           SUMMIT SOFTWARE FOR MATHSTAR 3^rd PARTY FPOA APPLICATION DEVELOPERS

Summit will provide MathStar a block of * based PRODUCT licenses * after execution of this Agreement.  It is agreed that these PRODUCT licenses will be used by third party FPOA application developers managed by MathStar while developing preprogrammed FPOA software.  MathStar’s use of such PRODUCTs shall in all events be subject to the terms and conditions of Summit’s end user license agreement attached hereto as Exhibit A.  MathStar shall require each such third party FPOA application developers to agree to the terms and conditions of Summit’s end user license agreement attached hereto as Exhibit A and MathStar shall guaranty compliance of such third party FPOA application developers with such terms and conditions.

5              ADDITIONAL AGREEMENTS OF THE PARTIES

5.1           LOGO USAGE.  MathStar hereby grants Summit the right to use MathStar’s logo, subject to logo usage guidelines to be provided by MathStar to Summit, as such guidelines may be amended by MathStar from time to time.  Summit hereby grants MathStar the right to use Summit’s logo, subject to logo usage guidelines to be provided by Summit to MathStar, as such guidelines may be amended by Summit from time to time.

 

5.2           PUBLICITY; PRESS RELEASES.  The parties may by mutual consent agree to issue a joint press release describing the collaboration of the parties.  The parties shall also consult regularly during the term of the Agreement and issue, as and when appropriate, such further press releases and/or other publicity materials as may be appropriate.  The contents of any press releases issued by the parties shall be subject to the approval of each party, which approval shall not be unreasonably withheld or delayed.

 

5.3           USE OF NAME IN PROMOTIONAL MATERIALS.  Each party shall, with prior approval of the other party (which will not be unreasonably withheld or delayed), be permitted to identify the other party as a development partner, to use the other party’s name in connection with proposals to prospective customers, and to refer to the other party in print or electronic form for marketing or reference purposes.

 

5.4           FREEDOM OF ACTION.  Except as specifically provided herein or in any Statement of Work, either party may market and offer its own or third party products or services (through any means) which are the same as or similar to and which are competitive with the other party’s products and services.  Neither party makes any assurances or representations to the other in connection with any financial gain or other benefit that may result from the activities contemplated in this Agreement.

 

5              ACTIVITY MANAGEMENT.

 

6.1           POINTS OF CONTACT.  Each of the parties agrees to appoint and keep in place during the term of this Agreement a business point of contact and a technical point of contact, each of whom will allocate such portion of his or her working time as may be reasonably necessary to facilitate communications between the parties.

 

6.2           SUPPLIER BUSINESS REVIEW MEETINGS.  The business points of contact shall meet on a mutually agreed basis, at least twice per quarter, to review the overall progress of the Activities contemplated hereunder and to provide overall supervision and oversight.  Such meetings will be held at a mutually agreed location.

 

7.             DEVELOPMENT EFFORTS; RESOURCE COMMITMENT; EXPENSES.

 

7.1           COST SHARING AND REIMBURSEMENT.  Except as may be provided in any specific Statement of Work or as may be otherwise agreed by the parties or as provided in Section 4.4 hereof, each of Summit and MathStar agrees that it shall be responsible for its own expenses incurred in conjunction with this Agreement and any attachments hereto, and with any undertakings and obligations contemplated hereby.  Notwithstanding the foregoing, if development efforts are undertaken at either MathStar or Summit offices, then the host party agrees to provide the necessary office space at no cost to the other party.

 

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission

 

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7.2           INDEPENDENT CONTRACTORS.  Either party shall have the option to utilize contractors in order to satisfy its obligation to supply personnel resources to the Activities contemplated hereunder, but only to the extent and insofar as reasonably required in connection with the performance of the obligations of the party retaining the contractor under this Agreement, and subject to the further requirements and limitations set forth herein.

 

8.             DISPUTE RESOLUTION PROCESS.

 

8.1           INITIAL CONSULTATION AND NEGOTIATION.  In the event a dispute between Summit and MathStar arises under the Agreement or a party’s performance thereunder, the matter shall first be escalated to each party’s business points of contact in an attempt to settle such dispute through consultation and negotiation in good faith and a spirit of mutual cooperation.

 

8.2           ESCALATION.  If the business party contacts are unable to resolve the dispute within ten (10) days, it shall be referred to the Chief Executive Officers of each party who shall attempt to resolve such dispute through consultation and negotiation in good faith and a spirit of mutual cooperation.

 

8.3           CONTINUED PERFORMANCE.  Except where prevented from doing so by the matter in dispute, the parties agree to continue performing their obligations under this Agreement while any good faith dispute is being resolved unless and until such obligations are terminated by the termination or expiration of this Agreement.

 

9              OWNERSHIP.

 

9.1           OWNERSHIP BY SUMMIT.  As between MathStar and Summit, Summit shall own all right, title, and interest in the SUMMIT SOFTWARE and MATHSTAR-SPECIFIC SOFTWARE (the “Summit Intellectual Property”), except the EXTERNAL MATHSTAR-SPECIFIC SOFTWARE, and MathStar shall have no ownership interest in the Summit Intellectual Property.  MathStar hereby irrevocably transfers, conveys and assigns to Summit all of its right, title, and interest in the Summit Intellectual and in any property owned or to be owned by Summit under this Agreement.  MathStar shall execute such documents, render such assistance, and take such other action as Summit may reasonably request, at Summit’s expense, to apply for, register, perfect, confirm, and protect Summit’s ownership rights set forth in this Section, and Summit shall have the exclusive right to apply for or register any patents, mask work rights, copyrights, and such other proprietary protections with respect thereto.

 

9.2           OWNERSHIP BY MATHSTAR.  As between MathStar and Summit, MathStar shall own all right, title, and interest in the MATHSTAR LIBRARY and the EXTERNAL MATHSTAR-SPECIFIC SOFTWARE (the “MathStar Intellectual Property), and Summit shall have no ownership interest in the MathStar Intellectual Property.  Summit hereby irrevocably transfers, conveys and assigns to MathStar all of its right, title, and interest in the MathStar Intellectual Property and in any property owned or to be owned by MathStar under this Agreement.  Summit shall execute such documents, render such assistance, and take such other action as MathStar may reasonably request, at MathStar’s expense, to apply for, register, perfect, confirm, and protect MathStar’s ownership rights set forth in this Section, and MathStar shall have the exclusive right to apply for or register any patents, mask work rights, copyrights, and such other proprietary protections with respect thereto.

 

9.3           PARTY AS ATTORNEY-IN-FACT.  Summit agrees that if MathStar is unable because of Summit’s dissolution or incapacity, or for any other reason, to secure Summit’s signature to apply for or to pursue any application for any United States or foreign patents or mask work or copyright registrations covering the inventions assigned to MathStar above, then Summit hereby irrevocably designates and appoints MathStar and its duly authorized officers and agents as Summit’s agent and attorney-in-fact, to act for and in Summit’s behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to further the prosecution and issuance of patents, copyright and mask work registrations thereon with the same legal force and effect as if executed by Summit.  MathStar agrees that if Summit is unable because of MathStar’s dissolution or incapacity, or for any other reason, to secure MathStar’s signature to apply for or to pursue any application for any United States or foreign patents or mask work or copyright registrations covering the inventions assigned to Summit above, then MathStar hereby irrevocably designates and appoints Summit and its duly authorized officers and agents as MathStar ‘s agent and attorney-in-fact, to act for and in MathStar ‘s behalf and stead to execute and file any such

 

 

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applications and to do all other lawfully permitted acts to further the prosecution and issuance of patents, copyright and mask work registrations thereon with the same legal force and effect as if executed by MathStar.

 

9.4           NO REVERSE ENGINEERING.  Each of MathStar and Summit agrees that it shall not (i) copy, adapt, modify, translate, localize, distribute, create any derivative work of, or include in any other products any Summit Intellectual Property (in the case of MathStar) or MathStar Intellectual Property (in the case of Summit) or any portion thereof, or (ii) reverse assemble, decompile, reverse engineer or otherwise attempt to derive source code (or the underlying ideas, algorithms, structure or organization) from any such property, except as specifically authorized in writing by the party owning the same or as specifically provided under this Agreement.

 

9.5           COPYRIGHT NOTICES.  Each party shall ensure that all copies of any software or other property in its possession or control incorporates all copyright and other proprietary notices in the same manner that the party owning the same incorporates such notices, or in any other manner reasonably requested by the owner.  Each party shall promptly notify the other party in writing upon its discovery of any unauthorized use of a party’s property or the infringement of such party’s proprietary rights therein.

 

10.           TRADEMARKS, TRADE NAMES AND BRANDING.

 

10.1         USAGE GUIDELINES.  Summit shall comply with MathStar’s logo, trademark and branding usage guidelines, which MathStar shall provide to Summit, and as the same may be updated by MathStar from time to time.  MathStar shall comply with Summit’s logo, trademark and branding usage guidelines, which Summit shall provide to MathStar, and as the same may be updated by Summit from time to time.  Neither party shall alter the other party’s marks.

 

10.2         OWNERSHIP.  All MathStar marks are and shall remain, as between Summit and MathStar, the exclusive property of MathStar or its providers.  All Summit marks are and shall remain, as between Summit and MathStar, the exclusive property of Summit or its suppliers.  Neither party grants any rights in the marks or in any other trademark, trade name, service mark, business name or goodwill of the other except as expressly permitted hereunder or by separate written agreement of the parties, and all use of a party’s marks shall inure to the benefit of the owner of such mark.  Each party agrees that it shall not challenge or assist others to challenge the rights of the other party or its suppliers or licensors in the marks or the registration of the marks, or attempt to register any trademarks, trade names or other proprietary indicia confusingly similar to the marks.

 

11.           CONFIDENTIALITY.

 

11.1         AGREEMENT AS CONFIDENTIAL INFORMATION.  The parties shall treat the terms and conditions and the existence of this Agreement as Confidential Information (as the term “Confidential Information” is hereinafter defined).  Each party shall obtain the other’s consent prior to any publication, presentation, public announcement or press release concerning the existence or terms and conditions of this Agreement.

 

11.2         DEFINITION OF CONFIDENTIAL INFORMATION.  “Confidential Information” means the terms and conditions of this Agreement, the existence of the discussions between the parties, any information disclosed in connection with the Activities being undertaken as described herein, and any proprietary information a party considers to be proprietary including, but not limited to, information regarding each party’s product plans, product designs, product costs, product prices, finances, marketing plans, business opportunities, personnel, research and development activities, know-how and pre-release products; provided that information disclosed by the disclosing party (“Disclosing Party”) in written or other tangible form will be considered Confidential Information by the receiving party (“Receiving Party”) only if such information is conspicuously designated as “Confidential,” “Proprietary” or a similar legend.  Information disclosed orally shall be considered Confidential Information only if:  (i) it is identified as confidential, proprietary or the like at the time of disclosure, and (ii) it is confirmed in writing within thirty (30) days of disclosure.  Confidential Information disclosed to the Receiving Party by any affiliate or agent of the Disclosing Party is subject to this Agreement.

 

11.3         NONDISCLOSURE.  The Receiving Party shall not disclose or use, except as permitted under this Agreement, the Confidential Information to any third party other than employees and contractors of the Receiving Party who

 

 

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have a need to have access to and knowledge of the Confidential Information solely for the purpose of performing its obligations under this Agreement.  The Receiving Party shall have entered into non-disclosure agreements with such employees and contractors having obligations of confidentiality as strict as those herein prior to disclosure to such employees and contractors to assure against unauthorized use or disclosure.

 

11.4         EXCEPTIONS TO CONFIDENTIAL INFORMATION.  The Receiving Party shall have no obligation with respect to information which (i) was rightfully in possession of or known to the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party; (ii) is, or subsequently becomes, legally and publicly available without breach of this Agreement; (iii) is rightfully obtained by the Receiving Party from a source other than the Disclosing Party without any obligation of confidentiality; (iv) is developed by or for the Receiving Party without use of the Confidential Information and such independent development can be shown by documentary evidence; (v) was publicly known at the time of the Disclosing Party’s communication thereof to the Receiving Party; or (vi) is identified by the Disclosing Party as no longer proprietary or confidential.  Further, the Receiving Party may disclose Confidential Information pursuant to a val