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HomeMy WebLinkAboutContract 58182 n e t h i n k CSC No. 58182 Mutual NDA OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX n RESTRICTED MUTUAL NON-DISCLOSURE AGREEMENT Effective Date: Nexthink, Inc., with its principal office at 501 Boylston St. Ste 4102, Boston, MA 02116, United States, ("Nexthink")and City of Fort Worth with its principal place of business at 200 Texas Street, Fort Worth,Texas 76102, United States ("Company")are in contemplation of a business relationship ("Proposed Transaction"). This Mutual Non-Disclosure Agreement ("Agreement") is entered into by Nexthink and Company to govern the sharing of information with regard to such Proposed Transaction. The reference to a party or parties in this Agreement is to the parties identified above, unless the context requires otherwise. The parties hereby agree as set forth below: SECTION 1 DEFINITION OF TERMS "Affiliate" means at any time any holding or a parent company or subsidiary company of a party or any company which is a subsidiary company of such holding or the parent company. "Confidential Information" of a party to this Agreement means (i) the Evaluation Materials provided by one party or its Affiliate (the "Disclosing Party") to the other (the "Receiving Party"), its agents, its Affiliate or representatives, and (ii) all information relating to this Agreement or received by any other party to this Agreement or any of its Affiliate in the course of performing under this Agreement, which is or should reasonably be understood to be confidential or proprietary information of, or concerning, such party or its Affiliate, including trade secrets, know-how, commercial, financial, and technical information, customer or client lists, programs, procedures, data, documents, computer information and databases, business plans, budget forecasts, business arrangements, information regarding specific transactions, financial information and estimates,works of authorship,and long-term plans and goals,the intellectual property rights of any party to any of the foregoing,and any non-public information relating to the services provided hereunder. "Evaluation Materials" shall be defined as all information, materials, documentation, or evaluation products (including the Products, in the case of Nexthink, as defined below) relating to or owned by either party or its Affiliate in connection with the Proposed Transaction and provided by a Disclosing Party to the Receiving Party for purposes of the evaluation of the Proposed Transaction. "Trial Period" means a period of three (3) months, commencing on the Effective Date and subject to earlier termination or subsequent renewal upon written notice from Nexthink to Company. SECTION 2 PURPOSE AND TERM 1. The Receiving Party agrees to use the Confidential Information only for the purpose of evaluating or reviewing the Proposed Transaction. This Agreement shall govern all communications between the parties to this Agreement that are made during the period from the Effective Date specified above to the earlier of(i)the completion of the Proposed Transaction or(ii)the third anniversary of the Effective Date. 2. The Nexthink IT software and related service for which Nexthink has delivered license keys or other access rights (the "Products") will be provided by Nexthink to Company for the Trial Period while Company evaluates the Products. This evaluation does not commit Company to procure the evaluation Products provided by Nexthink. Nexthink grants to Company a personal, non-exclusive, non-sub licensable and non-transferable license to: (i) use the Products, including any licensed modules for Company's own internal evaluation and testing(non-production) purposes; (ii) access the Products on Nexthink's specific Mutual Non-Disclosure Agreement v April 2020 Page 1 of 4 n RESTRICTED web site for licensing; and (iii) install the Products solely on Company's internal systems. Company may not install Products in cloud environments. No copies of the Products shall be made. 3. Furthermore, Company shall not: (i) remove any product identification, copyright or proprietary notices, or other restrictions from the Products; (ii) use the Software for commercial or production purposes; (iii) transfer, sell, assign or otherwise convey the Products to any third party; (iv) cause or permit reverse engineering, disassembly, or decompilation of the Products; (v) disclose results of any benchmark tests of the Products to any third party without Nexthink's prior written approval; (vi)disclose the Products or any information regarding the functionality of the Products to any third party;nor(vii)allow anyone other company or its employees to have access to, use or observe the operation of the Products. 4. The Evaluation Materials are protected by copyright and other intellectual property laws. Company acquires only the right to use the Evaluation Materials as provided herein and does not acquire any rights, express or implied, in the Evaluation Materials or media containing the Evaluation Materials. Nexthink shall at all times retain all rights, title, interest, including intellectual property rights in the Evaluation Materials and media. SECTION 3 DUTY OF CARE FOR CONFIDENTIAL INFORMATION The Receiving Party agrees to protect the disclosed Confidential Information by using the same degree of care, but no less than a reasonable degree of care,to prevent the unauthorized use, dissemination or publication of the Confidential Information as it uses to protect its own Confidential Information. SECTION 4 EXCLUSIONS FROM CONFIDENTIAL INFORMATION This Agreement imposes no obligation upon either party with respect to Confidential Information which: (i) was in the Receiving Party's possession before receipt from the Disclosing Party; (ii) becomes a matter of public knowledge through no fault of the Receiving Party; (iii) is rightfully received by the Receiving Party from a third party without a duty of confidentiality; (iv) is disclosed by the Disclosing Party to a third party without a duty of confidentiality on the third party; (v) is independently developed by the Receiving Party; (vi) is disclosed under operation of law; or(vii) is disclosed by the Receiving Party with the Disclosing Party's prior written approval. SECTION 5 DISCLOSURE OF CONFIDENTIAL INFORMATION 1. The Receiving Party agrees not to disclose Confidential Information to any individual or entity other than (i) as may be consented to by the Disclosing Party, (ii) as may be required by the applicable laws or regulations or by any court or administrative decision, or (iii) any of its Affiliate, directors, officers, employees, auditors, professional advisors, who shall need to know the Confidential Information in accordance with customary practices but on the condition that such parties shall be made aware of the terms of this Confidentiality Agreement and shall be governed by the confidentiality obligations hereunder. 2. Except in accordance with Section 5,1,the Receiving Party agrees not to disclose to any individual or entity (i) the fact that the Evaluation Materials have been made available to it, (ii) the fact that discussions, evaluations or negotiations are taking place concerning the Proposed Transaction,or(iii) any of the terms and conditions or other information relating to the Proposed Transaction. SECTION 6 NO OBLIGATION TO CONTRACT The Receiving Party has no obligation under this Agreement to complete any business, including the Proposed Transaction,with the Disclosing Party. Mutual Non-Disclosure Agreement v April 2020 Page 2 of 4 n RESTRICTED SECTION 7 NO WARRANTY; LIMITATION OF LIABILITY The parties acknowledge and agree that the Confidential Information is provided on an "AS IS" basis. The parties provide no warranties,express or implied,with respect to the Confidential Information. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS), REGARDLESS OF FORM OF ACTION,WHETHER IN CONTRACT,TORT OR OTHERWISE,AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY'S LIABILITY FOR DIRECT DAMAGES SHALL NOT EXCEED THE TOTAL MONEY PAID OR TO BE PAID BY COMPANY FOR THE PRODUCTS.THE FOREGOING LIMITATIONS SHALL NOTAPPLYTO CONFIDENTIALITY OR PRODUCT USAGE VIOLATIONS OR LIMIT A PARTY'S RIGHTS UNDER APPLICABLE LAW. SECTION 8 RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION Upon Disclosing Party's written request, the Receiving Party shall return to the Disclosing Party or destroy all written materials containing the Confidential Information. SECTION 9 NO AGENCY OR PARTNERSHIP FORMED The parties do not intend that any agency or partnership relationship be created between them by this Agreement. SECTION 10 AMENDMENTS All additions or modifications to this Agreement must be made in writing and must be signed by both parties. SECTION 11 THIRD PARTY RIGHTS Any person who is not party to this Agreement has no rights to enforce this Agreement. SECTION 12 GOVERNING LAW AND JURISDICTION This Agreement shall be governed by and construed under the material laws of the State of Massachusetts, United States. The competent courts located in the Tarrant County, Texas shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. The Parties hereto consent to the exclusive jurisdiction of the courts specified above and expressly waive any objection to the jurisdiction, venue, or convenience of such courts. Mutual Non-Disclosure Agreement v April 2020 Page 3 of 4 n Accepted for Nexthink,Inc.: Accepted for Company: Authorized Signature Authorized Signature �-. Valerie Washington . tMb{(j UWAIJ&r Name vale kl_ Name Valerie,Washington(Oct 3,202213:19 CDT) Timothy chandler Assistant City Manager Title Title senior Legal Counsel Date Date Oct 3, 2022 September 20, 2022 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Mutual Non-Disclosure Agreement v April 2020 Page 4 of 4 CITY OF FORT WORTH INTERNAL ROUTING PROCESS: Approval Recommended: Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all By: / performance and reporting requirements. Name: Kevin Gunn Title: Director, IT Solutions By: S.Trotter(Oct 2,2022 06:04 CDT) Approved as to Form and Legality: Name: Alex Varghese Title: Sr. IT Solutions Manager By: City Secretary: Name: Taylor Paris Title: Assistant City Attorney By: Jannette S.Goodall(OcT 3,2022 16:00 CDT) Contract Authorization: Name: Jannette Goodall �4ao���� M&C: N/A Title: City Secretary �� °FORraa� ° 0.0 ° �o °oP.dj j 0 °=d 0 ° ° *00 000. a K °°°°°° 'd ilk*Xp 45o ' OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX From: Niclas Vallin To: May. Katherine;Trotter.Sallie Cc: Soto.Vania Elizabeth Subject: Re: Final NDA Copy Date: Tuesday,October 11, 2022 11:33:16 AM CAUTION:This email originated from outside of the City of Fort Worth email system. Do not click any links or open attachments unless you recognize the sender and know the content is safe. Hi all, Apologies for the delay, Pm 000. My legal team doesn't see any reason that the document needs to be recorded as confidential. However, the information disseminated under the NDA is confidential. Hope that helps. Thanks, Niclas Get Outlook for iOS From: May, Katherine <Katherine.May@fortworthtexas.gov> Sent: Monday, October 10, 2022 14:33 To: Niclas Vallin <niclas.vallin@nexthink.com>, Trotter, Sallie <SalIie.Trotter@fortworthtexas.gov> Cc: Soto, Vania Elizabeth <Vania.Soto@fortworthtexas.gov> Subject: RE: Final NDA Copy You don't often get email from katherine.may@fortworthtexas.gov. Learn why this is important Good Afternoon, Niclas are you able to confirm whether or not this document needs to stay confidential? Thank You, Katie May I IT Finance Contractor Department of Information Technology Solutions- Finance 275 W. 13th St, Fort Worth, TX 76102 817-392-8894 Katherine.mayna fortworthtexas.g_ov "City of Fort Worth-Working together to build a strong community" FORT WORTH. From: May, Katherine Sent: Thursday, October 6, 2022 9:20 AM To: Niclas Vallin <niclas.vallin@nexthink.com>; Trotter, Sallie <Sallie.Trotter@fortworthtexas.gov> Subject: RE: Final NDA Copy Good Morning, Does this NDA need to be recorded by the city secretary as a confidential document? Thank You, Katie May I IT Finance Contractor Department of Information Technology Solutions- Finance 275 W. 13th St, Fort Worth, TX 76102 817-392-8894 Katherine.mayna fortworthtexas.g_ov "City of Fort Worth-Working together to build a strong community" F RT WORTH. From: Niclas Vallin <niclas.vallinna nexthink.com> Sent: Wednesday, October 5, 2022 12:39 PM To: May, Katherine<Katherine.MayCcDfortworthtexas.g_ov>; Trotter, Sallie <Sa I I ie.TrotterCb�fortworthtexas.g_ov> Subject: RE: Final NDA Copy CAUTION:This email originated from outside of the City of Fort Worth email system. Do not click any links or open attachments unless you recognize the sender and know the content is safe. Hi Katherine, Thank you for sending this. Have a great rest of your week, Niclas Niclas Vallin I Enterprise Account Executive niclas.vallinna nexthink.com I Linkedln M: 937 209 7896 Connect with other IT Changemakers on the DEX Hub > Web I Blog I Twitter JOIN US IN OCTOBER Experience Everywhere Q Linidon I Par"' I Frankfurt I NL-wYurk R5SERVE YOUR SEAT From: May, Katherine<Katherine.May0�fortworthtexas.gov> Sent: Wednesday, October 5, 2022 10:37 AM To: Niclas Vallin <niclas.vallinna nexthink.com>; Trotter, Sallie <Sallie.Trotterna fortworthtexas.gov> Subject: Final NDA Copy You don't often get email from katherine.may a)fortworthtexas.gov.Learn why this is important Good Morning, Please see attached fully executed NDA. Please let me know if you have any questions. Thank You, Katie May I IT Finance Contractor Department of Information Technology Solutions- Finance 275 W. 13th St, Fort Worth, TX 76102 817-392-8894 Katherine.mayna fortworthtexas.gov "City of Fort Worth-Working together to build a strong community" FoRTWORTH.