THE FAILURE OF THE NCD SOFTWARE OR THE THINSTAR SOFTWARE
TO PERFORM.
IN NO EVENT SHALL NEOWARE'S TOTAL LIABILITY TO NCD FOR ALL DAMAGES,
LOSSES, ATTORNEYS' FEES AND COURT COSTS, AND CAUSES OF ACTION IN ANY WAY RELATED
TO THE SUBJECT MATTER OF THIS AGREEMENT (WHETHER IN CONTRACT, TORT INCLUDING
NEGLIGENCE OR OTHERWISE) EXCEED TWENTY THOUSAND DOLLARS ($20,000).
EXCEPT FOR A
BREACH OF ANY OF THE TERMS OF THIS AGREEMENT BY NCD,
3
which are excluded from this limitation of liability, NCD's total liability to
Neoware for third party claims in any way related to the subject matter of this
Agreement (whether in contract, tort including negligence or otherwise) shall
not exceed twenty thousand dollars ($20,000).
6.
INJUNCTIVE RELIEF.
NEOWARE AND NCD EACH ACKNOWLEDGES AND AGREES THAT A
BREACH OF THE CONFIDENTIALITY RESTRICTIONS CONTAINED IN SECTION 8 SHALL CAUSE
IRREPARABLE INJURY TO THE AGGRIEVED PARTY FOR WHICH SUCH PARTY SHALL NOT HAVE AN
ADEQUATE REMEDY AT LAW.
IN ADDITION TO ANY OTHER RELIEF TO WHICH THE AGGRIEVED
PARTY MIGHT BE ENTITLED, THE PARTY SHALL BE ENTITLED TO EQUITABLE RELIEF IN
COURT, INCLUDING, BUT NOT LIMITED TO, TEMPORARY RESTRAINING ORDERS, PRELIMINARY
INJUNCTIONS, AND PERMANENT INJUNCTIONS.
NCD AND NEOWARE HEREBY EXPRESSLY WAIVE
ANY REQUIREMENT THAT THE AGGRIEVED PARTY FIRST POST A BOND OR SECURITY BEFORE
OBTAINING SUCH RELIEF.
7.
PUBLICITY.
NEITHER PARTY MAY DISCLOSE THE TERMS OF THIS AGREEMENT OR THE
SUBJECT MATTER THEREOF WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTY,
UNLESS REQUIRED BY LAW.
8.
CONFIDENTIAL INFORMATION.
(A)
CONFIDENTIAL INFORMATION.
BY VIRTUE OF THIS AGREEMENT, EITHER PARTY MAY
HAVE ACCESS TO THE OTHER PARTY'S CONFIDENTIAL INFORMATION (AS DEFINED BELOW).
EACH PARTY AGREES TO USE THE OTHER PARTY'S CONFIDENTIAL INFORMATION SOLELY FOR
PURPOSES OF THIS AGREEMENT AND WILL HOLD THE OTHER PARTY'S CONFIDENTIAL
INFORMATION IN CONFIDENCE DURING THE TERM OF THIS AGREEMENT AND AFTER
TERMINATION.
EACH PARTY FURTHER AGREES THAT, UNLESS REQUIRED BY LAW, IT WILL
NOT MAKE THE OTHER PARTY'S CONFIDENTIAL INFORMATION AVAILABLE IN ANY FORM TO ANY
THIRD PARTY FOR A PERIOD OF FIVE (5) YEARS FOLLOWING TERMINATION OF THIS
AGREEMENT OTHER THAN (I) ITS OWN EMPLOYEES AND/OR CONTRACTORS WHO NEED TO KNOW
OR USE SUCH CONFIDENTIAL INFORMATION FOR PURPOSES OF IMPLEMENTING THIS
AGREEMENT,
(II) ITS LICENSEES AS LIMITED IN SECTION 2 OF THIS AGREEMENT, OR
(III) PURSUANT TO A VALID COURT ORDER PROVIDED THE DISCLOSING PARTY PROVIDES THE
OTHER PARTY WITH PROMPT WRITTEN NOTICE OF SUCH REQUIREMENT SO THAT THE OTHER
PARTY MAY SEEK A PROTECTIVE ORDER OR OTHER APPROPRIATE REMEDY. EACH PARTY SHALL
TAKE ALL REASONABLE PRECAUTIONS TO PREVENT THE DISCLOSURE, DISTRIBUTION OR USE
OF THE CONFIDENTIAL INFORMATION OF THE OTHER PARTY BY ITS EMPLOYEES, AGENTS, OR
CONTRACTORS IN VIOLATION OF THE TERMS OF THIS AGREEMENT.
(B)
DEFINITION.
"CONFIDENTIAL INFORMATION" MEANS THE NEOWARE SOFTWARE, THE
THINSTAR SOFTWARE, THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND NON-PUBLIC
INFORMATION PROVIDED BY ONE PARTY TO THE OTHER UNDER THIS AGREEMENT THAT IS
IDENTIFIED IN WRITING AS CONFIDENTIAL.
(C)
EXCLUSIONS.
CONFIDENTIAL INFORMATION DOES NOT INCLUDE INFORMATION THAT
(I) IS