HomeMy WebLinkAbout2023 Grapevine Vol 1 DocuSign Envelope ID:846D90C4-B082-4BDE-8A63-81ACE57425E0 City of Rancho Cuc:nno ga x
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MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT("Agreement")is effective as of the date of the last signature
below(the "Effective Date"), between Bluefin Payment Systems LLC, a Delaware limited liability company with
its principal place of business at 8200 Roberts Drive, Suite 400, Atlanta, Georgia 30350 (`Bluefin"), and City of
Rancho Cucamonga, a California municipality, with its principal place of business at_ 10500 Civic Center Dr,
Rancho Cucamonga,CA 91730_(the"Company").Bluefin and the Company(each a"Party"and collectively the
"Parties") desire to disclose certain confidential information in connection with an actual or potential business
relationship("PPur lose").In order to protect such information,and for other good and valuable consideration,the receipt
and sufficiency of which are hereby acknowledged,the Parties agree as follows:
1. Discloser and Recipient. As to any particular Confidential Information (defined below), the
"Discloser" is the Party disclosing such Confidential Information and the "Recipient" is the Party receiving such
Confidential Information.
2. Confidential Information. "Confidential Information" means any non-public or proprietary
information disclosed by or on behalf of either Party,whether before,on or after the date hereof,that derives economic
value,actual or potential,from not being generally known to or readily ascertainable by proper means,by other persons
who can obtain economic value from its disclosure or use, including but not limited to, any information concerning
Discloser's products, technology, services, finances, personnel, marketing or business practices, policies or plans,
business or operations including, without limitation, information relating to research and development, know-how,
trade secrets, techniques, inventions, specifications, drawings, patterns, methods, compilations, software (including
source code and object code),hardware,pricing and market analyses,research strategies,IP protection strategies,lists
of actual or potential customers or suppliers, projections or forecasts, the SOC 2 report and related data, whether
disclosed orally, in writing, or obtained by Recipient through observation during visits to Discloser's business
premises or those of Discloser's customers or suppliers,and any other information which,(x)is identified by Discloser
as"proprietary"or"confidential" ,or a similar legend,or(y)should be reasonably understood by Recipient from the
nature of the information or the circumstances of the disclosure to be confidential and/or proprietary to Discloser.
Notwithstanding the foregoing,Confidential Information shall not include information which Recipient can establish:
(i) was rightfully in Recipient's possession before receipt from Discloser; (ii) is or becomes a matter of public
knowledge through no fault of Recipient;(iii)is rightfully received by Recipient from a third party without violation
of any duty of confidentiality; (iv) is or was independently developed by or for Recipient without the use of or
reference to the Confidential Information of the Discloser. Subject to the foregoing exceptions, Confidential
Information also includes,without limitation,information of a similar nature received by Discloser from third parties
and that Discloser is obligated to treat as confidential, and information in combination with publicly known
information where the nature of the combination is not publicly known.
3. Restrictions on Use of Confidential Information. Except as otherwise expressly permitted in
writing by an authorized representative of Discloser,Recipient agrees that it shall not:
a) use the Confidential Information for any purpose other than the sole Purpose for which Discloser
shared such information;
b) directly or indirectly copy,transfer,or otherwise disclose or reveal Confidential Information to any
person or entity other than its employees,directors,officers,agents and consultants("Representatives")who
(i)have a need to know in connection with the Parties'relationship and/or discussions,(ii)have been advised
of the restrictions on the Confidential Information under this Agreement, and (iii) are subject to legally
binding obligations of confidentiality as to such information no less restrictive than those contained in this
Agreement,provided,that Recipient shall at all times be fully responsible to Discloser for the compliance by
such Representatives with this Agreement and take all reasonable measures (including, without limitation,
court proceedings) to restrain any prohibited or unauthorized disclosure or use of the Confidential
Information by its Representatives;
c) announce or disclose to any third party: (i) its participation in any business relationship with
Discloser to the extent the Confidential Information concerns any unannounced products, technology,
services,or business transactions,or(ii)the nature of any such business relationship;or
d) use any Confidential Information to compete against the Discloser or otherwise to obtain any
competitive advantage,provided that the Recipient shall not be limited by this Section 3(d)from conducting
its business and operations in the ordinary course.
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4. Standard of Care.Recipient shall use at least the same degree of care(but no less than a reasonable
degree of care, consistent with prevailing industry standards) and protection to prevent the unauthorized use,
dissemination or copying of any Confidential Information of Discloser as Recipient uses to protect its own
Confidential Information of a like nature. In the event of any prohibited disclosure of Confidential Information by
Recipient,Recipient shall,without undue delay,notify Discloser and cooperate with Discloser to help Discloser regain
control of such Confidential Information and prevent any unauthorized use of such information or further prohibited
disclosure,which cooperation shall not limit any other rights or remedies of the Discloser.
5. Ownership; No Reverse Engineering.Recipient shall not assert any claim of title or ownership to
the Confidential Information of Discloser or any portion thereof. If Confidential Information consists of computer
software disclosed in object code form,Recipient shall not,and shall not permit any other party,to reverse engineer,
reverse compile, or disassemble such object code,or take any other steps to derive a source code equivalent thereof.
Nothing in this Agreement shall be construed as granting,by implication,estoppel or otherwise,any license under any
patent,patent application,Confidential Information or trade secret,present or future,of the Discloser. All Confidential
Information of the Discloser, as well as any improvements to or modifications thereof regardless of who made or
suggested them,shall be and remain the sole and exclusive property of Discloser.
6. Disclosures Required by Law. In the event Recipient is requested or required (by deposition,
interrogatory,subpoena,civil investigative demand or similar process,oral questions,civil investigative demand,any
informal or formal investigation or otherwise,) by any government or governmental agency or authority or similar
process)to disclose any Confidential Information,Recipient shall,to the extent legally permitted, provide Discloser
with prompt prior written notice of such requirement so that Discloser may seek a protective order or other appropriate
remedy.Recipient further agrees to furnish only that portion of the information which Recipient is advised by written
opinion of counsel is legally required and to exercise reasonable efforts to obtain confidential treatment of such
information.
7. Notice. All notices hereunder shall be in writing and delivered to the addresses set forth at the outset
of this Agreement, or to new or additional addresses as may be designated in writing by either Party. All notices
hereunder shall be deemed given(a)when received, if delivered personally or by an express courier with a reliable
system for tracking delivery,(b)when sent by facsimile with a copy sent by another means specified in this paragraph,
or(c)when mailed by registered or certified mail,return receipt requested.Each Party agrees that facsimile signatures
will have the same legal effect as original signatures and may be used as evidence of execution.
8. Confidentiality Period. Recipient's obligations under this Agreement as to any item related to
Confidential Information will continue in effect and not expire for three(3)years from termination or expiration of
this Agreement (the "Confidentiality Period"), provided that such obligations shall continue and not expire with
respect to(i) any item of Confidential Information that qualifies as a trade secret under applicable law for so long as
such item of Confidential Information continues to qualify as a trade secret, or(ii) source and object code. For the
avoidance of doubt, the term "trade secret" shall include any and all non-public information about products and
services, (e.g., such as customer lists and product margin) so long as such product or service is being offered or
provided by the Discloser or its successors or assigns.
9. Non-limitation of Rights. Nothing contained herein shall limit the rights of either Party: (a) to
independently develop, procure, use and/or market similar or competitive products or services; or(b)to use ideas,
concepts or techniques which were previously used, developed or known by it,provided that such activity does not
violate any legal rights of the other Party under this Agreement.
10. No Liabilitv.Discloser represents that it has the right to make the disclosures under this Agreement.
Otherwise,information disclosed hereunder is provided"as is,with all faults"and Discloser makes no representations
or warranties,express or implied,as to the quality,accuracy and completeness of the information disclosed hereunder,and
Discloser and its representatives shall have no liability whatsoever with respect to the use of or reliance upon the
Confidential Information by Recipient.
11. Disposal of Confidential Information. Upon the Discloser's request at any time,Recipient agrees
to destroy or return to Discloser, all tangible Confidential Information and any other tangible material containing,
prepared on the basis of,or reflecting any information in the Confidential Information(whether prepared by Recipient,
its advisors or otherwise),including all reports,analyses,compilations,studies and other materials containing or based
on the Confidential Information and will not retain any copies or extracts, in whole or in part, of such tangible
materials. Recipient shall certify to Discloser that such destruction has taken place(email being a permissible form
of communication). Notwithstanding the foregoing,the Recipient(a)may retain one archival copy of the Confidential
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Information in accordance with policies and procedures implemented in order to comply with legal, internal
compliance,regulatory and insurance requirements and to demonstrate its compliance with its obligations hereunder
and(b)shall not be obligated to destroy electronically stored Confidential Information to the extent that it is contained
in an archived computer system backup in the ordinary course and/or disaster recovery procedures so long as such
data or records, to the extent not permanently deleted or overwritten in the ordinary course of business, are not
accessible in the ordinary course of business or used except as required for backup or data recovery purposes.
Following any termination of this Agreement,the Recipient shall not be allowed to access such archived copy except
to demonstrate compliance with this Agreement. Notwithstanding the foregoing, unless the Parties expressly agree
otherwise in writing,all software(whether in object code or source code form)shall be returned or destroyed 90 days
following its delivery by Discloser and no archival copy may be maintained.
12. Remedies.The Parties acknowledge and agree that a breach of this Agreement by either Party may
cause continuing and irreparable injury to the other Party's business as a direct result of any such violation,for which
the remedies at law may be inadequate,and that Discloser shall therefore be entitled,in addition to any other remedies
available to it, to seek a temporary restraining order and to injunctive relief against the Recipient to prevent any
violations thereof, and to any other appropriate equitable relief without the requirement of posting a bond or other
security or collateral.The Party breaching this Agreement shall, in addition to all other damages and costs,be liable
for payment to the Party enforcing its rights hereunder of its reasonable attorney fees.
13. Future Agreements. This Agreement does not create a joint venture or partnership between the
Parties and no Party is obligated to enter into any further contract or business relationship with the other Party.No
provision of this Agreement shall affect, limit, or restrict either Party's right to engage in any business in any place
and at any time,whatsoever,provided the Recipient does not disclose the Confidential Information in breach of this
Agreement. Recipient's rights to Confidential Information disclosed to it hereunder are limited to those expressly
granted herein. None of the Parties will be bound or obligated to any of the other Parties in any matter unless and
until the Parties execute a binding written agreement with regard to such matter,and no other past or future action by
any of the Parties, course of conduct by any of the Parties, or failure to act by any of the Parties, including,without
limitation, the execution or acceptance of this Agreement and the delivery and acceptance by the Parties of the
Confidential Information, has given rise to,will give rise to, has served as basis for, or will serve as a basis for, any
obligation or liability on the part of any of the Parties, including, without limitation, any obligation or liability to
negotiate or enter into any business relationship or other transaction.
14. Miscellaneous. No failure or delay by Discloser in exercising any right,power or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any right,power or privilege hereunder. This Agreement may be modified or waived only by a
separate writing by Discloser and Recipient expressly so modifying or waiving any provision of this Agreement. If any
provision or provisions of this Agreement shall be held,for any reason,to be illegal,invalid or unenforceable,the remaining
provisions shall nonetheless be legal,valid and enforceable provisions. Neither Party shall assign,transfer or delegate this
Agreement without the consent of the other Party, except no consent shall be necessary in connection with the sale or
transfer of all or substantially all of a Parry's assets or business.In the event any Party transfers or assigns this Agreement
(including by operation of law or as permitted hereby),such Party shall not disclose or transmit Confidential Information
to the transferee without the express written consent of Discloser, which may be withheld in Discloser's reasonable
discretion.Subject to the foregoing,this Agreement shall inure to the benefit of and be binding upon the Parties hereto and
their respective successors and permitted assigns. This Agreement contains the complete understanding of the Parties
hereto with respect to the obligation of confidentiality and ownership of intellectual property.The terms hereof supersede
all prior or contemporaneous agreements or understandings,whether written or oral,regarding the subject matter hereof.
The obligations contained in this Agreement shall not be affected by bankruptcy,receivership,assignment,attachment,or
seizure procedures,whether initiated by or against the Recipient,not by the rejection of any agreement between the Parties,
by a trustee of Recipient in bankruptcy, or by the Recipient as a debtor-in-possession or the equivalent of any of the
foregoing under applicable law.
15. Governing Law. This Agreement shall be governed by the laws of the State of California without
regard to California's conflicts of law principles. The Parties agree that any action arising out of or related to this
Agreement may be brought in the California state courts or the federal courts sitting in California and the Parties each
hereby submit to the in personum jurisdictions of each such court for such purposes. The Parties hereby consent to
service of process in any such action by U.S. certified mail at their respective addresses set forth on the first page
hereof.
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16. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall
be deemed to be an original,and when taken together, shall constitute one and the same agreement. Signature pages
transmitted by facsimile or email shall have the same force and effect as manually executed signature pages.
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IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement as of the
Effective Date.
Bluefin Payment Systems LLC City of Rancho Cucamonga
DocuSigned by: DocuSigned by:
Wess Garcia
By: '�' � By: --
Name: Paul Nam Name: Wess Garcia
Title: SVP &General Counsel Title: Library Director
Date: 11/2/2023 1 2:08 PM EDT Date: 11/2/2023 1 12:02 PM PDT
Mutual Non-Disclosure Agreement
CONFIDENTIAL
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