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Home My WebLink AboutAIS; 2013-06-27;Non-Disclosure Agreement for Information Technology Hosting Services AIS Corporation This Non-Disclosure Agreement (the "Agreement") is made as of June 27, 2013, ("Effective Date") be- tween AIS; having a principal place of business at 9305 Lightwave Avenue, San Diego, CA 92123 (AIS) and the City of Carlsbad, having a principal place of business at 1635 Faraday Ave, CaHsbad, CA 92008 ("City"). NOW THEREFORE, in consideration of the mutual covenants and conditions set forth herein, it is agreed as follows: 1. Purpose and Use. Disclosing party, City will transmit to the receiving party, AIS, certain confidential or pro- prietary information relating to specific requirements of the CJIS Security Policy that the City has in place wtth such purpose and use for any other purpose must be agreed to in writing by City. 2. Confidential Information Defined. The term "Confidential Information" used herein means all information acquired, directly or indirectly, pursuant to this Agreement, and may include without limitation, concepts, drawings, specifications, formulations, designs, know how, techniques, processes, prototypes, samples, computer data, infor- mation embodied in electronic devices, electronic communications of all types, software, products, equipment, supplier lists, methods of manufacture, cost or pricing data, files or master files, sales plans, and customer lists, or it may be in the form or nature of research or development materials and related data or information that is acquired and based all or in part on testing, evaluating, or analyzing certain software, products, equipment or other apparatus. It further may include all such information acquired or learned in the course of negotiating or dealing in any way with City, its employ- ees, associates or contractors. Confidential Information that is disclosed orally or visually will be confirmed in writing by AIS to City within thirty (30) days after such disclosure and such information shall become a part of this Agreement. The parties agree that Con- fidential Information will be identified or marked at the time of disclosure as being confidential or its equivalent. All Confidential Information is provided "as-is" and without any express or implied representations or warranties regarding accuracy, operability, use or fitness for a particular purpose. 3. Non-Disclosure and Other Agreements. AIS, for itself and its employees, officers, directors, attorneys and agents, agrees: a) to maintain the confidentiality of the Confidential Information and safeguard the same against unau- thorized use or disclosure; b) not to disclose such information to any third party, except as authorized by City in writing or as directed by a court of competent jurisdiction; authorized disclosure will be made only pursuant to a Non-Disclosure Agreement with terms similar to those herein; c) not to use, directly or indirectly, any Confidential Information in any way damaging to the interest of City; d) not to use, directly or indirectly, any Confidential Information for the benefit of any third party, except for purposes of this Agreement or as authorized by City; e) not to reverse engineer, decompile, disassemble or otherwise recreate any products or software re- ceived under this Agreement; f) that any inadvertent disclosure is subject to the terms of this Agreement; and g) that the terms of this Section shall survive the termination of this Agreement. 4. Necessarv Precautions. AIS agrees to take the precautions necessary and appropriate to guard the confi- dentiality ofthe Confidential Information, including: 1 Revised 01-24-13 a) the handling of such information with the same degree of care which the City applies to its own confi- dential information and trade secrets, but in no event less than reasonable care; b) restricting disclosure to employees with a "need to know" for the above purposes; and c) instructing and informing its employees and agents who handle such information, prior to disclosure, that it is confidential and not to be disclosed to others. 5. AIS^s Ownership, No License. AIS agrees that City's Confidential Information is and shall at all times remain the property of City. No rights are granted, by license or otherwise, in the patents, copyrights or other intellectual prop- erty, trademarks, trade names or service marks of either party. This Agreement does not constitute or imply the for- mation of a partnership, joint venture or agency relationship of any kind between the parties. 6. Excluded Information. The parties agree to exclude from the provisions of this Agreement and the obliga- tions of confidentiality, information which: a) AIS can prove with satisfactory documentary evidence that it already had in its possession without con- fidential limitation at the time of disclosure; b) is independently developed by AIS without breach of this Agreement; c) is or becomes known to the general public without breach of this Agreement; d) is legally received, without confidential limitation, from a third party; and e) is expressly approved for release in writing by City. 7. Iniunctive Relief and Indemnitv. Disclosure, dissemination or improper use of Confidential Information, as provided herein, is a material breach of this Agreement which will cause irreparable and continuing harm to City. Ac- cordingly, City, in addition to any other right or remedy that it may have at law or in equity, shall be entitled to tempo- rary and permanent injunctive relief without the necessity of proving actual damages and without the necessity of post- ing a bond or making any undertaking in connection therewith. AIS will indemnify City against any losses sustained aris- ing from breach of any obligation under this Agreement and will be liable for lost profits and damages incurred and any value gained arising from the breach of any obligation hereunder. 8. Term, Confidentiality Period. a) Term. The term of this Agreement is three (3) years from the Effective Date. b) Confidentiality Period. The AIS's obligations under this Agreement to keep confidential and restrict the use of City's Confidential Information shall be effective for a period of five (5) years from the date of receipt of such in- formation or until such time as the information no longer qualifies as Confidential Information (the "Confidentiality Peri- od"). c) Termination. Either party may terminate this Agreement at will and without cause by giving written notice to the other party, but such termination shall not change the Confidentiality Period. Notwithstanding any termi- nation, all Confidential Information shall remain the property ofthe City. The terms of this Section shall survive the ter- mination of this Agreement. Upon termination, all Confidential Information transmitted to City and any copies thereof made by the City shall be destroyed or, at the City's written request, be returned to it. 9. General Provisions. a) Assignability. This Agreement may not be assigned by any party without the prior consent of all other parties, except that City may assign this Agreement to any of its affiliates. b) Waiver. Failure or delay by any party to exercise any right or power under this Agreement will not op- erate as a waiver of such right or power. c) Severabilitv. Except for the provisions of Sections 2-5 hereof, if any provision of this Agreement is judged to be invalid or unenforceable, the validity of any other provision shall not be affected, and such invalid or unen- forceable provision will be considered severable and the remainder of this Agreement will remain in full force and effect as if the invalid provision were not part of this Agreement. If a provision of Sections 2-5 is judged to be invalid or unen- forceable, this Agreement shall automatically terminate and the AIS shall return to City, within ten (10) days of such judgment, all Confidential Information and all copies thereof. 2 Revised 01-24-13 d) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns. e) Office of Export. AIS hereby affirms that it is not prohibited by the Office of Export Administration for the U.S. Department of Commerce from receiving technical information, know-how, data or other information and agrees not to export such information, or products incorporating it, to any prohibited country. f) Entire Agreement, Amendment. This Agreement constitutes the entire agreement of the parties re- garding the subject matter of this Agreement and supersedes all previous agreements and understandings, whether written or oral, relating to such subject matter. This Agreement may be altered, amended, or modified only by a written instrument signed by the duly authorized representatives of all of the parties. g) Governing Law. This Agreement shall be construed in accordance with the laws of the State of Califor- nia. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized repre- sentatives on the dates set forth below their signatures. AIS City of Carlsbad By: Name: _Timothy E. Caulfield Name: Title:_CEO Title: CLTf) Date: June 27, 2013 Date: APPROVED AS TO FQHM Revised 01-24-13