1
EXHIBIT (c)(13)
MUTUAL NONDISCLOSURE AGREEMENT
THIS IS AN AGREEMENT made by and between Effective Management Systems, Inc.
("EMS") and Industrial Financial Systems, Inc. ("IFS") relating to disclosure,
orally and/or in tangible form, of certain confidential and proprietary
information by each party to the other for the purpose of furthering a mutual
business relationship.
1. Each party understands that the confidential information received from
the disclosing party is regarded by the disclosing party as valuable,
and in consideration of the disclosure of such information by the
disclosing party and of the mutual promises herein, the receiving party
agrees:
(a) to use such information only for the purpose of furthering its
business relationship between the parties and to limit access
to such information to those of its employees who have a need
to know for such purpose;
(b) to take all reasonable precautions to maintain the
confidentiality of such information for a period of five (5)
years from the date of receipt, using at least the same degree
of care as the undersigned employs with respect to its own
confidential and proprietary information of like nature, and
to take appropriate action, by instruction, agreement or
otherwise, with any person permitted access to such
information to ensure that the undersigned will be able to
satisfy its obligations under this Agreement; and
(c) not to copy such information and, at the request of the
disclosing party, promptly to destroy or return any media
containing such information.
For the purpose of this Agreement, the term "confidential information"
shall mean any financial, technical, commercial or other information,
verbal, visual or written, disclosed to the receiving party or any of
its directors, officers, employees, advisors or representatives on or
after the date hereof and in accordance with this Agreement by the
disclosing party that was originated by the disclosing party and
relates to the disclosing party's business and affairs (including
information concerning any business or assets of any third party), and
is not generally available to others. "Confidential information" shall
be deemed to include the fact that any investigations, discussions or
negotiations are taking or have taken place regarding a possible
transaction or that either party has requested or received confidential
information from the other party, or any of the terms, conditions or
other facts with respect to any proposed transaction, including the
status thereof or make any public statement concerning a proposed
transaction.
2. The undersigned shall have no obligation under Paragraph 1 with respect
to information which is:
(a) previously and legally in the possession of or independently
developed by the receiving party, generally available to the
public, or disclosed to the undersigned by a third party
having no obligation of confidentiality with respect thereto;
or
(b) not identified by the disclosing party in writing as
proprietary and confidential and which is not otherwise
reasonably understood to be proprietary and confidential by
its nature.
2
3. For a period of eighteen (18) months from the date of this Agreement,
IFS, or any of its subsidiaries, will not initiate any discussions with
respect to the prospective employment of EMS' employees with whom it
has had contact or who became known to it in connection with its
consideration of a possible transaction with IFS; provided, however,
that the foregoing provision will not prohibit a general, non-targeted
solicitation of employment in the ordinary course of business or
prevent IFS from employing any employee of EMS who contacts such party
at his or her own initiative without any direct or indirect
solicitation by or encouragement from such party.
4. Neither the confidential information nor the act of disclosure thereof
shall constitute a grant of any license under any trademark, patent or
copyright or application for same, nor shall they constitute any
representation or warranty by the disclosing party with respect to the
infringement of any right of third persons.
5. A breach of this Agreement would cause irreparable harm to either party
which may not be adequately compensated for by monetary damages alone.
The undersigned therefore agrees that, in the event of such breach or
threatened breach of this Agreement, the non-defaulting party shall be
entitled to injunctive and/or other preliminary or equitable relief, in
addition to any other remedies available at law.
6. Nothing contained in this Agreement or any discussions undertaken or
disclosures made pursuant hereto shall either be deemed a commitment to
engage in any business relationship, contract, or future dealing with
the other party, or limit either party's right to conduct similar
discussions or perform similar work to that undertaken pursuant hereto,
so long as said discussions or work do not violate this agreement.
7. This Agreement shall be binding on the undersigned and its successors
and assigns. In the event of a disagreement between the two parties
arising out of this Agreement, such dispute shall be settled by
arbitration held in a neutral location mutually agreed upon in
accordance with the commercial rules or the American Arbitration
Association. This Agreement shall remain effective with respect to any
confidential and proprietary information which is disclosed to the
undersigned within one (1) year of the date of execution.
IFS Inc. Effective Management Systems, Inc.
----------------------------- ----------------------------------
Company Company
/s/ Xxxxx Xxxxxx /s/ Xxxxxxx X. Xxxxxx
----------------------------- ----------------------------------
Authorized Signature Authorized Signature
Xxxxx Xxxxxx, President & CEO Xxxxxxx X. Xxxxxx, President & CEO
----------------------------- ----------------------------------
Name, Title (Printed) Name, Title (Printed)
-2-
