NON-DISCLOSURE AGREEMENT

This Non-Disclosure Agreement (the “Agreement”) dated the [day] of [month] 201[●] (the “Effective Date”) is entered into between Komaker incorporated and registered in France having its registered office at Paris (the “Company”) and [Other Party Name] incorporated and registered in England and Wales with company number [●] and having its registered office at [address] (the “Recipient”), to protect the confidentiality of certain confidential information of the Company to be disclosed to the Recipient solely for use in evaluating or pursuing a business relationship with the Company (the “Permitted Use”).

1. The term “Confidential Information” means any and all technical and non-technical information provided by the Company to the Recipient, which may include without limitation information regarding: (a) patent and patent applications; (b) trade secrets; (c) proprietary and confidential information, ideas, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programmes, software source documents, and formulae related to the current, future, and proposed products and services of the Company, including without limitation the Company’s information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising, marketing plans and information the Company provides regarding third parties; and (d) all other information that the Recipient knew, or reasonably should have known, was the Confidential Information of the Company.
2. Subject to clause 3, the Recipient agrees that at all times and notwithstanding any termination or expiration of this Agreement it will hold in strict confidence and not disclose to any third party any Confidential Information, except as approved in writing by the Company, and will use the Confidential Information for no purpose other than the Permitted Use. The Recipient agrees to apply the same security measures and degree of care to the Confidential Information as the Recipient applies to its own confidential information, which the Recipient warrants as providing adequate protection from unauthorised disclosure, copying or use. The Recipient will limit access to the Confidential Information to those of its employees or authorised representatives who have a need to know the Confidential Information for the Permitted Use and who have signed confidentiality agreements containing, or are otherwise bound by, confidentiality obligations at least as restrictive as those contained herein.
3. The Recipient will not have any obligations under this Agreement with respect to any Confidential Information which:
   • at the time of its disclosure was in the public domain;
   • after disclosure came into the public domain for an reason except the failure of the Recipient to comply with the terms of this Agreement;
   • was lawfully in the Recipient’s possession prior to such disclosure;
   • was subsequently communicated to the Recipient from a third party without obligations of confidentiality; or
   • was developed by employees or agents of the Recipient who had no access to any Confidential Information.
4. Notwithstanding the above, the Recipient may disclose certain Confidential Information, without breaching the terms of this Agreement, to the extent such disclosure is required by a valid order of a court or other governmental body having jurisdiction, provided that the Recipient provides the Company with reasonable prior written notice of such disclosure and makes a reasonable effort to obtain, or to assist the Company in obtaining, a protective order preventing or limiting the disclosure and/or requiring that the Confidential Information so disclosed be used only for the purposes for which the law or regulation required, or for which the order was issued.
5. The Recipient will immediately notify the Company in the event of any loss or unauthorised disclosure of any Confidential Information.
6. Upon termination or expiration of this Agreement, or upon written request of the Company, the Recipient will:
   • promptly return to the Company or destroy all documents and other tangible materials (and any copies) containing, reflecting, incorporating or based on the Confidential Information;
   • erase all the Confidential Information from its computer systems or which is stored in electronic form (to the extent possible); and
   • certify in writing to the Company that it has complied with the requirements of this clause, provided that the Recipient may retain documents and materials containing, reflecting, incorporating, or based on the Confidential Information to the extent required by law or any applicable governmental or regulatory authority and to the extent reasonable to permit the Recipient to keep evidence that it has performed its obligations under this Agreement. The provisions of this Agreement shall continue to apply to any documents and materials kept by the Recipient in accordance with this clause.
7. Confidential Information is and shall remain the sole property of the Company. The Recipient recognises and agrees that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Information disclosed under this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. The Recipient will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information. Neither this Agreement nor the disclosure of any Confidential Information hereunder shall result in any obligation on the part of either party to enter into any further agreement with the other, license any products or services to the other, or to require the Company to disclose any particular Confidential Information. Nothing in this Agreement is intended to, or shall be deemed to establish any partnership, joint venture, or agency between the parties.
8. Confidential Information will not be reproduced in any form except as required to fulfill the purpose of this Agreement. Any reproduction of any Confidential Information will remain the property of the Company and will contain any and all confidential or proprietary notices that appear on the original, unless otherwise authorised in writing by the Company.
9. This Agreement will terminate three (3) years after the Effective Date, or may be terminated by either party at any time upon thirty (30) days written notice to the other party. The Recipient’s obligations under this Agreement will survive termination of this Agreement and will be binding upon the Recipient’s successors and assigns. The Recipient’s obligations with respect to all Confidential Information will terminate only pursuant to clause 4.
10. The Company is providing Confidential Information on an “as is” basis for use by the Recipient at its own risk. The Recipient accepts that no person gives any warranty or makes any representation as to the accuracy or otherwise of the Confidential Information.
11. This Agreement shall be governed by and construed in accordance with English Law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales in respect of any claim, dispute or difference arising out of or in connection with this Agreement.
12. The Recipient acknowledges that damages alone would not be an adequate remedy for the breach of any of the provisions of this Agreement. Accordingly, without prejudice to any other rights and remedies it may have, the Company shall be entitled to the granting of equitable relief (including without limitation injunctive relief) concerning any threatened or actual breach of any of the provisions of this Agreement. Furthermore, the Recipient shall indemnify and keep fully indemnified the Company at all times against all liabilities, costs (including legal costs on an indemnity basis), expenses, damages and losses (including any direct, indirect or consequential losses), loss of profit, loss of reputation and all interest, penalties and other reasonable costs and expenses suffered or incurred by the Company arising from any breach of this Agreement by the Recipient and from the actions or omissions of any representative of the Recipient.
13. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole and, in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
14. The Recipient will not assign, sub-contract or deal in any way with any of its rights or obligations under this Agreement without the prior written consent of the Company.
15. A person who is not a party to this Agreement shall not have any rights under or in connection with it.
16. All notices or reports permitted or required under this Agreement will be in writing and will be delivered by personal delivery, electronic mail, facsimile transmission or by certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, five (5) days after posting, or upon acknowledgment of receipt of electronic transmission. Notices will be sent to the addresses set out at the end of this Agreement or such other address as either party may specify in writing.
17. The Recipient agrees that the software programmes of the Company contain valuable confidential information and agrees that it will not modify, reverse engineer, decompile, create other works from, or disassemble any software programmes contained in the Confidential Information without the prior written consent of the Company.
18. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement. No modification of or amendment to this Agreement will be effective unless in writing and signed by the parties.