NON-DISCLOSURE AGREEMENT - Orange
NON-DISCLOSURE AGREEMENT - Orange
NON-DISCLOSURE AGREEMENT - Orange
- No tags were found...
Create successful ePaper yourself
Turn your PDF publications into a flip-book with our unique Google optimized e-Paper software.
orange TM<br />
<strong>NON</strong>-<strong>DISCLOSURE</strong> <strong>AGREEMENT</strong><br />
This Non-Disclosure Agreement (hereafter “Agreement”), made as of _____________, 200_<br />
by and between<br />
<strong>Orange</strong> Communications SA<br />
Rue du Caudray 4<br />
CH-1020 Renens 1<br />
Switzerland<br />
and<br />
(“ORANGE”)<br />
(“PARTNER”)<br />
sets forth the terms and conditions governing the disclosure of Confidential Information (cf.<br />
section 2).<br />
1. PURPOSE<br />
ORANGE and the PARTNER wish to explore business opportunities of mutual interest<br />
concerning each Party’s business, operations, proprietary technology and products. In<br />
connection with this opportunity certain Confidential Information (cf. section 2) proprietary to<br />
each Party may be disclosed between the Parties.<br />
2. DEFINITIONS<br />
The party from time to time disclosing Confidential Information, as herein defined, shall be<br />
referred to as the ”Disclosing Party”.<br />
The party from time to time receiving such Confidential Information shall be referred to as the<br />
”Recipient”.<br />
The term “Confidential Information” shall refer to the confidential information disclosed by<br />
ORANGE or PARTNER, as the case may be. Confidential Information means any of the<br />
Disclosing Party’s proprietary information, not excluded by section 3 below, relating to:<br />
(a) the Disclosing Party’s proprietary technology and products, including without<br />
limitation technical data, trade secrets, know-how, research, product plans, ideas or<br />
concepts, products, services, software, inventions, patent applications, techniques,<br />
processes, developments, algorithms, formulas, technology, designs, schematics,<br />
drawings, engineering, and hardware configuration information (collectively “technical<br />
information”); and<br />
(b) proprietary information relating to the Disclosing Party’s operations and business of<br />
financial plans or strategies, including but not limited to customers, customer lists,<br />
markets, financial statements and projections, product pricing and marketing,<br />
financial or other strategic business, plans or information (collectively “business<br />
information”);<br />
January 2009<br />
Non-Disclosure Agreement
<strong>Orange</strong> Communications SA<br />
disclosed to the Recipient by the Disclosing Party either directly or indirectly, in writing<br />
(whether printed or in electronic form), copies (whether hard or soft copies), orally or by<br />
drawings or inspection of samples, equipment, facilities or otherwise.<br />
Confidential Information may be marked by the Disclosing Party as "Confidential,"<br />
"Proprietary" or the substantial equivalent thereof and Confidential Information that is<br />
disclosed orally or visually may be identified by the Disclosing Party as confidential at the<br />
time of disclosure. However, Confidential Information not marked or identified as such must<br />
be treated in the same manner.<br />
“Effective Date” means the date as stated above, the date of signature or the date of first<br />
disclosure of Confidential Information whichever is earlier.<br />
3. LIMITATIONS<br />
Confidential Information shall not include any information that the Recipient can demonstrate:<br />
a) was in the Recipient's possession without confidentiality restriction prior to<br />
disclosure by the Disclosing Party hereunder;<br />
b) was generally known in the trade or business in which it is practiced by the<br />
Disclosing Party at the time of disclosure to Recipient hereunder, or becomes so<br />
generally known after such disclosure, through no act of Recipient;<br />
c) had come into the possession of Recipient without confidentiality restriction from a<br />
third party and such third party is under no obligation to the Disclosing Party to<br />
maintain the confidentiality of such information;<br />
d) was developed by Recipient independently of and without reference to Confidential<br />
Information;<br />
e) was approved for release by express written consent by the Disclosing Party; or<br />
f) was required to be disclosed in order to comply with a judicial order or decree,<br />
provided that the Recipient shall use its best efforts to maintain the confidentiality<br />
of the Confidential Information, e.g. asserting in such action any applicable<br />
privileges, and shall, immediately after gaining knowledge or receiving notice of<br />
such action, notify the Disclosing Party thereof and give both Parties the<br />
opportunity to seek any other legal remedies so as to maintain such Confidential<br />
Information in confidentiality.<br />
If the Recipient discloses and/or uses information which the Disclosing Party considers to be<br />
Confidential Information, the onus of providing evidence for the existence of one of the above<br />
limitations shall be with the Recipient.<br />
If a particular portion or aspect of Confidential Information becomes subject to any of the<br />
foregoing limitations, all other portions or aspects of such information shall remain subject to<br />
all of the provisions of this Agreement.<br />
4. <strong>NON</strong>-<strong>DISCLOSURE</strong><br />
The Recipient shall use Confidential Information only for the purpose for which such<br />
information has been disclosed and shall in general not disclose such information to third<br />
parties without prior written consent by the Disclosing Party.<br />
Other than as expressly permitted, the Recipient shall only disclose any Confidential<br />
Information to employee(s) and/or third party/parties on a need-to-know basis (permitted<br />
January 2009 Non-Disclosure Agreement page 2
<strong>Orange</strong> Communications SA<br />
purpose). The Recipient shall be responsible in case that any such employee(s) and/or third<br />
party/parties do not adhere to the non-disclosure provisions as set out in this Agreement.<br />
Notwithstanding the foregoing, each Party may disclose Confidential Information to its<br />
affiliates, to its parent company/companies and/or any of the latter’s affiliates (directly or<br />
indirectly controlled), provided that the Party shall cause such companies to be bound to the<br />
comparable obligations on non-disclosure as those set out under this Agreement.<br />
5. VALIDITY AND TERM<br />
This Agreement enters into effect from the Effective Date for an unlimited period of time. Any<br />
party can terminate it at any time by registered letter. However, for each piece of Confidential<br />
Information, which has already been disclosed at the time of the termination, the obligations<br />
hereunder shall remain in full force and effect for the duration of the Non-Disclosure Period<br />
(cf. hereafter), whereupon they shall expire.<br />
Except as expressly permitted herein, for a period of 5 (five) years from the date of<br />
disclosure (the "Non-Disclosure Period"), the Recipient shall not disclose to third parties<br />
Confidential Information.<br />
In the event any one or more of the provisions contained in this Agreement shall be for any<br />
reason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or<br />
unenforceability shall not affect any other provisions of this Agreement, but such Agreement<br />
shall be construed as if such invalid, illegal or unenforceable provision had never been set<br />
forth herein and the Agreement shall be carried out as nearly as possible according to its<br />
original terms and intent. The same shall apply mutatis mutandis with respect to any situation<br />
not contemplated by the Parties in this Agreement.<br />
6. RETURN OF CONFIDENTIAL INFORMATION<br />
Any Confidential Information including copies and any derivatives thereof that has been<br />
disclosed by the Disclosing Party to the Recipient shall remain the property of the Disclosing<br />
Party and shall be promptly returned to the Disclosing Party, at any time and upon the<br />
Disclosing Party’s request. Each Party shall carry its costs with respect to the return.<br />
The Recipient shall not make any copies in any form or otherwise disseminate any<br />
Confidential Information without the prior written consent of the Disclosing Party, except as<br />
reasonably required to accomplish Disclosing Party’s permitted purpose.<br />
7. BREACH OF <strong>AGREEMENT</strong><br />
The Recipient agrees to compensate the Disclosing Party for any damages resulting from<br />
any breach of any of obligations under this Agreement. Any payment made under this<br />
section 7 shall not relieve the Parties of their further obligations under this Agreement, and<br />
the Disclosing Party shall have the right to seek immediate injunctive relief to enforce the<br />
obligations under this Agreement and shall not affect any other rights and remedies the<br />
Disclosing Party may have.<br />
8. MISCELLANEOUS<br />
January 2009 Non-Disclosure Agreement page 3
<strong>Orange</strong> Communications SA<br />
Other than as expressly specified herein, the Disclosing Party grants no right to Recipient<br />
under any copyrights, patents, trademarks, trade secrets or other proprietary rights to use or<br />
reproduce Confidential Information. All Intellectual and Industrial Property Rights on the<br />
Confidential Information remain in any case under the Disclosing Party’s property.<br />
This Agreement supersedes all prior oral or written agreements, commitments and<br />
understandings pertaining to the subject matter hereof. Any modifications must be agreed in<br />
writing.<br />
Any right granted under this Agreement may not be assigned or otherwise transferred<br />
without prior written consent of the other Party.<br />
Subject to applicable law, any public announcement relating to the existence of this<br />
Agreement and/or discussions between the Parties must be previously agreed between the<br />
Parties in writing.<br />
Nothing in this Agreement shall be deemed to oblige the Parties to enter into further<br />
contracts with respect to the subject matter thereof or any other subject matter.<br />
This Agreement and all actions related hereto shall be governed by the laws of<br />
Switzerland. Place of jurisdiction shall either be Lausanne or Zurich. The right to<br />
choose one of the mentioned places of jurisdiction lies with the plaintiff.<br />
IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be<br />
executed by its duly authorized representatives.<br />
For the PARTNER:<br />
For ORANGE:<br />
Signature:<br />
Name:<br />
Signature:<br />
Name:<br />
Signature:<br />
Name:<br />
Signature:<br />
Name:<br />
January 2009 Non-Disclosure Agreement page 4