1
Exhibit 4
[NETMANAGE LOGO]
MUTUAL NONDISCLOSURE AGREEMENT
THIS AGREEMENT (the "Agreement") is made effective as of the 9 day of
Feb., 1999, by and between NETMANAGE, INC., a Delaware corporation, and Simware
Inc., a federally incorporated corporation to assure the protection and
preservation of the confidential and/or proprietary nature of information to
be disclosed to each other in connection with certain negotiations or
discussions further described in Exhibit A attached hereto.
In reliance upon and in consideration of the following undertakings, the
parties agree as follows:
1. CONFIDENTIAL INFORMATION. Subject to the limitations set forth in
Section 2, all information disclosed to the other party, which is labeled or
marked "Confidential" or with some other similar proprietary legend, shall be
deemed to be "Confidential Information", including, without limitation, any
trade secret, information, process, technique, algorithm, computer program
(source and object code), design, drawing, formula or test data relating to any
research project, work in process, future development, engineering,
manufacturing, marketing, servicing, financing or personnel matter relating to
the disclosing party, its present or future products, sales, suppliers, clients,
customers, employees, investors or business, whether in oral, written, graphic
or electronic form. If Confidential Information is disclosed in oral form, the
disclosing party shall identify it as confidential at the time of disclosure and
thereafter summarize it in writing and transmit it to the other party within
thirty (30) days of the oral disclosure.
2. EXCLUSIONS. The term "Confidential Information" does not include
information which: (a) is now, or hereafter becomes, through no act or failure
to act on the part of the receiving party, generally known or available; (b) is
independently known by the receiving party at the time of receiving such
information as evidenced by its written and dated records; (c) is hereafter
furnished to the receiving party by a third party, without a breach of this
Agreement and without restriction on disclosure; (d) can be proven to have been
independently developed by the receiving party, as evidenced by contemporaneous
written and dated records, without using any of the discloser's Confidential
Information or breaching this Agreement; or (e) is the subject of a written
permission to disclose provided by the disclosing party.
3. RESTRICTIONS/OBLIGATIONS. Each party shall for a period of three (3)
years from the date of disclosure of the Confidential Information: (i) only
disclose the Confidential Information to those employees and contractors with a
need to know; provided, the receiving party binds those employees and
contractors to terms at least as restrictive as those stated in this Agreement;
(ii) not disclose any Confidential Information to any third party, without the
prior written consent of the disclosing party; (iii) use such Confidential
Information only to the extent required to accomplish the purpose(s) of this
Agreement as set forth on Exhibit A hereto; (iv) not reproduce Confidential
Information in any form except as required to accomplish the purpose(s) of this
Agreement; (v) not reverse engineer, decompile, or disassemble any software
disclosed by the other party; (vi) not directly or indirectly export or
transmit any Confidential Information to any country to which such export or
transmission is restricted by regulation or statute; and (vii) promptly provide
the other party with notice of any actual or threatened breach of the terms of
this Agreement. However, each party may disclose Confidential Information in
accordance with a judicial or other governmental order provided that such party
shall give the other party written notice prior to such disclosure.
4. OWNERSHIP. All Confidential Information (including copies thereof)
shall remain the property of the disclosing party and shall be returned (or, at
the disclosing party's option, certified destroyed) upon written request or
upon the receiving party's need for it has expired, and in any event, upon
completion
2
or termination of this Agreement. No rights or licenses to trademarks,
inventions, copyrights or patents are implied or granted under this Agreement.
5. TERM. This Agreement shall continue in full force and effect for so
long as the parties continue to exchange Confidential Information. This
Agreement may be terminated by either party at any time upon thirty (30) days
written notice to the other party. The termination of this Agreement shall not
relieve either party of the obligations imposed by Section 3 of this Agreement
with respect to Confidential Information disclosed prior to the effective date
of such termination. The provisions of Section 3 shall survive the termination
of this Agreement, as applicable.
6. EQUITABLE REMEDIES. The parties acknowledge that monetary damages may
not be a sufficient remedy for unauthorized use or disclosure of Confidential
Information and that each party shall be entitled, without waiving any other
rights or remedies, to seek such injunctive or equitable relief as may be
deemed proper by a court of competent jurisdiction.
7. MISCELLANEOUS. This Agreement constitutes the entire Agreement and
supersedes all prior or contemporaneous oral or written agreements regarding
the subject matter hereof. This Agreement will be governed by California law.
Any addition or modification to the Agreement must be in writing and signed by
both parties.
AGREED TO: AGREED TO:
NETMANAGE, INC. SIMWARE INC.
00000 Xxxxx Xx Xxxx Xxxxxxxxx Address: 0 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000 Xxxxxx, Xxx., Xxxxxx X0X 0X0
By: /s/ XXX XXXX By: /s/ XXXXXXX X. XXXXXXX
------------------------- --------------------------------------
Xxx Xxxx Xxxxxxx X. Xxxxxxx, CA
----------------------------- ------------------------------------------
(Print Name) (Print Name)
President & CEO Vice President, Finance and Administration
----------------------------- ------------------------------------------
(Title) (Title)
February 11, 1999
----------------------------- ------------------------------------------
(Date) (Date)
-2-
3
EXHIBIT A
---------
PURPOSE FOR WHICH CONFIDENTIAL INFORMATION IS TO BE DISCLOSED (E.G., EVALUATION
OF A CERTAIN SERVICE, NEGOTIATION OF A CERTAIN AGREEMENT, ETC.):
1. NetManage products, technologies, financial information.
2. Simware products, technologies, financial information.
3
