BETWEEN THE UNDERSIGNED:
This CONFIDENTIALITY AGREEMENT (“ Agreement ”) is executed by and between The Client and DATAMA , a company organized and existing under the laws of France, having its principal place of business at 20 bis rue Louis Philippe – 92200 NEUILLY-SUR-SEINE, FRANCE (“ DATAMA ”) Hereinafter referred to as “the Provider”
DATAMA and The Client will be hereinafter individually or collectively designated by
the « Party » or the « Parties ».
WHEREAS The Client and The Provider are discussing the opportunity to use DATAMA SOLUTIONS as an analytics tool for business purposes (the “ Relationship ”); and
WHEREAS during these presales test, The Client may furnish DATAMA SOLUTIONS
confidential and proprietary information, for to be able to test and show results; and
WHEREAS The Client desire to protect such confidential and proprietary information.
NOW, THEREFORE, in consideration of the mutual covenants and promises set forth
in this Agreement, the Parties agree as follows:
IT HAS AGREED AND ADOPTED THE FOLLOWING:
ARTICLE 1 – DEFINITIONS:
1.1 – The » Issuing Party » means the party which communicates its confidential information to the other party.
1.2 – The “Beneficiary Party” designates the party that receives the information confidential from the other party.
1.3 – The Parties will exchange documents, data, samples, knowledge make, prototypes, information, studies and tools related to the activity of the game hereinafter broadly designated « the information ».
ARTICLE 2 – CONFIDENTIALITY
In the situation where The Client wanted to sign his own Confidentiality Agreement with the Licensor. Once signed this new agreement would prevail over the following Article 13 corresponding to the confidentiality agreement.
The Parties shall refrain from communicating to anyone, directly or indirectly, all or part of the information of any kind, commercial, industrial (including know-how), technical, financial, nominative, etc., whatever the form, which would have been communicated to them by the other Party, or of which it would have become aware during the execution of this Contract, that this information is designated as confidential or reasonably regarded as confidential having regard to their nature or circumstances of their disclosure (hereinafter the “Confidential Information”).
The Parties undertake: (i) to take reasonable precautions to protect this Confidential Information, and (ii) not to use (except for the purpose of providing the License or written authorization contrary to this) or disclose to any third party this Confidential Information. Are not considered Confidential Information, information for which either of the Parties can prove (a) that they have fallen or fall into the public domain, (b) that they were in its possession or that it was aware of them before their communication by the other Party, (c) that they were legitimately disclosed to it without any restriction by a third party, (d) that they were developed independently without recourse to Confidential Information of the transmitting Party, or (e) that their communication is required by law.
Either Party may disclose Confidential Information of the other Party if required to do so by law, provided that the issuing Party is informed in advance of this disclosure requirement (if legally permitted) and d » provide reasonable assistance to the issuing Party if it wishes to challenge this disclosure.
However, the Licensee authorizes the Licensor to disclose his name and possibly his brand and logo for purely promotional and commercial purposes of the Software.
The Parties recognize that any disclosure by one Party would harm the interests of the other Party and would incur its responsibility.
The Parties are strongly committed, within the meaning of article 1204 of the Civil Code, to the respect by their servants, agents or duly authorized subcontractors, of the confidentiality commitment set out above.
For its part, the Licensee undertakes not to disclose information relating to the know-how of the other party.
This reciprocal commitment will continue for five (5) calendar years after the expiration of this agreement, as long as the confidential information and data have not fallen into the public domain.
The Licensor may be aware of the data transmitted by the Licensee when the latter decides to communicate the said data directly to the Software, without going through its own servers.
If this is the case, the Licensor is under an obligation of absolute confidentiality on the data transmitted by the Licensee during the use of the Software.
ARTICLE 3 – PERSONAL DATA
Article 3.1 Processing of personal data implemented by the Licensor
As part of the execution of this Contract, the Licensor is required to collect and process personal data (as this term is defined in article 4.1 of European regulation n° 2016/679) concerning employees and / or managers of the Licensee, in order to allow him to manage the contractual relationship (hereinafter the « Personal Data« ). In this context, the Licensor is required to set up a processing of Personal Data, in compliance with the applicable regulations, the purposes of which are customer management (including management of the contract, orders, delivery, invoices, accounting, monitoring of the contractual relationship), and more generally the management of operations allowing him to communicate with the Licensee.
The processing implemented in this context is based on the legitimate interest of the Licensor, insofar as this processing is necessary for the proper performance of the contractual relationship and for compliance with its legal obligations. Personal Data and the entire file associated with the Licensee will be kept for the duration of the contractual relationship and for the applicable limitation period.
In accordance with the applicable regulations, the Licensee and/ or the employees and managers of the Licensee have a right of access, rectification, erasure of Personal Data concerning them, a right to limit processing, as well as a right of opposition to the processing of Data concerning them. The Licensee and/ or employees of the Licensee also have the right to send the Company special instructions relating to the fate of their Personal Data after their death. To exercise these rights, the Licensee may send a request by mail to the Licensor at the following address: DataMa, 20Bis rue Louis Philippe, 92200 Neuilly-Sur-Seine. Finally, the Licensee and / or the employees of the Licensee can lodge a complaint with the personal data protection authority.
Article 3.2 Processing of personal data implemented by the Licensee
As part of the execution of this Contract, the Licensee is required to collect and process personal data (as this term is defined in article 4.1 of European regulation n ° 2016/679) concerning the Licensor, the employees and/ or managers of the Licensor in order to allow it to manage the contractual relationship (hereinafter the « Personal Data« ). In this context, the Licensee is required to set up a processing of Personal Data, in compliance with the applicable regulations, the purposes of which are customer management (including contract management, orders, delivery, invoices, accounting, monitoring of the contractual relationship), and more generally the management of operations allowing him to communicate with the Licensor.
The processing implemented in this context is based on the legitimate interest of the Licensee, insofar as this processing is necessary for the proper performance of the contractual relationship and compliance with its legal obligations. Personal Data as well as the entire file associated with the Licensor will be kept for the duration of the contractual relationship and for the applicable limitation period.
In accordance with the applicable regulations, the Licensor and / or the employees and managers of the Licensor have a right of access, rectification, erasure of Personal Data concerning them, a right to limit processing, as well as a right of opposition to the processing of Data concerning them. The Licensor and / or employees of the Licensor also have the right to send the Licensee special directives relating to the fate of their Personal Data after their death. To exercise these rights, the Licensor may send a request by mail to the Licensee. Finally, the Licensor and / or the employees of the Licensor may lodge a complaint with the personal data protection authority.
ARTICLE 4 – RESPONSIBILITY
Article 4.1- Liability of the Licensor
The Licensor does not agree on the veracity of the information loaded by the Licensee on the Software which is and will remain the property of the Licensee (hereinafter the « Licensee Data« ). The Licensor takes no responsibility for the veracity of the rights to use the Licensee’s Data loaded on the Software.
The Licensor will implement technical measures to ensure the security, confidentiality and integrity of the Licensee’s Data. These measures will include, in particular, measures intended to prevent access to third parties, and the use, modification or communication of the Licensee’s Data by the personnel of the Licensor, except (a) to provide the License and avoid or settle technical or service issues, or (c) if the Licensee allows it in writing.
However, given the limits linked to the Internet, the Licensor cannot exclude that access and operation of the Software be interrupted, in particular in the event of force majeure, malfunction of the Licensee’s equipment, general malfunctions of the internet network, or ‘maintenance operation intended to improve the services of the Software as provided for in article 8 above.
Consequently, the Licensor cannot be held responsible for an interruption of the Software under the conditions defined in article 8 of this Agreement, whether voluntary or not, it being specified that it undertakes to make its best efforts to limit the interruptions that would be attributable to it and to propose workarounds as soon as possible.
The Licensor does not guarantee the absence of technical problems, or compatibility with a particular configuration and / or equipment, or a time limit for online publication, and cannot be held responsible for malfunctions linked to the use by the Licensee of ancillary software.
In particular, the Licensor cannot be held liable for errors, whatever the cause, in the results obtained, which it is up to the Licensee to verify.
Similarly, the Licensor cannot be held liable for damages resulting from malfunctions and the temporary unavailability of the Software or from the accidental destruction of the data stored in the Software.
In the event of the Licensor’s conviction for any reason whatsoever which is not excluded by this Agreement, it is however agreed that its liability will be limited by mutual agreement at the price of this license.
Article 4.2- Liability of the Licensee
The Licensee uses the Software under his sole responsibility.
The Licensee, user of the Software, is solely responsible for the Data of the Licensee that he chooses to transmit to the Software for analysis.
The Licensee is solely responsible for the direct or indirect damage that it is likely to suffer as a result of inaccurate, incomplete, and / or misleading information that it would provide to the Software.
Licensee Data loaded into the Software should not contain Personal Data. Only aggregated and anonymized data will be transmitted by the Licensee to the Software for analysis. Otherwise, the Licensee is solely responsible, as the data controller, for the Personal Data that he loads in the Software and for compliance with the applicable legislation relating to the computerized processing of Personal Data and in particular European regulation n ° 2016 / 679 on the protection of personal data (hereinafter « GDPR »)
The Licensor cannot in any way be considered responsible for the processing of this Personal Data.
Furthermore, the Licensee is the only one able to determine whether the procedures for securing personal data brought to its attention by the Licensor are likely to meet its security needs, in particular with regard to personal data. It is their responsibility, under their sole responsibility, to determine any additional security measures to be implemented in order to meet their security needs and obligations.
The Licensee will be responsible for the direct damage it has caused to the Licensor in the context of the performance of the Contract. These direct damages cannot exceed, for all causes, excluding bodily injury or resulting from (a) death, (b) gross negligence, (c) breach of an essential obligation herein , (d) a claim from a third party based on an intellectual property right, and / or (e) a sanction relating to the processing of Personal Data, an amount greater than two (2) times the Amount of the » Annual Subscription invoiced to the Licensee by the Licensor.
ARTICLE 5 – INTELLECTUAL PROPERTY
Article 5.1- Principles
This Agreement does not grant Licensee any intellectual property rights in the Software.
In addition, all the additional settings and implementations developed by the Licensor will belong to it without the Licensee being able to claim any right, including intellectual property rights.
The Licensee undertakes to respect the proprietary notices appearing on the Software and on the detailed files of the « open source » computer packages used by the Licensor in the development of the Software and presented in Annex 2. The Licensee undertakes in particular to respect the moral rights of the authors of « open source » computer packages involved in the Software.
The Licensor guarantees that the Software as a whole is entirely its property and does not constitute, in whole or in part, counterfeiting or unfair competition, nor does it violate any intellectual property right of a third party.
In accordance with article 11.1 above, the Licensor undertakes to guarantee the Licensee against any commitment of responsibility towards third parties resulting from an alleged violation of intellectual property rights. The above obligation does not apply in the event that (i) the Software has been modified by the Licensee after its supply and without the prior authorization of the Licensor, (ii) the Software has been associated with other products, processes or elements not provided by the Licensor, as soon as the alleged violation relates to this association, (iii) the Licensee does not use the Software in strict accordance with this Agreement and that the alleged violation results from this non-compliance. If, in the event of infringement action, the Software is found to be infringing by a court of competent jurisdiction, or if the Licensor considers that said Software is of a counterfeiting nature, the Licensor may, at its sole discretion, at its expense ( a) replace or modify the service concerned so that it is no longer infringing, provided that this modification or replacement includes substantially similar characteristics or functionalities, (b) obtain authorization for the Licensee to continue using the service concerned, or (c) if none of the above solutions is commercially possible, terminate this Agreement and terminate the rights of the Licensee hereunder, and reimburse the Licensee any sum paid in advance in proportion to the Duration of the Contract remaining from the date on which the Licensee ceased to use the License.
For its part, the Licensee undertakes to immediately report to the Licensor any counterfeit of the Software of which it becomes aware.
Article 5.2. Reproduction – Adaptation – Copy
The Licensor remains the sole owner of the Software.
Unless authorized by the Licensor to the Licensee to modify the Software, The Licensee is strictly prohibited from reproducing or permanently or temporarily copying or copying the Software in whole or in part, by any means and in any form, including when loading, displaying, executing, transmitting or storing the Software.
The Licensee is prohibited from translating, adapting, arranging or modifying the Software, exporting it, merging it with other software.
The Licensee is not authorized to make a backup copy of the Software, being excluded any copy of the results or data extracted from said Software.
ARTICLE 6 – EXCEPTIONS:
However, the provisions of this Agreement will not apply to information for which the Beneficiary Party can prove:
- that it had them before the date of communication by the Issuing Party, or
- that this information was in the public domain before the date of communication by the
Issuing Party or that they entered thereafter without fault being able to be charged to the Beneficiary Party, or that it received them without obligation of secrecy of a third party authorized to disclose them.
In the situation where The Client wanted to sign his own Non-Disclosure Agreement (NDA) with the Licensor. Once signed this new agreement would prevail over the following Article 13 corresponding to the confidentiality agreement.
ARTICLE 7 – DURATION:
5.1 – This agreement takes effect on validation of this agreement.
5.2 – The confidentiality provisions of this agreement will apply during its entire term and for three (3) years after its expiration or termination for whatever reason.
ARTICLE 8 – APPLICABLE LAW:
This agreement is governed by French law.
ARTICLE 9 – DISPUTES:
In case of difficulties on the interpretation or execution of this contract, the parties will endeavor to resolve their dispute amicably. In case of persistent disagreement, disputes will be brought to court competent.