Exhibit 99(D)(2)
NON-DISCLOSURE AGREEMENT
This Agreement, made and entered into as of the 30th day of March, 2001, by
and between ▇▇▇▇▇▇▇▇.▇▇▇, Inc., a corporation organized under the laws of the
State of Delaware, having a place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇▇▇.▇▇▇"), and United NewVentures, a division of
United Airlines, Inc. with its principal place of business at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Receiving Party").
WHEREAS, ▇▇▇▇▇▇▇▇.▇▇▇ is engaged in the business of marketing and selling
online business programs and services, and owns and operates the MyPoints(R)
Program, BonusMail(R) Program and other internet related programs;
WHEREAS, Receiving Party, in conjunction with OurHouse, Inc., has indicated
an interest in potentially acquiring ▇▇▇▇▇▇▇▇.▇▇▇ and in this regard has
requested certain financial, business, technical and other information about
▇▇▇▇▇▇▇▇.▇▇▇ which information is proprietary to, and held as the confidential
information of, ▇▇▇▇▇▇▇▇.▇▇▇ (hereinafter referred to as the "Confidential
Information");
WHEREAS, ▇▇▇▇▇▇▇▇.▇▇▇ has agreed to provide the Confidential Information to
Receiving Party, and Receiving Party agrees to accept such Confidential
Information only in strict accordance with the provisions of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby mutually acknowledged, the parties agree as follows:
1. This Agreement shall bind Receiving Party and those taking under it with
regard to all Confidential Information disclosed to, or obtained by,
Receiving Party hereunder. For the purposes of this Agreement Confidential
Information shall include all information disclosed, directly or indirectly,
through any means of communication or observation, by ▇▇▇▇▇▇▇▇.▇▇▇ to or for
the benefit of Receiving Party, that relates to or is derived from
▇▇▇▇▇▇▇▇.▇▇▇'s technical, business, strategic, marketing or creative affairs,
or to any other matter that the Receiving Party is advised or has reason to
know is the confidential or proprietary information of ▇▇▇▇▇▇▇▇.▇▇▇. Any
material provided by ▇▇▇▇▇▇▇▇.▇▇▇ to Receiving Party which is clearly
designated "Confidential" (or other similar legend) will be presumed to be
Confidential Information. The absence of any such legend, however, will not
preclude the same from being deemed Confidential Information.
2. Receiving Party agrees that receipt of Confidential Information, pursuant to
this Agreement, is exclusively for the purpose of evaluating a potential
acquisition of
▇▇▇▇▇▇▇▇.▇▇▇ and Receiving Party shall not use the Confidential Information
for any other purpose.
3. Confidential Information disclosed to Receiving Party hereunder shall:
a. not be copied or distributed, disclosed, or disseminated in any way or
form by the Receiving Party to any third party without the written
permission of ▇▇▇▇▇▇▇▇.▇▇▇ first obtained;
b. be treated by the Receiving Party with the same degree of care to avoid
disclosure to any third party as is used with respect to the Receiving
Party's own proprietary and confidential information of like importance;
c. remain the property of the ▇▇▇▇▇▇▇▇.▇▇▇, and shall be returned by the
Receiving Party to ▇▇▇▇▇▇▇▇.▇▇▇ (along with all copies thereof) promptly
upon its receipt of a request from ▇▇▇▇▇▇▇▇.▇▇▇ to do so;
d. not be used by Receiving Party for any purpose other than as specified
herein or otherwise approved by ▇▇▇▇▇▇▇▇.▇▇▇ in writing.
4. The obligations set forth in Paragraph 3 above shall not apply to any
information which:
a. is already in the public domain at the time of disclosure to the
Receiving Party or becomes available to the public through no breach of
this Agreement by the Receiving Party;
b. was lawfully in the Receiving Party's possession prior to receipt from
the ▇▇▇▇▇▇▇▇.▇▇▇;
c. is disclosed to Receiving Party by a third party with the right to do
so.
For the purposes of this Paragraph 4, information shall not be deemed to be
in the public domain merely because any part of said information is embodied
in general disclosures or because individual features, components or
combinations thereof are now, or become, known to the public, provided,
however, that the obligations of Paragraph 3 hereof shall not apply to any
such part of said information.
5. Unless otherwise mutually agreed in writing, the Receiving Party's
obligations with respect to each item of Confidential Information shall
terminate five (5) years from the date of the receipt thereof by the
Receiving Party.
6. Nothing contained herein shall obligate ▇▇▇▇▇▇▇▇.▇▇▇ to disclose any
particular information to Receiving Party nor require Receiving Party to
accept such information.
7. This Agreement shall be effective as of the date first set forth above
8. Receiving Party warrants and represents that it possesses all necessary
power, right and authority to lawfully execute and perform the obligations
set forth herein.
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9. This Agreement represents the entire understanding and agreement of the
parties and supersedes all prior communications, agreements and
understandings relating to the subject matter hereof. The provisions of this
Agreement may not be modified, amended nor waived, except by a written
instrument duly executed by both parties. This Agreement may not be assigned
by Receiving Party without the prior written consent of the ▇▇▇▇▇▇▇▇.▇▇▇.
This Agreement is made subject to, and shall be construed under, the laws of
the State of Illinois.
10.Receiving Party agrees to keep the existence and nature of this Agreement
confidential.
▇▇.▇▇ the event that Receiving Party becomes legally compelled to disclose any
of the Confidential Information, Receiving Party shall provide ▇▇▇▇▇▇▇▇.▇▇▇
with prompt notice so that it may seek a protective order or other
appropriate remedy and/or waive compliance with the provisions of this
Agreement. In the event ▇▇▇▇▇▇▇▇.▇▇▇ is unable to obtain such protective
order or other appropriate remedy, only that portion of the Confidential
Information which has been deemed by a written opinion of counsel to be
legally required to be furnished, shall be disclosed, and Receiving Party
will cooperate with the ▇▇▇▇▇▇▇▇.▇▇▇ to obtain a protective order or other
reliable assurance that confidential treatment will be accorded the
Confidential Information so disclosed.
▇▇.▇▇ is understood and agree that monetary damages will not be a sufficient
remedy for any breach of this Agreement by the Receiving Party, and that
▇▇▇▇▇▇▇▇.▇▇▇ shall be entitled to specific performance and/or injunctive
relief as a remedy for any such breach of this Agreement, but said remedies
shall be in addition to all other remedies available at law or in equity. It
is further agreed that this Agreement is made for the benefit of
▇▇▇▇▇▇▇▇.▇▇▇, and that no failure or delay by ▇▇▇▇▇▇▇▇.▇▇▇ to enforce its
rights hereunder shall operate as a waiver of any right, power or privilege
under this Agreement, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof.
IN WITNESS WHEREOF, an authorized representative of each respective party has
executed this Agreement on the dates following their respective signatures.
▇▇▇▇▇▇▇▇.▇▇▇, Inc. ("▇▇▇▇▇▇▇▇.▇▇▇") United NewVentures ("Receiving Party")
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: ▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Sr. Vice President Title: Chief Financial Officer
and General Counsel --------------------------------
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Date: 4\4\01 Date: 4\4\01
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