Loading...
HomeMy WebLinkAboutContract 39517NTRACT NO MUTUAL CONFIDENTIALITY AGREEMENT This Mutual Confidentiality Agreement ("Agreement"), is made by and between USG Systems, Inc., a Delaware corporation with its principal offices at 9555 Maroon Circle, Englewood, Colorado 80112 U.S.A., for itself, its affiliates and subsidiaries (collectively, "CSG"), and the City of Forth Worth, organized under the laws of Texas ("Participant"). DataProse, a CSG Company, and Participant seek to enter into an agreement for long term archival and physical piece mail printing ("Proposed Transaction"). CSG and Participant (collectively referred to as the "Parties" and individually referred to as a "Party") will be discussing and exchanging certain confidential or proprietary information regarding CSG or Participant to permit the other Party to evaluate the potential business transactions (the "Authorized Use"). The Parties desire to establish the terns under which they will disclose certain confidential and proprietary information. Therefore, the Parties agree as follows: 1. CONFIDENTIAL INFORMATION. Confidential Infomlation shall mean that info►7nation as described in Attachment A. or: (a) any data or information that is competitively sensitive material, and not generally known to the public, including, but not lmuted to, products planning information, marketing strategies, plans, finance, operations, customer relationships, customer profiles, sales estimates, business plans, and internal performance results relating to the past, present or future business activities of CSG or Participant, or their respective parent corporations, subsidiaries and affiliated companies and the customers, clients and suppliers of any of the foregoing; (b) any scientific or technical information, design, process, procedure, formula, or improvement that is commercially valuable and secret in the sense that its confidentiality affords CSG or Participant a competitive advantage over their respective competitors; (c) ail confidential or proprietary concepts, documentation, reports, data, specifications, computer software or programs (including but not limited to design, architecture, screen displays, graphic user interfaces, and file structures), source code, object code, flow charts, databases, inventions, information posted on CSG's extranet site (to the extent that such information is not accessible to the general public) know-how, show -how and trade secrets, whether or not patentable or copyrightable. Confidential Information includes without limitation, all documents, inventions, substances, engineering and laboratory notebooks, drawings, diagrams, specifications, bills of material, equipment, prototypes and models, and any other tangible manifestation of the foregoing which now exist or come into the control or possession of the other Party. 2. IDENTIFICATION OF CONFIDENTIAL INFORMATION. All information which is disclosed by either Party and which is to be protected hereunder as Confidential Information of the disclosing Party must comply with the following: (a) if in writing or other tangible form, be labeled as "proprietary" and/or "confidential" (or words of similar import, or as reasonably deemed to be confidential), or (b) if disclosed orally or in some other non -tangible manner, be identified as proprietary and/or confidential at the time of disclosure (or reasonably deemed to be confidential). 3. CONFIDENTIALITY OBLIGATIONS. Except as expressly authorized by prior written consent of the disclosing Party, or required or allowable by applicable laws, the receiving Pariy shall, for a period of five (5) years from the date of disclosure of the Confidential Information: (a) not disclose the Confidential Information to third parties; and (b) limit access to the Confidential Information to its directors, officers, employees and agents who have a reasonable need - to -know solely for the purpose of the Authorized Use and who have been advised of the proprietary nature thereof and the obligations of this Agreement; and OFFICIAL RECORD CIT`f 4ECRETARY #2301944 Page 1 of 4 s � 1 09 CONFIDENTIAL AND PROPRIETARY INFORMATION -FOR USE BY AUTHORIZED EMPLOYEES dF T>PA2�6T ONLY AND IS NOT FOR GENERAL DISTRIBUTION WITHIN OR OUTSIDE THEIR RESPECTIVE COMPANIFS (c) safeguard all Confidential Information of the disclosing Party, using at least a reasonable degree of care, and such reasonable precautions as the other party may from time to time reasonably request; and (d) use all Confidential Information of the disclosing Party solely for purposes of the Authorized Use or as required by applicable laws, and for no other purpose whatsoever; and (e) not reproduce any Confidential Information of the disclosing Party except as is reasonably required for the Authorized Use; and (f) not remove or deface any notice of confidentiality on the Confidential Information. Upon the vv�-itten request of the disclosing Party, the receiving Party shall promptly surrender to the disclosing Party all memoranda, notes, records, drawings, manuals, and other documents or materials (and all copies of the same) pertaining to or including the Confidential Information of the disclosing Party. Upon the return of such materials, the Party returning materials agrees to certify, in writing, that all of the foregoing materials have been surrendered to the disclosing Party. The term "third parties" as used in this Agreement shall be interpreted broadly to include, without limitation, the media (electronic, print, or otherwise); the Internet; government representatives or authorities; corporations, companies, partnerships, groups or other entities; and individuals. 4. EXCEPTIONS TO CONFIDENTIALITY. The obligations of confidentiality and restriction on use in Section 3 shall not apply to any Confidential Information that: (a) was in the public domain prior to the date of this Agreement or subsequently came into the public domain through no fault of the receiving Party; or (b) is rightfully obtained by the receiving Party from a third Party authorized to make such disclosure without restriction or in breach of any confidentiality dutyowed to the disclosing Party or an affiliate of the disclosing Party; or (c) can be shown by documentation to have been already in the possession of the receiving Party prior to receipt thereof, directly or indirectly, from the disclosing Party; or (d) is required to be disclosed in a judicial or administrative proceeding, but only after all reasonable legal remedies for maintaining such information in confidence have been exhausted including, but not limited to, giving the disclosing Party as much advance notice of the possibility of such disclosure as is practical so that the disclosing Party may attempt to stop such disclosure or obtain a protective order concerning such disclosure; or (e) is independently developed by or for the receiving Party without reference to, access to, or use of the Confidential Infomtation disclosed to it under this Agreement. 5. NO IMPLIED OBLIGATIONS. Except for the obligations of restricted use and confidentiality imposed herein, no obligation of any kind is assumed by or shall be implied against either Party by virtue of the Parties' meetings or conversations with respect to the Authorized Use or with respect to whatever Confidential Information is exchanged. Each Party further acknowledges that this Agreement and any meetings and communications of the Parties relating to the Authorized Use shall not: (a) constitute an offer, request, or contract with the other to engage in any research, development or other work; (b) constitute an offer, request or contract involving abuyer-seller relationship, venture, teaming, agency or partnership relationship between the Parties; or (c) impair or restrict either Party's right to make, procure or market any products or services, now or in the future, which may be competitive with those offered by the other Party, or which are the subject matter of this Agreement provided that each Party complies with the terms of this Agreement. 6. NO LICENSE GRANTED; NO WARRANTY. Neither Party acquires any intellectual property rights or licenses under this Agreement, except the limited right to use Co�rdential Information disclosed by the disclosing Party as set out in #2301944 Page 2 of 11/10/2009 CONFIDENTIAL AND PROPRIETARY INFORMATION -FOR USE BY AUTHORIZED EMPLOYEES OF THE PARTIES HERETO ONLY AND IS NOT FOR GENERAL DISTRIBUTION WITHIN OR OUTSIDE THEIR RESPECTIVE COMPANIES Section 3 above. The placement of a copyright notice on any Confidential Information will not constitute publication or otherwise impair its confidential nature. All Confidential Information shall remain the property of the disclosing Party. THE CONFIDENTIAL INFORMATION IS PROVIDED "AS IS." THE DISCLOSING PARTY MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE ACCURACY OR COMPLETENESS OF ANY INFORMATION DISCLOSED HEREUNDER. 7. PUBLICITY. For the Terns (defined below) of this Agreement, except upon mutual written consent, which shall not unreasonably be denied; or as may be required by law, City policy or regulation, neither Party shall knowingly disclose the existence or terms of this Agreement, the discussions that gave rise to this Agreement, or the fact that there have been, or will be, discussions or negotiations covered by this Agreement to another person not a party or nor a representative of a party to this Agreement. 8. TERM AND TERMINATION. This Agreement shall become effective as of November 10, 2009 and shall automatically expire three (3) years thereafter; provided, however, that prior to such expiration, either Party may terminate this Agreement at any time upon thirty (30) days written notice to the other (the duration for which this Agreement is in effect is referred to as the "Term"). Notwithstanding such expiration or termination of this Agreement, all use and confidentiality obligations of any receiving Party pursuant to this Agreement shall survive with respect to any Confidential Information received prior to such expiration or termination. 9. COMPLIANCE WITH LAWS. Both Parties will comply with all applicable federal, state, and local statutes, rules and regulations, including, but not limited to, United States export control laws and regulations as they currently exist and as they may be amended from time to time. To that end, the Parties acknowledge that any tangible or intangible technical data provided under this Agreement are subject to United States export control laws and their related Export Admuustration Regulations ("Regulations"). Each Party agrees that it will not use, distribute, transfer, or transmit technical data (as defined in the Regulations) provided by the other Party under this Agreement except in compliance with the Regulations. 10. ACKNOWLEDGEMENT OF MUNICIPALITY STATUS. CSG acknowledges that the Participant is a home -rule municipality organized under the laws of the State of Texas and subject to the Freedom of Information Act as well as Texas rules and regulations regarding open records and record retention. CSG agrees that nothing herein shall require the Participant to circumvent or violate any law, rule or regulation as stated above. 11. MISCELLANEOUS. (a) The Parties expressly agree that any money, expenses or losses expended or incurred by each Party in preparation for, or as a result of this Agreement or the Parties' meetings and communications, is at each Party's sole cost and expense provided, however, that notwithstanding anything to the contrary in this Agreement, neither Party's rights shall be limited in law or equity to enforce the confidentiality and use obligations imposed hereunder. The Parties further acknowledge that the disclosing Party will be irreparably harmed if the receiving Party's obligations under this Agreement are not specifically enforced and that the disclosing Party would not have an adequate remedy at law in the event of an actual or threatened violation by the receiving Party of its obligations. Therefore, the receiving Party agrees that the disclosing Party shall be entitled to seek an injunction or any appropriate decree of specific performance for any actual or threatened violations or breaches by the receiving Party, its employees or agents, without the necessity of the disclosing Party showing actual damages or that monetary damages would not afford an adequate remedy, and without posting bond, or by posting bond at the lowest amount required by law. Such remedies shall not be deemed to be the exclusive remedies for a breach by the receiving Party but shall be in addition to all other rights and remedies available to the disclosing Party. (b) Neither Party shall assign any of its rights or obligations hereunder, in whole or in part, without the prior written consent of the other Party, which consent shall not be unreasonably withheld. (c) No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. (d) This Agreement is the complete agreement of the Parties concerning the subject matter hereof, supersedes any prior such agreements with respect to further disclosures concerning such subject matter, and may not be amended or in any manner modified except by a written instrument signed by authorized representatives of both Parties. #2301944 Page 3 of 4 11/10/2009 CONFIDENTIAL AND PROPRIETARY INFORMATION -FOR USE BY AUTHORIZED EMPLOYEES OF THE PARTIES HERETO ONLY AND IS NOT FOR GENERAL DISTRIBUTION WITHIN OR OUTSIDE THEIR RESPECTIVE COMPANIES (e) If any provision of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention of the Parties as expressed herein. (fl All notices under this Agreement must be in writing and shall be deemed to have been delivered to and received by the Party, and will otherwise become effective, on the date of actual delivery thereof (whether by personal delivery, express delivery services or certified mail) to the address of such party as set forth above. (g) This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall constitute the same instrument. A document signed and transmitted electronically is to be treated as an original and shall have the same binding effect as an original signature on an original document. 11. GOVERNING LAW. This Agreement and performance thereunder shall be governed by the laws of the State of Texas, U.S.A., excluding its conflicts of laws rules. This Agreement is executed on the day and year of the last signature below (the "Effective Date"). The Ci of Forth Worth ("PARTICIPANT") Fernando Costa Assistant City Manager Date: �/ /� 09 Recommended By: Frank Crumb Director of the Water Department Approved as to forma and legality: Christa R�!Reynolds Assistant City Attorney Attest:. Marty Hendrix City Secretary CSG SYS �A4'S, INC. Title: Date: $eCfBtiify CSG SYSTEMS, INC. Reviewed by ll4%LEGAL DEPARTM OFFICIAL RECORD CITY SECRETARY T. WORTH, TX #2301944 Page 4 of 4 11/10/2009 CONFIDENTIAL AND PROPRIETARY INFORMATION -FOR USE BY AUTHORIZED EMPLOYEES OF THE PARTIES HERETO ONLY AND IS NOT FOR GENERAL DISTRIBUTION WITHIN OR OUTSIDE THEIR RESPECTIVE COMPANIES Attachment A Confidential Information • Customer Name • Customer Address • City, State, Zip • Service Address • Account Number • Service dates • Bill Summary information such as consumption, service charges, rate information, sale tax, and fees • Total Charges calculated • Total Payments received • Previous Balance • Adjustments/ fees • Month messages