Copyright © 1998 The Open Group
Third-Party Participation and Non-Disclosure Agreement
THIS AGREEMENT BETWEEN:
- X/OPEN COMPANY LIMITED (trading as The Open Group) a company
incorporated in England whose Registered Office is at Apex Plaza,
Forbury Road, Reading RG1 1AX, Berkshire, England ("X/Open Company"),
any Affiliated Company, and
- a company incorporated in
and any Affiliated Company ("Interested Party").
IS MADE EFFECTIVE FROM:
- X/Open Company operates a Program (the Interoperability Program1)
to resolve issues concerning the interoperability of Registered
- The Interested Party has products that may impact or be impacted by
decisions taken relevant to Registered Products and their
- The parties wish to cooperatively work to resolve interoperability issues.
THE PARTIES THEREFORE AGREE as follows:
In this Agreement the following words shall have the following
meaning unless the context otherwise requires:
In relation to any company referred to in this Agreement,
Affiliated Company shall mean:
Its holding company, and
Any of its subsidiaries, and
Any subsidiary of its holding company.
The process by which an impartial third party makes an independent
investigation and suggests a solution to a dispute.
The recommended resolution to an interoperability issue, published by
X/Open Company, that results from the Conciliation or Mediation process
of the Interoperability Program.
Bringing about a peaceful settlement or compromise between parties to a
dispute through the benevolent intervention of an impartial third
The company requesting invocation of the Interoperability Program to
resolve an interoperability issue.
Each product which has been notified to X/Open Company using a product
registration form, that is currently entered in the Register, which
meets the Standards of Quality, and is specified alongside the name of
the Licensee in the Register from time to time.
The document(s) that detail the application programming interfaces,
protocols, services, and so on, that must be adhered to by a Registered
A TMLA2 Licensee which has registered a particular Registered
Product, and the Product Standard for such Registered Product requires
participation in the Interoperability Program.
Participation in the Interoperability Program
The Interoperability Program applies to Vendors with Registered
Products. Where a product owned or licensed by the Interested Party is
determined to be materially affecting, or is affected by, the
interoperability of Registered Products and the specific issue is
appropriate for Conciliation in the Interoperability Program, the
Interested Party agrees to participate in the Interoperability Program
by signature of this Agreement.
The Interested Party agrees to take part in the Conciliation and
Mediation processes, to become part of the specific issue resolution
process as specified in the Interoperability Program.
The Interested Party agrees to provide information reasonably required
to investigate the interoperability issue.
When Conciliation or Mediation on a recommended resolution for the
interoperability issue has been achieved, X/Open Company will publish
the determined solution, as an Interoperability Recommendation, to the
parties involved and (with identifying information removed) on the
X/Open Company web site.
If requested to do so, the Vendor or Interested Party shall propose to
the Requester and X/Open Company, within 30 days of the publication of
the Interoperability Recommendation, their intended resolution.
X/Open Company will forward the Interoperability Recommendation to the
appropriate specification owner or maintainer for consideration in
formal ratification processes. X/Open Company will also maintain a
public database of Interoperability Recommendations (with identifying
information removed) containing the relevant information.
Since an Interoperability Recommendation potentially has an impact on
all products registered to the applicable Product Standard, a bulletin
will be published to all Vendors and the Interested Party who have
products registered to that Product Standard notifying them of the
issue and the Interoperability Recommendation.
Both parties shall, except where a provision of this Agreement provides
otherwise, maintain in confidence all information disclosed to the
other party under or in relation to this Agreement by the other party,
which is in writing marked "confidential" or if oral or visual is
identified as confidential at the time of disclosure and reduced to
writing marked "confidential" and sent to X/Open Company within 30
days thereafter, and shall not use any such information except for the
purposes of this Agreement. The obligations of either party under this
sub-clause shall be limited to taking such steps as it ordinarily takes
to preserve as confidential its own confidential information of a like
kind and nature provided that the standard of care is at least
The obligations of non-disclosure and non-use set out in Sub-clause 3.1
above shall not apply to any item of information which:
Is in the public domain at any time (but without prejudice to any
party's rights of action against another party who wrongfully causes or
permits such information to be in the public domain), or
Was rightfully in a party's possession without obligation of confidence
prior to its disclosure pursuant to this Agreement, or is subsequently
independently developed by that party by employees having no access to
the information disclosed hereunder, or
Is subsequently rightfully obtained without obligation of confidence by
a party from a source other than the other party as evidenced by
written records, or
Is required to be disclosed by order of any court of competent
PROVIDED that no right or interest under any license, patent,
copyright, trademark, or otherwise shall be acquired by the recipient of
any information by virtue of the application of this sub-clause.
The obligations of non-disclosure and non-use set out in Sub-clause 3.1
above shall not apply to Residual Information, where Residual
Information shall mean that Confidential Information in non-tangible
form, including ideas, concepts, techniques, and know-how contained
therein, which may be retained in the minds of those employees who have
had rightful access to the Confidential Information.
X/Open Company may disclose the Interested Party's confidential
information to those of its employees and/or contractors who reasonably
require to have access to such information. However, X/Open Company
may not disclose the Interested Party's confidential information to any
employee of a member company in X/Open Company, unless another
exception to the obligations under this sub-clause applies. For the
avoidance of doubt, X/Open Company may disclose the Interested Party's
confidential information to employees of the Interested Party.
X/Open Company may disclose confidential information, to the extent
necessary to operate the Interoperability Program, to other Vendors
involved in that instance of the process who are bound by an obligation
of confidentiality in substantially the same form as this one.
For the avoidance of doubt, email and facsimiles related to the
interoperability issue are agreed to be treated as any other writing
under this Agreement.
Return and Destruction of Confidential Information
Except as necessary to carry out the purposes of this Agreement,
neither party shall make additional copies of the confidential
information without the express written consent of the other party.
The Interested Party agrees that it will return or destroy all documents
and tangible media in its possession which contain any part of the
confidential information disclosed to the Interested Party by X/Open
Company under this Agreement within ten (10) days after written request
at any time by X/Open Company. X/Open Company agrees, that after the
conclusion of any request for Conciliation or Mediation, to return or
destroy all of the Interested Party's confidential information relating
to the request that is in its possession, within ten (10) days of
written request by the Interested Party and at the Interested Party's
Limitation of Use
Both parties agree to use such confidential information only in
connection with the furtherance of the resolution of the
interoperability issue, and neither party shall make further use, in
whole or in part, of any such confidential information.
No rights or obligations other than those expressly recited herein are
implied by this Agreement. In particular, no license is hereby granted
directly or indirectly to either party under any patent, copyright,
trade secret, or any other intellectual property right now held by, or
which may be obtained by, or which is or may be licensable by either
party. Further, with respect to any information regarding plans for
future offerings, or any other plans of either party pursuant to this
Agreement, both parties understand and agree that such plans are
subject to change without notice at any time and that neither party
shall have any obligation to execute such plans and should have no
liability as a result of any change to such plans.
X/Open Company will provide the Interested Party with all reasonable
information related to the unauthorized disclosure of confidential
information and will, at the Interested Party's request and expense,
assist the Interested Party in any action, claim, or proceedings brought
or threatened in respect of such disclosure.
The obligations of non-disclosure, and the limitations on use, set out
in Sub-clauses 3.1 and 5.1 above, for X/Open Company, its employees
and/or contractors, the Interested Party and its employees and/or
contractors under this Agreement shall expire five (5) years from the
date the last item of confidential information is divulged to the other
party, unless subject to Sub-clause 3.2 above or terminated earlier by
prior written agreement of the parties.
This Agreement may not be modified, changed, or discharged, in whole or
in part, except by prior written agreement of the parties.
This Agreement shall constitute the entire agreement and understanding
of the parties relating to the subject matter of this Agreement and
supersede all prior oral or written agreements, understandings, or
arrangements between them relating to such subject matter.
Neither party shall be entitled to rely on any agreement,
understanding, arrangement, or representation relating to the subject
matter of this Agreement which is not expressly contained in this
The invalidity or unenforceability of any provision of this Agreement
shall not effect the validity or enforceability of the remaining
provisions of the Agreement.
No delay or omission by either party in exercising any right under this
Agreement will operate as a waiver of that or any other right. A waiver
or consent given by either party on any one occasion is effective only
in that instance and will not be construed as a bar to or waiver of any
right on any other occasion.
This Agreement is governed by and will be construed under and in
accordance with the substantive laws of England and Wales.
Nothing in this Agreement affects the application of any other
agreement between the Parties.
IN WITNESS WHEREOF, each of the parties to this Agreement has caused
this Agreement to be signed in its name and on its behalf by its duly
|X/OPEN COMPANY LIMITED
- Open Group Brand Program Documentation, September 1998,
(ISBN: 1-85912-285-X, X983).
- Open Group Brand Program Documentation, January 1998,
The Open Brand Trademark License Agreement,
(ISBN: 1-85912-275-2, X982).
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