The Recipient is considering setting up purchase order financing solutions for merchants (among which the Discloser) active on e-commerce marketplaces (the “Project”). The Recipient reserves its rights to work with one or more financing partners to execute the Project.
As an express condition to each Party disclosing Confidential Information (as defined below) to the other in connection with the Purpose, the Parties agree as follows:
- Confidential Information.
Confidential Information includes any information relating to the Project that is disclosed to the Recipient or its Representatives by or on behalf of the Discloser (whether prepared or communicated by the Discloser, its Representatives or otherwise). The Confidential Information will include in particular but without limitation:
- the Discloser’s identifier and token on each e-commerce marketplace listed in Appendix 1 (the “Marketplace” and collectively “the Marketplaces”). It being understood that the Discloser will have disclosed to the Marketplaces in writing its intention to share this with the Recipient;
- Administrative data pursuant to the Discloser’s director(s) (name, surname, address, phone and email);
- Discloser’s e-commerce data for each one of the Marketplaces (e.g. orders, product catalogue, prices);
- Discloser’s customer service data (e.g. client rating, claims);
- Discloser’s financial transactions on each Marketplaces (e.g.: date of processing of order payment, financial claims);
- Discloser’s financial statements for the past three fiscal years.
Confidential Information will include:
(i) any work product (all memoranda, notes and other documents and analysis developed by the Recipient or its Representative) using any of the information described above;
(ii) the Project;
(iii) the fact that the Confidential Information has been made available;
and (iv) that discussions between the Parties are taking place.
Confidential Information shall not include information which:
(i) is publicly known at the time of disclosure through no breach of this Agreement or other wrongful act of any of the Parties or its Representatives;
(ii) was already known or becomes available to the receiving Party or any of its Representatives from a third party who is not known by the receiving Party to be bound by a confidentiality obligation to the issuing Party with respect to such information; or
(iii) was independently developed by the Recipient or its Representatives without use of or reference to such Confidential Information.
- Purpose and Use; Standard of Care.
The Recipient will use the Confidential Information solely to evaluate the Project. Each Party agrees to hold the other Party’s Confidential Information in strict confidence and not to disclose Confidential Information to any third party without the other Party’s written consent. Each Party agrees it will employ all reasonable steps to protect the Confidential Information of the other Party from unauthorized or inadvertent disclosure, including using the same degree of care as for its own information of like importance but at least reasonable care in safeguarding against disclosure at all times.
Each Party may disclose the other’s Confidential Information only to those of its employees, officers, directors, agents, affiliates and professional advisors (“Representatives”) who need to know for evaluating the Project. Such Representatives shall be informed of the confidential nature of the Confidential Information and directed to keep it confidential pursuant to the terms of this Agreement. The Party in receipt of Confidential Information shall be responsible for any breach of this Agreement by its Representatives.
Notwithstanding the foregoing, the Recipient may disclose Confidential Information with respect to the Project to the extent required by Law or in connection with any legal proceedings or otherwise requested by any governmental agency, regulatory authority (including, any self regulatory organization claiming to have jurisdiction); provided that if the Recipient discloses any Confidential Information to a person pursuant to this paragraph, then the Recipient will, to the extent not prohibited by Law : (i) inform such person of the confidential nature of such information and (ii) notify the Discloser of such disclosure promptly.
For the purposes of Sections 2,3 and 4, the term “Law” means any law, rule, regulation, stock exchange rule, subpoena, court order or any other similar judicial or legal process.
- Ownership; Disclaimer; No Obligation.
Each Party shall be deemed to be the owner of all Confidential Information disclosed by it under this Agreement, including all patent, copyright, trademark, service mark, trade secret and any and all other proprietary rights and interests provided by the Law. Each Party agrees that nothing contained in this Agreement shall be construed as granting any rights, by license or otherwise, in or to any Confidential Information disclosed pursuant to this Agreement or in or to any such intellectual property rights available in this Agreement. This Agreement does not create any agency, partnership, joint venture, or any other such relationship between the Parties.
The Recipient acknowledges that the Discloser makes no representation or warranty as to the accuracy or completeness of the Confidential Information. Only those representations and warranties that may be made in a definitive written agreement in connection with a transaction, when, as and if executed and subject to such limitations and restrictions as may be specified therein, shall have any legal effect, and each Party agrees that if it determines to engage in a transaction such determination will be based solely on the terms of such written agreement.
[Each Party agrees that, other than as may be set forth in any definitive written agreement in connection with a transaction, neither the Discloser nor any of its directors, officers, managers, employees, securityholders, affiliates, advisors or agents shall assume any responsibility or have any liability whatsoever to the Recipient or its Representatives, including, without limitation, in contract, tort or under federal or state securities laws, relating to or resulting from the selection or use of the Confidential Information by the Recipient or its Representatives or any errors therein or omissions therefrom.] Take out if non US law
Neither this Agreement nor the disclosure or receipt of Confidential Information shall be construed as creating any legal obligation of the Discloser to furnish Confidential Information to the Recipient. Each Party to this Agreement understands and agrees that no contract or agreement providing for any transaction shall be deemed to exist between the Parties unless and until a final definitive written agreement regarding a transaction has been executed and delivered by the Parties hereto. The Parties further understand and agree that no Party hereto, nor any of its Representatives, is under any legal obligation or has any liability to the other Party of any nature whatsoever with respect to the any transaction or business relationship by virtue of this Agreement or otherwise (other than with respect to the confidentiality and related matters set forth herein). Either Party may at any time, at its sole discretion with or without cause, terminate the discussions and negotiations with the other Party.
- Return of Confidential Information.
The Recipient agrees upon request of the Discloser to return to the Discloser or destroy as soon as practical all related Confidential Information (other than work products), without retaining any copies thereof unless such copies are retained by the Recipient or its Representatives to comply with Law. The Recipient and such Representatives shall hold any such retained information in accordance with the terms of this Agreement.
The term of this Agreement and the Parties’ obligations hereunder shall terminate on the earlier of (i) the date two (2) years from the Effective Date and (ii) the date of execution of an engagement or commitment letter in respect of the Project.
6.1 Governing Law; Venue.
This Agreement shall be governed by and construed in accordance with the laws of France. Each Party hereby submits to the exclusive jurisdiction of the Tribunal de Commerce de Paris in connection with any dispute related to this Agreement or any matter contemplated hereby. Each Party irrevocably and unconditionally waives any objection to the laying of such venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding has been brought in an inconvenient forum.
to be changed in the event of US law choice
6.2 Waiver of Right to Trial by Jury
THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT THEY MAY HAVE TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION, OR IN ANY LEGAL PROCEEDING, DIRECTLY OR INDIRECTLY BASED UPON OR ARISING OUT OF THIS AGREEMENT.
The Parties agree that money damages would not be a sufficient remedy for breach of the Agreement and that, in addition to all other remedies available at law or in equity, the Parties shall be entitled to seek equitable relief, including injunction and specific performance, without proof of actual damages.
6.2 Execution in Counterparts.
This Agreement may be executed in counterparts each of which shall be an original and both of which taken together shall constitute the same instrument. Transmission by telecopy, facsimile, email or other form of electronic transmission of an executed counterpart of this Agreement shall be deemed to constitute due and sufficient delivery of such counterpart.
If any provision of this Agreement or any portion of any such provision shall be held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall remain in full force and effect. The provision or portion held invalid or unenforceable shall be modified to be as similar in terms and intention of the Parties to the unenforceable provision as possible as will still be legal, valid, and enforceable.
6.4 Entire Agreement.
This Agreement contains the entire understanding between the Parties relative to the protection of Confidential Information and supersedes all prior and contemporaneous communication, reports, proposals, inquiries, and commitments between the Parties.
No change, modification, revision or addition to any provision shall be binding unless in writing and signed by duly authorized representatives of both Parties.
6.6 Electronic records and signature.
It is agreed by the Parties that, notwithstanding the use herein of the words “writing”, “execution”, “signed”, “signature”, or other words of similar import, the Parties intend that the use of electronic signatures and the keeping of records in electronic form be granted the same legal effect, validity or enforceability as a signature affixed by hand or the use of paper-based record keeping system (as the case might be ) to the extent and as provided for in any applicable law.
Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon receipt, when delivered personally or by courier, overnight delivery service or confirmed facsimile, or forty-eight (48) hours after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid, if such notice is addressed to the Party to be notified at such Party’s address or email address set forth under their signatures.
6.8. No Assignment.
Neither Party may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the other party. Subject to the preceding sentence, this letter agreement shall be binding upon and shall indure to the benefit of the parties hereto and their respective successors and permitted assigns.
AS WITNESSED, the Parties have executed this Agreement by their duly authorized representatives as of the above Effective Date.