WHEREAS
(a) PARTNER wishes to become a member of the Sage ERP X3 Partner Network, in order to receive from Sage some information related to the software package Sage ERP X3, hereafter the "Project".
(b) During the course of these discussions certain Proprietary and Confidential information, may be exchanged by the Parties.
(c) The Parties wish to protect their respective trade and other secrets.
NOW IT IS HEREBY AGREED as follows:
1 Purpose of the Agreement:
The purpose of this Agreement is to set the terms and conditions of the protection of the confidential information exchanged between PARTNER and SAGE relating to the Project and to define the scope of the use and the terms and conditions according to which the Parties shall protect such confidential information.
2 Definition of the Confidential Information
2.1 "Confidential Information" shall mean any information disclosed by or made available to by and between the Parties, of whatever kind, (whether commercial, strategic, technical, financial, operational, relating to PARTNER or SAGE policy or otherwise), of whatever nature, in whatever form (including but not limited to all writings, text, image, animated or not, data, audio, media file, page structure, code, function navigation element, hyperlink, domain name, memoranda, copies, reports, papers, surveys, analyses, drawings, letters, computer printouts, software, specifications, data, graphs, charts, sound recordings and/or pictorial reproductions and whether or not recorded in any way, which is property or secret information of the Disclosing Party which is not publicly known, or not previously known or made available or used by the Receiving Party or its Representatives and any information of whatever kind jointly developed by the Parties, whether written or oral (if identified as "confidential" at the time of disclosure by the Disclosing Party and confirmed in a letter to the Receiving Party within thirty (30) days of the date of disclosure), of whatever kind and of whatever nature including without limitation, all written document notwithstanding its nature, notes, copy, report, document, survey, analyse, drawing, letter, computer printout, software or floppy, specifications, data, graph, sound recording and/or pictorial reproductions reduced to written form and more generally all means of disclosure of the confidential information chosen by the Parties.
2.2. The Receiving Party shall not be required to maintain the confidentiality of Confidential Information or Evaluation Material, and so, shall not be deemed liable for disclosure or use of any proprietary information if :
a) such Confidential Information is, prior to the litigious disclosure, generally available to the public or enters in the public domain, other than as a result of a disclosure by the Disclosing Party or its Representatives; or
b) such Confidential Information is already lawfully in possession of the Receiving Party or its Representatives, and/or already used or had been obtained and/or known without restriction and prior to any disclosure by the other Party hereunder; or
c) such Confidential Information is or has been lawfully disclosed to the Receiving Party or its Representatives by a third party, not currently employed by or otherwise affiliated with the Receiving Party who is actually free to disclose the same; or
d) such Confidential Information is independently developed by the Receiving Party as evidenced by its records and no Confidential Information disclosed hereunder has been used directly or indirectly for this purpose; or
e) such Confidential Information is required, by the order of a Court of competent jurisdiction or lawful requirement of other competent authority, insofar as such disclosure is needed to comply with that order, provided that the Party who is required to disclose this information (by deposition, interrogatories, requests for information or documents in legal proceedings, subpoenas civil investigative demand or similar process) will give prompt (written) notice to the other Party as soon as it is aware that such disclosure is required will notify the disclosure which it is proposed to be made to the Party and will give to this Party the opportunity to comment or contest the necessity or the form of such disclosure.
3 Obligation of Confidentiality
3.1 The Parties shall endeavour to make all reasonable efforts to hold the mutually exchanged Confidential Information in confidence. The Parties agree to employ the same degree of care to protect the confidentiality of the information as they use to protect their own confidential information and documents.
3.2 Each Party shall use the Confidential Information solely for the purpose of the Project according to which the Information is disclosed hereof.
3.3 Neither Party shall make any disclosure or public announcement concerning the agreement without the prior written consent of the other party.
3.4 The Parties agree not to disclose the Information to any third parties other than those subsidiaries, consultants and subcontractors directly involved in the discussed Project and bound by the terms and conditions of this agreement without the prior written consent of the other party. Communication of confidential information to any adviser or partner must be submitted to the formal approval of the other Party.
3.5 The recipient shall not disclose the Confidential Information of the disclosing party to any person other than its employees, its advisers/partners, consultants or subcontractors whose direct involvement in the discussed Project hereunder implies their need to know the Information. The recipient shall remain responsible towards the disclosing party for its employees' obligation to comply with the agreement hereof and shall instruct them of the confidential qualification of the Information.
The recipient may not, whether mechanically or otherwise, copy or reproduce the Confidential Information except for internal evaluation. Each copy or reproduction shall expressly refer to the "Confidential" mention as the original will.
3.6 In no event shall Recipient use the Confidential Information to compete with Sage directly or indirectly or to permit a third party to do so.
4 Ownership of the Confidential Information
4.1 All Confidential Information is and shall remain the property of the disclosing party.
4.2 Within thirty (30) days upon the disclosing party's request, the receiving party undertakes to return all Confidential Information together with all copies or reproductions, or if destruction is required, shall certify to the disclosing party in writing the destruction in compliance with the agreement thereof.
4.3 Nothing contained in this Agreement shall be deemed to grant, either directly or by implication, any right, by license or otherwise, under any patents, patent applications, copyrights or other intellectual property rights with respect to any Confidential Information of any Party to the other.
5 No Representations or Responsibilities
All Confidential Information disclosed by SAGE is on an AS IS basis. No representation, warranty or assurance is made by SAGE with respect to the completeness, accuracy, non-infringement of trademarks, patents, copyrights, trade secrets or any other intellectual property rights or other rights of third parties. SAGE will not be liable for any damages arising out of use of any Confidential Information, and the use of such Confidential Information is at Recipient's own risk. It is understood that any use of the term "partner" is for reference purposes only. The Parties are independent contractors This Agreement does not create an employer-employee relationship, partnership, joint venture, or agency relationship and does not create a franchise.
6 Miscellaneous
6.1 This Agreement shall become effective as of the date first written above and shall continue for a period of one (1) year unless another agreement is entered into between the Parties before the term. It shall be renewed if necessary upon its termination by mutual consent expressed by a rider and unless otherwise agreed in writing by the Parties, the obligations set forth herein to protect Confidential Information received prior to the termination of this Agreement shall survive any termination of this Agreement for a period of three (3) years from the date of any such termination.
6.2 The present Agreement shall be governed by and construed in accordance with the laws of France. All disputes arising in connection with the present contract shall be finally settled under the Commercial court of Paris, to which the parties attribute territorial competence.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the date first set forth above.