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HomeMy WebLinkAboutCOMPULINK MANAGEMENT CENTER, INC., DBA: LASERFICHEINSURANCE NOT REQUIRED WORK MAY PROCEED Ci EiAK OF COUNCIL. APR 30 21aserf i h `. CONFIDENTIALITY AND NON -DISCLOSURE AGREEMENT C'O� THIS CONFIDENTIALITY AND NON -DISCLOSURE AGREEMENT ("Agreement"), dated effective as of March 28, 2019 ("Effective Date"), is made by and between Compulink Management Center, Inc., a California corporation, doing business as Laserfiche and its direct and indirect subsidiaries ("Laserfiche"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California, with its primary place of business at 20 Civic Center Plaza, Santa Ana, CA 92701("City"). 1 Purpose. The parties wish to exchange Confidential Information for the purpose of a continuing business relationship and a software demonstration (the "Purpose") which may require them to disclose Confidential Information (as defined below) regarding their respective businesses, including their products, services, finances, business processes, and other proprietary and/or confidential information. For purposes of this Agreement, "Discloser" refers to the party that discloses proprietary and/or confidential information to the other party, and "Recipient" refers to the party that receives the information. This Agreement sets forth the terms that will govern each party's obligations with respect to disclosure of such information to the other. 2, Definition of Confidential Information 2.1 "Confidential Information' means information that is disclosed by Discloser to Recipient, related to Discloser's technology,, software, ideas, know how, business operations, products, and/or services that are not in the public domain, including their respective inventions, trade secrets, ideas, designs, research, business methods, financial records and statements, production plans and marketing plans, whether written or verbal, digitized or recorded, tangible or intangible, that would reasonably be considered to be Discloser's confidential information at the time of disclosure. Confidential Information also includes all memoranda, notes, reports, documents, e-mail and other media, as well as any copies, extracts, computer -generated studies and data of or containing Confidential Information, 2.2 Notwithstanding the foregoing, Confidential Information will not include any such information subject to any of the following exceptions where Confidential Information: (a) was previously known to Recipient without obligations of confidentiality; or (b) is obtained from a third party that lawfully possesses such information and is not in violation of any contractual, fiduciary, statutory or other legal obligation to keep such information confidential; or (c) its now, or later becomes, part of the public domain through no fault of Recipient or its affiliated entities, officers, directors, agents, employees, contractors, consultants and financial and legal advisors (collectively "Representatives") or through any other unlawful act or breach of confidentiality by a non-party; or (d) is independently ascertainable or developed by Recipient or its Representatives without the use of the Confidential Information, as shown by the Recipient's files and records immediately prior to the Page 1 of6 time of disclosure; or (e) is required to be disclosed by administrative or judicial action, provided that upon receiving notice, Recipient Immediately notifies Discloser of such action to give Discloser the opportunity to seek any other legal remedies to maintain such Confidential Information in confidence; or (f) approved for release by written authorization of Discloser; provided, however that these exceptions will not apply to Confidential Information that Is or includes personally identifiable information as defined by applicable privacy law ("Personal Information") unless the Recipient possesses and has the right to disclose any such Personal Information Independently of Its relationship with Discloser and its affiliates and Representatives. Additionally, if and to the extent that either party's Confidential Information is a trade secret under applicable law, it will remain Discloser's trade secret until the occurrence of one of the exceptions stated in this Section 2.2. 3. Non -Disclosure of Confidential Information and Term 3.1 This Agreement will remain in effect from the Effective Date until three years after this Agreement is terminated ("Disclosure Period"). Notwithstanding the foregoing: (1) if the Confidential Information Is a trade secret, Recipient's obligation of non -disclosure and non-use will continue as long as such Confidential Information is a trade secret; and (ii) Recipient's obligation of non -disclosure and non-use of Personal Information will continue indefinitely. Duringthe Disclosure Period, Recipient must retain the Confidential Information in confidence, not make any use of such Confidential Information other than as permitted here, and not disclose such Confidential Information to any third party without the express prior written authorization of Discloser. Either party may terminate this Agreement with thirty (30) days written notice to the other party. All Confidential Information disclosed, delivered to or acquired by a Recipient from a Discloser will be and remain the sole property of Discloser. 3.2 Discloser's Confidential Information may only be disclosed to Recipient's Representatives who have a need to know such information. Recipient must use at least as great a standard of care in protecting Discloser's Confidential Information as it uses to protect its own information of like character, but no less than a reasonable degree of care. Discloser's Confidential Information may be used only for the Purpose of this Agreement unless Discloser agrees otherwise in writing. Upon Discloser's written request, Recipient shall (at the Recipient's election) promptly return or destroy (provided that any such destruction shall be certified by a duly authorized representative of Recipient) all Confidential Information of Discloser and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard -copy form or on intangible media, such as electronic mail or computer files) in Recipient's possession or In the possession of any Representative; provided, however: (1) that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that Recipient shall not, in connection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems archiving or backup policies; and (III) that Page 2 of 6 Recipient shall not be obligated to return or destroy Confidential Information of Discloser to the extent Recipient is required to retain a copy pursuant to applicable law. 4. No Rights Granted. Nothing in this Agreement shall be construed as granting any rights under any patent, copyright or other intellectual property right of Discloser, nor shall this Agreement grant Recipient any rights In or to Discloser's Confidential Information other than the limited right to review such Confidential Information solely for the purpose of determining whether to enter Into a business relationship, Nothing in this Agreement requires the disclosure of any Confidential Information, which shall be disclosed, if at all, solely at Discloser's option. 5. Representations and Warranties. 5.1 Each party hereto understands and acknowledges that Discloser makes no representation or warranty, express or Implied, as to the accuracy or completeness of the Confidential Information, and neither the Discloser nor its Representatives will have any liability to the Recipient resulting from Recipient's use of or reliance on the Confidential Information, other than as specifically set forth in this Agreement. 5.2 Discloser represents to the other that the disclosure of the Confidential Information will not violate any proprietary rights of third parties, including, without limitation, confidential relationships, patent and copyright rights, or other trade secrets, and that the disclosure between the parties will not violate any contractual obligations which the parties may have to any third party. Discloser further warrants that it has the right to disclose all Confidential Information that it discloses to the other party pursuant to this Agreement. 5.3 Each party warrants to the other party that it has the authority to enter into this Agreement and that it is not a party to any other agreement or under any obligation to any third party that would prevent it from entering into this Agreement or that would adversely affect this Agreement or such party's compliance with any of the obligations set forth in this Agreement. 6. No Further Obligation 6.1. Neither this Agreement nor the disclosure orreceipt of Confidential Information constitutes an offer, request, or contract to engage in any research, development, or other work, or otherwise create a buyer -seller relationship, joint venture, teaming or partnership relationship. The disclosure or receipt of Confidential Information will not result in an obligation by either party to enter Into a future agreement or to undertake any obligation, unless it is set forth in a separate written agreement signed by both parties. Page 3 of 6 6.2 The parties understand that each may now market or be contemplating marketing or developing products, services or technologies which are competitive with or similar to products, services or technologies now offered or which may be offered by the other. Nothing In this Agreement requires either party to disclose to the other any such planning or other Information regarding pending or prospective marketing, development or evaluation plans. Provided that a party does not breach its obligations to maintain the confidentiality of the Confidential Information under this Agreement, neither this Agreement nor the communications between the parties will Impair or restrict the right of either party, whether alone or jointly with third parties, to (I) design, develop, make, use, procure, market and/or sell products, services or technologies now or in the future which may be competitive with those offered by the other, (ii) evaluate, acquire, license or otherwise discuss or transact with third parties, or enter into similar arrangements with third parties, and/or (III) independently design, develop, market or sell similar products, services or technologies. 7. No Reverse Engineering. Recipient shall not modify, reverse engineer, decompile, create other works from or disassemble any software programs contained in the Confidential Information of Discloser unless permitted in writing by Discloser. 8. Governing Law and Forum. This Agreement will be governed by and construed in accordance with the laws of California, without regard to its conflicts of laws principles. The parties consent to submit to the jurisdiction of the federal and state courts located in Los Angeles County, California; and any action or suit concerning this Agreement or the respective rights and obligations of the parties may only be brought by the parties in any federal or state court with appropriate jurisdiction over the subject matter that is located in' Los Angeles County, California. The parties will not raise, and hereby waive, any defenses based upon the venue, the inconvenience of the forum, the lack of personal jurisdiction, the sufficiency of service of process or the like in any such action or suit brought in California. The prevailing party in any litigation will be entitled to recover its reasonable attorney's fees and costs of suit from the losing party. 9. Remedies. Each party's obligations set forth in this Agreement are necessary and reasonable in order to protect Discloser and Its business. Due to the unique nature of Discloser's Confidential Information, monetary damages may be inadequate to compensate Discloser for any breach by Recipient of its covenants and agreements set forth in this Agreement. Accordingly, the parties each agree and acknowledge that any such violation or threatened violation may cause irreparable injury to Discloser and, in addition to any other remedies that may be available, in law, in equity or otherwise, Discloser shall be entitled to obtain injunctive relief (without the requirement of posting a bond) against the threatened breach of this Agreement or the continuation of any such breach by Recipient. 10. Notices. Notices hereunder must be in writing and will be deemed duly given upon delivery to the parties' representatives at the addresses listed below or such different address as the parties may from time to time designate. Notices will be deemed effective on the day received, except if received on a Page 4 of 6 Laserfiche non -business day or after 5A0 p.m. Pacific time on a business day, in which case they will be effective on the next business day after receipt. Notice may be given by registered or certified mail or by email with a follow-up hard copy by U.S, first-class mail. Notice may also be given by recognized overnight courier or by personal delivery. If to Laserfiche: Attention: General Counsel Compulink Management Center, Inc. 3545 Long Beach Blvd. Long Beach, CA 90807 Email: notices@laserfiche.com If to the City: Attention: City Manager and lack Ciulla City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92701 Email: iciulia@santa-ana.org 11. Miscellaneous. Neither party has the right to transfer or assign its interests in this Agreement, in whole or in part, without the prior written consent of the other party. Any modification or waiver of any terms of this Agreement will be ineffective unless in writing and signed by the party against whom It is sought to be enforced. Failure by either party to require the other's performance of any of the terms of this Agreement, or to assert any breach of this Agreement by the other, will not prevent subsequent enforcement of such term or be deemed a waiver of any subsequent breach. This Agreement constitutes the entire agreement with respect to the Confidential Information disclosed by Discloser to Recipient and supersedes all prior or contemporaneous oral or written agreements concerning such Confidential Information. If any Confidential Information is authorized by Discloser to be disclosed outside the United States, Recipient must ensure that such information or any materials derived from it, are not disclosed or communicated to any individual orentity in any country where the export or re-export of such information is prohibited by applicable export laws or regulations. Provisions of this Agreement that contain obligations that continue beyond the performance of this Agreement will survive termination of this Agreement. This Agreement may be executed in counterparts, which taken together shall form one binding legal instrument. The parties hereby consent to the use of electronic signatures in connection with the execution of this Agreement, and further agree that electronic signatures to this Agreement and copies of signatures shall be legally binding with the same force and effect as manually executed signatures. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date, Compulink Management Center, Inc. ("Laserfiche") WylieDigitally slgn dby Y Wylie Strout By: Strout o s�zo�o oo2 Wylie Strout General Counsel Date: City of Santa Ana ("city") By: 1ES�- Print Name: Steven Mendoza Title: Acting City Manager Date: q. z-9. 2-0, 9 Page 5 of 6 ATTEST: (15 1 9 F NORMA MITRE Acting Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALNO City ANrney By: Tamara Bogoslan Assistant City Attorney RECOMMENDED FOR APPROVAL: Cl0 Wes` lla ef chnologyInnovations Officer Information Technology Page 6 of 6