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HomeMy WebLinkAboutContract 47586 CONTRACT W. 17)Y� CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT This Confidentiality and Nondisclosure Agreement, dated for reference purposes , 20_[U (this "Agreement"), is made by The City of Fort Worth("Recipient") with and or the benefit of Medical Management International, Inc., dba Banfield Pet Hospital® ("Banfield"). RECITALS Recipient wishes to explore and discuss a possible business relationship with Banfield. In furtherance of such purpose, Banfield (or Affiliates of Banfield) may reveal Confidential Information to Recipient. Before revealing any such information, Banfield requires that Recipient enter into this Agreement. THEREFORE, for valuable consideration, receipt of which is hereby acknowledged, Recipient agrees as follows: 1. Confidentiality;Nondisclosure. Recipient agrees to retain all Confidential Information received from Banfield (or any Affiliate of Banfield) in confidence, not to disclose any such information to any other Person(as defined in Section 14 below) except as provided expressly herein, and not to use any such information for its own benefit, to Banfield's detriment or for any purpose other than the purpose recited above. For purposes of this Agreement, "Confidential Information" shall be defined as all information of any nature, whether the information shall be received orally, in writing, visually, by inspection of documents, products, or processes,by electronic transmission, or in any other form or manner. Information shall be considered confidential and shall be subject to this Agreement whether or not it is marked or designated "confidential" at the time of disclosure. Notwithstanding the provisions set forth above, information shall not be considered "Confidential Information" for purposes of this Agreement if it: (a)was known to Recipient prior to disclosure by Banfield or its Agents (as defined in Section 14 below); (b) was available to Recipient from a source not subject to a confidentiality agreement with Banfield; (c) was generally available to the public at the time of disclosure; or(d) subsequently became generally available to the public other than as a result, directly or indirectly, of disclosure by Recipient or its Agents. Notwithstanding the provisions above, Recipient may disclose Confidential Information to its Agents who have a legitimate "need to know," and only to the limited extent necessary to explore, establish, develop and/or maintain the business relationship with Banfield, provided that Recipient shall deliver a copy of this Agreement to each Agent before any Confidential Information is disclosed to such Agent unless the Agent is already bound by a confidentiality agreement that covers such Confidential Information. Recipient shall be fully responsible for any use or disclosure of Confidential Information by any of its Agents in violation of this Agreement. 2. Security. Recipient will maintain and comply with administrative, technical and physical safeguards that are designed to protect the security and integrity of the Confidential Information, including in connection with any transfer, communication, remote access or storage of the Confidential Information as permitted or required under this Agreement. Recipient will immediately notify Banfield of any unauthorized disclosure or use of Banfield's Confidential Information. 3. No Copying; Return. Neither Recipient nor any of its Agents shall copy any Confidential Information furnished by Banfield without the prior written consent of Banfield. Upon the request of Banfield, Recipient and its Agents shall promptly return, erase or destroy all copies of Confid 1 OFFICIAL RECORD CITY SECRETARY 1 FT.WORTHS TX Information supplied by Banfield, including all documents, notes and other materials in which the Confidential Information appears, in whatever form or medium in which it may be recorded. 4. Compelled Disclosures. In the event that Recipient or any of its Agents are compelled by subpoena, order, or in any other manner by any Person to disclose any Confidential Information received from Banfield, Recipient will give Banfield prompt notice of such request so that Banfield may seek an appropriate protective order. If Recipient or any of its Agents is nevertheless compelled by legal process to disclose any of the Confidential Information, Recipient may make such disclosure without liability, provided that Recipient has provided notice to Banfield as required above and provided that Recipient cooperates as reasonably requested by Banfield in seeking to obtain a protective order or assurance of confidential treatment by the Person seeking disclosure. Notwithstanding any other provision of this agreement, Banfield is on notice that the disclosure of most information in possession of the City is considered public information, that the City is mandated by law under the provisions of the Texas Public Information Act ("Act") to release public information, and that unless subject to a statutory exemption under the Act, the City will necessarily release information in compliance with the Act. Under no circumstances shall the City be liable for disclosures it reasonably believes to be required under the Act. If a request for disclosure under the Act is received by the City, Banfield will be notified of the request and Banfield may make any objections or arguments to the Office of the Attorney General to protect the information from disclosure. 5. Intellectual Property. This Agreement does not grant any rights to Recipient under any patent, copyright or other intellectual property right of Banfield, except as expressly set forth herein. 6. Term. The obligations under this Agreement will continue until such time as the Confidential Information is publicly known and made generally available through no action or inaction of Recipient. 7. Severability. If any provision of this Agreement is held invalid, illegal or unenforceable by a court of competent jurisdiction, such holding will not affect the validity of any other provision of this Agreement. 8. Remedies. Recipient acknowledges that any use or disclosure of Confidential Information in violation of this Agreement is likely to cause Banfield irreparable harm for which money damages will not be adequate. Therefore, if Recipient or any of its Agents breaches or threatens to breach this Agreement, Banfield shall be entitled to equitable remedies, including injunctive relief and/or specific performance, without proof of money damages. Recipient waives any requirement that Banfield post a bond or other security in order to obtain equitable relief. Seeking equitable relief shall not prevent Banfield from also obtaining money damages for the same breach. All remedies shall be cumulative. In the event of any litigation(including appeals) under or in connection with this Agreement, the prevailing party will be entitled to recover its attorney fees and costs (including expert witness expenses) from the losing party. 9. Modification; Waiver. This Agreement may not be modified or discharged, in whole or in part, and no provision hereof may be waived, except in writing. No waiver of a provision on a particular occasion shall affect the enforceability of such provision on subsequent occasions, and no waiver of any particular provision shall affect the enforceability of any other provision. 10. Assignment; Successors and Assigns; Enforcement by Banfield. Recipient shall not assign or delegate any of its rights or obligations under this Agreement without the prior written consent 2 of Banfield. This Agreement is binding on Recipient and on Recipient's heirs, legal representatives, successors and permitted assigns, and shall be for the benefit of Banfield, its Affiliates, successors and assigns. 11. Third Party Beneficiary. Each party acknowledges and agrees that Mars, Incorporated, an affiliate of Medical Management International, Inc., is intended to be a third party beneficiary of this Agreement. 12. Governing Law. This Agreement shall be governed in all respects by the substantive laws of the State of Oregon, without regard to conflicts of laws principles, except with regard to such laws as are specific to governmental entities in the State of Texas, including but not limited to the Public Information Act and laws regarding governmental immunity,. Recipient consents to jurisdiction and venue in any state or federal court located in Multnomah County, Oregon for any proceeding relating to this Agreement and waives any right to claim that any such court is an inconvenient forum. Nothing in this agreement shall constitute a waiver of the rights, privileges, and immunities of governmental entities in the United States or the State of Texas. 13. Entire Agreement; Waivers. This Agreement contains the entire agreement of Recipient and Banfield with respect to the matters addressed herein, and it supersedes any prior agreement or understanding, written or oral, with respect to such matters. 14. Definitions. (a) "Affiliate." As used in this Agreement, "Affiliate" means, as to either party, any corporation or other entity that directly, or through one or more intermediaries, controls, is controlled by, or is under common control with that party. "Affiliate" also means, as to Banfield, Banfield's subsidiaries (regardless of the legal form in which they are organized) and any person operating one or more veterinary hospitals or facilities pursuant to an agreement or arrangement with Banfield or any Affiliate of Banfield. (b) "Agent." As used in this Agreement, "Agent" means any officer, employee, agent, representative, consultant or attorney of either of the parties or of any Affiliate of either of the parties. (c) "Person." As used in this Agreement, "Person" means any individual, group of individuals, partnership, corporation, limited liability company or other entity, public or private, including governmental bodies. Signature Page Follows 3 CITY OF FORT WORTH/ Fernando Costa Assistant City Mana er Date Signed: APPROVED AS TO FORM AND LEGALITY: Arthur N. Bashor Assistant City Attorney ATTEST: ® -T5l-'j � O Mary J. Kayser $ ' City Secretaryk Accepted: Medic 1 Management International, Inc. B — Title.%,- mF FICIAL.REC®RD TY SECRETARY T Wj0RTR, TX 4