NON-DISCLOSURE AGREEMENT - Orange

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NON-DISCLOSURE AGREEMENT 

This Non-Disclosure Agreement (hereafter “Agreement”), made as of _____________, 200_ 

by and between 

Orange Communications SA 

Rue du Caudray 4 

CH-1020 Renens 1 

Switzerland 

and 

(“ORANGE”) 

(“PARTNER”) 

sets forth the terms and conditions governing the disclosure of Confidential Information (cf. 

section 2). 

1. PURPOSE 

ORANGE and the PARTNER wish to explore business opportunities of mutual interest 

concerning each Party’s business, operations, proprietary technology and products. In 

connection with this opportunity certain Confidential Information (cf. section 2) proprietary to 

each Party may be disclosed between the Parties. 

2. DEFINITIONS 

The party from time to time disclosing Confidential Information, as herein defined, shall be 

referred to as the ”Disclosing Party”. 

The party from time to time receiving such Confidential Information shall be referred to as the 

”Recipient”. 

The term “Confidential Information” shall refer to the confidential information disclosed by 

ORANGE or PARTNER, as the case may be. Confidential Information means any of the 

Disclosing Party’s proprietary information, not excluded by section 3 below, relating to: 

(a) the Disclosing Party’s proprietary technology and products, including without 

limitation technical data, trade secrets, know-how, research, product plans, ideas or 

concepts, products, services, software, inventions, patent applications, techniques, 

processes, developments, algorithms, formulas, technology, designs, schematics, 

drawings, engineering, and hardware configuration information (collectively “technical 

information”); and 

(b) proprietary information relating to the Disclosing Party’s operations and business of 

financial plans or strategies, including but not limited to customers, customer lists, 

markets, financial statements and projections, product pricing and marketing, 

financial or other strategic business, plans or information (collectively “business 

information”); 

January 2009 

Non-Disclosure Agreement


disclosed to the Recipient by the Disclosing Party either directly or indirectly, in writing 

(whether printed or in electronic form), copies (whether hard or soft copies), orally or by 

drawings or inspection of samples, equipment, facilities or otherwise. 

Confidential Information may be marked by the Disclosing Party as "Confidential," 

"Proprietary" or the substantial equivalent thereof and Confidential Information that is 

disclosed orally or visually may be identified by the Disclosing Party as confidential at the 

time of disclosure. However, Confidential Information not marked or identified as such must 

be treated in the same manner. 

“Effective Date” means the date as stated above, the date of signature or the date of first 

disclosure of Confidential Information whichever is earlier. 

3. LIMITATIONS 

Confidential Information shall not include any information that the Recipient can demonstrate: 

a) was in the Recipient's possession without confidentiality restriction prior to 

disclosure by the Disclosing Party hereunder; 

b) was generally known in the trade or business in which it is practiced by the 

Disclosing Party at the time of disclosure to Recipient hereunder, or becomes so 

generally known after such disclosure, through no act of Recipient; 

c) had come into the possession of Recipient without confidentiality restriction from a 

third party and such third party is under no obligation to the Disclosing Party to 

maintain the confidentiality of such information; 

d) was developed by Recipient independently of and without reference to Confidential 

Information; 

e) was approved for release by express written consent by the Disclosing Party; or 

f) was required to be disclosed in order to comply with a judicial order or decree, 

provided that the Recipient shall use its best efforts to maintain the confidentiality 

of the Confidential Information, e.g. asserting in such action any applicable 

privileges, and shall, immediately after gaining knowledge or receiving notice of 

such action, notify the Disclosing Party thereof and give both Parties the 

opportunity to seek any other legal remedies so as to maintain such Confidential 

Information in confidentiality. 

If the Recipient discloses and/or uses information which the Disclosing Party considers to be 

Confidential Information, the onus of providing evidence for the existence of one of the above 

limitations shall be with the Recipient. 

If a particular portion or aspect of Confidential Information becomes subject to any of the 

foregoing limitations, all other portions or aspects of such information shall remain subject to 

all of the provisions of this Agreement. 

4. NON-DISCLOSURE 

The Recipient shall use Confidential Information only for the purpose for which such 

information has been disclosed and shall in general not disclose such information to third 

parties without prior written consent by the Disclosing Party. 

Other than as expressly permitted, the Recipient shall only disclose any Confidential 

Information to employee(s) and/or third party/parties on a need-to-know basis (permitted 

January 2009 Non-Disclosure Agreement page 2


purpose). The Recipient shall be responsible in case that any such employee(s) and/or third 

party/parties do not adhere to the non-disclosure provisions as set out in this Agreement. 

Notwithstanding the foregoing, each Party may disclose Confidential Information to its 

affiliates, to its parent company/companies and/or any of the latter’s affiliates (directly or 

indirectly controlled), provided that the Party shall cause such companies to be bound to the 

comparable obligations on non-disclosure as those set out under this Agreement. 

5. VALIDITY AND TERM 

This Agreement enters into effect from the Effective Date for an unlimited period of time. Any 

party can terminate it at any time by registered letter. However, for each piece of Confidential 

Information, which has already been disclosed at the time of the termination, the obligations 

hereunder shall remain in full force and effect for the duration of the Non-Disclosure Period 

(cf. hereafter), whereupon they shall expire. 

Except as expressly permitted herein, for a period of 5 (five) years from the date of 

disclosure (the "Non-Disclosure Period"), the Recipient shall not disclose to third parties 

Confidential Information. 

In the event any one or more of the provisions contained in this Agreement shall be for any 

reason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or 

unenforceability shall not affect any other provisions of this Agreement, but such Agreement 

shall be construed as if such invalid, illegal or unenforceable provision had never been set 

forth herein and the Agreement shall be carried out as nearly as possible according to its 

original terms and intent. The same shall apply mutatis mutandis with respect to any situation 

not contemplated by the Parties in this Agreement. 

6. RETURN OF CONFIDENTIAL INFORMATION 

Any Confidential Information including copies and any derivatives thereof that has been 

disclosed by the Disclosing Party to the Recipient shall remain the property of the Disclosing 

Party and shall be promptly returned to the Disclosing Party, at any time and upon the 

Disclosing Party’s request. Each Party shall carry its costs with respect to the return. 

The Recipient shall not make any copies in any form or otherwise disseminate any 

Confidential Information without the prior written consent of the Disclosing Party, except as 

reasonably required to accomplish Disclosing Party’s permitted purpose. 

7. BREACH OF AGREEMENT 

The Recipient agrees to compensate the Disclosing Party for any damages resulting from 

any breach of any of obligations under this Agreement. Any payment made under this 

section 7 shall not relieve the Parties of their further obligations under this Agreement, and 

the Disclosing Party shall have the right to seek immediate injunctive relief to enforce the 

obligations under this Agreement and shall not affect any other rights and remedies the 

Disclosing Party may have. 

8. MISCELLANEOUS 



Other than as expressly specified herein, the Disclosing Party grants no right to Recipient 

under any copyrights, patents, trademarks, trade secrets or other proprietary rights to use or 

reproduce Confidential Information. All Intellectual and Industrial Property Rights on the 

Confidential Information remain in any case under the Disclosing Party’s property. 

This Agreement supersedes all prior oral or written agreements, commitments and 

understandings pertaining to the subject matter hereof. Any modifications must be agreed in 

writing. 

Any right granted under this Agreement may not be assigned or otherwise transferred 

without prior written consent of the other Party. 

Subject to applicable law, any public announcement relating to the existence of this 

Agreement and/or discussions between the Parties must be previously agreed between the 

Parties in writing. 

Nothing in this Agreement shall be deemed to oblige the Parties to enter into further 

contracts with respect to the subject matter thereof or any other subject matter. 

This Agreement and all actions related hereto shall be governed by the laws of 

Switzerland. Place of jurisdiction shall either be Lausanne or Zurich. The right to 

choose one of the mentioned places of jurisdiction lies with the plaintiff. 

IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be 

executed by its duly authorized representatives. 

For the PARTNER: 

For ORANGE: 

Signature: 

Name: 

Signature: 

Name: 

Signature: 

Name: 

Signature: 

Name:

NON-DISCLOSURE AGREEMENT - Orange

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