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HomeMy WebLinkAboutTYLER TECHNOLOGIESINSURANCE. I,:7 REQUIRED V4'i ?K ,!qA / PROCEED n nrr.. CLERK OF COUNCIL 0% 'Ak,\-,(A& 6,Q\\0LA ° •• tyler • technologies CONFIDENTIALITY & NON -DISCLOSURE AGREEMENT N-2020-062 This Confidentiality & Non -Disclosure Agreement ("Agreement") is made this 13th day of February, 2020, N between Tyler Technologies, Inc., with offices at 1 Tyler Drive, Yarmouth, Maine 04096 ('Tyler'), and the City of N Santa Ana, California, with offices at 20 Civic Center Plaza, Santa Ana, California 92701(the "City"), with Tyler and co the City also being referred to individually herein as a "Party," and collectively as the "Parties." c.: WHEREAS, Tyler may disclose Confidential Information, as hereinafter defined, to the City; and WHEREAS, the Parties may continue to exchange Confidential Information; and WHEREAS, each Party desires to protect its Confidential Information; NOW THEREFORE, in consideration of the foregoing and of the mutual covenants and promises set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: Confidential Information. As used in this Agreement, "Confidential Information" means all Information of the Parties, in whatever form transmitted, that: A. is not generally known to the public, whether of a technical, business or other nature including, without limitation any and all intellectual property rights either Party holds in and to its software, services and/or documentation, including patents, copyrights, and trademarks and trade secrets; B. is disclosed by one Party (the "Disclosing Party") to the other Party (the "Receiving Parry") or that is otherwise learned by the Receiving Party in the course of its discussions or business dealings with, or due to its physical or electronic access to the premises or property of, the Disclosing Party; and/or C. has been identified as being proprietary and/or confidential, or that would reasonably be deemed to be proprietary and/or confidential based upon the nature of the circumstances surrounding its disclosure or receipt. II. Exceptions. "Confidential Information" does not Include information which A. becomes generally available to the public other than as a result of a disclosure by the Receiving Party; B. was available to the Receiving Party on a non -confidential basis prior to its receipt by the Receiving Party; C. becomes available to the Receiving Party on a non -confidential basis from a source other than the Disclosing Party, its representatives or its agents, provided that such source is not bound by a confidentiality agreement with the Disclosing Party, its representatives or its agents or otherwise is prohibited from transmitting the information to the Receiving Party by a contractual, legal or fiduciary obligation; or D. was independently developed by the Receiving Party without access to or the benefit of the Confidential Information. III. Use of Confidential Information. The Receiving Party, except as expressly provided in this Agreement, will not disclose Confidential Information to anyone without the Disclosing Parry's prior written consent. In addition, the Receiving Party will not use, or permit others to use, Confidential Information for any purpose other than for the limited purpose or purposes for which the disclosure of the Confidential Information is originally made. •:. tyler Permitted use of other Confidential Information under this Agreement may include disclosure of that other Confidential Information to employees or representatives of the Receiving Party provided, however, that the Receiving Party informs such person or persons of this Agreement and will be responsible for any breach of this Agreement by such person or persons. IV. Exportation. Neither Parry shall export, directly or indirectly, any technical data acquired from the other Party pursuant to this Agreement or any product utilizing any such data to any country for which the United States government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval. V. Public Records or Governmental Request. Should the Receiving Party receive a public records request, or otherwise be directed by any governmental authority to disclose any or all of the Disclosing Parry's Confidential Information, the Receiving Party shall promptly provide notice to the Disclosing Party of such request to allow the Disclosing Party an opportunity to prevent such disclosure. VI. Ownership of Confidential Information. All Confidential Information will remain the exclusive property of the Disclosing Party, and the Receiving Party will have no rights, by license or otherwise, to use the Confidential Information except as expressly provided herein or in a separate written agreement specifically granting such rights. VII. Protection of confidential Information. The Receiving Party will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Confidential Information, including, at a minimum, those measures it takes to protect its own confidential information, and, in any event, at least in a manner considered commercially reasonable. Vill. Unauthorized Disclosure. The Receiving Party shall immediately notify the Disclosing Party upon the discovery of any loss or unauthorized disclosure or use of the Confidential Information of the Disclosing Party. IX.- Injunctive Relief. Each Party acknowledges and agrees that a breach by it or one of its affiliates, employees or representatives of any of the covenants set forth in this Agreement will cause irreparable injury to the other Party and its business for which damages, even if available, will not constitute an adequate remedy. Accordingly, each Party, for itself and its affiliates, employees and representatives, agrees that the other Party, in addition to any other remedy available at law or in equity, shall be entitled to the issuance of injunctive relief (including, without limitation, specific performance) by a court of competent jurisdiction in order to enforce the covenants and agreements contained herein. X. Attorneys' Fees and Costs. If attorneys' fees or other costs are incurred to secure performance of any obligations under this Agreement, or to establish damages for the breach thereof, or to obtain any other appropriate relief, whether by way of prosecution or defense, the prevailing Party will be entitled to recover reasonable attorneys' fees and costs incurred in connection therewith. XI. Non -waiver. Any failure by either Party to enforce performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement. XII. No Trading in Tyler Common Stock. The City acknowledges that Tyler is a publicly -traded company listed on the New York Stock Exchange, and therefore agrees that any material, nonpublic Confidential Information regarding Tyler that is disclosed to the City may not be used as a basis for trading in Tyler stock by the City or its representatives. • . tyler XIII. Assignment. Neither Party may assign this Agreement or any rights or obligations hereof without the prior written consent of the other Party, and any attempted assignment without such consent shall be null, void, and of no effect. Notwithstanding the foregoing, Tyler may without the prior written consent of the City, assign the contract in its entirety to the surviving entity of any merger or consolidation or to any purchaser of substantially all of Tyler's assets. XIV. Survival. The Receiving Party's obligations under this Agreement shall survive termination or expiration of this Agreement and shall be binding upon the Receiving Party's heirs, successors, and assigns, as applicable. XV. Notices. All notices or communications required or permitted as a part of this Agreement shall be in writing (unless another verifiable medium is expressly authorized) and shall be deemed delivered when: A. Actually received, B. upon receipt by sender of a certified mail, return receipt signed by an employee or agent of the Party, C. upon receipt by sender of proof of email delivery, or D. if not actually received, ten (10) days after deposit with the United States Postal Service authorized mail centerwith proper postage (certified mail, return receipt requested) affixed and addressed to the respective other party at the address set forth in this Agreement or such other address as the Party may have designated by notice or Agreement amendment to the other Party. Consequences to be borne due to failure to receive a notice due to improper notification by the intended Receiving Party of a new address will be borne by the intended Receiving Party. The addresses of the Parties to this Agreement are as follows: Tyler Technologies, Inc. 1 Tyler Drive Yarmouth, ME 04096 Attention: Chief Legal Officer City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92701 Attention: lack Ciulla XVI. Cumulative Nature of Obligations. Each Party's obligations hereunder are in addition to, and not exclusive of, any and all of its other obligations and duties to the other Party, whether express, implied, in fact or in law. XVII. Governing Law. This Agreement will be governed by, and construed in accordance with, the substantive laws of the State of Maine, without giving effect to any conflicts -of -law rule or principle that might require the application of the laws of another jurisdiction. XVIII. Jurisdiction & Venue. Any judicial proceeding brought by or against any of the Parties to this Agreement on any dispute arising out of this Agreement or any matter related hereto shall be brought exclusively in a Maine federal or state court of competent jurisdiction. By execution and delivery of this Agreement, each of the Parties to this Agreement accepts for itself the exclusive jurisdiction and venue of the aforesaid courts, and irrevocably agrees to be bound by any final non -appealable judgment rendered in connection with this Agreement. Each Party expressly waives any objection (including, without limitation, objections based on forum non conveniens) which any Party may have now or hereafter to the laying of venue or to the jurisdiction of any such suit, action, or proceeding, and irrevocably submits generally and unconditionally to the jurisdiction of any such court in any such suit, action, or proceeding. Each Party hereby agrees that in connection with any such suit, action, or proceeding, service of process may be accomplished by certified mail, return receipt requested, to the president, managing partner, or other appropriate official at the address set forth in the Notices section above. ,.. tyler XIX. Severability. If any term or provision of this Agreement or the application thereof shall, to any extent, be invalid or unenforceable, the remainder of this Agreement or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law. XX. Amendment, This Agreement may only be modified by written amendment signed by authorized representatives of both Parties. XXI. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will constitute one and the same Agreement. XXII. Term and Termination. This Agreement is intended to cover Confidential Information disclosed or received by either Party prior or subsequent to the date of this Agreement. Unless otherwise earlier terminated, this Agreement automatically will expire five (5) years from the date first written above; provided, however, that each Party's obligations with respect to the other Party's Confidential Information disclosed or received prior to termination or expiration will survive until such Confidential Information ceases to be confidential. XXIII. Return of Materials. Upon termination or expiration of this Agreement, or upon receipt of written request from the Disclosing Party, the Receiving Party shall promptly return to the Disclosing Party all documents or other tangible materials representing the Disclosing Party's Confidential Information, including any copies made thereof. XXIV. Entire Agreement. This Agreement represents the entire agreement of the City and Tyler with respect to the subject matter hereof, and supersedes any prior agreements, understandings, and representations, whether written, oral, expressed, implied, orstatutory. The City hereby acknowledges that in entering into this Agreement it did not rely on any information not explicitly set forth in this Agreement. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by a duly authorized representative to be effective as of the last date set forth below. Tyler Technologies, Inc. By: ' wl Name: Robert Kennedy -Jensen Title: Director of Contracts Date: 3/3/20 City of Santa Ana, CA By: See Attached Name: Title: Date: ... tyler IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above -,vritten. ATTEST: ✓,DAISY GOMEZ Clerk of the Council �J APPROVED AS TO FORM, SONIA R. CARVALHO City Atto g2y CITY OF SANTA ANA KRISTINE RIDGE City Manager RECOMMENDED FOR APPROVAL: By: R A O.l IDGE JA IULLA AAWant ant City Attorney Ch f Innovations Officer In ormation Technology