HomeMy WebLinkAboutContract 47607 CITY=RETAW 7
A. CONTRACT NO.
CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT
�cL_ This Confidentiality and Nondisclosure Agreement ("Agreement") is made and entered into this M ctKy of
-4nuary,2016, ("Effective Date")by and between the City of Fort Worth, Texas having its principal place of business
at 1000 Throckmorton Street, Fort Worth, Texas 76102 ("Fort Worth") and Innovative Rx Strategies, LLC
("Innovative Rx Strategies") having its principal place of business at 520 Lake Cook Road, Suite 130, Deerfield, IL
60015 (each a"Party"and together the"Parties").
WHEREAS, one or all of the Parties wish to receive certain Confidential Information(as defined below)from
the other for the purpose of evaluating pricing and service offerings by Envision Pharmaceuticals, LLC ("Envision")
to Fort Worth and evaluating the terms and condition of a Pharmacy Benefit Management Services Agreement,
Contract No. 46250,dated January 1, 2015,between Fort Worth and Envision,as amended("PBM Contract");
WHEREAS,the Parties will disclose(each a"Disclosing Party")Confidential Information to the other Parties
(each a"Receiving Party"), subject to the terms and conditions of this Agreement, for purposes of evaluating pricing
and service offerings by Envision to Fort Worth in the PBM Contract between Envision and Fort Worth:
NOW,THEREFORE, in consideration of the mutual promises herein set forth,the Parties agree as follows:
1. Definition of Confidential Information. The Confidential Information that the Disclosing Party is
supplying to the Receiving Party under this Agreement is described generally as confidential, non-public, trade secret,
valuable commercial information or personally sensitive and/or other proprietary information however categorized
and regardless of any denotation on any written material, that relates to the Disclosing Party's business processes,
services, ideas, systems, clinical programs, pricing, accounting and other financial information, insurance, associate
relations and other human resource information, marketing and merchandising information including current and
future product information, client lists, manuals,business plans and general proprietary business information which is
commercially valuable, confidential, proprietary, or a trade secret disclosed or submitted orally, in writing, or by any
other media,and Fort Worth's current PBM Contract with Envision("Confidential Information").
2. Use of Confidential Information. The Receiving Party may use and disclose Confidential Information only
for the purpose described herein, and only as necessary to perform its services relating thereto. The Receiving Party
further agrees not to use Confidential Information for any purpose,except that set forth above. Further, the Receiving
Party shall not, either directly or indirectly, disclose, use or reproduce Confidential Information without prior written
authorization from the Disclosing Party. In particular, a Receiving Party may not disclose Confidential Information to
any third party, including but not limited to a PBM, health insurance carrier, health plan, insurance broker, TPA,
group purchasing organization, coalition, association, another client/customer, and/or consultant (including Arthur J.
Gallagher & Co. ("Gallagher") and Gallagher Benefit Strategies, a division of Gallagher) who is not a Party to this
Agreement without the Disclosing Party's prior written consent. However, the Parties agree that a Receiving Party
may allow public officials, officers, directors, principals and/or employees of the Receiving Party to receive the
Disclosing Party's Confidential Information if the public officials, officers, directors, principals and/or employees of
the Receiving Party have been made aware of this Agreement and its terms. The Parties acknowledge and agree that
the use or disclosure of Confidential Information under this Agreement shall be in accordance with all applicable state
and federal laws, including without limitation, the Health Insurance Portability and Accountability Act ("HIPAA")
and any regulations promulgated thereunder.
3. Duty to Protect. Except as provided in section 5 below, the Receiving Party shall have a reasonable duty to
protect Confidential Information that is (a) marked or accompanied by documents clearly and conspicuously
designated as "confidential" or"proprietary"; (b) identified in writing by the Disclosing Party as confidential before,
during or promptly after the presentation or written communication; or (c) is not generally known in the industry in
which the Disclosing Party is or may become engaged and which would reasonably be considered confidential and/or
proprietary.
4. Standard of Care. The Receiving Party shall protect the Disclosing Party'IF
fidential Informat n with
the same degree of care, but no less than a reasonable degree of care, as the Recei in the
Y SECRETARY
. WORTH,TX
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protection of its own confidential and proprietary information. The Receiving Party shall use this standard of care to
prevent the unauthorized use, disclosure, dissemination, or publication of the Disclosing Party's Confidential
Information.
5. Exclusions. The restrictions set forth shall not apply with respect to Confidential Information that: (a) is
already available to the public; (b) becomes available to the public through no fault or breach of the Receiving Party,
its officers, directors, principals and employees; (c) is independently developed by the Receiving Party without breach
of this Agreement; (d) is rightfully received by the Receiving Party from a third party without a duty of confidentiality
or other restriction on disclosure; (e) is disclosed by the Receiving Party with the Disclosing Party's prior written
approval; or (f) is required to be disclosed pursuant to an order of a court, administrative agency, or governmental
body, or any law, rule, regulation, subpoena, judicial or administrative process, or in accordance with applicable
professional standards. If a Receiving Party is required by a government body or court of law to disclose Confidential
Information, the Receiving Party agrees to give the Disclosing Party reasonable advance notice so that the Disclosing
Party may contest the disclosure or seek a protective order or modification of any disclosure, subject to applicable
confidentiality constraints imposed by such government body or court of law or applicable law. The Receiving Party
shall thereafter be entitled to disclose Confidential Information to the extent required by law and shall not be held
liable for such lawful disclosure.
6. Proprietary Interest. No Party to this Agreement acquires any rights in any other's Party's Confidential
Information under this Agreement except the limited rights necessary to carry out the purposes set forth in this
Agreement. This Agreement grants no license by a Party to any other Party to this Agreement, either directly or by
implication, estoppel or otherwise. This Agreement is not intended, nor shall it be construed, to confer any right upon
any person or entity not a Party to this Agreement.
7. Warranty. Each Disclosing Party warrants that it has the right to make the disclosures under this Agreement.
NO OTHER WARRANTIES ARE MADE BY EITHER PARTY UNDER THIS AGREEMENT. ANY
INFORMATION EXCHANGED UNDER THIS AGREEMENT IS PROVIDED "AS IS."
8. Term and Termination. This Agreement shall become effective as of the Effective Date and terminate (a)
upon ten (10) days written notice from one party to the other, with or without cause; or (b) automatically at the
conclusion of the Parties' relationship. Termination of this Agreement shall not relieve the Receiving Party of any of
the obligations set forth in this Agreement with respect to the Disclosing Party's Confidential Information.
Immediately upon termination of this Agreement or upon written request of the Disclosing Party at any time and for
any reason, the Receiving Party shall, if feasible, return to the Disclosing Party all of its Confidential Information in
the Receiving Party's possession, including but not limited to, all records, memoranda, drawings, blueprints, manuals,
letters, notes, notebooks, reports and other materials containing such Confidential Information, whether created by the
Disclosing Party or the Receiving Party, along with all copies, or, if requested, the Receiving Party shall certify in
writing that all such Confidential Information has been destroyed. If return or destruction of information is not
feasible,the Receiving Party shall continue to maintain information as confidential as is required by this agreement.
9. Miscellaneous.
a. The Parties mutually acknowledge and agree that this Agreement shall be construed and enforced in
accordance with the laws of the State of Texas, without regard to the internal law of Texas regarding conflict
of laws. The Parties acknowledge that they have read and understand this clause and agree willingly to
its terms.
b. No Party has an obligation under this Agreement to purchase any service or item from any other Party
to this Agreement. No Party has an obligation under this Agreement to commercially offer any products
using or incorporating Confidential Information.
C. Each Party acknowledges that damages for improper use or disclosure of Confidential Information
shall be irreparable; therefore, the injured Party, to the extent permissible by law, is entitled to seek equitable
relief, including injunction and preliminary injunction, in addition to all other remedies.
d. All additions or modifications to this Agreement must be made in writing and signed by all the
Parties. This Agreement does not create any agency or partnership relationship. This Agreement is not
assignable or transferable without the prior written consent of the other Parties. This Agreement applies to all
successors in interest.
e. This document contains the entire agreement between the Parties as to the Confidential Information
and supersedes any previous or contemporaneous understandings, commitments, or agreements, whether
written or oral,as to such Confidential Information.
f. All duties and obligations set forth in this Agreement apply equally to all officers, directors,
principals, and employees of the Parties. The Receiving Party agrees that all Confidential Information will
only be made known to employees of the Receiving Party who have a need to know such Confidential
Information.
g. If any provision of this Agreement is or becomes invalid, illegal or unenforceable in any respect, shall
be invalid, illegal or unenforceable in any respect, it shall be ineffective to the extent of such invalidity,
illegality or unenforceability, and the validity, legality and enforceability of the remaining provisions
contained in this Agreement shall remain in effect.
h. Any notice given under this Agreement shall be deemed received if in writing, and if sent by hand
delivery, facsimile transmission, receipt confirmed, electronic mail, overnight courier which provides
confirmation of delivery, or certified mail, return receipt requested, sent to the applicable party at its address
set forth with its signature to this Agreement, or to such other address or to the attention of such other person
as either party may designate in writing pursuant to this provision. Notices sent by certified mail shall be
deemed received three(3)business days following mailing.
i. This Agreement may be executed in counterparts and transmitted by facsimile.
IN WITNESS WHEREOF,the Parties have executed this Agreement as of the Effective Date.
City of Fort Worth
By:
LI)Susan Alanis
0 % -
Title: Assistant City Manager �` f 00
Notice Address:
�i►°Oovr�°�°°b
City of Fort Worth �� '
1000 Throckmorton Street ygg ity SCCm1my
Fort Worth,TX 76102
Attn: Brian Dickerson,Director of Human Resources
Fax:(817)392-8869
brian.dickerson@fortworthtexas.gov
APP OVED AS TO F RM AND LEGALITY:
with a copy to the City Attr4�U'r1le � address
4- 'J� �L
CITY:SECRE!TARY CITY ATTORNEY -�v eri►'� s. �c 10,10
FNO M&C REQUIRED FT, RTH
Innovative Rx S eg' s,
By:
Michael J. 9-
-Title:Co-CEO
Notice Address:
Innovative Rx Strategies,LLC
520 Lake Cook Road, Suite 130
Deerfield,IL 60015
Attn: Michael Staab,J.D.,LL.M.--Co-CEO
michael.staab@innovativerxstrategies.com