This Non-Disclosure Agreement (“NDA”) is entered into on the day of acceptance of the Orange Partner Premium Membership or Contracted Partnership ("Effective Date"), by and between:

France Telecom SA., a public limited company established under the laws of France, with capital of EUR 10 426 692 520 registered in the Paris Trade and Companies Register under number RCS 380.129.866. and whose registered office is at 6, place d’Alleray, 75015 Paris, France,

the “Orange Partner” as detailed in an Orange Partner Premium Membership or Contracted Partner registration

The above are collectively referred to as the “Parties” or individually as a “Party”.

WHEREAS, “Partner” shall be participating in the Orange Partner programme as an Orange Partner Premium Member or Contracted Partner, and it is intended that the parties will enter into discussions and exchange information as part of such programme, and for such other purposes as may be agreed between the parties from time to time(the “Subject Matter”) and, in the course of these discussions, each Party may disclose to the other Party Confidential Information relating to the Subject Matter,

WHEREAS the Parties have agreed to establish terms governing the use of Confidential Information which may be disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”).

NOW THEREFORE THE PARTIES AGREE as follows:

1. Definitions
For the purpose of this NDA,

“Affiliates” means any person or entity that directly or indirectly Controls, is Controlled by, or is under common Control with a Party.

“Confidential Information” means any information of a Party or of an Affiliate of a Party that is technical, marketing, commercial, strategic, financial, legal, economic or confidential in nature relating to the Subject Matter disclosed by a Party (“the Disclosing Party”) to the other Party (“the Receiving Party”) before or after the Effective Date of the NDA, orally or in writing on whatsoever media.

Confidential information shall not include information:

(i) that was rightfully known to or in the possession of the Receiving Party prior to the disclosure and obtained through no fault or wrongful action of the Receiving Party;

(ii) which has come within the public domain through no fault or action of the other Party;

(iii) which is shown by evidence to have been independently developed by employees of the Receiving Party without the benefit of the Confidential Information;

(iv) which becomes rightfully available to the Receiving Party from any third party that has the right to disclose it; or

(v) that has to  be disclosed pursuant to a court order or as otherwise required by law or any regulation.

Such definition also includes the existence of the present NDA.

“Control” means the ownership or control (directly or indirectly) of twenty percent (20%) or more of the voting capital or voting rights of an entity or other right (through securities, contract or otherwise) to direct or cause the direction of the management and policies of that entity and Controlling and Controlled shall be construed accordingly;

“Disclosing Party” shall be deemed to include the directors, officers, employees and Representatives of that Party.

“Orange Partner Terms” shall mean any terms agreed to by the Parties as part of the Subject Matter, including Orange Partner Member terms and conditions, Orange Partner Premium Member or Contracted Party terms and conditions, Orange Premium Partner or Contracted Partner Product Submission terms, and  Orange Contracted Partner terms.

“Receiving Party” shall be deemed to include the directors, officers, employees and Representatives of that Party.

“Representatives” shall mean financial advisors, attorneys, accountants or agents.

The Receiving Party shall not disclose or allow Confidential Information to be disclosed to any third party without the prior written approval of the Disclosing Party.

Where the Receiving Party discloses Confidential Information to an agreed third party it shall ensure that it obtains undertakings from such third party that it will treat the Confidential Information in accordance with all of the obligations set out in this Agreement.

The Receiving Party shall protect the confidentiality of all Confidential Information with the same degree of care it uses to protect its own Confidential Information, which measures will be in accordance with generally accepted business standards and will fit with the degree of confidentiality of the Confidential Information, and will use the Confidential Information only for the purposes of the Subject Matter.

The Receiving Party shall limit the distribution and disclosure of the Confidential Information to the minimum number of persons who have a need to know. The Receiving Party shall ensure that the persons to whom the Confidential Information is disclosed will personally adhere to and comply with all terms and obligations of confidentiality, use and protection of the Confidential Information as accepted by the Receiving Party under this NDA.

The Disclosing Party shall clearly identify the confidential nature of the Confidential Information by proprietary and confidential notices and legends, or if Confidential Information is disclosed in an oral format, identified as confidential at the time of disclosure.

The Receiving Party may only copy Confidential Information for the purposes of the Subject Matter. All copies shall always clearly contain the same proprietary and confidential notices and legends which appear on the original Confidential Information. Confidential Information shall remain the property of the Disclosing Party.

Nothing contained herein shall be construed as conferring, by implication, estoppel or otherwise, any license or right in respect of any trademark, copyright, Confidential Information, software, trade secrets, invention or any existing or later issued patent, or other intellectual property right of either Party. No other rights or obligations other than those expressly recited herein are to be implied from this NDA. The disclosure of Confidential Information shall not constitute any representation, warranty or assurance by the Disclosing Party with respect to the accuracy or completeness of the Confidential Information except for any such representation or warranty contained in definitive agreements that the Disclosing Party may enter into with the Receiving Party in connection with the Subject Matter.

All Confidential Information disclosed under this NDA is provided "AS IS" and without any warranty, express, implied or otherwise, regarding its accuracy or performance, fitness of the information for a particular purpose, or non-infringement.

5. Return or destruction of Confidential Information

Within thirty (30) calendar days of receipt by the Receiving Party of a written termination notice from the Disclosing Party, the Confidential Information together with all copies thereof shall be returned to the Disclosing Party or destroyed at the Disclosing Party's election and the Receiving Party shall provide clear evidence of such destruction. Nevertheless one copy for the purpose of record may be kept in each Party’s legal department to the extent that such a copy is necessary to comply with legal or regulatory requirements.

6. Request to disclose

In the event that the Receiving Party or anyone to whom the Confidential Information has been supplied by that Party receives a request to disclose under the terms of a subpoena, order, civil investigative demand or similar process issued by a court of competent jurisdiction or by a governmental body all or any part of the Confidential Information, such Receiving Party agrees to:

(i)         notify the Disclosing Party promptly in writing of the existence, terms, and circumstances surrounding such request,

(ii)        consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such request ;

(iii)       give the Disclosing Party the opportunity to defend, limit  or protect against such disclosure ;

(iv)       if disclosure of such information is lawfully required, furnish only that portion of the Confidential Information which is legally necessary or appropriate in the light of all the circumstances and seek to obtain confidential treatment for any information required to be disclosed.

7. Communication

The Parties undertake not to make any communications relating to the existence of this NDA and/or discussions between the Parties, in any form and by any means whatsoever.

8. Breach of Confidentiality

The Parties agree that, in the event of a breach or threatened breach of this Non-Disclosure Agreement, the Disclosing Party is entitled to seek injunctive relief or specific performance, in order to obtain immediate remedies. Any such remedy shall be in addition to and not in lieu of any other remedies available at law or equity, including monetary damages.

9. Effective date and term of the NDA

This NDA shall become effective on the Effective Date stated above and shall remain in effect for a period of 2 years unless earlier terminated or extended in writing by the Parties. In the case of Partner, this NDA may be terminated this by email to developers@orange.com. In addition the provisions of this NDA shall protect the Confidential Information for a period of five (5) years from the date of expiry or termination of this NDA.

This NDA shall be construed in accordance with and governed by the laws of England, and all disputes arising out of or in connection with this NDA shall be subject to the exclusive jurisdiction of the English courts.

It is understood that this NDA is not intended to and does not obligate either Party to enter into any further agreement with the other or to proceed with any possible relationship or other transaction.

No failure or delay by any Party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.

Together with the Orange Partner Terms, this NDA contains the entire agreement of and supersedes any and all prior understandings, arrangements and agreements between the Parties hereto whether oral or written, with respect to the Subject Matter. In the event of any conflict between this NDA and the Orange Partner Terms, the latter shall prevail.