This Nondisclosure Agreement (“Agreement”) by and between the parties listed below is effective as of the date referenced today(“Effective Date”).

In consideration of the mutual promises contained in this Agreement, the parties hereto agree as follows.

1.     Confidential Information.

“Confidential Information” means non-public technical, business and other information and materials that may be disclosed or otherwise made available by one party (“Discloser”) (whether directly or indirectly by an affiliate) to the other Party (whether directly or indirectly to an affiliate) (“Recipient”), in any form, that are marked or identified as confidential or proprietary at the time of disclosure.  Any information or materials that relate to VMware products or services (including pricing, product or service roadmaps, license keys, strategic marketing plans, product or service designs, technical requirements and workflows, and source code) will be considered VMware Confidential Information, whether or not marked as such.

2.   Responsibilities Regarding Confidential Information.  Recipient will:

(a)    hold Discloser’s Confidential Information in confidence and not disclose such Confidential Information to any third party;

(b)    not use Discloser’s Confidential Information for any purpose except to provide Feedback (the “Purpose”); and

(c)    take reasonable precautions (at least equivalent to those Recipient takes with respect to its own similar information) to prevent unauthorized disclosure or use of Discloser’s Confidential Information and will maintain source code in strict confidence for perpetuity.

3.   Representatives.  Recipient may only disclose Discloser’s Confidential Information to its own employees, consultants, affiliates and advisors who reasonably require it to carry out their function in connection with the Purpose and have agreed in writing to terms at least as protective as those set forth in this Agreement (“Representatives”).  Recipient is responsible for any acts or omissions of its Representatives that, if taken by Recipient, would constitute a breach of this Agreement.

4.   Exceptions and Clarifications.

(a)    Recipient’s obligations under this Agreement will not apply to any Confidential Information to the extent it:

(i)     is now, or subsequently becomes, generally available through no wrongful act or omission of Recipient or its Representatives;

(ii)    was, before receipt from Discloser, or becomes rightfully known to Recipient without confidentiality restrictions through disclosure from a source other than Discloser that does not owe a duty of confidentiality to Discloser with respect to such Confidential Information; or

(iii)   is independently developed by Recipient without using any Confidential Information of Discloser.

(b)    Recipient may disclose Discloser’s Confidential Information to the extent required by law or regulation.  Recipient will give Discloser reasonable advance notice of any such required disclosure and will limit the scope of such disclosure to the minimum required by the law or regulation.

(c)    Nothing in this Agreement will restrict or limit the right of Recipient to assign personnel for any purpose or to independently develop, offer or otherwise deal in products or services competitive with those of Discloser without using Discloser’s Confidential Information.

(d)    All Confidential Information disclosed under this Agreement will remain the property of Discloser.  No license or right under any intellectual property right is granted under this Agreement or by any disclosure of Confidential Information except as expressly stated in this Agreement.
5.   Warranty.  Discloser warrants that it has the right to disclose Confidential Information but makes no other warranties, express or implied.  CONFIDENTIAL INFORMATION IS PROVIDED ON AN “AS IS” BASIS.  Company acknowledges that VMware has not publicly announced the availability of products or services that contain features or functionality that are disclosed as part of the Confidential Information (“Potential Features”), that VMware has not promised or guaranteed to Company that products or services containing the Potential Features or Feedback (as defined in Section 6 below) will be announced or made available to anyone in the future, that VMware has no express or implied obligation to Company to announce or introduce any product or service that contain the Potential Features or Feedback, and that VMware may not introduce a product or service that contains the Potential Features or Feedback.  Accordingly, Company acknowledges that any research that Company conducts is done entirely at Company’s own risk.  Specifically, the VMware products or services disclosed as part of the Confidential Information may contain features, functionality or modules that may not be included in the generally available version of the respective products or services, or that may be marketed separately for additional fees.

6.   Feedback.  Company may from time to time provide feedback to VMware concerning the Confidential Information (“Feedback”).  Feedback which is provided by Company to VMware in connection with the Confidential Information or this Agreement may be used by VMware to improve or enhance its products and, accordingly, Company hereby grants VMware and it subsidiaries a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, modify, make, have made, distribute, sell, offer for sale, display, perform, create derivative works, permit unmodified binary distribution and otherwise exploit such Feedback without restriction.

7.   Term and Termination.  Either party may terminate the Agreement in writing, whereupon Recipient will stop all use and disclosure of Discloser’s Confidential Information.  Regardless of any expiration or termination of this Agreement, Recipient must meet its obligations with respect to Confidential Information under this Agreement for five years after receipt of that Confidential Information (except for source code, which must be kept in confidence for perpetuity).  Upon written request of the Discloser, Recipient will promptly return to Discloser or destroy (or in the case of electronic data, use commercially reasonable efforts to delete or render practicably inaccessible by Recipient) Confidential Information of Discloser.
8.   Miscellaneous.  This Agreement (a) constitutes the entire agreement of the parties concerning this subject matter; (b) supersedes any prior or contemporaneous written or oral agreements, understandings or representations; (c) may not be modified, except by mutual written agreement of the parties; (d) is not made for the benefit of any third parties; (e) may be executed and delivered in counterparts, including by fax or email, each of which will be deemed an original; (f) may be imaged and stored electronically and introduced as evidence in any proceeding as if an original business record; and (g) is governed by the laws of the State of California, excluding its conflict of law rules. Neither party may assign this Agreement or any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other, and any such assignment or delegation will be void.  Each party expressly consents (and waives any objection) to the venue and jurisdiction of the state courts of Santa Clara County, California and the federal courts located in the Northern District of California.  A party’s failure to enforce any provision of this Agreement will not constitute a waiver.  Notices under this Agreement must be sent in writing to the addresses below or to such other address as a party has notified the other in writing.  Both parties must comply with and obtain all authorizations required by U.S. or European Union export control laws and related regulations.  No information regulated under the International Traffic in Arms (ITAR) may be exchanged under this Agreement.  This Agreement does not create any agency, partnership or business relationship between the parties.

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