EXHIBIT (d)(2)
CONFIDENTIALITY AGREEMENT
This CONFIDENTIALITY AGREEMENT ("Agreement") is entered into between
SBI Inc. ("SBI") and the interested party which is identified at the end of, and
by execution hereof, becomes a party to this Agreement ("Prospect"). Except
where the context requires otherwise, the references herein to SBI shall be
deemed to include the affiliates and subsidiaries of SBI.
1. Protection of Confidential Information
Prospect hereby acknowledges, understands and agrees that whether developed by
SBI or others employed by or associated with SBI, all Confidential Information,
as set forth in Section 2, is the exclusive and confidential property of SBI and
shall be at all times regarded, treated and protected as such in accordance with
this Agreement. Failure to ▇▇▇▇ any writing confidential shall not affect the
confidential nature of such writing or the information contained therein.
2. Definition of Confidential Information
"Confidential Information" shall mean information, whether or not originated by
SBI, which is used in SBI's business and is (i) proprietary to, about or created
by SBI; (ii) gives SBI some competitive business advantage or the opportunity of
obtaining such advantage or the disclosure of which could be detrimental to the
interests of SBI; (iii) designated as Confidential Information by SBI, or from
all the relevant circumstances should reasonably be assumed by Prospect to be
confidential and proprietary to SBI; or (iv) not generally known by non-SBI
personnel. Such Confidential Information includes, but is not limited to, the
following types of information and other information of a similar nature
(whether or not reduced to writing or designated as confidential):
a. Work Product. Work product resulting from or related to work or
projects performed or to be performed for SBI or for clients of SBI, including
but not limited to the interim and final lines of inquiry, hypotheses, research
and conclusions related thereto and the methods, processes, procedures,
analysis, techniques and audits used in connection therewith;
b. Computer Software. Computer software of any type or form in any
stage of actual or anticipated research and development, including but not
limited to programs and program modules, routines and subroutines, processes,
algorithms, design concepts, design specifications (design notes, annotations,
documentation, flowcharts, coding sheets, and the like), source code, object
code and load modules, programming, program patches and system designs;
c. Other Proprietary Data. Information relating to SBI's proprietary
rights prior to any public disclosure thereof, including but not limited to the
nature of the proprietary rights, production data, technical and engineering
data, test data and test results, the status and details of research and
development of products and services, and information regarding acquiring,
protecting, enforcing and licensing proprietary rights (including patents,
copyrights and trade secrets):
d. Business Operations. Internal SBI personnel and financial
information, vendor names and other vendor information (including vendor
characteristics, services and agreements), purchasing and internal cost
information, internal services and operational manuals, and the manner and
methods of conducting SBI's business;
e. Marketing and Development Operations. Marketing and development
plans, price and cost data, price and fee amounts, pricing and billing policies,
quoting procedures, marketing techniques and methods of obtaining business,
forecasts and forecast assumptions and volumes, and future plans and potential
strategies of SBI which have been or are being discussed; and
f. Customers. Names of customers or clients and their representatives,
contracts and their contents and parties, SBI services, data provided by
customers and the type, quantity and specifications of products and services
purchased, leased, licensed or received by customers or clients of SBI.
3. Exclusions from Confidential Information
"Confidential Information" shall not include information that is publicly known.
The phrase "publicly known" shall mean readily accessible to the public in a
written publication, and shall not include information which is only available
by a substantial searching of the published literature, and information the
substance of which must be pieced together from a number of different
publications and sources. The burden of proving that information is not
Confidential Information shall be on the party asserting such exclusion.
4. Covenants of Prospect
As a consequence of Prospect's acquisition or anticipated acquisition of
Confidential Information, Prospect will occupy a position of trust and
confidence with respect to SBI's affairs and business. In view of the foregoing
and of the consideration to be provided to Prospect, Prospect agrees that it is
reasonable and necessary that Prospect make the following covenants:
a. No Disclosure. Prospect will not disclose Confidential Information
to any person or entity other than as necessary in connection with its
activities with SBI, without first obtaining SBI's consent, and will take all
reasonable precautions to prevent inadvertent disclosure of such Confidential
Information. This prohibition against Prospect's disclosure of Confidential
Information includes, but is not limited to, disclosing the fact that any
similarity exists between the Confidential Information and information
independently developed by another person or entity, and Prospect understands
that such similarity does not excuse Prospect from abiding by its covenant or
other obligations under this Agreement.
b. No Use, Copying or Transfer. Prospect will not use, copy or
transfer Confidential Information other than as necessary in connection with its
activities with SBI, without first obtaining SBI's consent, and will take all
reasonable precautions to prevent inadvertent use, copying or transfer of such
Confidential Information. This prohibition against Prospect's use, copying, or
transfer of Confidential Information includes, but is not limited to, selling,
licensing
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or otherwise exploiting, directly or indirectly, any products or services
(including software in any form) which embody or are derived from Confidential
Information, or exercising judgment in performing analysis based upon knowledge
of Confidential Information.
c. No Use of Name or Trademark. Prospect agrees not to make any
written use of or reference to SBI's name or trademarks (or any name under which
SBI does business) for any marketing, public relations, advertising, display or
other business purpose or make any use of SBI's facilities for any activity
unrelated to the express business purposes and interests of SBI under this
Agreement, without the prior written consent of SBI, which consent may be
withheld or granted in SBI's sole and absolute discretion.
d. Non-Solicitation. For a period of two years after the date hereof,
Prospect will not, directly or indirectly through another entity, (i) induce or
attempt to induce any employee of SBI to leave the employ of SBI, or in any way
interfere with the relationship between SBI and any employee thereof, or (ii)
induce or attempt to induce any customer or client of SBI to cease doing
business with SBI or solicit any such customer or client of SBI to become a
customer or client of Prospect, or in any way interfere with the relationship
between any such customer or client and SBI
5. Injunctive Relief
It is hereby understood and agreed that damages shall be an inadequate remedy in
the event of a breach by Prospect of any of said covenants and that any such
breach by Prospect will cause SBI great and irreparable injury and damage.
Accordingly, Prospect agrees that SBI shall be entitled, without waiving any
additional rights or remedies otherwise available to SBI at law or in equity or
by statute, to injunctive and other equitable relief in the event of a breach or
intended or threatened breach by Prospect of any of said covenants.
6. Miscellaneous
a. Governing Law. This Agreement will be governed and construed in
accordance with the laws of the State of Utah without regard to the conflicts of
laws or principles thereof.
b. Severability. In case any one or more of the provisions contained
herein shall, for any reason, be held to be invalid, illegal, or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions of this Agreement and this Agreement shall be construed as
if such provision(s) had never been contained herein, provided that such
provision(s) shall be curtailed, limited or eliminated only to the extent
necessary to remove the invalidity, illegality or unenforceability.
c. Waiver. No waiver by SBI of any breach by Prospect of any of the
provisions of this Agreement shall be deemed a waiver of any preceding or
succeeding breach of the same or any other provisions hereof. No such waiver
shall be effective unless in writing and then only to the extent expressly set
forth in writing.
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d. Entire Agreement. This Agreement constitutes the entire agreement
of the parties with respect to Prospect's confidentiality and nondisclosure
obligations.
In Witness Whereof, the parties have executed this Agreement as of the
date first set forth above.
SBI:
SBI, INC.
By: /s/
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Title:
PROSPECT:
RAZORFISH
[Name of Prospect]
By: /s/_John ▇▇▇▇▇▇▇
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Title: CFO
Address: ▇▇▇ ▇▇▇▇▇ ▇▇.
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