THIS
AGREEMENT IS DETERMINED TO BE INVALID OR UNENFORCEABLE, THE REMAINDER OF THIS
AGREEMENT SHALL BE VALID AND ENFORCEABLE TO THE MAXIMUM EXTENT POSSIBLE.
12.
AMENDMENT.
THIS AMENDMENT MAY BE MODIFIED
OR AMENDED ONLY BY MUTUAL WRITTEN CONSENT OF THE PARTIES.
13.
GOVERNING LAW.
THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
CALIFORNIA EXCLUDING THOSE LAWS THAT DIRECT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION.
14.
COUNTERPARTS.
THIS AGREEMENT MAY BE
EXECUTED IN TWO OR MORE COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL,
BUT ALL OF WHICH TOGETHER SHALL CONSTITUTE ONE AND THE SAME AGREEMENT.
15.
ENTIRE AGREEMENT.
THIS INSTRUMENT CONTAINS
THE ENTIRE AGREEMENT OF THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF, AND
SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS NEGOTIATIONS, CORRESPONDENCE,
UNDERSTANDINGS AND AGREEMENTS OF THE PARTIES RELATING TO THE SUBJECT MATTER
HEREOF.
16.
SUCCESSORS.
ANY SUCCESSOR TO THE COMPANY
(WHETHER DIRECT OR INDIRECT AND WHETHER BY PURCHASE, LEASE, MERGER,
CONSOLIDATION, LIQUIDATION OR OTHERWISE) TO ALL OR SUBSTANTIALLY ALL OF THE
COMPANY'S BUSINESS AND/OR ASSETS SHALL ASSUME THE OBLIGATIONS UNDER THIS
AGREEMENT AND AGREE EXPRESSLY TO PERFORM THE OBLIGATIONS UNDER THIS AGREEMENT IN
THE SAME MANNER AND TO THE SAME EXTENT AS THE COMPANY WOULD BE REQUIRED TO
PERFORM SUCH OBLIGATIONS IN THE ABSENCE OF A SUCCESSION.
THE TERMS OF THIS
AGREEMENT AND ALL OF CONSULTANT'S RIGHTS HEREUNDER SHALL INURE TO THE BENEFIT
OF, AND BE ENFORCEABLE BY, CONSULTANT'S PERSONAL OR LEGAL REPRESENTATIVES,
EXECUTORS, ADMINISTRATORS, SUCCESSORS, HEIRS, DISTRIBUTEES, DEVISEES AND
LEGATEES.
4
17.
DEFINITIONS.
FOR THE PURPOSES OF THIS
AGREEMENT:
17.1.
"CONFIDENTIAL INFORMATION" SHALL MEAN INFORMATION
DISCLOSED TO CONSULTANT AS A CONSEQUENCE OF OR THROUGH PERFORMANCE OF SERVICES
FOR THE COMPANY, ITS SUBSIDIARIES OR AFFILIATES, WHETHER OR NOT RELATED TO HIS
SPECIFIC WORK AT THE COMPANY.
CONFIDENTIAL INFORMATION INCLUDES ALL INFORMATION
RELATED TO ANY ASPECT OF THE COMPANY'S BUSINESS WHICH IS EITHER INFORMATION NOT
KNOWN BY ACTUAL OR POTENTIAL COMPETITORS OF THE COMPANY OR IS PROPRIETARY
INFORMATION OF THE COMPANY, WHETHER OF A TECHNICAL NATURE OR OTHERWISE.
CONFIDENTIAL INFORMATION INCLUDES INVENTIONS (AS DEFINED IN SECTION 17.2),
KNOW-HOW, DATA, FINANCIAL INFORMATION AND FORECASTS, PRODUCT PLANS, MARKETING
PLANS AND STRATEGIES, AND CUSTOMER LISTS.
INFORMATION SHALL BE CONSIDERED, FOR
PURPOSES OF THIS AGREEMENT, TO BE CONFIDENTIAL INFORMATION IF NOT KNOWN BY THE
TRADE GENERALLY, EVEN THOUGH SUCH INFORMATION HAS BEEN DISCLOSED TO ONE OR MORE
THIRD PARTIES PURSUANT TO DISTRIBUTION AGREEMENTS, JOINT RESEARCH AGREEMENTS OR
AGREEMENTS ENTERED INTO BY THE COMPANY OR ANY OF ITS AFFILIATES.
FOR THE
PURPOSES OF THIS AGREEMENT, INFORMATION SHALL NOT BE CONSIDERED CONFIDENTIAL TO
THE EXTENT THAT SUCH INFORMATION IS OR BECOMES, THROUGH NO FAULT OF CONSULTANT,
PART OF THE PUBLIC DOMAIN, OR SUCH INFORMATION IS LAWFULLY FURNISHED TO
CONSULTANT BY A THIRD PARTY WITHOUT RESTRICTION OR DISCLOSURE.
17.2.
"INVENTIONS" SHALL MEAN ANY AND ALL INVENTIONS,
CONCEPTS, IDEAS, DESIGNS, CIRCUITS, SCHEMATICS, FORMULAS, ALGORITHMS, TRADE
SECRETS, WORKS OF AUTHORSHIP, MASK WORKS, DEVELOPMENTAL OR EXPERIMENTAL WORK,
PROCESSES, TECHNIQUES, AND IMPROVEMENTS.
* * *
IN WITNESS WHEREOF, the