Exhibit 5
MUTUAL NON-DISCLOSURE AGREEMENT
This Non-Disclosure Agreement (this "Agreement") is made as of October 5, 2001
by and between Innoveda, Inc., having a principal place of business at 000
Xxxxxx Xxxx Xxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000 ("Innoveda") and Mentor
Graphics Corporation having a principal place of business at 0000 X.X. Xxxxxxxx
Xxxx, Xxxxxxxxxxx, Xxxxxx 00000 (the "Company").
In the course of dealings between Innoveda and Company, either party may learn
or receive from the other party "Confidential Information" (as that term is
later defined in this Agreement) for the purpose of considering various business
relationships between Company and Innoveda. Company and Innoveda desire to
establish and set forth each party's obligations with respect to the other
party's Confidential Information. In consideration of the foregoing, Company and
Innoveda agree as follows:
1. The term "Confidential Information" shall mean any and all data, know-how,
trade secrets, software, technology, intellectual property, financial
information, product plans, marketing plans, documentation and other
information which is related to the products, technology, intellectual
property or business of either party and which either party learns or
receives from the other party, except that which the receiving party can
establish: (1) was, on the date of this Agreement, generally known to the
public; or (2) became generally known to the public after the date of this
Agreement other than as a result of the act or omission of the receiving
party or such party's directors, officers, partners or employees; or (3)
was rightfully known to the receiving party prior to learning or receiving
same from the other party; or (4) is or was disclosed by the disclosing
party to third parties generally without restrictions on use and
disclosure; or (5) the receiving party lawfully received from a third party
without that third party's breach of agreement or obligation of trust; or
(6) was independently developed by the receiving party without the use of
the other party's Confidential Information; or (7) is not disclosed to the
receiving party in tangible form and conspicuously labeled as
"confidential," "proprietary" or some similar designation, or, if disclosed
orally, is not stated to be confidential at the time of disclosure and
summarized in writing within fifteen days after disclosure and
conspicuously labeled as confidential or some similar designation.
2. Each party considers all of its Confidential Information to be confidential
and proprietary. All of the disclosing party's Confidential Information
shall at all times, and throughout the world, remain the property of the
disclosing party, exclusively, and all applicable rights in patents,
copyrights and trade secrets, and all other intellectual property rights,
shall remain in the disclosing party, exclusively.
3. The receiving party shall not directly or indirectly use any of the
disclosing party's Confidential Information for any purpose, except for the
purpose set forth above.
4. The receiving party shall not disclose, or permit access to, any portion of
the other party's Confidential Information to any person except if: (1)
such person is an employee or consultant of the receiving party and has a
need to know the Confidential Information for the purpose set forth above;
and (2) such person is legally bound by a written contract to comply with
the provisions of this Agreement. The receiving party shall use the same
degree of care that the receiving party uses with respect to its own
information of a similar nature, but in any event reasonable care, to
prevent disclosure of the other party's Confidential Information. Provided,
however, Confidential Information of the disclosing party may be disclosed
by the receiving party as required by applicable law or court order but
only if prior to any such disclosure, such party shall, to the extent
permitted by applicable law, first give the other party a reasonable
opportunity to review the proposed disclosure and to comment thereon and to
provide for the protection of the Confidential Information.
5. This Agreement shall be effective as of the date first written above and
shall continue until either party terminates this Agreement upon ten days
prior written notice to the other party. Each party's obligations with
respect to each item of Confidential Information which it learns or
receives from the other party prior to the date of termination of this
Agreement shall terminate five years after the date of termination of this
Agreement. Promptly after termination of this Agreement, each party shall
return to the other party all of the other party's Confidential Information
in tangible form, which is in its possession at the time of termination.
6. This Agreement is the complete and exclusive statement of the agreement
between the parties and supersedes all prior written and oral
communications and agreements relating to the subject matter hereof;
however, if a specific item or items of Confidential Information are
governed by another valid and binding written agreement between the parties
hereto, such other written agreement shall govern in the event of conflict
with this Agreement. No modification, termination, extension, renewal or
waiver of any provision of this Agreement shall be effective unless in
writing and signed by an authorized representative of each party.
AGREED TO AND ACCEPTED BY:
INNOVEDA, INC. MENTOR GRAPHICS CORPORATION
By /s/ Xxxxx X. Xxxxxxx By /s/ Xxxxxx Xxxxxx
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Title Chief Legal Officer Title Associate General Counsel
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Date 10/5/01 Date 10/5/01
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