This Mutual Non-Disclosure Agreement (the “NDA”) is entered into between ELXAO SASU, headquartered at 154 boulevard Malesherbes, 75017 Paris, France (RCS Paris 102 508 496), and the client identified in the order (together, the “Parties” and each a “Party”). The NDA forms part of the Agreement and protects all information exchanged in the context of negotiating, entering into and performing any engagement between the Parties.
Confidential Information
“Confidential Information” means any non-public information disclosed by one Party (the “Disclosing Party”) to the other (the “Receiving Party”), in any form (oral, written, electronic, visual), whether or not marked confidential, that a reasonable professional would understand to be confidential given its nature or the circumstances of disclosure. This includes, without limitation: business plans, strategies, financial information, customer lists, supplier information, technical know-how, source code, designs, drafts, prototypes, analytics, marketing plans, pricing, contractual terms, personnel information and any data shared in the course of the Services.
Exclusions
Confidential Information does not include information that the Receiving Party can demonstrate, by written evidence: (a) was lawfully in its possession without confidentiality obligation prior to disclosure; (b) is or becomes publicly available through no breach of this NDA; (c) was independently developed without use of or reference to the Confidential Information; or (d) was lawfully received from a third party not bound by confidentiality.
Permitted use
The Receiving Party may use the Confidential Information solely for the purpose of evaluating, negotiating, entering into and performing the Agreement (the “Purpose”). Any other use, in particular for the benefit of any third party or for any competitive purpose, is strictly prohibited.
Standard of care & permitted recipients
The Receiving Party shall protect the Confidential Information with at least the same degree of care it uses to protect its own confidential information of equivalent importance, and in any event no less than reasonable care. It may disclose the Confidential Information only to its directors, employees, freelancers, subcontractors, advisors and insurers who (i) have a strict need to know for the Purpose and (ii) are bound by written confidentiality obligations no less protective than those of this NDA. The Receiving Party remains liable for any breach by such persons.
Compelled disclosure
If the Receiving Party is required by law, regulation, court order or competent authority to disclose Confidential Information, it shall, to the extent legally permitted, notify the Disclosing Party promptly in writing so that the Disclosing Party may seek a protective order or other appropriate remedy. The Receiving Party shall disclose only the portion of Confidential Information that is legally required.
No licence; no representation
Nothing in this NDA grants the Receiving Party any right, title, licence or interest, by implication or otherwise, in any Confidential Information or related intellectual property. The Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Confidential Information.
Return & destruction
Upon termination of the Agreement, or at the Disclosing Party’s written request at any time, the Receiving Party shall promptly return or destroy all Confidential Information in its possession, including all copies and derivatives, and shall certify such destruction in writing if requested. The Receiving Party may retain one copy in archives or backups solely for legal-compliance purposes, subject to the continued application of this NDA.
Term & survival
This NDA enters into force on its acceptance and remains in effect during the term of the Agreement and for five (5) years thereafter. Confidential Information that constitutes a trade secret under French law remains protected for as long as it qualifies as such.
Remedies
The Parties acknowledge that monetary damages may be insufficient to remedy a breach of this NDA and that the Disclosing Party shall be entitled, without prejudice to any other remedy and without having to post a bond, to seek interim and final injunctive relief from any competent French court.
No solicitation
During the term of the Agreement and for twelve (12) months thereafter, neither Party shall directly solicit for employment any employee or named freelancer of the other Party who has been substantially involved in the Engagement, without the other Party’s prior written consent. General job postings and responses thereto are not a breach of this clause.
Governing law & jurisdiction
This NDA is governed by French law. Any dispute is subject to the exclusive jurisdiction of the competent courts of Paris, France.