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Home My WebLink AboutDS Confidentiality, Non-Disclosure and Non-Use Agreement; XantrionCONFIDENTIALITY, NON -DISCLOSURE AND NON-USE AGREEMENT This CONFIDENTIALITY, NON -DISCLOSURE AND NON-USE AGREEMENT ("Agreement") is made and entered into this 28th day of August, 2019, by and between the City of San Rafael, a California charter city (the "City"), on the one hand, and Xantrion, Inc. ("Consultant") as set forth below. RECITALS A. The City intends to retain Consultant to serve as a Managed Services Provider (MSP) for the City's IT network systems beginning on November 1, 2019, and is in the process of negotiating a mutually acceptable agreement with Consultant for MSP services. B. Due to the short period of time available to make the transition to Consultant's services, City and Consultant wish to allow Consultant access to view City's IT network systems prior to finalizing the agreement for Consultant's MSP services ("Early Access"). C. In connection with allowing Consultant Early Access to City's IT network systems, it will be necessary for Consultant (including its subsidiaries, affiliates, shareholders, directors, officers, employees, consultants, and/or agents) to have access to certain confidential and proprietary information of the City, including, without acting to limit the definition of such confidential and proprietary information in its most common and general sense, information such as City staff user data and directories, network folders and files, and administrative access to the Office 365 tenant all of which, to the extent disclosed and made available to Consultant (either voluntarily or involuntarily), means "Confidential and Proprietary Information" as that term is used in this Agreement. NOW, THEREFORE, in consideration of the foregoing recitals, each of which is incorporated in and made a part of this Agreement, and any access Consultant may have to Confidential and Proprietary Information, the Parties hereby agree as follows: 1. Protection of Confidential and Proprietary Information. Consultant agrees: (i) to hold Confidential and Proprietary Information in strict trust and confidence and to take all precautions to protect such Confidential and Proprietary Information, including, without limitation, all precautions that Consultant employs with respect to its own confidential and proprietary materials; (ii) not to divulge any such Confidential and Proprietary Information or any information derived therefrom to any third party, irrespective of whether or not any such third party has any such Confidential and Proprietary Information; (iii) not to make any use whatsoever at any time of such Confidential and Proprietary Information except as may be necessary to prepare to act as City's Managed Services Provider; and (iv) not to copy or reverse engineer any such Confidential and Proprietary Information. All nr "IUr' iL subsidiaries, affiliates, shareholders, directors, officers, employees, consultants, and agents of Consultant given access to any such Confidential and Proprietary Information similarly shall be bound in writing to maintain the confidentiality and degree of non -disclosure and protection of Confidential and Proprietary Information contemplated by this Agreement. 2. Return of Confidential and Proprietary Information. Immediately upon either (i) the decision by any Party not to enter into a final agreement for MSP services, or (ii) a request by the City at any time, Consultant will turn over to the City all Confidential and Proprietary Information of the City and all documents or media containing any such Confidential and Proprietary Information and any and all copies or extracts thereof. 3. Scope of Agreement. The obligations under this Agreement will survive the period of Early Access and any termination of this Agreement indefinitely. 4. Remedies for Breach; Indemnification. Consultant acknowledges and agrees that, due to the unique nature of the Confidential and Proprietary Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow Consultant or third parties to compete unfairly with the City, resulting in irreparable harm to the City, and, therefore, that upon any such breach or any threat thereof, the City shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law. Consultant shall indemnify the City for any loss or harm, including, without limitation, reasonable attorneys' fees and costs, in connection with any breach or enforcement of Consultant's obligations hereunder or the unauthorized use or release of any such Confidential and Proprietary Information. Consultant will notify the City in writing immediately upon the occurrence of any such unauthorized release or other breach of which it knows or suspects. 5. Miscellaneous Provisions. a. Severability. In the event that any provision in this Agreement shall be held by a court or other tribunal of competent jurisdiction to be illegal, invalid, or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary such that this Agreement otherwise shall remain in full force and effect. b. Governing Law and Venue. This Agreement shall be construed and governed in accordance with the laws of the State of California. Venue for any action brought to enforce the terms of this Agreement shall be in the courts of Marin County, California. C. Entire Agreement. This Agreement supersedes all prior discussions and writings and constitutes the entire agreement between the Parties with respect to the subject matter hereof. 2 d. Attorneys' Fees. The prevailing party in any action to enforce this Agreement shall be entitled to reasonable attomeys' fees and costs. e. Waiver; Modification. No waiver or modification of this Agreement will be binding upon a party unless made in writing and signed by a duly authorized representative of such party, and no failure or delay in enforcing any right by a party will be deemed a waiver by that party. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first shown above. CITY OF SAN RAFAEL By: t chutz, City a ager ATTEST: Lindsay Lara, City Clerk Xantri, By: Name: APPROVED AS TO FORM: �A Robert F. Epstein, Ci Attorney Its: COO and By: & Name: Anne Bisagno_ Its: CEO 3 CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and aooroval in the nrdPr chnuun haintAt TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Digital Project Manager: Rebecca Woodbury Extension: ick here in anter tPut Contractor Name: Xantrion Contractor's Contact: 'k here to PntPr tPx Contact's Email: tpsnyder@xantrion.com ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE Check/Initial 1 Project Manager a. Email PINS Introductory Notice to Contractor Clic here to ❑ b. Email contract (in Word) and attachments to City enter a daft. Click herr to N� — Attorney c/o Laraine.Gittens@cityofsanrafael.org enter a date ❑ 2 j City Attorney a. Review, revise, and comment on draft agreement Click here to and return to Project Manager enter a date. 01 b. Confirm insurance requirements, create Job on Click here to PINS, send PINS insurance notice to contractor enter a date. ❑ AIIA 3 Department Director Approval of final agreement form to send to Click or tap contractor to enter a date. 4 Project Manager Forward three (3) originals of final agreement to Click here to H' contractor for their signature e'nter a date. 5 Project Manager When necessary, contractor -signed agreement N/A agendized for City Council approval * *City Council approval required for Professional Services ❑ Agreements and purchases of goods and services that exceed Or $75,000; and for Public Works Contracts that exceed $175,000 Click here to _ Date of City Council approval enter a date. CONTINUE ROUTING PROCESS WITH HARD COPY — PRIN- T — — — 6 Project Manager Forward signed original agreements to City Attorney with printed copy of this routing form 7 City Attorney Review and approve hard copy of signed agreement 8 City Attorney Review and approve insurance in PINS, and bonds d 91i� (for Public Works Contracts) 1 1 / 9 City Manager / Mayor Agreement executed by City Council authorized G _ official 10 City Clerk Attest signatures, retains original agreement and forwards copies to Project _. — L _ Manager