ENTERA
MUTUAL NON-DISCLOSURE AGREEMENT
This Agreement is entered into by and between ENTERA INC., a Delaware
Corporation ("Entera") with its principal place of business at 00000
Xxxxxxxxxxxx Xxxxxx, Xxxxxxx XX 00000 and , located at
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("Disclosee").
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BACKGROUND
Entera and desire to enter into discussions of business matters of
mutual interest in the course of which either or both of said Parties
("Disclosing Party") may disclose certain of its proprietary and confidential
information to the other Party ("Receiving Party"). It is anticipated that:
Entera will be:
a Disclosing Party a Receiving Party X Both
will be:
a Disclosing Party a Receiving Party X Both
The specific purpose of the discussions and the disclosure of proprietary and
confidential information is:
TO DISCUSS BOTH 'S AND ENTERA'S BUSINESS STRATEGY, BUSINESS MODELS,
TECHNICAL SOLUTIONS AND CONFIDENTIAL INFORMATION IN SUPPORT OF DISCUSSIONS
CONCERNING A POTENTIAL STRATEGIC RELATIONSHIP, MARKETING ALLIANCE, JOINT
DEVELOPMENT EFFORT, OR PRODUCT/SERVICE INTEROPERABILITY AND TO DISCUSS OTHER
BUSINESS OPPORTUNITIES, BOTH SHORT AND LONG TERM.
The proprietary and confidential information to be supplied under the provisions
of this Agreement relates to the subject of:
BUSINESS MODELS, STREAMING, CACHING, AUTHORING TOOLS, LOGGING, STRATEGIC
PARTNERSHIPS AND CONTENT MANAGEMENT SYSTEMS. BOTH WILL DISCUSS PLANS FOR
MARKETING AND DEVELOPMENT PLANS, PRICE AND COST DATA, PRICE AND FEE AMOUNTS,
FINANCIAL MODELS, BUSINESS CASES, MARKETING TECHNIQUES AND METHODS OF OBTAINING
BUSINESS, FORECASTS AND FORECAST ASSUMPTIONS AND VOLUMES, AND FUTURE PLANS AND
POTENTIAL STRATEGIES WHICH HAVE BEEN DISCUSSED OR ARE BEING DISCUSSED.
AGREEMENT
The Parties agree as follows:
1. Information: As used herein the term "Information" includes any and
all technology, information, knowledge or data whether oral, written, in a
physical form or otherwise, which is disclosed for the purpose set forth above
and which is identified by the Disclosing Party at the time of disclosure as
being proprietary and/or confidential. "Data" includes notes, designs,
drawings, documentation, flow charts, writings, specifications, memoranda,
computer software and other similar data. To be covered hereunder, Information
disclosed in writing must be marked "proprietary", "confidential", or by words
of similar import. Information disclosed orally or visually and identified at
the time as proprietary or confidential shall be covered hereunder if it is
reduced to writing, marked as provided herein, and transmitted to Receiving
Party within thirty (30) days after disclosure.
2. The Receiving Party agrees:
a. that with respect to Information, a confidential relationship is
established between the Parties, and that Receiving Party shall use Information
only for the purpose set forth above;
b. to treat Information as confidential and to exercise no less care in its
protection than Receiving Party uses in protecting its proprietary and
confidential Information, or if Receiving Party has established no such standard
of care, then Receiving Party shall exercise such care as the Disclosing Party
observes to protect Information;
c. to restrict dissemination of Information within its organization to
employees having a need to know in connection with the purpose of the disclosure
set forth above, and to ensure that such employees are informed of the
proprietary and confidential nature thereof and that they agree to and observe
the requirements of confidentiality set forth herein;
d. not to disclose Information to any other party without the written
authorization of Disclosing Party;
e. not to duplicate Information without the express written permission
of Disclosing Party;
f. to return or destroy Information which is in written or physical
form, together with any and all copies, negatives, or reproductions or
derivative works in any media, promptly upon request of Disclosing Party or upon
termination or completion of the Agreement.
3. Disclosing Party acknowledges that the Agreement does not apply to
Information which:
a. is at the time of its disclosure publicly known through no wrongful
act of Receiving Party;
b. is known to Receiving Party at the time of disclosure;
c. is independently developed by Receiving Party without use of
Information;
d. is rightfully received by Receiving Party from a third party without
breach of the Agreement;
e. is furnished to a third party by Disclosing Party without similar
restrictions on the third party;
f. is approved for disclosure by the written authorization of
Disclosing Party; or
g. is disclosed as required by judicial action after all reasonable
legal recourse to maintain the confidentiality of Information has been
exhausted.
4. Subject to Article 3 hereof, each Party receiving Information under the
Agreement shall hold Information in confidence in accordance with the terms of
the Agreement for a period of two (2) years from the date of receipt thereof.
5. Because of the trade secret subject matter of Entera's business,
Disclosee agrees that it will not solicit the services of any of the employees
of Entera during the term of this Agreement and for ninety (90) days thereafter.
6. This Agreement is effective until terminated in accordance with this
Article. Either Party, upon two (2) days notice in writing to the other Party,
may terminate the Agreement with respect to disclosures made thereafter. The
rights and obligations of the Parties hereunder in respect of Information
received under and subject to the Agreement shall survive such termination.
7. No license, express or implied, in Information is granted to the
Receiving Party other than to use Information in the manner and to the extent
authorized by the Agreement.
8. No Information submitted and/or exchanged by the Parties shall constitute
any representation, warranty, assurance, guarantee or inducement by either party
to the other with respect to infringement of trademarks, patents, copyrights or
any right of privacy, or any rights of third persons.
9. Each Party acknowledges that the unauthorized disclosure or use by the
Receiving Party of the Disclosing Party's proprietary and confidential
Information will cause irreparable harm and significant injury, the degree of
which may be difficult to ascertain. Accordingly, each Party agrees that the
Disclosing Party will have the right to obtain an immediate injunction enjoining
any breach of this Agreement, as well as the right to pursue any and all other
rights and remedies available at law or in equity for such a breach.
10. The Agreement constitutes the entire agreement between the Parties with
respect to the subject matter hereof and may be modified or amended only by a
written document duly executed by authorized representatives of Entera and
.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as a
sealed instrument, subject to and governed by the laws of the state of
California this nd day of , 2000.
ENTERA, INC. " "
By: By:
Name: Name:
Title: Title:
