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EXHIBIT 99(c)(37)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS AGREEMENT governs the disclosure of information by and
between Oacis Healthcare Systems Corp. ("OACIS") and Science Applications
International Corporation ("SAIC") as of November 4th, 1998 (the "EFFECTIVE
DATE").
1. As used herein, "CONFIDENTIAL INFORMATION" shall mean any
and all technical and non-technical information provided by either party to the
other, including but not limited to (a) patent and patent applications, (b)
trade secret, and (c) proprietary information, ideas, techniques, sketches,
drawings, works of authorship, models, inventions, know-how, processes,
apparatuses, equipment, algorithms, software programs, software source
documents, and formulae related to the current, future, and proposed products
and services of each of the parties, and including, without limitation, their
respective information concerning research, experimental work, development,
design details and specifications, engineering, financial information,
procurement requirements, purchasing, manufacturing, customer lists, investors,
employees, business and contractual relationships, business forecasts, sales and
merchandising, marketing plans and information the disclosing party provides
regarding third parties.
2. Each party agrees that at all times until termination or
expiration of this Agreement it will hold in strict confidence and not disclose
to any third party Confidential Information of the other, except as approved in
writing by the other party to this Agreement, and will use the Confidential
Information for no purpose other than evaluating or pursuing a business
relationship with the other party to this Agreement. Notwithstanding the above,
the party to whom Confidential Information was disclosed (the "RECIPIENT") shall
not be in violation of this Section 3 with regard to a disclosure that was in
response to a valid order by a court or other governmental body, provided that
the Recipient provides the other party with prior written notice of such
disclosure in order to permit the other party to seek confidential treatment of
such information. Each party shall only permit access to Confidential
Information of the other party to those of its employees or authorized
representatives having a need to know and who have signed confidentiality
agreements or are otherwise bound by confidentiality obligations at least as
restrictive as those contained herein.
3. Each party shall immediately notify the other upon
discovery of any loss or unauthorized disclosure of the Confidential Information
of the other party.
4. Each party's obligations under this Agreement with respect
to any portion of the other party's Confidential Information shall terminate
when the Recipient can document that: (a) it was in the public domain at the
time it was
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communicated to the Recipient by the other party; (b) it entered the public
domain subsequent to the time it was communicated to the Recipient by the other
party through no fault of the Recipient; (c) it was in the Recipient's
possession free of any obligation of confidence at the time it was communicated
to the Recipient by the other party; (d) it was rightfully communicated to the
Recipient free of any obligation of confidence subsequent to the time it was
communicated to the Recipient by the other party or (e) it was communicated by
the other party to an unaffiliated third party free of any obligation of
confidence.
5. Upon termination or expiration of the Agreement, or upon
written request of the other party, each party shall promptly destroy or return
to the other all documents and other tangible materials representing the other's
Confidential Information and all copies thereof. The Recipient agrees to destroy
all documents, memoranda, notes and other writings whatsoever prepared by the
Recipient or its employees or representatives based on the information contained
in the Confidential Information (except for references or summaries appearing in
minutes or corporate records).
6. In addition, each party agrees that it will not (and
direct its employees and representatives not to) disclose (i) to any person
either the fact that discussions or negotiations are taking place concerning one
or more possible transactions between the parties or (ii) any of the terms,
conditions or other facts with respect to any such possible transactions,
including the status thereof.
7. Although the disclosing party has endeavored to include in
the Confidential Information, information known to it which it believes to be
relevant for the purpose of the Recipient's investigation of a potential
transaction, the Recipient acknowledges and agrees that neither the disclosing
party nor any of its employees or representatives have made or make any
representations or warranty as to the accuracy or completeness of all or any
portion of the Confidential Information. The Recipient agrees that neither the
disclosing party nor any of its employees or representatives shall have any
liability to the Recipient or any of the Recipient's employees or
representatives resulting from the use of, or conclusions arising from, the
Confidential Information.
8. The parties recognize and agree that nothing contained in
this Agreement shall be construed as granting any property rights, by license or
otherwise, to any Confidential Information of the other party disclosed pursuant
to this Agreement, or to any invention or any patent, copyright, trademark, or
other intellectual property right that has issued or that may issue, based on
such Confidential Information. Neither party shall make, have made, use or sell
for any purpose any product or other item using, incorporating or derived from
any Confidential Information to the other party.
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9. Confidential Information shall not be reproduced in any
form except as required to accomplish the intent of this Agreement. Any
reproduction of any Confidential Information of the other party by either party
shall remain the property of the disclosing party and shall contain any and all
confidential or proprietary notices or legends which appear on the original,
unless otherwise authorized in writing by the other party.
10. Nothing contained herein shall imply any obligations of
either party to proceed with a transaction between the parties, and each party
reserves the right to terminate the discussions contemplated hereunder, with or
without cause, without any liability for such termination.
11. This Agreement shall terminate three (3) years after the
Effective Date and shall be binding upon the Recipient's heirs, successors and
assigns.
12. This Agreement shall be governed by and construed in
accordance with the laws of California without reference to conflict of laws
principles. This Agreement may not be amended except by a writing signed by both
parties hereto.
13. Each party acknowledges that its breach of the Agreement
will cause irreparable damage and hereby agrees that the other party shall be
entitled to seek injunctive relief under this Agreement, as well as such further
relief as may be granted by a court of competent jurisdiction. Additionally, in
the event of a breach by the Recipient, the disclosing party shall be entitled
to recover the costs of enforcing this Agreement including, without limitation
reasonable attorneys' fees.
14. If any provision of this Agreement is found by a proper
authority to be unenforceable or invalid such unenforceability or invalidity
shall not render this Agreement unenforceable or invalid as a whole and in such
event, such provision shall be changed and interpreted so as to best accomplish
the objectives of such unenforceable or invalid provision within the limits of
applicable law or applicable court decisions.
15. Neither party shall communicate any information to the
other in violation of the proprietary rights of any third party.
16. Neither party will assign or transfer any rights or
obligations under this Agreement without the prior written consent of the other
party.
17. Neither party shall export, directly or indirectly, any
technical data acquired from the other pursuant to this Agreement or any product
utilizing any
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such data to any country for which the U.S. Government or any agency thereof at
the time of export requires an export license or other governmental approval
without first obtaining such license or approval.
18. All notices or reports permitted or required under this
Agreement shall be in writing and shall be delivered by personal delivery,
electronic mail, facsimile transmission or by certified or registered mail,
return receipt requested, and shall be deemed given upon personal delivery, five
(5) days after deposit in the mail, or upon acknowledgment of receipt of
electronic transmission. Notices shall be sent to the addresses set forth at the
end of this Agreement or such other address as either party may specify in
writing.
19. Each of the parties agrees that the software programs of
the other party contain valuable confidential information and each party agrees
it will not modify, reverse engineer, decompile, create other works from, or
disassemble any software programs contained in the Confidential Information of
the other party without the prior written consent of the other party.
20. This Agreement may be executed in two or more
counterparts, each of which when so executed and delivered shall be deemed an
original, and such counterparts together shall constitute only one instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Mutual
Non-Disclosure Agreement to be executed as of the Effective Date.
OACIS HEALTHCARE SYSTEMS CORP. SCIENCE APPLICATIONS INTERNATIONAL
CORPORATION
By: /s/ Xxxxxxx Xxxxxxxxx By: /s/ X. X. Xxxxxxx
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Name: /s/ Xxxxxxx Xxxxxxxxx Name: /s/ X. X. Xxxxxxx
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Date: November 4, 1998 Date: November 4, 1998
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Address: The Oacis Building Address: 00000 Xxxxxx Xxxxx Xxxxx
0000 Xxxxx Xxxxxx Xxx Xxxxx, XX 00000
Xxx Xxxxxx, XX 00000
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