Framework Contract for the provision of Reference Mapping Products Tender Reference: SATCEN-OP-02/17 Annex 9 Draft Non-Disclosure Agreement - 1 -
This Agreement made and entered into force as of DD/MM/YYYY (Effective Date), by and between the European Union Satellite Centre, having a place of business and its registered office at Base Aérea de Torrejón de Ardoz, Avda. Cádiz, Edif. 457, Torrejón de Ardoz, Madrid 28850, Spain, and PARTNER having a place of business and its registered office at xxxx, which may be hereinafter referred to as the Party or the Parties. Whereas, the Parties are interested in exchanging information relating to technical and management information ("Information") in the frame of SATCEN-OP-02/17 procurement and each Party wishes to provide for the conditions of disclosure to the other Party of its own technical, operational and/or business information and the rules governing its use and protection; and whereas, the Parties understand that the other considers its own information to be proprietary and valuable to it and protects information against unrestricted disclosure to others; Now, therefore, the Parties hereto agree as follows: 1. PROPRIETARY INFORMATION 1.1. For the purpose of this agreement "Proprietary Information" shall mean any and all information, which is supplied or disclosed, directly or indirectly, in writing or in any other means, by each Party to the other including, but not limited to any documents, drawings, sketches, designs, materials, samples, prototypes, data, know-how, and which at the time of its disclosure or supply is marked as "Proprietary Information ". Oral information shall be recorded in writing by the Party disclosing it within fifteen (15) days after disclosure, and the resulting document shall specifically state the date of disclosure and designate the information as "Proprietary Information ". 1.2. "Proprietary Information" shall mean without limitation: a) The fact that this Agreement has been entered into by the Parties, b) The terms and conditions of this Agreement. c) all inventions, techniques, processes, devices, discoveries and improvements and other intellectual property, d) information of a business, planning, marketing or technical nature, e) specifications, drawings, designs, models, tools, hardware and software, computer software, know-how, programs, data, process techniques and formulae, f) information relating to any research project, future development, marketing and sales leads and work in progress, g) any engineering, technical, manufacturing, service, commercial, financial and personnel information relating to present and future business, - 2 -
h) any documents, reports, memoranda, notes, files or analyses prepared by or on behalf of the Receiving Party that contain, summarize or are based upon any confidential or proprietary information, provided that proprietary information shall not include information which: i) is publicly available prior to the date of this Agreement; j) becomes publicly available after the date of this Agreement through no wrongful act of the Receiving Party; k) is furnished to others by the Disclosing Party without similar restrictions on their right to use or disclose; l) is known by the Receiving Party without any proprietary restrictions at the time of receipt of such information from the Disclosing Party or becomes rightfully known to the Receiving Party without proprietary restrictions from a source other than the Disclosing Party; or m) is obligated to be produced under order of a court of competent jurisdiction or a valid administrative subpoena provided that the Receiving Party promptly notifies the Disclosing Party of such event so that the Disclosing Party may seek an appropriate protective order or waive compliance by the Receiving Party with the terms of this Agreement. n) Neither Party shall have any obligation of confidentiality or non-use unless the information received from the other Party: i) if in tangible form, is clearly marked at the time of receipt as being confidential information; ii) if disclosed orally or visually, is designated at the time of disclosure as being confidential information, and such designation is confirmed in writing that specifically identifies the confidential information within thirty (30) days of the disclosure. o) Is disclosed with the prior written permission of the Disclosing Party. 2. RELEASE OF PROPRIETARY INFORMATION 2.1. Any Proprietary Information (and copies thereof) disclosed by either Party hereto to the other shall remain the property of the disclosing Party. 3. CONFIDENTIALITY AND PROTECTION OF PROPRIETARY INFORMATION 3.1. Except in connection with the project between the Parties, the Receiving Party shall not make any use of the Disclosing Party's Proprietary Information for its own benefit or for the benefit of any other individual, corporation or entity. 3.2. The Receiving Party shall not disclose all or any part of the Disclosing Party's Proprietary Information to any affiliates, agents, officers, directors, employees or representatives (collectively, "Representatives") of the Receiving Party except on a need-to-know basis. The Receiving Party agrees to inform any of its Representatives who receive the Disclosing Party's Proprietary Information of the confidential and proprietary nature - 3 -
thereof and of such representative's obligations with respect to the maintenance of such Propriety Information in conformance with the terms of this Agreement. 3.3. Each Party shall maintain the other Party's Proprietary Information with at least the same degree of care each Party uses to maintain its own proprietary information. Each Party represents that such degree of care provides adequate protection for its own proprietary information. 3.4. The Receiving Party shall immediately advise the Disclosing Party in writing of any misappropriation or misuse by any person of the Disclosing Party's Proprietary Information of which the Receiving Party is aware. Any documents or materials that are furnished by or on behalf of the Disclosing Party, and all other Proprietary Information in whatever form, including document, reports, memoranda, notes, files or analyses prepared by or on behalf of the Receiving Party, including all copies of such materials, shall be promptly returned by the Receiving Party to the Disclosing Party upon written request by the Disclosing Party for any reason or certified in writing that all such Proprietary Information and copies thereof have been destroyed, except that a legal file copy may be retained. 4. RIGHT TO DISCLOSE 4.1. Each Party warrants that it has the unrestricted right to disclose, exchange, transmit, publish or otherwise use the Proprietary Information disclosed to the other Party under this Agreement. Each Party shall indemnify and hold the other harmless for any damages, losses or expenses arising from any breach of this warranty. 5. NO LICENSES OR WARRANTIES 5.1. No license to the Receiving Party under any trade secrets or patents is granted or implied by conveying Proprietary Information or other information to such Party, and none of the information transmitted or exchanged shall constitute any representation, warranty, assurance, guaranty or inducement with respect to the infringement of patents or other rights of others. 6. REMEDY FOR BREACH 6.1. Each Receiving Party acknowledges that the Proprietary Information of the Disclosing Party is central to the Disclosing Party's business and was developed by or for the Disclosing Party at a significant cost. Each Receiving Party further acknowledges that damages would not be an adequate remedy for any breach of this Agreement by the Receiving Party or its Representatives and that the Disclosing Party may obtain injunctive or other equitable relief to remedy or prevent any breach or threatened breach of this Agreement by the Receiving Party or any of its Representatives. Such remedy shall not be deemed to be the exclusive remedy for any such breach of this Agreement, but shall be in addition to all other remedies available at law or in equity to the Disclosing Party. 6.2. Neither Party shall be liable for indirect or consequential damages or loss of revenue or profit arising out of, connected with, or resulting from its performance under this Agreement. 7. TRANSFERABILITY (NO ASSIGNMENT) - 4 -
7.1. This Agreement and the rights and obligations hereunder may not be transferred or assigned by one Party without the prior written approval of the other Party hereto, which shall not be unreasonably withheld. 8. GOVERNING LAW, JURISDICTION AND ARBITRATION 8.1. The construction, interpretation and performance of this Agreement, as well as the legal relations of the Parties arising hereunder, will be governed by and construed in accordance with the laws of Spain, without regard to the choice or conflict of law provisions thereof and it is subject to the jurisdiction of the Spanish courts. The Parties agree that in any legal proceeding which arises out of or relates to this Agreement, the prevailing Party shall be entitled to recover its costs and expenses associated with such proceeding including reasonable attorney's fees. 9. MUTUAL DISCLAIMER 9.1. It is understood that this Agreement constitutes a Non Disclosure Agreement only. It shall not be construed as giving effect to or otherwise implying a teaming, joint venture, partnership, agency or other such arrangement. Nothing in this Agreement shall grant to either Party the right to make commitments of any kind for or on behalf of the other Party without the prior written consent of the other Party. 9.2. It is expressly agreed by the Parties hereto that the disclosure and provision of Proprietary Information under this Agreement by either Party shall not be construed as granting the receiving Party any rights, either express or implied by license or otherwise on the matters, inventions or discoveries to which such information pertains or any copyright, trademark or trade secret rights. 9.3. Without restricting the generality of the foregoing, neither Party makes any representation or warranties as to the merchantability or fitness for a particular purpose of any Proprietary Information disclosed hereunder. 10. SEVERABILITY 10.1. If any part of this Agreement shall be held unenforceable, the remainder of this Agreement will nevertheless remain in full force and effect. 11. NO IMPLIED WAIVER 11.1. It is understood and agreed that no failure or delay by the Parties in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof, or the exercise of any other right, power or privilege hereunder. No waiver of any terms or conditions of this Agreement shall be deemed to be a waiver of any subsequent breach of any term or condition. All waivers must be in writing and signed by the Party sought to be bound. 12. HEADINGS 12.1. Heading used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent. 13. TERM OF AGREEMENT AND TERMINATION 13.1. The effective date of this Agreement shall be the date on which it is executed by both Parties hereto. - 5 -
13.2. For a period of 3 years from the Effective Date, the Parties agree to refrain from using information received from the Disclosing Party in connection with the manufacture or sale of products without the Disclosing Party's prior written consent, and not to disclose information received from the other Party to third parties. 13.3. This Agreement may be terminated at any time by either Party giving thirty (30) days prior written notice to the other Party. Unless earlier terminated, Τhis Agreement shall expire two (2) years from the Effective Date. Termination or expiration of this Agreement shall not affect the obligations set forth in Article 3 other than to protect information received prior to such termination or expiration or from the restrictions in subparagraph above. 14. NOTICES AND AUTHORIZED REPRESENTATIVE 14.1. All notices and information, including the transmission and receipt of all confidential or proprietary data, shall be given by letter and addressed as follows. Each Party reserves the right to change its designation of authorized representative, should circumstances so require, and will notify the other Party at the addresses below in writing of any such change. European Union Satellite Centre Mr. Pascal Legai Director PARTNER xxx 15. MISCELLANEOUS 15.1. This agreement contains the entire understanding between the Parties and supersedes all prior written and oral understandings related to the subject hereof. This Agreement may not be modified except by a writing signed by both Parties. 15.2. It is understood and agreed that no failure or delay by the Parties in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof, or the exercise of any other right, power or privilege hereunder. No waiver of any terms or conditions of this Agreement shall be deemed to be a waiver of any subsequent breach of any term or condition. All waivers must be in writing and signed by the Party sought to be bound. 15.3. If any part of this Agreement shall be held unenforceable, the remainder of this Agreement will nevertheless remain in full force and effect. 15.4. The Parties warrant that they have the right to disclose the information to the other Party under this Agreement. - 6 -
IN WITNESS WHEREOF, each of the Parties to this agreement accepts the terms of this agreement as witnessed by the signature of an authorized representative of each Party below: European Union Satellite Centre Signature: Name: Title: Date: PARTNER Signature: Name: Title: Date: - 7 -