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HomeMy WebLinkAboutA39-05 GFI Propriety encoding Mercury GraphicsCONTROLLED RELEASE OF GFI PROPRIETY ENCODING INFORMATIO N CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT BETWEEN MERCURY GRAPHICS AND THE CITY OF SAN LUIS OBISP O THIS AGREEMENT is by and between thr CITY OF SAN LUIS OBISPO, California , hereinafter referred to as "CITY" and " , ereinafter referred to a s "Contractor". WITNESSET H WHEREAS, GFI Genfare has provided to the City of San Luis Obispo (hereinafte r referred as "City") named herein with fare collection equipment, software and encodin g formats which are used in conjunction with fare media . WHEREAS, the fare collection equipment, software, and encoding formats are valuabl e items for the City, it is important that the encoding formats and the means and methods to us e them be kept confidential by the City and released to those third parties only on a "need to know" basis . WHEREAS, the City and GFI GenFare have executed a Controlled Release of GF I Propriety Encoding Information Confect ntiality and Non-Disclosure Agreement on .i..r.~ y WHEREAS, thd"is pro ibited to release any encoding and proprietary information t authorized third parties without a non-disclosure agreement ; WHEREAS, Contractor has the management and technical personnel, expertise an d other assets useful for the support of City's project ; WHEREAS, Contractor is desirous of providing such services ; and WHEREAS, the processes and systems described by the requested documents have bee n developed by GFI Genfare and are considered a trade secret, which have commercial value t o GFI . It is acknowledged this information is privileged and confidential information, th e disclosure of which is prohibited under the Freedom of Information Act (F .O .I A .) (5 U.S .0 522) and other statute(s) to anyone who is not a direct employee of the Contractor or who is no t a consultant or supplier to the Contractor who has a need for this information . NOW, THEREFORE, in consideration of the foregoing recital and covenants and agreement s of each of the parties herein set forth, the parties agree as follows : 1 . The Contractor agrees that it shall maintain in confidence and secrecy all informatio n and data, whether patentable or not, regarding the City, its plans, programs, facilities , processes, products, costs, equipment or customers, including all proprietary and competitively sensitive data and information (the "Restricted Information") whic h comes within the knowledge of the Contractor in the performance of the work for th e City or in connection with the Contractor's dealings with the City, its property o r facilities, 2 . Restricted Information shall not include information or data that is shown to have been : a.generally available to the public at the time of its receipt or thereafter became available to the public other than through the fault of the Contractor ; b.known to the Contractor on a non-confidential basis prior to its receipt from or with respect to the City ; c.obtained lawfully and without breach of the Agreement from a third party on a basis which would permit such use or disclosure ; or d.developed independently by personnel of the Contractor who had no substantiv e knowledge of the City information or data . 3.The Contractor agrees that it shall not, at any time, (i) disclose any of the Restricte d Information to any third party except with the prior written consent of the City ; and (ii ) use directly, or indirectly, any Restricted Information for the Contractor's own benefit or the benefit of any other person, firm or corporation . Without limited the foregoing , the Contractor may not use any Restricted Information for designing, developing o r fabricating any product or for any other purpose without the prior written permission o f the City. 4.The Contractor shall be permitted to disclose Restricted Information to those of it s officers employees and others under its control having a need to know for the purpos e of performing work for the City or with respect to its property acs sties, provide d that the Contractor shall require all such persons to maintain such information i n confidence in accordance with the terms hereof.The Contractor shall be responsibl e for any improper use isclosure of any such Restricted Information so disclosed an d shall advise each person to whom it properly discloses Restricted Information of th e obligations with respect to the Restricted Information set forth herein . 5.It is understood that no right in, or license under, any present or future idea, invention , patent, trade secret, proprietary information or data, copyright, mask work, trade nam e or trademark is either offered or granted to the Contractor, nor may any such right o r license be implied by the disclosure or receipt of any information or data hereunder . 6.Contractor shall exercise reasonable precautions to ensure that the encoding information i s not released, communicated, or otherwise distributed to anyone other than the Authorize d Recipients either by the City or by parties operating on behalf of the City . 7.The Contractor shall promptly disclose to the City any and all inventions , improvements valuable discoveries, and unwritten mental concepts, whether patentabl e or not, which are conceived or made by the City in connection with the Restricted Information or which the Contractor conceives as a result of its work for or with respec t to the City, and the Contractor hereby agrees to assign all its interests therein to th e City whenever requested to do so by the City. The Contractor shall execute any and all applications, assignments or other instruments, which the City shall deem necessary t o apply for and obtain Letters of Patent of the United States or Canada or any othe r country or to otherwise protect the City's interest therein . These obligations shal l continue beyond the inventions, improvements, valuable discoveries and unwritte n mental concepts (whether patentable or not) conceived, made or acquired by th e Contractor during the period of the work or activity contemplated by the Agreement o r within one (1) year thereafter, and shall be binding upon the Contractor's assigns , executors, administrators and other legal representatives . 8.In the event the Contractor creates and desires to publish, produce or use for itself o r others any writings, drawings, photographs or computer software which relates to th e business or activities of the City, which contains information received as a result of th e work performed for or with respect to the City by the Contractor, or which relates to the subject matter of any Restricted Information, a draft manuscript or printout must b e provided to the City by the Contractor prior to publications, production or use . No such publication, production,or use by the Contractor shall be allowed without prio r written consent of the City. The Contractor also agrees that any drawing, design , manuscript, article, book, pamphlet, advertisement, photograph, computer software or other rendering produced for the City by the Contractor is to be deemed work for hir e for which the City is entitled to all copyrights and other benefits there under . 9.At the City's request, the Contractor shall return or destroy all copies of any Restricte d Information in the Contractor's possession . 10.Contract Assignments .This Agreement shall not be sold, assigned, transferred , conveyed, or encumbered by Contractor without the prior written consent of City . Contractor shall not sell or otherwise transfer its interest in this Agreement without prio r written notification to City . Upon receiving such notification from Contractor, City may , at its sole discretion, decide to exercise its right to terminate this Agreement . Subject to the provision regarding assignment, this Agreement shall be binding upon the heirs, executor, administrators, 'ccessors and assigns of the respective parties . 11.The Contractor shall-nve priv and be able to obtain Restricted Information on th e date the Non-Disclosure Agreement is execute d 12.Communications .All notices hereunder and communications with respect to thi s Agreement shall be effective upon the mailing thereof by registered or certified mail , return receipt requested, and postage prepaid to t persons named below : If to Contractor : (f Y"Ccl r OAi tc /Y'5-Pdder-~C :t [ a With Copy to : If to SLO Transit SLO Transi t 955 Morro Stree t San Luis Obispo, CA 9344 9 Attn: Transit Manager All other communications, invoices, reports, etc ., shall be made to the Transit Manage r of City . 13.Contractors' Employee Responsibilities .Employees shall at all times remain the sol e employees of Contractor, and Contractor shall be solely responsible for payment of al l employees' wages and benefits . Contractor, without any cost or expense to City, shal l faithfully comply with the requirements of all applicable State and Federal enactment s with respect to employer's liability, workers' compensation, unemployment insurance an d other forms of Social Security, and also with respect to withholdings of income tax at it s source from wages of said employees and shall indemnify and hold harmless City from an d against any and all liability, damages, claims, costs and expenses of whatever natur e arising from alleged violation of such enactments or from any claims of subrogatio n provided for in such enactment or otherwise . The Contractor shall comply with th e requirements of FTA Grant Agreement, Part II, Section 119(b). 14.Nondiscrimination . a.Contractor shall comply with all applicable federal, state and local laws, rules an d regulations with regard to discrimination in employment because of age, race, religion , color, sex, physical, or mental disability, marital status or national origin . Contractor shall take affirmative action to insure that applicants are employed and that employee s are treated during their employment without regard to their age, race religion, color , sex, physical or mental disability, marital status, or national origin . Such actions shall include, but not be limited to, the following : employment, upgrading, demotions o r transfer ; recruitment or recruitment advertising ; layoff or termination; rate of pay o r other forms of compensation ; and selection for training, including apprenticeship . b.Contractor shall also comply with the requirements of Title VI of the Civil Rights Ac t of 1964 (P .L. 88-352) and with all applicable regulations, statutes, laws, etc ., promulgated pursuant to the civil rights acts of the state and federal government no w in existence or hereafter enacted . Further, Contractor shall also comply with the provisions of Section 1735 of the California Labor Code . The Contractor agrees to comply with applicable requirements of the Americans wit h Disabilities Act of 1990,as in reference to FTA Grants Agreement, Part II . 15.Indemnification .Contractor hereby warrants that all its work will be performed i n accordance with generally accepted professional practices and standards as well as the requirements of applicable federal, state, and local laws, regulations and ordinances, i t being understood that acceptance of Contractor's work by City, shall not operate as a waiver or release of Contractor . Contractor will be responsible for obtaining any and all permits at its expense and shall indemnify, hold harmless and defend City, its agents, an d employees from and against any and all actions, claims, damages, environmenta l contaminations and spills, disabilities or expenses, and witness costs that may be asserte d by any person or entity arising out of or in connection with the activities necessary t o perform the services and complete the tasks provided in this Agreement whether or no t there is concurrent passive or active negligence or willful misconduct of City,except where the claim is based solely on the negligence or willful misconduct of City . This indemnification obligation is not limited in any way by any limitation of the amount o r type of damages or compensation payable by or for the services and tasks described in thi s Agreement or its agency under Workers' Compensation acts, disability benefit acts or other employee benefit acts . 16.Merger . This Agreement sets forth the entire agreement between the parties with respec t to be subject matter thereof, and supersedes and replaces all proposals, negotiations , representations and implied obligations . The obligations, liabilities and remedies set forth herein are exclusive and shall operated as limitations on any action brought in connectio n with the services, including an action in tort . 18.Liaison .Contractor shall closely coordinate, communicate, and cooperate with City o n matters related to the performing the scope of work . 19.Interpretation, Jurisdiction and Venue .The Agreement shall be construed an d interpreted solely in accordance with the laws of the State of California ; venue or any suit, right or cause of action arising under or in connection with this Agreement shall b e exclusively in San Luis Obispo County, California . 20.Attorneys' Fees .Should either party institute any action to enforce this Agreement, o r any provision hereof, the prevailing party in any such action or proceeding shall b e entitled to receive from the other party all costs and expenses, including reasonabl e attorney's fees . ATTEST : By: APPROVED AS TQ ONTENT : Contractor Legal Counsel By : Austin O'Del l APPROVED AS TO FORM : By :