IF
EXECUTED BY CONSULTANT.
WHEN REQUESTED BY THERAVANCE, CONSULTANT WILL MAKE
AVAILABLE TO THERAVANCE ALL NOTES, DATA AND OTHER INFORMATION RELATING TO ANY
INVENTION.
3.
PROPRIETARY INFORMATION.
CONSULTANT
AGREES THAT ALL INVENTIONS AND OTHER BUSINESS, TECHNICAL AND FINANCIAL
INFORMATION CONCERNING THERAVANCE (INCLUDING, WITHOUT LIMITATION, THE IDENTITY
OF AND INFORMATION RELATING TO THERAVANCE'S EMPLOYEES, VENDORS AND SERVICE
PROVIDERS) THAT CONSULTANT DEVELOPS, LEARNS OR OBTAINS DURING THE TERM OF THIS
AGREEMENT OR WHILE HE IS PROVIDING SERVICES CONSTITUTE "PROPRIETARY
INFORMATION."
CONSULTANT WILL HOLD IN CONFIDENCE AND NOT DISCLOSE OR MAKE
AVAILABLE TO THIRD PARTIES OR MAKE USE OF ANY PROPRIETARY INFORMATION EXCEPT
WITH THE PRIOR WRITTEN CONSENT OF THERAVANCE OR TO THE EXTENT NECESSARY IN
PERFORMING SERVICES FOR THERAVANCE.
HOWEVER, CONSULTANT SHALL NOT BE OBLIGATED
UNDER THIS PARAGRAPH WITH RESPECT TO INFORMATION CONSULTANT CAN DOCUMENT (I) IS
OR BECOMES READILY PUBLICLY AVAILABLE WITHOUT RESTRICTION THROUGH NO FAULT OF
CONSULTANT, OR (II) THAT CONSULTANT KNEW WITHOUT RESTRICTION PRIOR TO ITS
DISCLOSURE BY THERAVANCE.
UPON TERMINATION OF THIS AGREEMENT OR AS OTHERWISE
REQUESTED BY THERAVANCE, CONSULTANT WILL PROMPTLY RETURN TO THERAVANCE ALL
DOCUMENTS, MATERIALS AND COPIES CONTAINING OR EMBODYING PROPRIETARY INFORMATION,
EXCEPT THAT CONSULTANT MAY KEEP A PERSONAL COPY OF (I) COMPENSATION RECORDS
RELATING TO THE SERVICES AND (II) THIS AGREEMENT.
4.
SOLICITATION.
AS ADDITIONAL PROTECTION
FOR PROPRIETARY INFORMATION, CONSULTANT AGREES THAT DURING THE TERM OF THIS
AGREEMENT AND FOR ONE YEAR THEREAFTER, CONSULTANT WILL NOT ENCOURAGE OR SOLICIT
ANY EMPLOYEE OF OR CONSULTANT TO THERAVANCE TO LEAVE THERAVANCE FOR ANY REASON.
5.
TERM AND TERMINATION.
THIS AGREEMENT
SHALL BECOME EFFECTIVE ON THE DATE HEREOF AND REMAIN IN FORCE UNTIL THE EARLIER
OF MARCH 31, 2009 OR WHEN TERMINATED BY EITHER PARTY. CONSULTANT MAY TERMINATE
THIS AGREEMENT AT ANY TIME, FOR ANY REASON, BY GIVING THERAVANCE 30 DAYS ADVANCE
WRITTEN NOTICE.
THERAVANCE MAY TERMINATE THIS AGREEMENT PRIOR TO MARCH 31, 2009
ONLY FOR CAUSE, WHICH FOR PURPOSES HEREOF SHALL MEAN:
(I) THE UNAUTHORIZED USE
OR DISCLOSURE OF THE CONFIDENTIAL INFORMATION OR TRADE SECRETS OF THE COMPANY,
(II) CONVICTION OF A FELONY UNDER THE LAWS OF THE UNITED STATES OR ANY STATE
THEREOF, (III) NEGLIGENCE, (IV) A MATERIAL BREACH OF THIS AGREEMENT; (V) FAILURE
TO PERFORM LAWFUL ASSIGNED SERVICES FOR TEN DAYS AFTER RECEIVING WRITTEN
NOTIFICATION FROM THE COMPANY; OR (VI) PRIOR TO THE NDA SUBMISSION DATE,
PROVIDING SERVICES TO ANOTHER COMPANY OR ENTITY ON ANY BASIS THAT USES MORE THAN
ONE BUSINESS DAY PER WEEK OF CONSULTANT'S TIME WITHOUT THE PRIOR WRITTEN CONSENT
OF THE COMPANY. ALL PROVISIONS OF THIS AGREEMENT AND ANY REMEDIES FOR BREACH OF
THIS AGREEMENT SHALL SURVIVE ANY TERMINATION OR EXPIRATION.
6.
RELATIONSHIP OF THE PARTIES.
NOTWITHSTANDING ANY PROVISION HEREOF, FOR ALL PURPOSES OF THIS AGREEMENT EACH
PARTY SHALL BE AND ACT AS AN INDEPENDENT CONTRACTOR AND NOT AS A PARTNER, JOINT
VENTURER, OR AGENT OF THE OTHER AND SHALL NOT BIND NOR ATTEMPT TO BIND THE OTHER
TO ANY CONTRACT.
CONSULTANT IS AN INDEPENDENT CONTRACTOR AND IS SOLELY
RESPONSIBLE FOR ALL TAXES, WITHHOLDINGS, AND OTHER STATUTORY OR CONTRACTUAL