HomeMy WebLinkAboutCarlsbad Community Gardens Collaborative Inc; 2014-01-14;NON-DISCLOSURE AGREEMENT
CARLSBAD COMMUNITY GARDENS COLLABORATIVE, INC.
This Non-Disclosure Agreement (the "Agreement") is made as of.
'Effective Date") between the Carlsbad Community Gardens Collaborative, Inc., a
California public benefit corporation, having a principal place of business at 1204 Abelia
Avenue, Carlsbad, CA 92011 ["Collaborative"), and the City of Carlsbad, having a principal
place of business at 799 Pine Avenue, Suite 200, Carlsbad, CA 92008 ("City").
NOW THEREFORE, in consideration of the mutual covenants and condi-
tions set forth herein, it is agreed as follows:
1. Purpose and Use. Disclosing party. City, will transmit to the receiving party.
Collaborative, certain confidential or proprietary information relating to the waiting list for
City's Community Gardens' plots administration purposes, and use for any other purpose
must be agreed to in writing by City and Collaborative.
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, de-
signs, know how, techniques, processes, prototypes, samples, computer data, information
embodied in electronic devices, electronic communications of all types, software, products,
equipment, supplier hsts, 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 develop-
ment 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 employees, associates or contractors.
Confidential Information that is disclosed orally or visually will be confirmed in
writing by City to Collaborative within thirty (30) days after such disclosure and such in-
formation shall become a part of this Agreement. The parties agree that Confidential In-
formation 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 im-
plied representations or warranties regarding accuracy, operability, use or fitness for a
particular purpose.
3. Non-Disclosure and Other Agreements. Collaborative, for itself and its em-
ployees, officers, directors, attorneys and agents, agrees:
a) to maintain the confidentiality of the Confidential Information and safeguard
the same against unauthorized use or disclosure;
b) not to disclose such information to any third party, except as authorized by
Collaborative in writing or as directed by a court of competent jurisdiction; authorized dis-
closure 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;
1 Revised 12-27-13
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 received 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. Necessary Precautions. Collaborative agrees to take the precautions necessary
and appropriate to guard the confidentiality of the Confidential Information, including:
a) the handling of such information with the same degree of care which the Col-
laborative applies to its own confidential 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 pur-
poses; and
c) instructing and informing its employees and agents who handle such infor-
mation, prior to disclosure, that it is confidential and not to be disclosed to others.
5. City's Ownership. No License. Collaborative agrees that City's Confidential In-
formation is and shall at all times remain the property of City. No rights are granted, by li-
cense or otherwise, in the patents, copyrights or other intellectual property, trademarks,
trade names or service marks of either party. This Agreement does not constitute or imply
the formation 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 obligations of confidentiality, information which:
a) Collaborative can prove with satisfactory documentary evidence that it al-
ready had in its possession without confidential limitation at the time of dis-
closure;
b) is independently developed by Collaborative without breach of this Agree-
ment;
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. Injunctive Relief and Indemnity. 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. Accordingly, City, in addition to any
other right or remedy that it may have at law or in equity, shall be entitled to temporary
and permanent injunctive relief without the necessity of proving actual damages and with-
out the necessity of posting a bond or making any undertaking in connection therewith.
Collaborative will indemnify City against any losses sustained arising 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. Disclosure Request If Collaborative receives a request to disclose any Confi-
dential Information, Collaborative shall immediately notify City and prior to disclosure give
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City an opportunity to take any protective action it deems appropriate. If City has not re-
sponded timely to the Request, as defined by the applicable law for which the Request is
made pursuant to, the Collaborative may, in its sole discretion and without being in breach
of this Agreement, respond to the Request as the Collaborative deems appropriate. In the
event that City directs Collaborative not to disclose the Confidential Information materials
sought pursuant to the Request, City will indemnify Collaborative against any losses, in-
cluding reasonable attorney fees and costs, sustained arising from the non-disclosure ofthe
Confidential Information material requested in the Request. Collaborative, in its sole dis-
cretion may tender the Request to City for response, including, any and all subsequent legal
actions or challenges related to the non-disclosure.
9. Term, Confidentiality Period.
a) Term. The term of this Agreement is three (3) years from the Effective Date.
b) Confidentiality Period. The Collaborative's obligations under this Agree-
ment to keep confidential and restrict the use of City's Confidential Information shall be ef-
fective for a period of five (5) years from the date of receipt of such information or until
such time as the information no longer qualifies as Confidential Information (the "Confi-
dentiality Period").
c) Termination. Either party may terminate this Agreement at will and with-
out cause by giving written notice to the other party, but such termination shall not change
the Confidentiality Period. Notwithstanding any termination, all Confidential Information
shall remain the property of City. The terms of this Section shall survive the termination of
this Agreement. Upon termination, all Confidential Information transmitted to Collabora-
tive and any copies thereof made by the Collaborative shall be destroyed or, at City's writ-
ten request, be returned to it within 5 days.
10. 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 operate as a waiver ofsuch right or power.
c) Seyerabilitv. Except for the provisions of Sections 2-5 hereof, if any provi-
sion of this Agreement is judged to be invalid or unenforceable, the validity of any other
provision shall not be affected, and such invalid or unenforceable provision will be consid-
ered 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 unenforceable, this Agreement shall automatically terminate and
the City shall return to Collaborative, within ten (10) days of such judgment, all Confiden-
tial Information and all copies thereof.
d) Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and their successors and assigns.
e)
Entire Agreement. Amendment. This Agreement constitutes the entire
agreement of the parties regarding the subject matter of this Agreement and supersedes all
previous agreements and understandings, whether written or oral, relating to such subject
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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.
f) Governing Law. This Agreement shall be construed in accordance with the
laws of the State of California.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives on the dates set forth below their signatures.
Carlsbad Community Gardens Col-
laborative, Inc., a California Public
Benefit Corporation
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City of Carlsbad, a municipal
corporation
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Date
Approved as to Form:
CELIA A. BREWER, City Attorney
Assistant City Attorney
Revised 12-27-13