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HomeMy WebLinkAboutContract 47931 i rk�V CITY SECRETARY , I 7 �3 1 j0%30 2p16 CONTRACT N0. `�F- itY FJRI W0R7 CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT THIS CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT (this "Agreement") is made and entered into as of 1 2016 ("Effective Date"), between Texas Health Resources ("THR"), and Cility of ort Worth. For purposes of this Agreement, Texas Health Resources and City of Fort Worth are each a "Party," and collectively they are the "Parties." For good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, and for the mutual promises and agreements of the Parties herein contained, the Parties agree, as follows: 1. THR and City of Fort Worth are engaged in discussions related to a Possible Business Relationship ("Possible Business Relationship") and, in the course thereof, any Party may disclose, orally or in writing, to the other Parties or to a Representative (as defined below) of any Party certain confidential, proprietary and trade secret materials and information of the disclosing Party, and each Party acknowledges that such information is important, material and gravely affects the effective and successful conduct of the business and goodwill of the disclosing Party. Such information may include, without limitation, financial information; marketing, development, and demographic information; patient, customer and supplier lists and related information; patient medical records and other patient clinical data; pricing information and fee schedules; business plans, projections and strategies; contracting and managed care strategies and information; past and present methods, procedures and techniques used in conducting and enhancing operations; salary, compensation, and personnel information; compilations of records, information and processes; and other materials, records and/or information of a proprietary nature (collectively, "Confidential Information"). As used herein, a "Representative" of a Party is any employee, officer, director or owner of that Party, or any person, firm or entity engaged by or acting as an agent of that Party. 2. Each Party agrees, on behalf of itself and all of its Representatives, that from and after the Effective Date: (A) it shall cause all of its Representatives to be bound by and to comply with all of the terms and conditions of this Agreement; (B) all of such terms and conditions of this Agreement applicable to it shall be deemed to also be applicable to each Representative as if such Representative were a Party; (C) it will regard and preserve as confidential all of the respective Confidential Information of the other Parties that may be obtained by it from any source in connection with the discussion or evaluation of the Possible Business Relationship or as a result of its interactions with or through the other Parties, or any of their respective Representatives or business contacts; (D) except as otherwise expressly provided in this Agreement, it shall not use, copy or disclose, or authorize or permit the use, copying or disclosure of, any Confidential Information in whole or in part in any manner or to any person, firm, enterprise, organization, corporation or entity (other than a Representative) for any purpose unless the disclosing Party otherwise agrees and such third party has executed a written confidentiality agreement in form and substance acceptable to the disclosing Party; (E) it will disclose the other Parties' Confidential Information only to those Representatives have a legitimate need to know such Confidential Information for the0VFVjMqfEd0Wing and CITY SECRETARY 2381043.3 FT.WORTH, TX evaluating the Possible Business Relationship; (F) it has no right to use, and shall not, by virtue of the disclosing Party's making available to it the Confidential Information, use, any Confidential Information, in any manner other than in accordance with this Agreement or pursuant to specified requirements of the Parties' other business or contractual relationships, if any; (G) it shall use and cause all its Representatives to use commercially reasonable efforts to maintain all Confidential Information in the strictest confidence and to protect the confidentiality of all Confidential Information, except as otherwise provided in this Agreement; and (H) it shall not disclose to any person, firm, enterprise, organization, corporation or entity (other than a Representative who has a legitimate need to know for the purpose of discussing and evaluating the Possible Business Relationship) that any investigations, discussions, evaluations or negotiations are taking place concerning the Possible Business Relationship among the Parties, that any Confidential Information has been requested, disclosed or received by any of the Parties, or any other matter concerning the Possible Business Relationship, including the status thereof. 3. Each Party's obligations pursuant to this Agreement shall not apply to any Confidential Information of another Party which: (A) is or becomes publicly available or part of the public domain through no fault of the receiving Party or its Representatives; (B) is specifically authorized in writing by the disclosing Party to become publicly known; (C) is rightfully received from a third party authorized by the disclosing Party to receive such information without restriction and without breach of this Agreement; (D) was already known to the receiving Party without restriction, prior to receipt from the disclosing Party; (E) is required to be publicly disclosed in order to comply with a valid order of a court of competent jurisdiction or a ruling from the Office of the Attorney General of Texas, provided the receiving Party gives the disclosing Party reasonable notice of such required disclosure, cooperates in any attempt by the disclosing Party to legally prevent or limit such disclosure, and complies with the terms of any protective order which is entered with regard to such disclosure; or (F) is developed independently by the receiving Party or its affiliates by personnel not having access to the disclosing Party's Confidential Information. 4. A receiving Party and its Representatives shall use a disclosing Party's Confidential Information only for the purpose of discussing and evaluating the Possible Business Relationship or pursuant to specified requirements of the Parties' other business or contractual relationships, if any, and for no other purpose. No license, either express or implied, has been or will be created or granted to any receiving Party or any of its Representatives to use any disclosing Party's Confidential Information for any purpose other than as set forth in the preceding sentence, and each disclosing Party shall retain title to all of its Confidential Information. Each disclosing Party is not and will not be making any representation, express or implied, as to the accuracy or completeness of any Confidential Information furnished by or on behalf of the disclosing Party, and neither the disclosing Party nor any of its Representatives or affiliates has or will have any liability to the receiving Party or to any other person resulting from any use of or reliance upon any Confidential Information furnished by or on behalf of the disclosing Party. Only those representations and warranties expressly made in a definitive agreement, when, as and if a definitive agreement is executed and subject to such limitations as may be specified in such definitive agreement, will have any legal effect. Some of the Confidential Information furnished pursuant to this Agreement may be subject to certain legal privileges, and the furnishing of any such Confidential Information is not intended to and does L:Iegal01\IDR\Forms\Confidentiality NDA-2 Party not constitute a waiver of any legal privileges, including the attorney-client privilege and the attorney work product doctrine. 5. Unless and until a definitive agreement has been executed and delivered, no contract or agreement providing for a transaction among the Parties with respect to the Possible Business Relationship shall be deemed to exist, and no Party shall be under any legal obligation of any kind whatsoever with respect to any such transaction or the Possible Business Relationship except for the matters specifically agreed to in this Agreement. Each Party reserves the right, in its sole and absolute discretion, to reject any and all proposals regarding the Possible Business Relationship and to terminate discussions concerning the Possible Business Relationship with any other Party or Parties at any time, provided that any such termination of discussions shall not affect the obligations imposed under this Agreement, including the limitations set forth in Section 6 hereof. If the Parties do not proceed with a transaction with respect to the Possible Business Relationship, a receiving Party shall return promptly to the disclosing Party all originals and all copies, extracts or other reproductions in whole or in part of the disclosing Party's Confidential Information in the possession or control of the receiving Party or its Representatives, and the receiving Party shall, to the extent permissible by law, destroy or cause to be destroyed all originals and copies or any memoranda, notes, analyses, compilations, studies or other documents prepared by the receiving Party or for its use based on, containing or otherwise reflecting any Confidential Information furnished by or on behalf of the disclosing Party Notwithstanding any language in this Section 5 or elsewhere in this Agreement to the contrary, a Party shall be entitled to retain everything that was prepared by such Party or such Party's Representatives for such Party's use in evaluating the Possible Business Relationship and which contains any Confidential Information that was provided to it by another Party, provided, however, that the item(s) so retained shall continue to be subject to the terms and conditions of this Agreement. 6. In consideration of the substantial time and resources that each Party hereto expects to devote to evaluating the Possible Busi ess Relationship, each Party agrees, to the extent permissible by law, that for a period of ` n 9D days (hereinafter, the "Exclusivity Period") commencing as of the Effectiv Date, such Party shall work in good faith exclusively with the other Parties in evaluating the feasibility of the Possible Business Relationship and shall refrain from initiating or participating in any negotiations or discussions with any person or persons not a Party to this Agreement regarding the establishment, ownership or operation of any joint venture or other entity involved or planning to be involved may engage in negotiations or discussions with other parties. The Exclusivity Period will automatically renew for additional periods of thirty (30) days each, unless either Party provides written notice to the other Party that the Exclusivity Period shall end at the conclusion of the then current Exclusivity Period. 7. This Agreement constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all previous communications, agreements, promises, representations, understandings and negotiations, whether written or oral, among the Parties with respect to the subject matter hereof. Neither this Agreement nor any obligations hereunder may be assigned by any Party (whether by operation of law, merger, acquisition or otherwise) to any third party whatsoever, and any such attempted assignment shall be void and of no force or effect. The Parties agree that the damages to one Party as a result of a breach or alleged breach of Llega101\KIg\Fotms\Confidentiality NDA-2 Party this Agreement by another Party or Parties are irreparable and cannot be remedied by an action at law for damages and that such Party shall have the right, in addition to its other rights and remedies in such event, to injunctive and other equitable relief. Notwithstanding the foregoing, neither party shall be liable if such Confidential Information was required to be publicly disclosed in order to comply with a valid order of a court of competent jurisdiction or a ruling from the Office of the Attorney General of Texas under the Texas Public Information Act. If any part or provision of this Agreement is determined to be invalid or unenforceable, the remainder of this Agreement shall be enforceable and shall in no way be invalidated. All waivers hereunder and all modifications, amendments or alterations hereto must be made, and shall not be effective unless, in writing and signed by all Parties. This Agreement shall be governed by and construed in accordance with the laws of Texas without giving effect to its conflict of laws rules, and the exclusive venue for any action or proceeding related to this Agreement shall be in a federal or state court in Tarrant County, Texas. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one Agreement. IN WITNESS WHEREOF, and intending to be legally bound hereby, each party hereto warrants and represents that this Agreement has been duly authorized by all necessary corporate action and that this Agreement has been duly executed by and constitutes a valid and binding agreement of that party. All signed copies of this Agreement will be deemed originals. Signed signature pages may be transmitted by facsimile or e-mail, and any such signature shall have the same legal effect as an original signature. IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date. TEXAS HEALTH RESOURCES CITY OF FORT WORTH By: By: I P anted Name:`J %_5.Sf J 4 y Printed Name: J tl 5m Title—VP @ u /� e: db5t- Cif A b . y %0 OFFICIAL RECORD J s 3ecre o S CITY SECRETARY �000000000 FT. WORTH, TX VEDAS S TO FORM AND LEGALITY. +•'a M&C REQUIRED ..� ATTORNEY(!�u+((ep_,,,o S Trtu L:Iegal01\K1K\F,r ,\Confidentiality NDA-2 Party