Exhibit (d)(4)
BILATERAL AGREEMENT FOR EXCHANGE
OF
PROPRIETARY INFORMATION
THIS AGREEMENT is made and entered into this 28th day of July 2000, between
DIRECTV ENTERPRISES, INC., a Delaware corporation, acting on behalf of itself
and each of its subsidiaries, (collectively, "DIRECTV"), having an office and
place of business at 0000 Xxxx Xxxxxxxx Xxxxxxx, Xx Xxxxxxx, Xxxxxxxxxx 00000;
and TELOCITY INC., a Delaware corporation, (TELOCITY), having an office and
place of business at ___________________.
RECITALS
The purpose of this Agreement is to provide for the exchange between
DIRECTV and TELOCITY (referred to individually as a "Party" and collectively as
the "Parties") of information which is considered confidential and proprietary.
The purpose of the exchange is to enable the Parties to hold discussions and
conduct evaluations and/or negotiations concerning business and technical
information related to broadband services. DIRECTV is hereby executing this
Agreement on behalf of itself and each of its subsidiaries, who shall
collectively be deemed to be a Party to and bound by the provisions of this
Agreement.
AGREEMENT
Accordingly, in consideration of the mutual protection of each Party's
proprietary data, the Parties agree as follows:
1. As used hereafter,the term "Diclosing Party" shall mean the Party which
is disclosing proprietary information, and the term "Receiving Party" shall mean
the Party to which proprietary information is disclosed.
2. For the purposes of this Agreement, "Proprietary Information" shall be
defined as information, whether disclosed orally or in writing, of any nature in
any form, including without limitation all writings, memoranda, copies, reports,
papers, surveys, analyses, drawings, letters, computer printouts, computer
programs, computer applications, specifications, customer data, trade secrets,
business methods, business processes, business techniques, business plans, data,
graphs, charts, sound recordings and/or pictorial reproductions which have been
identified at or about the time of disclosure as proprietary by the Disclosing
Party.
3. Upon receiving Proprietary Information, the Receiving Party shall keep in
strict confidence and not disclose to any person or entity not bound by this
Agreement any of the Disclosing Party's Proprietary Information except as
otherwise provided by the terms and conditions of this Agreement. The Receiving
Party shall not use such Proprietary Information except for the purposes
identified above without the prior approval of the Disclosing Party.
4. The Receiving Party shall not be liable for disclosure or use of any
Proprietary information if the same:
(a) is in or enters the public domain, other than by breach of this
Agreement, prior to such disclosure by the Receiving Party;
(b) is known to the Receiving Party at the time of first receipt, or
thereafter becomes known to the Receiving Party prior to or subsequent
to such disclosure without similar restrictions from a source other
than the Disclosing Party, as evidenced by written records; or
(c) is developed by the Receiving Party independently of any disclosure
hereunder as evidenced by written records.
5. The receiving Party will make Proprietary Information of the Disclosing
Party available only to those of its employees having a "need to know" in order
to carry out their functions in connection with the purpose stated in the
recitals hereof. The Receiving Party agrees to advise such employees of the
obligation of confidentiality hereunder and shall require such employees to use
the same degree of care as is used with that Party's own Proprietary
Information. The Receiving Party shall not mechanically copy or otherwise
reproduce Proprietary Information except to permit internal evaluation
consistent with such purposes. Each of such copies or reproductions shall
contain the same proprietary marking as the original.
6. The disclosure of Proprietary Information hereunder shall not be construed
as granting either a license under any patent, patent application, or copyright,
or any right of ownership in said Proprietary Information, nor shall such
disclosure constitute any representation, warranty, assurance, guarantee or
inducement by the Disclosing Party with respect to infringement of patents or
other rights of others.
7. Should the Receiving Party be required to disclose Proprietary Information
received hereunder by order of a governmental agency, legislative body, or court
of competent jurisdiction, the Receiving Party shall promptly notify the
Disclosing Party thereof, and, upon the request of the latter, shall reasonably
cooperate with the Disclosing Party (at the Disclosing Party's expense) in
contesting such disclosure. If after such contest disclosure is still required,
then the Receiving Party shall request confidential treatment of such
information from such governmental agency, legislative body, or court. Except in
connection with failure to discharge responsibilities set forth in the preceding
sentence, neither Party shall be liable in damages for any disclosures pursuant
to such governmental, legislative, or judicial order.
8. All Proprietary Information in tangible form of expression which has been
delivered or thereafter created by copy or reproduction pursuant to this
Agreement shall be and remain the property of the Disclosing Party. All such
Proprietary Information and any and all copies and reproductions thereof shall,
within thirty (30) days of written request by the Disclosing Party, be either
promptly returned to the Disclosing Party or destroyed at the Disclosing Party's
direction. In the event of such requested destruction, the Receiving Party shall
provide to the Disclosing Party written certification of compliance therewith
within thirty (30) days of such written request.
9. This Agreement shall control in lieu of and notwithstanding any
proprietary or restrictive legends or statements inconsistent with this
Agreement which may be associated with any particular information disclosed
hereunder.
10. This Agreement contains the entire understanding between the Parties with
respect to the safeguarding of said Proprietary Information, supersedes all
prior communications and understandings with respect thereto, and shall inure to
the benefit of and be binding upon all parent, subsidiary, affiliated, and
successor organizations of the Parties. This Agreement shall be interpreted,
construed, and enforced in accordance with the internal laws of the State of
California.
11. Neither Party makes any representation or warranty regarding the
Proprietary Information disclosed hereunder. Accordingly, each Party
acknowledges that the other is not responsible or liable for any business
decisions made by either Party in reliance upon disclosures made during any
meetings between the Parties or in reliance on any results of the discussions,
evaluations and/or negotiations.
12. Unless and until a written definitive agreement concerning the
transactions contemplated by the Agreement ("Transaction") has been executed by
a duly authorized officer of both Parties, neither Party nor any of its
affiliates will have any liability or obligation to the other with respect to
the Transaction, whether by virtue of this Agreement, any other written or oral
expression with respect to the Transaction or otherwise.
13. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY CLAIM OR DEMAND BY ANY
THIRD PARTY ARISING OUT OF THIS AGREEMENT OR USE OF ANY INFORMATION DISCLOSED
PURSUANT HERETO, NOR FOR ANY AMOUNT REPRESENTING LOSS OF PROFIT, LOSS OF
BUSINESS OR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES
EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14. This Agreement may be executed in several counterparts, each of which
shall be deemed an original and all such counterparts together shall constitute
but one and the same instrument. The parties also agree that this Agreement
shall be binding upon the faxing by each party of a signed signature page
thereof to the other party.
15. This Agreement shall continue to govern the exchange of information
for five (5) years after the date of this Agreement; however, each obligation
created pursuant to this Agreement will survive the termination of this
Agreement.
DIRECTV ENTERPRISES, INC. TELOCITY INC.
By: /s/ Xxxxxx Xxx By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxx Name: Xxxxxx Xxxxxxxxx
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Title: EVP Title: SVC Corporate
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