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EXHIBIT 10.21
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DEVELOPMENT INCENTIVE AGREEMENT
between
Synon, Inc.
Larkspur, California
and
International Business Machines Corporation
Purchase, New York
IBM
PR6539
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Development Incentive Agreement
This is a development incentive loan agreement (hereinafter referred to as
"Agreement") made on September 27, 1990 by and between International Business
Machines Corporation, a corporation organized and existing under the laws of
New York, having a place of business at 2000 Purchase Street, Purchase, New
York 10577 (hereinafter referred to as "IBM") and Synon, Inc., a corporation
organized and existing under the laws of Illinois, having a place of business
at 1100 Larkspur Landing Circle, Larkspur, California 94939 (hereinafter
referred to as "Synon").
WHEREAS, IBM desires to encourage Synon to develop and make generally available
to the marketplace, an AS/400 application generator capable of exporting the
external source format representation of IBM's Systems Application Architecture
(SAA) Application Generator Common Programming Interface (CPI), as a strategic
software tool that fits into IBM's AD/Cycle for mid range computers; AND
WHEREAS, to this extent, IBM is willing to loan funds to Synon: AND
WHEREAS, Synon is desirous of developing said software tool;
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
contained herein, IBM and Synon agree as follows:
1.0 DEFINITIONS
1. "AUTHORIZED SIGNING OFFICER" shall mean a person authorized to bind
his or her company by signing this Agreement and any amendment
thereto.
2. "CUSTOMER" shall mean any person, corporation or other entity to which
IBM, Synon or their respective licensees, license or sell products
primarily for such entity's end use. Customers shall not mean other
IBM locations or IBM Subsidiaries, nor shall it include other Synon
locations or Synon Affiliates.
3. "DERIVATIVE WORKS" shall mean a work which is based upon the New
Product, such as a revision, enhancement, modification, translation,
abridgement, condensation, expansion, or any other form in which such
preexisting works may be recast, transformed, or adapted, and which,
if prepared without authorization by the owner of the copyright in
such Preexisting Works, would constitute a copyright infringement.
For purposes hereof, Derivative Works shall also include any
compilation that incorporates such a Preexisting Work.
4. "ENHANCEMENTS" shall mean changes, additions, or modifications to the
New Product and Related Documentation that:
a. correct Errors;
b. support new releases of operating systems with which the New
Product is designed to operate;
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c. provide support for new input/output devices;
d. provide other incidental updates to the New Product and
Related Documentation; or
e. improve functions, add new functions, or improve performance
by changes in system design or coding. Enhancements further
include, in the alternative, additions to the New Product and
Related Documentation that:
1) provide substantial additional value and utility;
2) as a practical matter, may be priced and offered
separately as optional additions to the New Product
and Related Documentation and which;
3) are not made available to Synon's Customers generally
without separate charge.
5. "ERRORS" shall mean any error, problem, or defect resulting from:
a. an incorrect functioning of the New Product; or
b. an incorrect or incomplete statement or diagram in the New
Product or Related Documentation, if such error, problem, or
defect renders the New Product inoperable, causes the New
Product to fail to meet the specifications thereof, causes the
Related Documentation to be inaccurate or incomplete in any
material respect, causes incorrect results, or causes
incorrect functions to occur.
6. "IBM or SYNON CONFIDENTIAL INFORMATION" shall mean all information
identified as "IBM confidential" or "Synon Confidential" at the time
of disclosure by IBM or Synon which relates to the parties' past,
present or future research, development or business activities.
7. "NEW PRODUCT" shall mean a new software product, developed by Synon as
a result of this Agreement, to be known as "Cross System
Product/External Source Format Synon/2E Generation" which is more
fully defined in Appendix A.
8. "OBJECT CODE" shall mean computer programming code in binary machine
readable form.
9. "RELATED DOCUMENTATION" shall mean end-user manuals and other written
end-user materials that relate to the New Product.
10. "SOURCE CODE" shall mean computer programming code written in source
language, comprising the New Product, in which Synon owns, or if Synon
does not own, has a license to intellectual property rights, all to
the extent that Synon has the right to provide such subject matter to
IBM and subject to any licenses Synon has from third parties with
respect to such subject matter. Subject to the foregoing, Source
Code includes: related programmer's notes, comments and procedural
code such as control language and design documentation necessary to
use and understand such Source Code.
11. "SUBSIDIARY" as to IBM, shall mean a corporation, company or other
entity:
a. more than fifty percent (50%) of whose outstanding shares or
securities (representing the right to vote for the election of
directors or other managing authority) are; or
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b. which does not have outstanding shares or securities, as may
be the case in partnership, joint venture or unincorporated
association, but more than fifty percent (50%) of whose
ownership interest (representing the right to make decisions
for such corporation, company or other entity) is:
now or hereafter, owned or controlled directly or indirectly, by
International Business Machines Corporation, but such corporation,
company or other entity shall be deemed to be a Subsidiary only so
long as such ownership or control exists.
12. "SYNON AFFILIATES" shall mean any direct or in direct subsidiary or
parent corporation of Synon and any direct or indirect subsidiary of a
direct or indirect parent of Synon.
2.0 SCOPE OF WORK
Synon shall use diligent efforts to develop, and make generally
available to the marketplace, the New Product and Related
Documentation in accordance with the Development Plan and Project
Schedule set forth in Appendix A.
Synon shall also use diligent efforts to prepare and furnish IBM with
documentation defined as "Deliverables" in Appendix A on the dates
specified therein.
3.0 PAYMENT OF LOANED FUNDS
In consideration of Synon's dedication of resources to the work to be
performed under this Agreement, IBM shall lend certain funds to Synon
in accordance with the terms and conditions set forth in Appendix B.
Such funds shall be applied exclusively to the work to be performed
under this Agreement.
4.0 REPAYMENT OF LOANED FUNDS
Synon shall repay to IBM all funds lent to Synon under this Agreement
in accordance with the repayment schedule set forth in Appendix C, plus
interest. Simple interest shall start to accrue on January 1, 1994 and
shall be compounded monthly at ____% (the prime reference rate plus 2
(two) percentage points, as announced by Chemical Bank, New York, NY on
the date this amendment has been signed by both parties.) Repayment
shall be due regardless of the fact that Synon may or may not realize
revenues from the sale of the New Product.
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5.0 SOURCE CODE DEPOSIT
Agreement Number C92172, Source Code Transfer and Custody Agreement
between IBM and Synon, is hereby incorporated by reference into this
Agreement and made a part hereof as Appendix D, Source Code Escrow.
6.0 MANAGING COORDINATORS
1. IBM and Synon shall each designate a Managing Coordinator and an
Alternative Managing Coordinator for this Agreement. Each Managing
Coordinator shall be authorized to:
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a. represent the respective parties in all matters relating to
this Agreement.
b. perform periodic performance reviews, and monitor schedules
and progress of the work to be performed hereunder.
c. submit and accept Deliverable Items required to be furnished
under this Agreement.
d. schedule and coordinate meetings and consultations between the
parties and visits by its employees to the place of business
of the other party as may be deemed necessary for the
successful accomplishment of work under this Agreement.
e. supervise the exchange of information including confidential
and/or proprietary information.
2. Within 15 days of the effective date of this Agreement each party
shall advise the other in writing of the names of these designees. A
party may change its Managing Coordinator upon 15 days written notice
to the other party.
7.0 INFORMATION EXCHANGE
1. General
It is the intention of IBM and Synon to exchange information from time
to time as may be essential for the accomplishment of the work to be
performed under this Agreement.
2. Disclosure and handling of IBM and Synon Confidential Information
The disclosure and handling of IBM and Synon Confidential Information
shall be in accordance with the terms and conditions set forth in the
Bilateral Confidential Disclosure Agreement, dated February 26, 1990
between Synon Limited and IBM and bearing CDA Number CA-B01- 90-RJL
(the "CDA"). The terms and provisions of the CDA are incorporated by
reference as if Synon, Inc., and IBM were the parties thereto, subject
to the following conditions:
a. The Managing Coordinators named pursuant to Section 6.0 of
this Agreement or their designees shall be the Technical
Coordinators for the purposes of the CDA as it applies to this
Agreement.
b. The CDA as it applies to this Agreement shall not expire and
may not be terminated by either Synon Limited or IBM until
completion of development of the New Product or termination of
this Agreement.
c. The five year limitation on duties with respect to
Confidential Information provided in the CDA shall not apply
to Source Code.
3. Source Code Protection:
IBM shall treat the Source Code provided under Section 5.0 with at
least the same degree of care as IBM uses for its own confidential
source code, and shall maintain a written record of all IBM employees
accessing such Source Code. In no event shall IBM provide any Source
Code to a third party without Synon's written consent. Such consent
shall not be unreasonably withheld.
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Upon Synon's written request, IBM shall notify Synon of all IBM
employees who have accessed the Source Code. Synon retains all of its
right, title and interest in the Source Code, except as expressly
provided herein.
8.0 RIGHTS IN DATA
The New Product and Related Documentation developed pursuant to this
Agreement shall be owned by Synon and IBM agrees to execute and
deliver such additional documents as may be reasonable required to
confirm ownership by Synon of the New Product.
9.0 USE OF NEW PRODUCT AND RELATED DOCUMENTATION
No license or right is granted hereunder to IBM whether expressly or
by implication, estoppel, or otherwise, to use, execute, reproduce,
display, perform, distribute internally or externally, sell or license
copies of or prepare Derivative Works based upon, the New Product
received hereunder, except that IBM is licensed to use, execute,
reproduce, display, perform, and distribute internally the Object Code
and Related Documentation for the New Product, including prerelease
and prototype software received hereunder solely for the purpose of
evaluating the New Product. Such license shall include the right of
IBM to sublicense its Subsidiaries to do any, some, or all of the
foregoing for the same purpose. Upon termination or expiration of
this Agreement, at Synon's request, IBM shall provide written
certification that the New Product received by IBM from Synon for
evaluation purposes together with all backup copies made thereof have
been destroyed, except that one copy of the New Product may be
retained by IBM for archival purposes.
10.0 WARRANTIES
1. Synon represents and warrants that it has the right to grant the
rights and licenses granted in this Agreement, and that it is under no
obligation or restriction, nor shall it assume any obligation or
restrictions, which would conflict with Synon's obligations under this
Agreement.
2. Synon further represents and warrants that to the best of its
knowledge at the time it furnishes the New Product and Related
Documentation to IBM, Synon shall either have full and complete right,
title, and interest, or full and complete right to grant the licenses
provided herein for the New Product and Related Documentation. Synon
further represents and warrants that neither the New Product or
Related Documentation, nor the worldwide use or distribution of
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the New Product or Related Documentation, shall infringe any trade
secret, copyright, patent or other intellectual property right, or
privacy or similar right, of a third party. If requested by IBM,
Synon shall defend IBM and its Subsidiaries against any claim that
IBM's exercise of its rights and licenses granted in the Section,
entitled "Use of New Product and Related Documentation" infringes a
third party's trade secret, copyright, patent, or other intellectual
property right or privacy right, provided that IBM promptly notifies
Synon in writing of the claim, and provides Synon with the sole
control of the defense and settlement thereof.
3. If the New Product or Related Documentation, or any part thereof, are,
or in the opinion of Synon may become, the subject of any claim, suite
or proceeding for such an infringement, then Synon may, at its option
and expense:
a. replace the New Product and Related Documentation, or part
thereof, with another non-infringing New Product and Related
Documentation or parts that are substantially equivalent in
functionality and performance; or
b. similarly modify the New Product and Related Documentation, or
part thereof to render them non-infringing; or
c. obtain a valid license under reasonable terms and cost for IBM
to use the New Product and Related Documentation; or
d. failing a. b. or c. above, terminate this Agreement and
promptly repay to IBM all funds lent to Synon under this
Agreement.
Notwithstanding the foregoing, Synon assumes no liability for (i) any
infringement claims with respect to any product in or with which the
New Product and Related Documentation may be used but not covering the
New Product and Related Documentation standing alone; (ii) any
trademark infringements involving any marking or branding applied at
the request of IBM; or (iii) the modification of the New Product and
Related Documentation, or any part thereof, unless such modification
was made by Synon.
THIS SECTION 10.0 STATES THE ENTIRE LIABILITY AND OBLIGATION OF SYNON
AND THE EXCLUSIVE REMEDY OF IBM, WITH RESPECT TO ANY ALLEGED
INFRINGEMENT OF PATENTS, COPYRIGHTS. TRADEMARKS OR OTHER INTELLECTUAL
PROPERTY RIGHTS BY THE NEW PRODUCTS OR ANY PART THEREOF, AND WITH
RESPECT TO ANY BREACH OF THE WARRANTIES IN THIS SECTION 10.0.
4. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 10.0, SYNON MAKES NO
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE
NEW PRODUCTS OR ANY OTHER MATERIALS OR SERVICES PROVIDED HEREUNDER.
SYNON EXPRESSLY DISCLAIMS ANY WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE WARRANTY OF MERCHANTABILITY AND ALL OTHER STATUTORY
WARRANTIES.
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11.0 MAINTENANCE SUPPORT
Synon shall provide Customer maintenance support for the New Product and
Related Documentation at a level equivalent to the level of support Synon
provides for its current "Synon/2E" software product offering and its related
documentation.
For the purpose of this Section 11.0, maintenance support shall include
updating the New Product and Related Documentation to be compatible with future
releases of IBM products on which the New Product depends on or with which it
interfaces.
If Synon materially breaches its obligations to provide maintenance support to
its Customers for the New Product and Related Documentation, IBM will have the
right to use the Source Code held in deposit at a single central technical
support location, solely for the purpose of providing maintenance support to
such Customers.
Synon's failure to correct all or any particular Errors or to enhance the New
Product and Related Documentation shall not constitute a breach.
12.0 IBM'S RIGHT TO SELL NEW PRODUCT
IBM reserves the right to nominate the New Product and Related Documentation
for which development is completed under this Agreement as a candidate for sale
by IBM through its Cooperative Software Supplier Program (CSSP) marketing
channel. If IBM exercises this right, the parties agree to negotiate in good
faith at that time to enter into an IBM CSSP agreement".
IBM may exercise its right under this Section 12.0 with respect to the New
Product and Related Documentation by giving written notice to Synon of its
intention and entering into a mutually acceptable IBM CSSP agreement concerning
the New Product and Related Documentation within 6 months after the date such
New Product and Related Documentation are made generally available for sale by
Synon.
13.0 AGREEMENT WITH SYNON EMPLOYEES
Synon agrees that it shall have and maintain for so long as this Agreement is
in effect, written agreements with all of its employees, subcontractors or
agents engaged by Synon to assist with or contribute to Synon's duties,
obligations or performance under this Agreement. Such written agreements shall
contain provisions sufficient to establish the rights and benefits contemplated
by, and to assure compliance with the Sections, entitled "Information Exchange"
and "Rights In Data".
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14.0 TERM AND TERMINATION
1. Stated Term
The effective date of this Agreement is the date Synon and IBM
Authorized Signing Officers sign this Agreement and shall expire upon
Synon's complete repayment to IBM of all funds lent to Synon under
this Agreement.
2. Termination without Cause
Either party may, at its sole option and discretion, terminate this
Agreement, in whole or in part, with or without reason by giving the
other party 30 days prior written notice.
If this Agreement is terminated by IBM for convenience, IBM shall
continue to loan those funds which would have been loaned to Synon had
this Agreement not been terminated for 3 months following the date of
termination. The balance of loaned funds outstanding at the end of
this 3 month period shall be repaid on a prorated basis in accordance
with the original repayment schedule, without interest.
If this Agreement is terminated by Synon for convenience, IBM's
obligation to continue loaning funds shall terminate on the date such
notice is given, and the balance of loaned funds outstanding on the
date of such termination shall be repaid within 12 months following
the date of such termination, with interest from the date of
termination.
3. Termination for Cause:
This Agreement may be terminated by either party in the event of a
material breach by the other party of its obligations hereunder and
after written notice to the other party has been given which
specifically identifies the breach for which termination is
threatened. If the breaching party does not (i) reach agreement with
the non-breaching party within 30 days of such notice on a plan to
cure such breach, or (ii) present a plan to the non-breaching party
within 30 days of such notice that provides for a cure within 90 days
of the notice of breach, and actually cures the breach within such 90
day period, then in either case the non-breaching party may terminate
this Agreement effective upon a further written notice of termination
given to the breaching party. Termination shall not occur if the
above conditions are met.
If this Agreement is terminated by IBM due to a material breach by
Synon, the balance of loaned funds outstanding at the date of
termination shall be repaid with interest from the date of termination
within 12 months after the date of termination.
If this Agreement is terminated by Synon due to a material breach by
IBM, IBM shall continue to loan those funds that would have been
loaned to Synon, had this Agreement not been terminated for 3 months
following the date of termination. The balance of loaned funds
outstanding at the end of this 3 month period shall be repaid on a
prorated basis in accordance with the original repayment schedule,
without interest.
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4. Survival
In the event of any termination or expiration of this Agreement, the
following listed Sections shall survive and continue to have affect
and shall inure to the benefit of and be binding upon the parties and
their legal representatives, heirs, successors and assigns:
a. Source Code Deposit; (if the deposit is made prior to
termination or expiration)
b. Rights in Data;
c. Information Exchange;
d. Warranties; (if the New Product is completed prior to
expiration or termination)
e. Term and Termination;
f. Trademark and Trade Names Usage; and
g. General.
5. Limited Effect
In addition, in the event of termination or expiration of this
Agreement, both parties shall have all rights which they would have
had if they had never entered into this Agreement and which the public
has at the time of such termination.
15.0 FREEDOM OF ACTION/OTHER VENDORS
This Agreement shall not prevent either party from entering into
similar agreements with other parties or from independently developing
or acquiring materials, products, or services irrespective of their
functional similarity to materials, products, or services which may
result from this Agreement.
16.0 TRADEMARK AND TRADE NAMES USAGE
Nothing in this Agreement confers upon either party any right to use
the other party's name, trademark(s) or trade name(s) or similar
matters in connection with any product, service, promotion, or
publication, except that Synon may represent that the New Product
developed under this Agreement is strategic to IBM and is System
Application Architecture compliant and fits in AD Cycle for IBM's mid
range computers, if such is the case, and if Synon's reference to IBM
is not misleading.
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17.0 GENERAL
1. Limitation of Liability:
TERMINATION OF THIS AGREEMENT UNDER SUBSECTION 3 OF SECTION 14.0 SHALL
BE THE EXCLUSIVE REMEDY OF EITHER PARTY UPON A BREACH OF ANY
OBLIGATION, REPRESENTATION OR WARRANTY HEREUNDER BY THE OTHER PARTY,
OTHER THAN SECTION 7.0 WHICH MAY BE SPECIALLY ENFORCED AND SUBSECTION
2 OF SECTION 10.0. NEITHER PARTY SHALL BE LIABLE FOR ANY LOST PROFITS
OR OTHER CONSEQUENTIAL, DAMAGES UNDER ANY PART OF THIS AGREEMENT EVEN
IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. Entire Agreement:
This Agreement including Appendix "A" "B" and "C" attached hereto,
shall constitute the entire agreement between the parties and
supersedes all prior agreements, oral or written, and all other
communications relating to the subject matter of this Agreement. Any
terms and conditions contained in invoices, acknowledgments, shipping
instructions, or other forms that are inconsistent with or different
from the terms and conditions of this Agreement shall be void and of
no effect.
3. Governing Law:
The validity, construction, and performance of this Agreement shall be
governed by the substantive law of the State of New York.
4. Severability:
If any provision of this Agreement is held by a court of competent
jurisdiction to be contrary to law, the remaining provisions of this
Agreement shall remain in full force and effect.
5. Notices:
Any notice required or permitted to be made or given by either party
hereto pursuant to this Agreement such as but not necessarily limited
to "termination" or "assignment of this Agreement" shall be
sufficiently made or given on the date of issuance if sent by such
party to the other party by mail, telecopy, commercial courier,
personal delivery, or a similar reliable delivery method, addressed as
set forth below or to such other address as a party shall designate by
written notice given to the other party:
a.In the case of IBM's Managing Coordinator:
IBM Canada Ltd.
895 Don Mills Road.
North York, ON
Canada M3C 1W3
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With a carbon copy in the case of a. above to:
International Business Machines Corporation
Programming Systems Division
2000 Purchase Street
Purchase, NY 10577
Attention: Mr. S. Mills, Director of Planning and Operations
b. In the case of Synon's managing Coordinator
Synon, Inc.
1100 Larkspur Landing Circle
Larkspur, CA 94939
With a carbon copy in the case of b. above to:
Synon, Inc.
1100 Larkspur Landing Circle
Larkspur, CA 94939
Attention: Mr. C. Herron, President
c. All deliveries from Synon to IBM shall be addressed as
follows:
IBM Corporation
Bldg 671,
11000 Regency Pkwy.
Gary, NJ 27511
Attention: Roger Vollrath
d. All deliveries from IBM to Synon shall be addressed as
follows:
Synon, Inc.
1100 Larkspur Landing Circle
Larkspur, CA 94939
Attention: Madeline Selig
e. Source Code deliveries for escrow by IBM's designated counsel
shall be delivered as follows:
IBM Canada Ltd.
1150 Eglinton Avenue East
North York, ON
Canada M3C 1V7
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f. All invoices from Synon to IBM shall be addressed as follows:
International Business Machines Corporation
150 Kettle Town Road
Southbury, CT
06488-4001
Attention: Mr. Nick Milton,
Manager Vendor Accounting Cross Support Function
With a carbon copy in the case of f. above to:
IBM Canada Ltd. Laboratory
Dept. 81-838
895 Don Mills Road,
North York, Ontario
Canada M3C 1W3
Attention: Application Enabling Products, Financial Analyst.
g. All repayment checks from Synon to IBM shall be addressed as
follows:
International Business Machines Corporation
2000 Purchase Street
Purchase, NY 10577
Attention: Mr. S. Mills, PRGS Director of Planning and
Operations
6. Amendment/Waiver:
No waiver of any provision of this Agreement shall be effective unless
it is set forth in a writing which refers to the provisions so waived
and the instrument in which such provision is contained and is
executed by an Authorized Signing Officer of the party waiving its
rights. No failure or delay by either party in exercising any right,
power or remedy shall operate as a waiver of any such right, power or
remedy.
7. Independent Software Vendor:
a. Synon is and shall remain a software vendor independent of IBM
with respect to all performance rendered pursuant to this
Agreement. Neither Synon nor any employee of Synon shall be
considered an employee or agent of IBM for any purpose. Synon
and its employees shall have no authority to bind or make
commitments on behalf of IBM for any purpose and shall not
hold itself or themselves out as having such authority.
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b. As between IBM and Synon, Synon assumes full responsibility
for its actions and the actions of its employees in rendering
performance pursuant to the Agreement, and Synon shall have
sole responsibility for the supervision, daily direction and
control, payment of salaries including withholding of income
taxes and social security, worker's compensation, disability
benefits and the like of its employees. As between IBM and
Synon, Synon also assumes full responsibility for the acts of
all its subcontractors.
8. Taxes:
Each party shall assume its own responsibility for the payment of
taxes imposed by all government entities, as they pertain to the
duties, obligations and performance undertaken by them under this
Agreement. Each party shall pay sales taxes on items purchased by
such party under this Agreement.
9. Force Majeure:
Neither party shall be held liable for failure to fulfill its
obligations under this Agreement, if such failure is caused by flood,
extreme weather, fire, or other natural calamity, acts of governmental
agency, or similar causes beyond the control of such party.
10. Advertising:
Both parties agree not to disclose by way of advertisement,
publication, or otherwise to any person other than their respective
employees who have a need to know for purposes of performing this
Agreement, the financial terms of this Agreement or of the
relationship between the parties hereto without the prior written
approval of the other party. However, either party may disclose the
existence, nature, substance and provisions of this Agreement on a
confidential need to know basis to its accountants, attorneys or
financial institutions, or (i) to the extent required by generally
accepted accounting standards in such party's financial statements,
(ii) to the extent required by law, or (iii) to investors in
connection with a proposed financing transaction.
11. Assignment:
Neither party shall sell, transfer, assign or subcontract any right or
obligation hereunder without the prior written consent of the other
party. Such consent shall not be unreasonably withheld. Consent
shall not be required where an entity requires via acquisition, merger
or otherwise, all or substantially all of the assets of a party and
such entity agrees in writing to be bound by the provisions of this
Agreement. Any attempted act in derogation of the foregoing shall be
null and void.
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12. Headings of Sections:
The headings of sections are inserted for convenience of reference
only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective Authorized Signing Officers.
ACCEPTED AND AGREED TO BY:
International Business Machines Synon, Inc.
Corporation
By /s/ Steven A. Mills /s/ Christopher Herron
--------------------------- ---------------------------------
Signature Signature
Steven A. Mills Christopher Herron
--------------------------- ---------------------------------
Name Name
PRGS Director of Planning
and Operations President
- ------------------------------ ---------------------------------
Title Title
Oct 17, 1990 Oct 5, 1990
- ------------------------------ ---------------------------------
Date Date
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Appendix A - Development Plan for New Product
ATTACHED
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CROSS SYSTEM PRODUCT/EXTERNAL SOURCE FORMAT
SYNON/2E GENERATION
DEVELOPMENT PLAN
I. BUSINESS REQUIREMENTS
The AD/Cycle partnership requires bi-directional support for Cross System
Product to support communications between AD/Cycle tools. Import of external
source format is handled through Synon's AD/Interface Product. Export of
external source format will be a separate generator option for Synon/2E.
This product will allow the developer to use Synon/2E design specifications to
generate external source format specifications. This generator will
're-export' imported ESF as functionally equivalent or identical ESF as
appropriate. The exported ESF will be transferred to other platforms for use
with Cross System Product or PS/2-based analysis and design tools.
II. FUNCTIONAL REQUIREMENTS
A. The generator must be able to generate ESF for any appropriate target
environment. The user must be able to specify the target environment.
B. The generator must map all Synon/2E elements to appropriate ESF
elements.
C. The import history stored when importing ESF to Synon/2E through
AD/Interface must be used during ESF export.
III. ANCILLARY REQUIREMENTS
A. Function options and definition of ESF export files and source members
must be included by Synon/2E Release 3.0.
B. Documentation of the ESF generator must be included in Synon/2E
product documentation.
C. An ESF export manual explaining the target environments and the
Synon/2E - ESF mapping must be developed.
D. A facility for transferring the exported ESF to the PS/2 must be
included with the ESF generator.
IV. DEVELOPMENT PHASES
The following outline contains each development phase, its tasks, and the
expected deliverables from this stage. Target completion dates will be
reviewed at the end of each phase and subsequent dates will be adjusted if
necessary. The Synon Development Manager and the IBM liaison will be
responsible for reviewing the schedules and determining the completion of
deliverables.
A. PLANNING
Tasks:
Define business requirements
Recruit and train personnel
Deliverables:
Business Requirements
Target Completion:
November 1, 1990
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B. FUNCTIONAL DESIGN
Tasks:
Map Synon/2E to ESF
Define target environments
Define impact to existing generator programs
Define Synon/2E enablement
Outline documentation requirements
Deliverables:
External Design Document
Documentation Outline
Completion Criteria:
External design reviews will be conducted. External design is
complete when there are no more than 10 low impact outstanding issues.
Target Completion:
February 1, 1990
C. INTERNAL DESIGN
Tasks:
Define program specifications
Development first draft documentation
Deliverables:
Internal Design Document
Documentation - Draft 1
Completion Criteria:
Internal design reviews will be conducted. Internal design is
complete when there are no more than 10 low impact outstanding issues.
Target Completion:
May 1, 1991
D. PROGRAM DEVELOPMENT
Tasks:
Develop program
Perform development testing
Define Q/A test plan
Define profile of beta sites
and locate candidates
Define beta test plan
Develop second draft documentation
Deliverables:
Documentation - Draft 2
Q/A test plan
Beta test plan
Alpha product
Completion Criteria:
Development test plan completed with no more than 40 outstanding
severity 3 errors. Product and source code are delivered to Quality
Assurance.
Target Completion:
September 1, 1991
20
E. QUALITY ASSURANCE
Tasks:
Perform Q/A testing
Sign up beta sites
Develop final documentation
Deliverables:
Beta product
Q/A results
Completion Criteria:
Product may not be released to beta with more than 40 outstanding
severity 3 errors. No severity 1 or 2 errors are permitted.
Target Completion:
October 1, 1991
F. BETA TEST
Tasks:
Ship product and final draft manuals to beta sites
Conduct weekly surveys of beta sites
Ship program fixes for reported errors to beta sites.
Make final changes to documentation
Deliverables:
Weekly beta reports
Documentation
Final product
Completion Criteria:
Product may not be released with more than 20 outstanding severity 3
errors. No severity 1 or 2 errors are permitted.
Target Completion:
December 1, 1991
G. PRODUCT RELEASE
Tasks:
Complete production procedures
Ship demonstration copies
Target Completion:
December 8, 1991
21
V. IBM ASSISTANCE & DEPENDENCIES
A. EXTERNAL DESIGN PHASE
During this phase, a detailed knowledge of CSP target environments will be
required. The assignment of a knowledgeable IBM employee to this phase would
ensure the proper mapping of Synon/2E elements of ESF. Estimated project time
is four months.
B. QUALITY ASSURANCE
Generated external source format will need to be tested in a number of
environments. Synon does not own or have access to the appropriate hardware
facilities. As well, a large number of test cases have already been designed
for ESF and CSP. Assistance will be required from IBM to assist Synon in the
design of test cases and in the actual testing. This assistance will need to
be in the form of both hardware facilities and personnel.
C. BETA TEST
Synon will need assistance in identifying and contracting with beta test sites.
22
Appendix B
Checkpoint Payment Criteria
IBM will review each deliverable identified in each of the following phases of
the development, verify the satisfactory completion of each development phase,
and IBM's Managing Coordinator shall advise Synon's Managing Coordinator of
IBM's acceptance decision within five (5) working days from the date the
deliverable was actually received by IBM:
1. Planning phase
Completion date: November 1, 1990
Deliverable:
Business Requirements Document
This document will include the functional
requirements for the export of Synon application
definitions in external source format, hereafter
referred to as "the product". It will specify a
level of support that includes, but is not limited
to, the SAA Application Generator CPI.
This document will include the quality requirements
for function, documentation, usability, performance,
reliability, and service. The goal will be
zero-defects with specification of the expected level
of attainment.
2. Functional Design Phase
Completion date: February 1, 1991
Deliverables:
External Design Document
This document will include the external design for
the product. The design will provide for the
functional requirements as specified in the Business
Requirements document. It will include the user
interface, input and output descriptions, error
recording, and error recovery designs.
Documentation Outline
This document will outline the functions and features
of the product. It will include the installation,
directions for use, and user interface.
3. Internal Design Phase
Completion date: May 1, 1991
Deliverables:
Internal Design Document
This document will include the detail designs for the
implementation of the function of the product. It
will include, but not be limited to, the
architecture, data areas definitions, and interface
definitions for the product.
Page 1
23
Development Test Plan
This document will include the test plans for
complete functional verification of the requirements
for the product. This will include meeting the
product design, verifying the user interface,
verifying correct and complete output, verifying the
user interface, verifying correct and complete
output, verify appropriate error handling,
performance, and adequate and usable documentation.
This documentation will provide the descriptions of
the product function, installation instructions,
descriptions of the user interface and its use, error
messages and error recovery procedures. The
documentation will be written to the appropriate user
level, be technically accurate and complete, be
consistent with grammatical standards, and have a
logical flow of information presentation for the
intended user.
4. Program Development Phase
Completion date: September 1, 1991
Deliverables:
Documentation Draft 2
The documentation will incorporate the corrections
and additions that result from the review of draft 1
with the air of completing the requirements as
specified for draft 1.
Development Test Report
The document will record the results of the execution
of the Development Test Plan. The results recorded
will show attainment of the quality level as
specified in the Business Requirements document.
Quality/Assurance Test plan
This document will provide the test plan to assure
the quality requirements for the product are
satisfied. The quality areas tested will include,
but not be limited to, documentation, usability,
reliability, and serviceability.
Beta Test plan
5. Quality Assurance Phase
Completion date: October 1, 1991
Deliverable:
Quality Assurance Test Report
The document will record the results of the execution
of the Quality Assurance Test Plan. The results
recorded will show attainment of the quality level as
specified in the Business Requirements document.
6. Beta Test Phase
Completion date: December 1, 1991
Deliverables:
Documentation Final
Page 2
24
The documentation will incorporate the corrections
and additions that result from the review of draft 2,
the development test, the Quality/Assurance test, and
Beta test.
Final Beta Test Report
The document will record the results of the execution
of the Beta Test Plan. The results recorded will
show attainment of the quality level as specified in
the Business Requirements document.
Loaned Funds Payment Schedule
Loan
Payment Number Amount Checkpoint Payment Criteria
-------------- ------ ---------------------------
1st $300,000.00 Execution of this Agreement by both parties.
2nd $300,000.00 Completion of the "Functional Design Phase" and
IBM's acceptance of the "External Design Document".
3rd $450,000.00 Completion of the "Internal Design Phase" and
IBM's acceptance of the "Internal Design Document".
4th $450,000.00 Completion of the "Program Development Phase" and the
commencement of the "Quality/Assurance Phase".
This payment schedule assumes that Synon will make the New Product and Related
Documentation generally available for sale to the marketplace no later than
December 31, 1991.
Invoicing and Terms of Payment
Upon receipt of IBM's acceptance decision, for which a loan payment is tied to,
Synon shall submit an invoice to IBM and IBM shall make payment to Synon on
terms net 30 days, from the date of actual receipt of the invoice by IBM.
Payment shall be deemed to be in the hands of Synon at time of mailing.
Each invoice shall reference this Agreement's number as well as list Mr. Sean
Welch and Mr. Steve Mills as the IBM approvers. A photo copy of each invoice
shall also be sent to the IBM Canada Laboratory.
Page 3
25
Appendix C
Loaned Funds Repayment Schedule
Synon shall repay the loaned funds to IBM in accordance with the following
repayment schedule:
Amount Due Date Amount Due Date
mm/dd/yy mm/dd/yy
1. $ 65,000.00 03/31/94 7. $130,000.00 09/30/95
2. $ 75,000.00 06/30/94 8. $140,000.00 12/31/95
3. $ 85,000.00 09/30/94 9. $150,000.00 03/31/96
4. $100,000.00 12/31/94 10. $165,000.00 06/30/96
5. $110,000.00 03/31/95 11. $175,000.00 09/30/96
6. $120,000.00 06/30/95 12. $185,000.00 12/31/96
Accrued interest, in accordance with Section 4.0 of this Agreement, must be
added to each of the above amounts at the time payment is made. Payment shall
be deemed to be received by IBM at the time of mailing.
Payment shall be deemed to be in the hands of IBM at time of mailing.
Page 1
26
CDA Number CA-B01-90-RJL
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CDA Date: February 26, 1990
BILATERAL CONFIDENTIAL DISCLOSURE AGREEMENT
BETWEEN
INTERNATIONAL BUSINESS MACHINES CORPORATION
AND
SYNON, LTD.
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CDA Number CA-B01-90-RJL
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CDA Date: February 26, 1990
Contents
1.0 Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.0 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3.0 Handling of Disclosures . . . . . . . . . . . . . . . . . . . . . . . 2
4.0 Term and Termination . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.0 Coordinators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6.0 General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . 5
7.0 Acceptance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ATTACHMENT A. ANNEX I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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CDA Number CA-B01-90-RJL
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CDA Date: February 26, 1990
1.0 RECITALS
1.1 International Business Machines Corporation (hereinafter called IBM)
with an address for the purpose of this Agreement at 11000 Regency Park, P.O.
Box 60000, Cary, NC 27512, USA, and Synon, Ltd. (hereinafter called Synon) with
an address for the purpose of this Agreement at 91 St. Pauls Road, London N1
2YU, England, UK, enter into this Agreement to permit Synon and IBM each to
disclose to the other, for a limited period of time, information, some of which
may be considered confidential, in order to develop enhancements to IBM's
application development products and Synon's application generator products for
the IBM AS/400 and IBM's workstation products for the mutual benefit of both
companies.
1.2 This Agreement sets forth the terms and conditions under which such
information, including that information considered to be confidential, will be
disclosed. This Agreement does not obligate either party to make any
disclosures.
1.3 Synon/IBM Confidential Disclosure Agreement CA-056-89-HPF dated April
10, 1989 shall continue to govern disclosures expressly made under that
Agreement.
1.4 IBM and Synon may enter into discussions regarding possible technology
licenses, development efforts, or other business relationships. Entering these
discussions does not obligate either party to sign additional Agreements.
Neither party will disclose the fact that these discussions are/will be taking
place unless approved in writing by the other party.
1.5 This Agreement shall limit the use of IBM Information to Synon's
application generator products that operate with the IBM AS/400 and to Synon's
products that operate with IBM's workstation products for the purpose of
supporting Synon's application generator products for the IBM AS/400. The use
of IBM Information regarding other platforms and/or related subjects shall not
occur without the written consent of IBM.
2.0 DEFINITIONS
1. "IBM Information" shall mean information related to Cross
System Product, AD Cycle Interfaces, OS/2, SAA Languages such as C and RPG, and
related materials.
2. "Synon Information" shall mean that information related to Synon's
Application Generator Products and relevant tools, interfaces, environments and
other related materials.
3. "Information" shall mean Synon or IBM Information, as the case may be.
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CDA Number CA-B01-90-RJL
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CDA Date: February 26, 1990
4. "Confidential Information" shall mean Information designated
as Confidential according to the terms of this Agreement, and which is owned by
either IBM or Synon as the case may be.
5. "Residuals" shall mean that Confidential Information retained
in non-tangible form in the minds of those employees of the receiving party who
have had access to the Confidential Information of the disclosing party during
the term of this Agreement.
6. For purposes of this Agreement the terms "receiving party" and
"disclosing party" shall be construed to mean not only IBM and Synon but also
their respective Subsidiaries, as that term is defined in this Agreement.
7. "Subsidiary" shall mean a corporation, company, or other entity:
a. more than fifty percent (50%) of whose outstanding shares or
securities (representing the right to vote for the election of
directors or other managing authority) are now or hereafter,
owned or controlled, directly or indirectly, by a party hereto,
but such corporation, company, or other entity shall be deemed to
be a Subsidiary only so long as such ownership or control exists;
or
b. which does not have outstanding shares or securities, as may be
the case in a partnership, joint venture or unincorporated
association, but more than fifty percent (50%) of whose ownership
interest representing the right to make the decisions for such
corporation, company or entity is;
now or hereafter, owned or controlled, directly or indirectly, by a
party hereto, but such corporation, company, or other entity shall
be deemed to be a Subsidiary only so long as such ownership or
control exists.
3.0 HANDLING OF DISCLOSURES
3.1 All disclosures of information by one party to the other party pursuant to
this Agreement shall be made by or under the supervision of a Technical
Coordinator of the disclosing party to a Technical Coordinator of the receiving
party or his designee. Such Technical Coordinators are designated in Section 5.
All disclosures of Information will be deemed to be nonconfidential unless
specifically designated at the time of disclosure (as provided in Section 3.2
below) as including the Confidential Information of Synon or IBM, as the case
may be. With respect to all such Information disclosed by one party to the other
party, except such Information as is so designated as the Confidential
Information of the disclosing party, and subject to any patents or statutory
copyrights existing in published materials at the time of the disclosure, the
disclosing party grants to the receiving party, to the extent, if any, of its
interest therein, a nonexclusive, royalty free, irrevocable, unrestricted, and
worldwide license to use, have used, disclose to others, make copies in the case
of documents, and dispose of, all without limitation, such nonconfidential
Information in any manner it
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CDA Number CA-B01-90-RJL
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CDA Date: February 26, 1990
determines, including the use of such nonconfidential Information in the
development, manufacture, marketing, and maintenance of products and services
incorporating such nonconfidential Information.
3.2 Prior to disclosing any Confidential Information, the disclosing party shall
provide the receiving party's Technical Coordinator with a nonconfidential
general description of the Confidential Information. The receiving party's
Technical Coordinator shall give his written agreement that the receiving party
understands the nature of the Confidential Information and will accept it or not
accept it. With respect to all Confidential Information, when such is disclosed
in writing and accepted, such writing will state the date of disclosure, that
the information contained therein is Confidential and that it is being disclosed
pursuant to this Agreement, and will contain the legend "IBM Confidential" or
"Synon Confidential" Information as the case may be. If such disclosure is
orally and/or visually made, the disclosure shall be clearly identified at the
time of disclosure as being Confidential and confirmed in a written resume
within twenty days following such disclosure. The resume will specifically
recite that information which is Confidential.
3.3 Subject to the provisions of Sections 3.4 and 3.5, for a period of five (5)
years from the date of disclosure, the receiving party agrees to use the same
care and discretion to avoid disclosure, publication, or dissemination outside
of the receiving party of received "Synon Confidential" Information or "IBM
Confidential" Information as the case may be, as the receiving party employs
with similar information of its own which it does not desire to publish,
disclose, or disseminate. Annex I attached hereto shall define minimum standards
of care.
3.3.1 During such period, the receiving party agrees to limit the dissemination
of the Confidential Information of the other party to those of its employees
having a need to know such Confidential Information. It is understood that
receipt of Confidential Information under this Agreement shall not create any
obligation in any way limiting or restricting the assignment and/or reassignment
of IBM employees within IBM and Synon employees within Synon.
3.3.2 The receiving party may not copy the other party's Confidential
Information. If additional copies are required by the receiving party, they will
be provided or authorized in writing by the disclosing party upon receipt of a
written request from the receiving party.
3.3.3 Within two months following the expiration or termination of this
Agreement as provided in Section 5, the receiving party will return to the
disclosing party, or destroy at the disclosing party's option, all writings and
resumes received from the disclosing party and copies thereof, containing such
Confidential Information (except for one copy thereof which shall be retained by
the receiving party for archival pur-
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CDA Number CA-B01-90-RJL
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CDA Date: February 26, 1990
poses). The receiving party will not be obligated to transfer to the
disclosing party any reports and/or other written documentation prepared by the
receiving party.
3.3.4 The receiving party shall be free to use the Residuals from any such
Confidential Information, the reports and written documentation referred to in
the preceding paragraph, and any ideas, concepts and/or techniques contained
therein for any purpose including the use of such Confidential Information in
the development, manufacture, marketing and maintenance of its products and
services, subject only to the obligation not to disclose, publish or disseminate
such Confidential Information during such foregoing specified period of
confidentiality and subject to statutory copyrights, if any.
3.3.5 Following the period of confidentiality, no obligation of any kind is
assumed by, or is to be implied against the receiving party, with respect to any
Confidential Information, and the receiving party shall be free, subject to any
statutory copyright, to disclose, publish and disseminate such Confidential
Information to others without limitation and shall have all the rights relative
to such Information as are set forth in Section 3.1 as if it had been
transferred as nonconfidential Information under such Section.
3.4 Disclosure of Confidential Information shall not be precluded if such
disclosure is:
1. in response to a valid order of a court or other governmental body of
the United States or any State or any political subdivision thereof;
provided, however, that the party responding to the order shall first
have given notice to the other party and made a reasonable effort to
obtain a protective order requiring that the Confidential Information
and/or documents so disclosed be used only for the purposes for which
the order was issued; or
2. otherwise required by law, or
3. necessary to establish rights under this Agreement.
3.5 Notwithstanding any other provisions of this Agreement, the obligations
specified in Section 3.3 above will not apply to any information that:
1. is already in the possession of the receiving party without obligation
of confidence;
2. is independently developed by the receiving party or any of its
Subsidiaries;
3. is or becomes publicly available without breach of this Agreement;
4. is rightfully received by the receiving party from a third party;
5. is released for disclosure by the disclosing party with its written
consent;
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CDA Number CA-B01-90-RJL
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CDA Date: February 26, 1990
6. is inherently disclosed in product(s) or normal supporting or user
documentation for product(s) of either party, or in the use, lease,
sale or other distribution of such product(s).
4.0 TERM AND TERMINATION
4.1 The term of this Agreement shall be from the date of this Agreement through
March 30, 1992. Either party may terminate this Agreement prior to that time
with or without cause upon ten days' written notice.
5.0 COORDINATORS
5.1 The Technical Coordinators for the parties are:
For IBM: Roger Vollrath
IBM Corporation
11000 Regency Park, P.O. Box 60000
Cary, NC 27512, USA
For Synon: To be designated by Synon
5.2 Each party may change its Technical Coordinator at any time and from time to
time during the term of this Agreement by notifying the Technical Coordinator
for the other party in writing at the designated address.
6.0 GENERAL PROVISIONS
6.1 IBM and Synon agree that they will not disclose the terms and conditions,
and subject matter of this Agreement without the written consent of the other,
or except as provided in Section 3.4.
6.2 No license or immunity is granted by this Agreement by either party to the
other, either directly or by implication, estoppel, or otherwise, under any
patents. None of the information which may be disclosed shall constitute any
representation, warranty, assurance or guarantee by either party to the other
with respect to the infringement of patents or other rights of others.
6.3 The rights and obligations of Sections 3.1, 3.3, 3.4, 3.5, 6.1, 6.3, 6.4,
and 6.5 of this Agreement shall survive and continue after any expiration or
termination of this Agreement and shall bind the parties and their legal
representatives, successors and assigns.
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CDA Number CA-B01-90-RJL
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CDA Date: February 26, 1990
6.4 Each party agrees to comply, and do all things necessary for the other party
to comply, with all applicable Federal, State and local laws, regulations and
ordinances, including but not limited to the Regulations of the United States
Department of Commerce relating to the Export of Technical Data, insofar as they
relate to the activities to be performed under this Agreement. Each party agrees
to obtain the required government documents and approvals prior to export of any
technical data disclosed to it or the direct product related thereto.
Furthermore, each party agrees not to ship, directly or indirectly, any
technical data provided by IBM nor the direct product of such data to any of the
following countries: Afghanistan, Albania, Bulgaria, Cambodia, Cuba,
Czechoslovakia, Estonia, German Democratic Republic (including East Berlin),
Hungary, Laos, Latvia, Libya, Lithuania, Mongolian People's Republic, North
Korea, People's Republic of China, Poland, Romania, Union of Soviet Socialist
Republics, and Vietnam. This list of countries is subject to change in
accordance with U. S. export control laws (15 United States Code of Federal
Regulations 379.4(f)(1)).
6.5 Nothing contained in this Agreement shall be construed as conferring any
rights to use in advertising, publicity or other marketing activities any name,
trade name, trademark, or other designation of either party hereto, including
any contraction, abbreviation, or simulation of any of the foregoing.
6.6 This Agreement shall be construed in accordance with the law of the State of
New York and of the United States of America. The courts of the United States of
America shall have exclusive jurisdiction over any dispute arising out of this
Agreement.
6.7 Any amendment or modification of this Agreement shall be in writing and
shall be signed by an authorized representative of each party.
7.0 ACCEPTANCE
If the above terms and conditions are acceptable to Synon, kindly have the
enclosed three copies of this Agreement signed on behalf of Synon by an
authorized person and return two copies to Software Acquisition, Department
T49/B671, IBM Corporation, P.O. Box 60000, Cary, North Carolina 27512, USA.
Please retain one copy for your records.
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34
CDA Number CA-B01-90-RJL
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CDA Date: February 26, 1990
ACCEPTED AND AGREED TO:
INTERNATIONAL BUSINESS SYNON, LTD.
MACHINES CORPORATION
BY: /S/ ALEX VASILOS BY: /S/ CHRIS HERRON
- --------------------------------- ---------------------------------
ALEX VASILOS CHRIS HERRON
- --------------------------------- ---------------------------------
PRINT NAME PRINT NAME
SOFTWARE ACQ. MGR. DIRECTOR
- --------------------------------- ---------------------------------
TITLE TITLE
3/16/90 3/20/90
- --------------------------------- ---------------------------------
DATE DATE
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CDA Number CA-B01-90-RJL
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CDA Date: February 26, 1990
ATTACHMENT A. ANNEX I
1. Maintain listings of the writings, resumes or other items that contain
IBM/Synon Confidential Information.
2. Secure all writings, resumes or other items, including work in
progress, which contain IBM/Synon Confidential Information, in a safe,
file, desk, cabinet or other suitable container with locking device,
or in a locked room with restricted access, when such writings,
resumes or other items are not in use.
3. Provide limited access to those areas of its facilities where work is
being performed under the Agreement only to those employees with the
need to know.
4. Establish a plan for the recovery and/or reconstruction of lost or
missing writings, resumes or other items which contain IBM/ Synon
Confidential Information and promptly report the loss of the same to
the other party within 24 hours.
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36
[IBM LETTERHEAD]
April 4, 1989
Christopher Herron
Synon Inc.
1110 Larkspur Landing Circle, Suite 340
Larkspur CA 94939
Dear Mr. Herron:
IBM is planning to release to you IBM Confidential information for
several enabling activities relating to OS/2, CSP ESF Interface, etc. Prior to
releasing this information, we must have a Confidential Disclosure Agreement
(CDA) signed. Attached for signature are three (3) copies of CDA Number
CA-056-89-HFP. Please have all three copies signed, return two (2) signed
copies to J. W. Krier at the address shown on page 8 of the Agreement, and
retain the third copy for your files.
A security audit must also be done at your location. Someone from IBM
will be calling you to schedule this audit in the very near future.
Sincerely,
/s/ HENRY P. FUHRMANN
Henry P. Fuhrmann
Contracts Administrator
Dept. T49-4AA
(919) 469-6658
37
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IBM CORPORATION
11000 REGENCY PARKWAY
POST OFFICE BOX 60000
CARY, NORTH CAROLINA 27511
April 4, 1989
Christopher Herron
Synon Inc.
1110 Larkspur Landing Circle, Suite 340
Larkspur, CA 94939
Subject: IBM/Synon Inc. Confidential Disclosure Agreement
CA-056-89-HFP
International Business Machines Corporation (IBM), Cary, NC and Synon Inc.
(Vendor) wish to enter into an Agreement which will permit IBM to disclose to
Vendor, for a limited period of time, information, some of which may be
considered IBM Confidential, in order to allow Vendor to respond to IBM's
request for information relating to IBM's software activities.
This Agreement sets forth the terms and conditions under which such information,
including that information considered to be IBM Confidential, will be disclosed.
1. "IBM Confidential" Information shall mean any information or
materials:
a. developed by or collected by or utilized in the operations of IBM
or its subsidiaries that relates to past, present or future
business plans or research and development of IBM or its
subsidiaries;
b. designated IBM Internal Use Only, IBM Confidential, or IBM
Confidential Restricted;
c. inadvertent disclosures to the Vendor unrelated to the subject
matter of this disclosure; or
d. all interim information and reports generated by Vendor pursuant
to this Agreement and all collateral agreements incorporating
this Agreement by reference.
2. For the purposes of this Confidential Disclosure Agreement, IBM may
provide IBM Proprietary Programs and/or substitute proprietary
programs and all related Program Documentation (hereinafter
collectively referred to as "Proprietary Pro-
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grams") which shall be deemed to be IBM Confidential as defined in this
Confidential Disclosure Agreement. Such Proprietary Programs will be provided
without charge for the period deemed necessary by IBM to accomplish the
objectives of, but not to exceed expiration or termination whichever first
occurs of, this Agreement. Such Proprietary Programs shall be made available
to Vendor subject to the following additional conditions:
a. Proprietary Programs are not to be copied by Vendor without receiving
IBM's prior written approval.
b. Vendor shall take the necessary steps to ensure that the Proprietary
Programs shall be used solely for the purposes of this Agreement and
for the benefit of IBM.
c. IBM may correct errors in the Proprietary Programs and issue corrected
copies. IBM does not represent or warrant that any or all errors will
be corrected.
d. IBM personnel shall have access to the Proprietary Programs during
Vendor's normal business hours for programming maintenance services
and observation during the period of their utilization.
e. IBM may, at its option, at any time during the term of this Agreement,
substitute IBM Proprietary Programs needed to carry out any activity
under this Agreement.
f. Vendor agrees not to provide or make available any Proprietary Program
or portions thereof without written consent of IBM, to any person
other than Vendor employees who have a need to know.
g. Within one week after expiration or termination of this Agreement,
Vendor will, at IBM's sole option, either certify to IBM in writing
that all Proprietary Programs and authorized copies have been
destroyed or have become licensed for use under the terms and
conditions of IBM's then applicable Program License Agreement at IBM's
then applicable charges.
3. Vendor understands that IBM does not wish to receive from Vendor any
information which may be considered confidential and/or proprietary to
Vendor and/or to any third party. Vendor represents and warrants that any
information disclosed by Vendor to IBM is not confidential and/or
proprietary to Vendor and/or to any third party. Accordingly, except with
respect to Vendor's rights under valid patents and statutory copyrights, no
obligation of any kind is assumed by or to be implied against IBM by virtue
of IBM's discussions and/or correspondence with Vendor or with respect to
any information received (in whatever form or whenever received) from
Vendor relating to the subject matter hereof, and IBM will be free to
reproduce and to use and disclose to others such information without
limita-
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39
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tion. Vendor understands that IBM may now market or have under development
products which are competitive with products or services now offered or
which may be offered by Vendor. Moreover, discussions and/or communications
between the parties will not serve to impair the right of either party to
develop, make, use, procure, and/or market products or services now or in
the future which may be competitive with those offered by the other, nor
require either party to disclose any planning or other information to the
other.
4. All disclosures of information by IBM to Vendor pursuant to this Agreement
shall be made by or under the supervision of a Technical Coordinator of IBM
to a Technical Coordinator of Vendor or its designee. All disclosures of
information will be deemed to be non- confidential unless specifically
designated at the time of disclosure (as provided in Section 5 below) as
including the Confidential Information of IBM. With respect to all such
information disclosed by IBM to Vendor, except such Information as is so
designated as the Confidential Information of IBM or is protected by
statutory copyright, IBM grants to Vendor, to the extent, if any, of its
interest therein, a nonexclusive, royalty free, irrevocable, unrestricted,
and worldwide license to use, have used, disclose to others, make copies in
the case of documents, and dispose of, all without limitation, such
non-confidential information in any manner it determines, including the use
of such non-confidential information in the development, manufacture,
marketing, and maintenance of products and services incorporating such
non-confidential information.
5. With respect to the Confidential Information of IBM, when such is disclosed
in writing, such writing will state the date of disclosure, that the
information contained therein is confidential and that it is being
disclosed pursuant to this Agreement, and will contain an appropriate
legend, such as "IBM Confidential." If such disclosure is orally and/or
visually made then it shall be confirmed in a written resume within twenty
(20) days following such disclosure. The resume will specifically recite
that information which is confidential. Such resume will have such
information which is confidential identified as "IBM Confidential." IBM
Confidential Information is not to be copied by Vendor without receiving
prior written approval from IBM to copy a specific document.
IBM Confidential Information is to be used by Vendor solely for the benefit
of IBM.
When Vendor generates a work product using IBM Confidential Information,
all tangible forms of that work product, including but not limited to,
texts, drawings, computer print-outs, etc., will have each page labeled
"IBM Confidential/Prepared by Vendor." This work product will be handled in
the same manner as the original IBM Confidential Information transmitted to
Vendor.
6. Subject to the provisions of Sections 7 and 8, for a period of five (5)
years from the date of receipt of IBM Confidential Information, as measured
from the date of first receipt under this Agreement, Vendor agrees not to
disclose received IBM
- --------------------------------------------------------------------------------
-3-
40
- --------------------------------------------------------------------------------
Confidential Information outside of Vendor's designated location and/or to
any person other than those persons within Vendor's organization who have a
need to know such IBM Confidential Information. Vendor also agrees not to
disclose received IBM Confidential Information to IBM employees not
directly having a need to know such IBM Confidential Information without
prior written approval of the IBM Contracts Administrator identified in
this Agreement. IBM and Vendor agree that the items set forth in Annex I
are illustrative, but not all inclusive, of steps that should be taken by
Vendor with respect to the Confidential Information of IBM to meet the
standard of care recited in the foregoing sentence.
During such period, Vendor agrees to limit the dissemination of IBM
Confidential Information to those of its employees having a need to receive
such information. It is understood that receipt of IBM Confidential
Information under this Agreement shall not create any obligation in any way
limiting or restricting the assignment and/or reassignment of Vendor's
employees.
Vendor shall have written agreements with its employees and subcontractors,
sufficient to enable Vendor to comply with all the terms of this Agreement.
Vendor's written agreement with its employees and subcontractors should
provide for coverage of the following items:
a. IBM Confidential Information is to be defined based on the definition
set forth in Section 1 of this Agreement,
b. IBM Confidential Information unrelated to the subject of this
Agreement which is inadvertently disclosed to Vendor employees is not
to be disclosed to any third party or other Vendor or subcontractor
employees,
c. Information which is confidential to others and known to Vendor
employees will not be disclosed to IBM, and
d. Any IBM Confidential Information or materials to which Vendor
employees have access to or have been entrusted with will not be
removed from IBM premises without prior written approval from IBM and
shall return all IBM Confidential Information and materials to the
responsible IBM Manager before leaving IBM premises.
e. Vendor employees will comply and do all things necessary for IBM and
its subsidiaries to comply with the laws and regulations of all
governments under which IBM and its subsidiaries do business, and with
provisions of contracts between any such government and its
contractors and IBM and its subsidiaries that relate to intellectual
property or to the safeguarding of information.
IBM's written approval is required prior to the disclosure of Confidential
Information to a subcontractor.
- -------------------------------------------------------------------------------
-4-
41
Upon written request from IBM or within fifteen days following the
expiration of this Agreement as provided in Section 10, Vendor will return
to IBM all writings and resumes received from IBM and copies thereof
containing such IBM Confidential Information. IBM will not be obligated to
transfer to Vendor any reports and/or other written documentation prepared
by Vendor for IBM as a part of, or in conjunction with, this subject
matter.
Following the specified period of Confidentiality no obligation of any
kind, subject to the statutory copyrights and patent rights of IBM, is
assumed by, or is to be implied against, Vendor, with respect to any
Confidential Information, and Vendor shall be free to disclose, publish and
disseminate such Confidential Information to others without limitation and
shall have all the rights relative to such Information as are set forth in
Section 4 as if it had been transferred as non-confidential information
under such section subject to any related Agreements that are executed
between the parties.
7. Disclosure of IBM Confidential Information shall not be precluded if such
disclosure is:
a. in response to a valid order of a court or other governmental body of
the United States or any political subdivision thereof; provided,
however, that Vendor shall first have given notice to IBM and made a
reasonable effort to obtain a protective order requiring that the IBM
Confidential Information and/or documents so disclosed be used only
for the purposes for which the order was issued; or
b. otherwise required by law; or
c. necessary to establish rights under this Agreement.
8. Notwithstanding any other provisions of this Agreement, the obligations
specified in Section 6 above will not apply to any information that:
a. is already in the possession of Vendor or any of its Subsidiaries
without obligation of confidence;
b. is independently developed by Vendor or any of its Subsidiaries;
c. is or becomes publicly available without breach of this Agreement;
d. is rightfully received by Vendor from a third party, without
obligation of Confidentiality;
e. is released for disclosure by IBM with its written consent; or
f. is inherently disclosed in the use, lease, sale or other distribution
of, or publicly available supporting documentation for, any present or
future product or service by or for IBM or any of its Subsidiaries.
- -------------------------------------------------------------------------------
-5-
42
- -------------------------------------------------------------------------------
9. "Subsidiary" shall mean a corporation, company, or other entity:
a. more than fifty percent (50%) of whose outstanding shares or
securities (representing the right to vote for the election of
directors or other managing authority) are; or
b. which does not have outstanding shares or securities, as may be the
case in a partnership, joint venture or unincorporated association,
but more than fifty percent (50%) of the ownership interest
representing the right to make the decisions for such corporation,
company or other entity is:
now or hereafter, owned or controlled, directly or indirectly, by a party
hereto, but such corporation, company or other entity shall be deemed to be
a Subsidiary only so long as such ownership or control exists.
10. The term of this Agreement shall be effective from the date of execution of
all parties and shall extend through April 1, 1991, with the option of
further extension at the sole discretion of IBM.
11. IBM and Vendor also agree that each will not disclose the terms,
conditions, or subject matter of this Agreement without the written consent
of the other, or, except as provided in Section 8.
12. No license or immunity is granted by this Agreement by either party to the
other, either directly or by implication, estoppel, or otherwise, under any
patents. None of the information which may be disclosed shall constitute
any representation, warranty, assurance or guarantee by either party to the
other with respect to the infringement of patents or other rights of
others.
13. The rights and obligations of Sections 6 and 11 of this Agreement shall
survive and continue after any expiration or termination of this Agreement
and shall bind the parties and their legal representatives, successors and
assigns.
14. Each party agrees to comply with, and do all things necessary for the other
party to comply with, all applicable Federal, State and local laws,
regulations and ordinances, including but not limited to the Regulations of
the United States Department of Commerce relating to the Export of
Technical Data, insofar as they relate to the activities to be performed
under this Agreement. Vendor agrees to obtain the required government
documents and approvals prior to export of any technical data disclosed to
it or the direct product related thereto.
15. This Agreement shall be construed in accordance with the law of the State
of New York.
16. This Agreement may be executed in one or more counterparts, all of which
will be considered one and the same Agreement. Any amendment or
modification of this Agreement shall be in writing and shall be signed by
the parties.
- -------------------------------------------------------------------------------
-6-
43
17. IBM shall have the right to visit periodically, during normal business
hours with prior scheduling, Vendor's premises and conduct a review of the
compliance with the above Agreement terms.
If the above terms and conditions are acceptable to Vendor, please have the
enclosed three (3) copies of this Agreement signed on behalf of Vendor by an
authorized person and return within ten (10) days, two (2) copies to:
J. W. Krier
IBM Corporation
Department T49-4AA
Post Office Box 60000
11000 Regency Parkway
Cary, NC 27511
Please retain one copy for your records.
ACCEPTED AND AGREED TO:
INTERNATIONAL BUSINESS SYNON INC.
MACHINES CORPORATION
BY: /S/ J.W. KRIER BY: /S/ CHRIS HERRON
---------------------------- ----------------------------
NAME: J. W. KRIER NAME: CHRIS HERRON
--------------------------
PRINT NAME
TITLE: CONTRACTS ADMINISTRATION TITLE: PRESIDENT
-------------------------
DATE: DATE: 4/10/89
---------------------------- ----------------------------
- --------------------------------------------------------------------------------
-7-
44
- --------------------------------------------------------------------------------
ANNEX I
1. Maintain listings of the writings, resumes or other items that contain IBM
Confidential Information.
2. Secure all writings, resumes or other items, including work in progress
which contain IBM Confidential Information, in a safe, file, desk, cabinet
or other suitable container with locking device, or in a locked room with
restricted access, when such writings, resumes or other items are not in
use.
3. Provide limited access to those areas of its facilities where work is being
performed under the Agreement only to those employees with the need to
know.
4. Establish a plan for the recovery and/or reconstruction of lost or missing
writings, resumes or other items containing IBM Confidential Information
and promptly report the loss of the same to IBM within twenty-four (24)
hours.
- --------------------------------------------------------------------------------
-8-
45
[IBM LETTERHEAD]
June 4, 1990
Christopher Herron AMENDMENT NUMBER One
Synon, Inc. TO CDA NUMBER CA-056-89-HPF
1110 Larkspur Landing Circle, Suite 340
Larkspur, CA 94939
SUBJECT: Amendment One
REFERENCE: IBM/Synon Confidential Disclosure Agreement
CA-056-89-HPF dated April 4, 1989
Dear Mr. Herron,
The purpose of this letter is to amend the referenced Agreement as follows:
1. Add the following to the end of the first paragraph: "...including, but not
limited to, development feedback on IBM's AD/Cycle software strategy, and
to allow VENDOR to enable its CASE products to operate with the planned IBM
AD Platform."
2. In Section 1, subsection b, please add the following to the end of this
subsection: "...whether prepared by IBM or a vendor to IBM,"
3. In Section 6, first paragraph, delete the words "...for a period of five
(5) years..." and substitute "...for a period of seven (7) years...".
4. All other terms and conditions of the Agreement remain in full force and
effect.
If you are in agreement with this Amendment, please sign and return two (2)
copies of this letter to:
Henry P. Fuhrmann
IBM Corporation
Dept T49-4AA
P. 0. Box 60000
Cary, NC 27512-9968
-1-
46
CDA Number CA-056-89-HPF
- --------------------------------------------------------------------------------
CDA Date: April 4, 1989
Please retain one (1) copy for your records.
VERY TRULY YOURS, ACCEPTED AND AGREED TO:
INTERNATIONAL BUSINESS SYNON, INC.
MACHINES CORPORATION
BY: /S/ K.A. COOK BY: /S/ CHRIS HERRON
---------------------------- ----------------------------
K.A. COOK K.A. COOK
- ------------------------------- ----------------------------
PRINT NAME PRINT NAME
BUYER PRESIDENT
- ------------------------------- ----------------------------
TITLE TITLE
6/4/90 6/5/90
- ------------------------------- ----------------------------
DATE DATE
- --------------------------------------------------------------------------------
-2-
47
INTERNATIONAL BUSINESS MACHINES CANADA LIMITED MARKHAM, ONTARIO
AGREEMENT FOR RECEIPT OF IBM CONFIDENTIAL INFORMATION
Name and Address of Customer: Reference Agreement No.: 615-001
Ms. M. Selig
Synon, Inc.
1100 Larkspur Landing Circle
Larkspur, California
USA 94939
The Customer (you) and International Business Machines Canada (IBM) agree that
these terms and conditions apply when IBM discloses its confidential
information (IBM Confidential Information) to you. Specific IBM Confidential
Information is described in a Supplement to Agreement for Receipt of IBM
Confidential Information (Supplement). Such information becomes subject to
this Agreement on the Effective Date listed in a Supplement which the parties
sign before or promptly after such disclosure. The Supplement may also contain
additional terms and conditions.
1. DISCLOSURE
IBM will identify IBM Confidential Information at the time of
disclosure and promptly send you a written confirmation.
2. DELIVERY AND USE
You will identify in the Supplement your Point of Contact for receipt
of IBM Confidential Information. IBM and your Point of Contact will
coordinate and control the delivery of IBM Confidential Information.
You will use the same care and discretion to avoid disclosure,
publication or dissemination of IBM Confidential Information as you
employ with similar information of your own which you do not desire to
disclose, publish or disseminate. You may disclose IBM Confidential
Information to your employees or to employees of any of your
Subsidiaries who have a need to know such information. Prior to
disclosure, you will have an appropriate written agreement with any
such employee or Subsidiary. You may disclose IBM Confidential
Information to others provided, prior to disclosure, you have an
appropriate written agreement with the other party and IBM approves
such disclosure in writing.
Except for your obligation to avoid disclosure, publication or
dissemination, you shall be free to use IBM Confidential Information
for any purpose.
2
48
You may market products or services, including any supporting
documentation, which inherently disclose IBM Confidential Information.
You may disclose IBM Confidential Information in response to a valid
order of a court or other governmental body. However, you must give
IBM notice of the order. In addition, you will make a reasonable
effort to obtain a protective order. The order will require that the
information be used only for the purposes for which the order was
issued.
3. CONFIDENTIALITY PERIOD
This Agreement applies to IBM Confidential Information on the
Effective Date listed in the Supplement which is the earlier of the
date of the initial disclosure of IBM Confidential Information or the
date of the parties sign a Supplement. Unless IBM specifies otherwise
in the Supplement, this Agreement will apply to applicable IBM
Confidential Information for a period of two years following its
Effective Date.
4. EXCEPTIONS
This Agreement will not apply to any IBM Confidential Information
that:
a. you or any of your Subsidiaries already possess without
obligation of confidence;
b. you or any of your Subsidiaries develop independently;
c. is or becomes publicly available without breach of this
Agreement;
d. you rightfully receive without obligation of confidence from a
third party; or
e. is released for disclosure with IBM's written consent.
5. DISCLAIMERS
Neither this Agreement nor any disclosure of IBM Confidential
Information grants you any license under any patents or copyrights.
IBM PROVIDES IBM CONFIDENTIAL INFORMATION TO YOU ON AN "AS IS" BASIS
WITHOUT WARRANTY OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Further, IBM does not represent or warrant that the rights of others
will not be infringed by your use of such IBM Confidential
Information.
In addition, IBM will not be liable to you for lost profits, lost
savings, incidental damages, or other consequential damages arising
out of your use of IBM Confidential Information, even if IBM has been
advised of the possibility of such damages.
IBM may choose not to use or announce any products using the data
disclosed under this agreement.
6. GENERAL
The term "Subsidiary" means a corporation, company or other entity:
a. more than 50% of whose outstanding shares or securities
(representing the right to vote for the election of directors or
other managing authority) are; or
b. which does not have outstanding shares or securities, as may be
the case in a partnership, joint venture or unincorporated
association, but more than 50% of whose ownership interest
representing the right to make the decisions for such
corporation, company or entity is, now or hereafter, owned or
controlled, directly or indirectly, by you, but such corporation,
company or other entity shall be deemed to be a Subsidiary only
so long as such ownership or control exists.
3
49
This Agreement does not require IBM to disclose or you to receive IBM
Confidential Information.
IBM may, upon written notice to you, modify the terms and conditions
of this Agreement. Any such modification will apply to IBM
Confidential Information disclosed on or after the date of
notification of the modification.
If there is a conflict between this Agreement and a Supplement, the
terms and conditions of the Supplement shall prevail. The laws of the
State of New York govern this Agreement.
The parties acknowledge that they have read this Agreement, understand it, and
agree to be bound by its terms and conditions. Further, they agree that the
complete and exclusive statement of the Agreement between the parties relating
to this subject shall consist of this Agreement and any Supplements. This
statement of the Agreement supersedes all proposals or other prior agreements,
oral or written, and all other communications between the parties relating to
this subject.
Accepted By:
International Business Machines Canada Ltd. Synon, Inc.
----------------------------
Customer
By: /s/ R. L. Bradley By: /s/ M. C. Selig
---------------------------- ----------------------------
Authorized Signature Authorized Signature
R. L. Bradley M. C. Selig 9/7/89
---------------------------- ----------------------------
Name (Type or Print) Date Name (Type or Print) Date
4
50
INTERNATIONAL BUSINESS MACHINES CANADA LIMITED MARKHAM, ONTARIO
SUPPLEMENT TO AGREEMENT FOR
RECEIPT OF IBM CONFIDENTIAL INFORMATION
Name and Address of Customer: Reference Agreement No.: 715-001
Ms. M. Selig Customer No.:
Synon, Inc.
1100 Larkspur Landing Circle IBM Branch Office No:
Larkspur California
USA 94939 Effective Date: 09/07/89
Name and Address of Point of Contact:
J. H. Vanos
IBM Canada Limited
1150 Eglinton Avenue East
North York, Ontario
M3C lH7
Customer Confidential Information
(Nonconfidential Description)
Information pertaining to Workstation Platform, Edit/Compile/Debug tool (ECD)
and DDS Definition Utility (DDU) for the AS/400.
THE CUSTOMER AGREES THAT THE REFERENCED AGREEMENT, AND THIS SUPPLEMENT ARE THE
COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES,
SUPERSEDING ALL PROPOSALS OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ALL OTHER
COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF.
Accepted By:
International Business Machines Canada Ltd. Synon, Inc.
----------------------------
Customer
By: /s/ R. L. Bradley By: /s/ M. C. Selig
---------------------------- ----------------------------
Authorized Signature Authorized Signature
R. L. Bradley M. C. Selig 9/7/89
---------------------------- ----------------------------
Name (Type or Print) Date Name (Type or Print) Date
1
51
[IBM LETTERHEAD]
September 21, 1990
Keith Jaeger
Synon, Incorporated
1100 Larkspur Landing Circle
Larkspur, CA 94939
Dear Mr. Jaeger,
CONFIDENTIAL DISCLOSURE AGREEMENT
International Business Machines Corporation (IBM) proposes to give Synon,
Incorporated (Synon) access to information which is confidential to IBM (IBM
Confidential Information). The IBM Confidential Information pertains to
AS/400* development activities conducted at IBM's facility in Rochester, MN.
Synon and IBM agree the terms and conditions of this Confidential Disclosure
Agreement (Agreement) apply as follows:
* 400 is a registered trademark of the IBM Corporation.
1. Synon Information
IBM does not want to receive from Synon, and Synon agrees not to disclose
to IBM, any information that is of a confidential or proprietary nature to
Synon or a third party.
All information and materials which IBM obtains from Synon in connection
with this Agreement shall be deemed nonconfidential, and, except with
respect to Synon's rights under valid patents and Federal statutory
copyrights, IBM shall be free to use in any manner, for any purpose, and to
disclose to others, any ideas, concepts, know-how and techniques received
from Synon under this Agreement.
2. IBM Confidential Information
"IBM Confidential" information means information or materials that IBM
identifies as confidential and discloses to Synon under this Agreement. It
does not include information that rightly becomes public, or that Synon
otherwise knows or receives without obligation of confidence. For two (2)
years from the date of this Agreement, Synon shall hold all IBM
Confidential information in trust and confidence for IBM and shall not
Agreement Number 985-0377
52
Keith Jaeger
September 21, 1990
Page 2
use any IBM Confidential information except as explicitly approved by IBM.
If any materials containing any IBM Confidential information are lost,
Synon shall promptly notify IBM. Upon termination of this Agreement, Synon
shall deliver to IBM all materials containing any IBM Confidential
information.
3. Scope of IBM Disclosure
IBM will not be obligated to disclose any particular information to Synon.
4. Manner of Disclosure
IBM Confidential information may be disclosed to Synon visually, orally, or
in writing (including graphic material). When disclosed in writing, the
information will be labeled "IBM CONFIDENTIAL." When disclosed visually or
orally, the information will be identified as IBM Confidential at the time
of disclosure. Synon agrees to clearly label as "IBM CONFIDENTIAL" all
information reduced to writing or graphics as a result of IBM's visual or
oral disclosures.
5. Dissemination
Synon will limit dissemination of IBM Confidential information to those of
its employees with a need to know. Synon will not copy any IBM Confidential
information without prior written approval from IBM.
Synon will have an appropriate written agreement with each of its employees
or other persons whose services Synon may require, sufficient to enable
Synon to comply with all of the provisions of this Agreement.
6. Accountability of IBM Materials
All IBM materials are and will remain the property of IBM. Synon agrees to
maintain a one hundred (100%) percent accountability of all IBM
Confidential materials at all times and will be prepared to locate and
produce all such materials at any time.
IBM, at its option, reserves the right to retrieve Product related IBM
Confidential materials prior to termination of this Agreement, if the
Product becomes generally available.
7. Protection of IBM Assets
Agreement Number 985-0377
53
Keith Jaeger
September 21, 1990
Page 3
Synon shall maintain security procedures adequate to prevent loss of any
IBM Confidential materials. If such a loss occurs, Synon shall notify IBM
immediately.
When not in use, IBM Confidential information will be secured or locked in
a safe, file, desk, cabinet, or other suitable container or furniture, or
in a locked room with restricted access. Items of work in process or work
products that embody IBM Confidential information and which are impractical
to secure or lock as required above will be completely covered from view.
In instances where complete cover is impractical, IBM must concur in
advance to the security measures taken. Synon agrees to segregate IBM
Confidential information from the confidential information of others.
8. Confidentiality of the Agreement
Synon agrees not to disclose by way of advertisement, publication, or
otherwise to any person other than employees of Synon, who have a need to
know for purposes of performing this Agreement, the existence, nature,
substance, or terms and conditions of this Agreement or of the relationship
between the parties hereto without the prior written approval of IBM.
However, Synon may disclose this entire Agreement on a confidential,
need-to-know basis, to its accountants, attorneys, or financial
institutions.
9. Disclaimers
Neither this Agreement nor any disclosure of IBM Confidential information
grants you any license under any patents or copyrights.
IBM PROVIDES IBM CONFIDENTIAL INFORMATION TO Synon ON AN "AS IS" BASIS
WITHOUT WARRANTY OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Neither party shall be liable for any lost revenue, lost profits or other
consequential damages under any part of this Agreement even if advised of
the possibility of such damages. Furthermore, IBM shall not be liable for
any delays, losses or any other damages which may result from the
furnishing of any equipment, documentation, programs or services under this
Agreement, even if advised of the possibility of such damages.
Agreement Number 985-0377
54
Keith Jaeger
September 21, 1990
Page 4
IBM does not represent or warrant that the rights of others will not be
infringed by Synon's use of such IBM Confidential information.
10. Trademark - Trade Name
Notwithstanding any other provisions of this Agreement, neither party shall
have the right to use the other party's name, trademark or trade name or
other designation (including any contraction, abbreviation, or simulation
of any of the forgoing), or to refer to this Agreement or the services
performed hereunder directly or indirectly, in connection with any product,
service, promotion or publication without the prior written approval of the
other party.
11. Term and Termination
This Agreement is effective from the date on which it accepted by both
parties, and shall expire 24 months from that date.
Either party may terminate this Agreement with or without cause at any time
by written notice to the other party.
12. Compliance with Laws and Regulations
Synon agrees to comply with all applicable Federal, State, and local laws,
regulations and ordinances, including but not limited to the Regulations of
the United States Department of Commerce relating to the Export of
Technical Data, in so far as they relate to this Agreement. Synon agrees to
use its best efforts to obtain any required government documents and
approvals prior to exporting any technical data disclosed to Synon or any
product to which such data relate.
13. Waiver of Breach/Severability
No waiver of any breach of any provision of this Agreement shall constitute
a waiver of any prior, concurrent or subsequent breach of the same or any
other provisions hereof, and no waiver shall be effective unless made in
writing and signed by an authorized representative of the waiving party. In
the event that any provision of this Agreement shall be found illegal or
otherwise unenforceable, such provision shall be severed, the entire
Agreement shall not fail on account thereof, and the balance of the
Agreement shall continue in full force and effect.
Agreement Number 985-0377
55
Keith Jaeger
September 21, 1990
Page 5
14. Assignment and Delegation
Except in connection with the sale or other transfer of substantially all
of Synon's business, no right or interest in this Agreement shall be
assigned by Synon without the, prior written approval of IBM, and no
delegation of the services or other obligations owed by Synon to IBM shall
be made or effective without IBM's prior written approval. Any attempt by
Synon to assign any right or interest created by this Agreement shall be
void. In the event of a sale or other transfer of substantially all of
Synon's business, IBM has the right to terminate this Agreement.
15. Sole Agreement
This Agreement shall supersede all prior Agreements and understandings
between the parties respecting the subject matter hereof and shall
constitute the complete and exclusive agreement between the parties
respecting this subject matter.
16. Applicable Law
This Agreement shall be construed and the legal relations created herein
between the parties shall be determined in accordance with the substantive
laws of the State of New York which pertain to agreements executed in, and
fully performed within, the State of New York. Any proceeding to enforce,
or to resolve disputes arising under or related to, this Agreement shall be
brought before a court of competent jurisdiction in the State of New York,
including a Federal District Court sitting within such State. The parties
hereby expressly waive any right to a jury trial and agree that any
proceeding hereunder shall be tried by a judge without a jury.
17. Continuing Obligations
The rights, activities, and obligations of the Sections of this Agreement
which by their nature create obligations that survive the expiration or
termination of this Agreement shall survive and continue after any
expiration or termination of this Agreement and shall bind the parties and
their legal representatives, successors, heirs, and assigns. This includes:
Section 1 - "Synon Information"
Section 2 - "IBM Confidential Information"
Agreement Number 985-0377
56
Keith Jaeger
September 21, 1990
Page 6
Section 5 - "Dissemination"
Section 8 - "Confidentiality of the Agreement"
Section 9 - "Disclaimers"
Section 10 - "Trademark - Trade Name"
Section 12 - "Compliance with Laws and Regulations"
Please return an executed copy of this Agreement to Patrick Griffin, IBM Corp.,
985/658-C at the address on this letterhead.
Accepted: Accepted:
INTERNATIONAL BUSINESS SYNON, INCORPORATED
MACHINES CORPORATION
By /s/ David A. Andersen By /s/ Chris Herron
---------------------------- ----------------------------
David A Andersen, Manager Authorized Representative
Business Partner Programs
Name Chris Herron
--------------------------
(Print or Type)
Title President
-------------------------
Date September 21, 1990 Date September 27, 1990
--------------------------- --------------------------
Agreement Number 985-0377
57
May 3, 1990
Ms Madeline Selig
SYNON Inc.
Larkspur, CA.
Subject: Confidential Disclosure Agreement
To enable you to determine whether you wish to explore the possibility of
developing future function for IBM Rochester, IBM proposes to give you access
to IBM Confidential information pertaining to products currently under
development.
This confidential and proprietary information will be identified as IBM
Confidential and will be disclosed to you in a meeting at the IBM Rochester,
Minnesota facility May 3, 1990.
Upon receipt of such confidential information, you agree to hold all such
confidential information in trust and confidence for IBM for a period of two
(2) years from the date of disclosure or until such time as the information is
publicly disclosed by IBM whichever occurs first. During this prescribed
period, you agree to treat this information in the same manner as you treat
your own confidential and proprietary information you do not want disclosed to
others.
IBM does not want to receive and SYNON Inc. agrees not to disclose to IBM any
information that is of a Confidential or proprietary nature to SYNON Inc. or a
third party.
All information and materials which IBM obtains from SYNON Inc. in connection
with this Agreement shall be deemed non-confidential, and, except with respect
to SYNON Inc. rights under valid patents and Federal statutory copyrights, IBM
shall be free to use in any manner, for any purpose, and to disclose to others,
any ideas, concepts, know-how and techniques received from SYNON Inc. under
this Agreement.