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Interoperability Program
Copyright © 1998 The Open Group

Third-Party Participation and Non-Disclosure Agreement

THIS AGREEMENT BETWEEN:

(1)
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

(2)
a company incorporated in of and any Affiliated Company ("Interested Party").

IS MADE EFFECTIVE FROM:

WHEREAS:

(A)
X/Open Company operates a Program (the Interoperability Program1) to resolve issues concerning the interoperability of Registered Products.

(B)
The Interested Party has products that may impact or be impacted by decisions taken relevant to Registered Products and their interoperability.

(C)
The parties wish to cooperatively work to resolve interoperability issues.

THE PARTIES THEREFORE AGREE as follows:

1.
Definitions

In this Agreement the following words shall have the following meaning unless the context otherwise requires:

Affiliated Company

In relation to any company referred to in this Agreement, Affiliated Company shall mean:

  1. Its holding company, and

  2. Any of its subsidiaries, and

  3. Any subsidiary of its holding company.

Conciliation

The process by which an impartial third party makes an independent investigation and suggests a solution to a dispute.

Interoperability Recommendation

The recommended resolution to an interoperability issue, published by X/Open Company, that results from the Conciliation or Mediation process of the Interoperability Program.

Mediation

Bringing about a peaceful settlement or compromise between parties to a dispute through the benevolent intervention of an impartial third party.

Requester

The company requesting invocation of the Interoperability Program to resolve an interoperability issue.

Registered Product

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.

Specification

The document(s) that detail the application programming interfaces, protocols, services, and so on, that must be adhered to by a Registered Product.

Vendor

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.

  • Confidentiality

  • 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 reasonable care.

  • 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:

    1. 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

    2. 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

    3. 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

    4. Is required to be disclosed by order of any court of competent jurisdiction

    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 expense.

  • 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.

  • Disclaimer

  • 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.

  • Miscellaneous

  • 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 Agreement.

  • 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 authorized representative.

    X/OPEN COMPANY LIMITED INTERESTED PARTY
           
    By: By:
           
    Name: Name:
           
    Title: Title:

    Footnotes

    1.
    Open Group Brand Program Documentation, September 1998, Interoperability Program (ISBN: 1-85912-285-X, X983).

    2.
    Open Group Brand Program Documentation, January 1998, The Open Brand Trademark License Agreement,
    (ISBN: 1-85912-275-2, X982).

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