1
MUTUAL NONDISCLOSURE AGREEMENT
This letter will set forth our understanding regarding the restrictions that are
to be placed on the use, dissemination and disclosure of certain proprietary
information to be exchanged between SCS/Compute, Inc., a Delaware corporation
(hereafter referred to as "SCS"), on the one hand, and Research Institute of
America Inc., a Delaware corporation (hereinafter referred to as "RIA") on the
other. This information may include, but will not necessarily be limited to,
each of our companies' respective proprietary information regarding each's
current products and services.
1. Each of us agrees to maintain in confidence all such
information as may be disclosed by either of us to the other which is clearly
labeled or identified as confidential or proprietary when furnished. It is
expressly understood that the information includes without limitation any
information, process, technique, algorithm, program, design, drawing, formula,
formulation, test or other data relating to servicing, financing, or personnel
matter relating to the disclosing party, its present or future products, sales,
suppliers, clients, customers, employees, consultants, investors or business,
whether in oral, written, graphic, or electronic form.
2. Except in accordance with the terms of this letter, neither of
us may use or disclose any information disclosed to it by the other without the
written permission of the disclosing party. The information may be disclosed to
employees within the organization or agents or consultants of the receiving
party who are involved in the evaluation of such products, designs or systems,
but it will not be disseminated to any others without such written consent. In
addition, each of us shall exercise due diligence to maintain all such
information in confidence; "due diligence" here shall mean at least the same
precautions and standard of care which a reasonable person in our business
would use to safeguard his own proprietary information.
3. The commitments made in this letter shall remain in effect for
five years following the date of this letter. Our agreement is made on the
understanding, however, that there is no obligation imposed by this letter
regarding information that (a) now or later becomes generally known or available
through no act or omission on the part of the receiving party; (b) is already
known to the receiving party at the time it was first disclosed to it under this
Agreement, (c) is furnished by the disclosing party to others with written
permission to disclose provided by the disclosing party; or (d) is received by
the receiving party from a third party under no obligation of confidence.
4. We each agree that neither party will attempt to reverse
compile any software programs provided to it by the other under this Agreement.
5. All information and any other materials (including, without
limitation, documents, models, databases, designs and lists) furnished by one
party to the other under this Agreement are and shall remain the property of
the disclosing party and shall be returned to it by the receiving party
promptly upon request, together with any copies of such material. The receiving
party agrees (a) to maintain appropriate records of all such copies and (b) to
reproduce on any copy (in whatever form) all copyright and other proprietary
notices in the same form as they appear on the materials provided to the
receiving party by the disclosing party.
6. Each party recognizes that the other (including certain of its
corporate affiliate(s)) may be engaged in the research, development,
2
production, marketing, licensing and/or sale of similar products to those being
considered under this Agreement. Such product may be competitive with those of
the other and may display the same or similar functionality. Nothing in this
Agreement shall be construed to prevent either party from engaging
independently in such activities, provided it does not utilize the information
of the other in order to do so.
7. Each party recognizes that any actual or threatened disclosure
of information in violation of this Agreement may cause the disclosing party
irreparable harm and that such party shall be entitled to injunctive relief or a
decree of specific performance upon a proper showing of such a violation,
without the necessity of demonstrating actual monetary damage.
8. For a period of one year from the date hereof, neither party nor
their subsidiaries or affiliates will directly or indirectly approach, solicit
or otherwise seek to induce or encourage any employee of the other party to
leave his or her employment with the other party.
9. This Agreement shall be binding upon each of our respective
officers, directors, employees, parent company and other corporate affiliates.
It may not be assigned by either party without the consent of the other. If any
term of this letter is held to be illegal or unenforceable, such holding shall
not affect the validity of the remaining provisions of this letter. This letter
contains the entire understanding of the parties regarding its subject matter,
and it supersedes all prior agreements or understandings between us on such
subject(s). This letter shall be construed in accordance with the laws of the
State of New York applicable to agreements made and fully performed therein. We
both acknowledge that it may not be modified except in writing duly signed by
both parties.
To indicate that the foregoing accurately sets forth our agreement, each of the
parties has signed this letter in the space provided below.
Research Institute of America Inc. SCS/Compute, Inc.
By /s/ David J. Shea By /s/ Charles G. Wilson
------------------------------- ---------------------------------
David J. Shea Charles G. Wilson
VP Business Development Executive Vice President Finance &
Administration
10/10/95 10/9/95
- ---------------------------------- -------------------------------------
Date Date