8x8 2002 Annual Report Download - page 81

information and data of either party, contained in written or tangible form which is marked as "Internal Use Only",
"Proprietary", "Confidential", or similar words. One party's, including its Affiliates ("Disclosing Party") Confidential
Information shall also include its confidential information and data orally disclosed to the other party including its Affiliates
("Receiving Party")as long as such verbal disclosures are marked as "Confidential" or similar wording within 30 days of the
verbal disclosure. However, Confidential Information shall not include any data or information which :
I. Is or becomes publicly available through no fault of the Receiving Party;
II. Is already in the rightful possession of the Receiving Party prior to its receipt of such data or information;
III. Is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing
Party;
IV. Is rightfully obtained by the Receiving Party from a third party or in the public domain;
V. Is disclosed with the written consent of the Party whose information it is; or
VI.
Is disclosed pursuant to court order or other legal compulsion, after providing prior written notice to the Disclosing Party
of the intended disclosure.
B. The Receiving Party shall and for a period of ten (10) years following receipt of the Confidential Information, hold all
Confidential Information of the Disclosing Party in confidence, not disclose such Confidential Information to any third parties
except those with a need to know in connection with or during the performance of this Agreement who have executed a
confidentiality agreement with terms at least as restrictive with regard to the Disclosing Party's information as those set forth
herein, and in general use the same degree of care to protect the confidentiality of the Disclosing Party's Confidential
Information as it uses with respect to its own information of a similar nature.
C. Neither 8x8 nor ST shall use the other party's Confidential Information for another or other purpose than for the purposes set
forth in this Agreement.
D. Except as otherwise provided in Section 25(a) above, upon termination of this Agreement all of the Disclosing Party`s
Confidential Information and all copies thereof in the Receiving Party's possession or control shall be immediately returned to
the Disclosing Party or destroyed by the Receiving Party at the Disclosing Party's instruction. The Receiving Party shall then
certify the same in writing and that no copies have been retained by the Receiving Party, its employees, Affiliates, contractors,
or other parties to whom such information is provided.
E. The Receiving Party acknowledges that the unauthorized disclosure of the Disclosing Party Confidential Information will cause
irreparable harm and significant injury, the scope of which is difficult to ascertain. Accordingly, the Receiving Party agrees that
the Disclosing Party shall have the right to an immediate injunction enjoining any such unauthorized disclosure.
27. Limitation of Liability
A. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE
TO THE OTHER OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR
CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS), CAUSED BY ANY
BREACH OF ITS OBLIGATIONS TO THE OTHER ARISING OUT OF OR RELATING TO THIS AGREEMENT,
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, EVEN IF THE BREACHING
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
B. IN NO EVENT SHALL THE TOTAL LIABILITY OF 8x8 TO ST ARISING UNDER SECTION 23 "INDEMNIFICATION"
HEREOF EXCEED THE TOTAL AMOUNT PAID BY ST TO 8x8 WITH RESPECT TO THE 8X8 CODE CONTAINING
THE IP RIGHTS SUBJECT MATTER OF THE CLAIM, PROVIDED THAT SUCH TOTAL AMOUNT SHALL NOT
EXCEED THE LESSER OF THE AMOUNT OF ROYALTIES PAID BY ST TO 8x8 HEREUNDER OR FIVE HUNDRED
THOUSAND U.S. DOLLARS ($500,000).
C. IN NO EVENT SHALL THE TOTAL LIABILITY OF ST TO 8x8 ARISING UNDER SECTION 24 "INDEMNIFICATION"
HEREOF EXCEED THE TOTAL AMOUNT PAID BY 8x8 TO ST WITH RESPECT TO THE LX TECHNOLOGY
CONTAINING THE IP RIGHTS SUBJECT MATTER OF THE CLAIM, PROVIDED THAT SUCH TOTAL AMOUNT
SHALL NOT EXCEED THE LESSER OF THE AMOUNT OF ROYALTIES PAID BY 8X8 TO ST HEREUNDER OR FIVE
HUNDRED THOUSAND U.S. DOLLARS ($500,000).
D. IN NO EVENT SHALL THE TOTAL LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ANY LOSS,
DAMAGE OR LIABILITY ARISING FROM A BREACH OF THIS AGREEMENT EXCEED THE LESSER OF THE SUM
TOTAL OF THE ROYALTIES PAID BY THE NON-PAYING PARTY OR FIVE HUNDRED THOUSAND DOLLARS
($500,000) PROVIDED (1) THAT SUCH LIMIT SHALL NOT APPLY IN THE EVENT OF A WILLFUL MISUSE OR
WILLFULLY UNLAWFUL DISTRIBUTION OF THE TECHNOLOGY LICENSED HEREUNDER, AND (2) PROVIDED
THAT SUCH LIMITATION SHALL NOT APPLY IN THE EVENT THAT EITHER PARTY FAILS TO PAY THE
ROYALTIES DUE BY ONE PARTY TO THE OTHER AS SET FORTH HEREIN, NOTWITHSTANDING THE ABOVE
LANGUAGE IN (2), THE TOTAL LIABILITY OWED IN A DISPUTE FOR ROYALTIES SHALL BE THE AMOUNT OF
ROYALTIES OWED PLUS ANY INTEREST OWED UNDER SECTION 14.
28. Affiliates. Both parties will be able to apply this agreement and the license herein to itself and its affiliate companies. Affiliate
companies shall be defined to be an entity controlling, controlled by, or under common control as of the Effective Date or thereafter
during the term of this Agreement, with ST or 8x8 as the case may be, provided that such entity shall be considered an Affiliate only for
the time during which such control exists. For purposes of this definition "control" shall mean ownership or control, either directly or
indirectly, of greater than 50% of the voting rights of such entity.
29. Public Announcements. 8x8 and ST will use reasonable efforts to issue a mutually agreeable joint press release. Otherwise, neither
party shall make any announcement or press release regarding this Agreement or any terms thereof without the other Party's prior
written consent. However, either party is free to file with the SEC or other relevant government agencies any document required to be
filed thereon advice of counsel (redacted in a form advised by counsel).
30. Assignment . This Agreement may not be assigned by either party, nor any of such party's rights or obligations hereunder, to any third
party including without limitation through a U.S. Bankruptcy Code Chapter 11 reorganization, without prior written consent of the other
party. For purposes of this section, a change of control of a Party resulting from one transaction or a series of related transactions shall
be deemed to result in an assignment or transfer of this Agreement. Control shall mean direct or indirect ownership or control of fifty