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HomeMy WebLinkAbout520431 SCHEIDT & BACHMANN USA INC - CONTRACT - RFP - 7472 MAX BRT TICKET VENDING MACHINES (2)LICENSE AND CONFIDENTIALITY AGREEMENT FOR GENFARE PROPRIETARY INFORMATION This License and Confidentiality Agreement (this "Agreement") between Genfare, a division of SPX Corporation ("Genfare") and the City of Fort Collins, Colorado, a Colorado municipal corporation ("Customer") is effective as of October 25, 2013. Genfare had provided Customer in the State of Colorado with a fare collection system, equipment, and software used in conjunction with fare media in accordance with that certain Purchase Agreement dated June 13, 2003 (the "Purchase Agreement"). WHEREAS Customer has requested a copy of and the right to use certain magnetic card and other electronic fare media encoding, encrypting and ticketing information (collectively the "Information") provided by Genfare to Customer pursuant to the Purchase Agreement for either or both of (a) the purpose of operating and maintaining the fare collection system sold to Customer in Fort Collins, Colorado ("Internal Purposes") or (b) further release of the Information to Customer's authorized contractors, vendors or suppliers (the "Authorized Recipients") for one or more of the Permitted Uses (defined below). Genfare agrees to provide the Information to Customer for a fee and such use as further defined in Exhibit A. WHEREAS Upon execution of the Acknowledgment of the Non- Disclosure Agreement, (as attached herein as Exhibit B), by each Authorized Recipient, Customer may then release the Information to Authorized Recipient for the sole purposes of (a) encoding, creating or manufacturing tickets and other media for use with its fare collection system, or (b) using the Information for the purpose of making third party ticket vending machines and other fare collection equipment compatible with the Information, (each, a "Permitted Use"). NOW THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. This License and Confidentiality Agreement for Genfare Proprietary Information ("Agreement") must be signed and returned to Genfare by Customer prior to release of the Information by Genfare. Attachment B is additionally to be signed and returned to Genfare by any Authorized Recipient, prior to release of the Information by Customer. 2. The specific "Information" to be disclosed pursuant to this Agreement is the magnetic card and other electronic fare media encoding, encrypting and ticketing information identified on Exhibit C as well as any modifications, variations or derivative works thereof. 3. Upon payment and receipt of the applicable fees identified on Exhibit A and subject to the terms, conditions and limitations of this Agreement and Exhibit A, Genfare hereby grants to Customer and its Authorized Recipients (as applicable), the license(s) identified on Exhibit A. 4. Customer hereby agrees that Customer and Customer's Representatives shall use the Information solely for its Internal Purposes or a Permitted Use, and in no way will the Information be used to the detriment of the Genfare, Customer hereby further agrees that the Information will be kept confidential and that Customer and Customer's employees, contractors or agents (collectively, "Representatives") will not disclose any of the Information in any manner whatsoever and that in doing so, Customer and Customer's Representatives will use at least the same standard of care Page 1 of 7 Customer employs to safeguard Customer's own confidential and/or proprietary information, but in no case will Customer employ less than a reasonable standard of care; provided, however, that Customer may only disclose tlie Information to those of its Representatives who needs to know such information for either Customer's Internal Purposes or a Permitted Use and agrees to keep such Information confidential and agrees to be bound by the terms hereof to the same extent as if he were a party hereto. In any event, Customer shall be responsible for any breach of this Agreement by any of Customer's Representatives. Customer further agrees with respect to the information that it shall not reverse engineer, decompile, disassemble or otherwise attempt to determine the properties or components of the Information. In addition, Customer agrees that, without the prior written consent of the Genfare , Customer and Customer's Representatives will not disclose to any other person the fact that the Information has been made available to Customer, or any of the terms, conditions or other facts with respect thereto (including the status thereof). The term "person" as used in this Agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or other entity. 5. The information constitutes the sole and exclusive property of Genfare and except as expressly set forth herein, the this Agreement shall not be construed as granting by implication, estoppel or otherwise, any rights in, to or under the Information, including, without limitation, any patents, copyrights, trade secrets, mask works or other legally protectable proprietary rights (present or future) of Genfare or its subsidiaries or affiliates to Customer, its Representatives or any Authorized Recipient. Further, the Information is provided strictly on an "as is" basis without any warranty or guarantee as to its accuracy, completeness or utility. 6. Customer acknowledges and agrees that the Information is privileged and confidential information, the disclosure of which may be prevented under the Freedom of Information Act (F.O.I.A.) (5 U.S.C - 522) and other statute(s) or applicable law, to anyone who is not a direct employee of the Customer or who is not an Authorized Recipient who has a need for this information and bound by the terms of this Agreement. 7. The Customer agrees that (a) it and its representatives shall adhere to all U.S. laws and regulations in its use and disclosure of the Information, including, without limitation, the Export Administration Regulations of the U.S. Department of Commerce and the International Traffic In Amis Regulations of the U.S. Department of State and (b) neither it nor its Representatives shall export or re-export any Information (or any part thereof or the direct product of such Information) in violation of such laws. 8. The Customer acknowledges that the Information has been developed at significant cost and has significant commercial value to Genfare and that disclosure or use of the Information in violation of this Agreement, would cause Genfare irreparable harm, for which damages may not be adequate compensation and are likely incalculable. Therefore, the Customer agrees that Genfare will have the right, in addition to any other rights and remedies afforded it at law or in equity, to injunctive relief and/or specific performance for any violation or threatened violation of this Agreement without having to prove damages or posting bond (or by posting bond at the lowest amount required by law). Both parties agree to the seeking of injunctive relief in favor of the non- breaching party without proof of actual damages and waive any requirement for the securing or posting of any bond in connection with such remedy. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that Customer or any of Customer's Representatives have breached this Agreement, then Customer shall be liable and pay to the Genfare the reasonable legal fees incurred by the Genfare in connection with such litigation, including any appeal therefrom. Page 2 of 7 9. Upon expiration of this Agreement or until the Customer no longer is in possession and making use of such fare collection equipment, the Customer will either destroy or promptly deliver to Genfare all of the Information received from Genfare, including all copies, reproductions, summaries, analyses or extracts thereof or based thereon, in its possession or in the possession of any of its representatives, and certify to Genfare that it has done so; provided the Customer may retain one copy of such information for archival purposes only. Notwithstanding the return or destruction of tlie Information, the Customer and any representatives will continue to be bound by the obligations of confidentiality and other obligations hereunder. 10. In the event that Customer or any of Customer's Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Information, Customer shall provide the Genfare with prompt written notice of any such request or requirement so that the Genfare may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Genfare, Customer or any of Customer's Representatives are nonetheless, in the written opinion of counsel, legally compelled to disclose Infoimation to any tribunal or else stand liable for contempt or suffer other censure or penalty, Customer or Customer's Representative may, without liability hereunder, disclose to such tribunal only that portion of the Information which such counsel advises Customer is legally required to be disclosed, provided that Customer exercise Customer's best efforts to preserve the confidentiality of the Information, including, without limitation, by cooperating with the Genfare to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Information by such tribunal. i 11. THE INFORMATION MAY CONTAIN DATA AND ENCODING INFORMATION WHICH CAN BE USED TO ENCODE MAGNETIC STRIPE OR CHIP CARD (SMARTCARD) FARECARD DOCUMENTS OF VALUE. WHEN PROCESSED BY GENFARE FARE COLLECTION EQUIPMENT OPERATED BY THE CUSTOMER, THESE FARECARDS MAY AUTHORIZE PASSENGER BOARDING AND/OR FARE PAYMENT. IT IS UNDERSTOOD BY CUSTOMER AND ANY AUTHORIZED RECIPIENT, THAT A FAILURE TO PROTECT THE DATA CAN RESULT IN A BREACH OF THE CUSTOMER'S FARE COLLECTION SYSTEM SECURITY. CUSTOMER (AND EACH AUTHORIZED RECIPIENT) ACKNOWLEDGES THAT GENFARE HAS NO LIABILITY FOR ANY SUCH BREACH AND CUSTOMER AGREES TO INDEMNIFY GENFARE FOR ANY LOSS, DAMAGES OF ANY TYPE, LOSS OF INFORMATION OR REVENUE OR FINANCIAL OR EQUIPMENT OPERATION THAT MAY RESULT FOR SUCH BREACH OF THE COLLECTION FARE SYSTEM OR FROM UNAUTHORIZED USE OR DISCLOSURE OF SAID INFORMATION WHILE IN THE CUSTOMER'S AND/OR AUTHORIZED RECIPIENT'S POSSESSION. 12. This Agreement is binding upon Customer and Customer's successors and assigns and inures to the benefit of the Genfare and its successors and assigns, 13. Customer understand and agree that no failure or delay by the Genfare 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 future exercise thereof or the exercise of any other right, power or privilege hereunder 14. This Agreement is made subject to and shall be construed under the laws of the State of Page 3 of 7 Delaware without reference to that state's conflict-of-law rules. 15. This instrument contains the entire and only Agreement between the parties respecting the confidential and proprietary subject matter of the Information and supersedes and cancels all previous negotiations, agreements, instruments and writings in respect thereto. This Agreement may not be amended, supplemented, released, discharged, abandoned, changed or modified in any maimer, orally or otherwise except by an instrument in writing of concurrent or subsequent date signed by duly authorized officers or representatives of each party. 16. In the event that one or more of the provisions of this Agreement shall be determined by a court or other judicial or administrative body to be illegal or unenforceable, such illegality or unenforceability shall not affect the validity or enforceability of the remaining legal and enforceable provisions hereof, which shall be construed as if such illegal or unenforceable provision or provisions had not been inserted herein. IN WITNESS WHEREOF, this License and Confidentiality Agreement has been duly executed as of the day and year first above written. Customer By: Name -.Gerry Paul Title: Director of Purchasing In Fort Collins, Colorado Genfare, a division of SPX Corporation By: / y?^\t Name: Tony Shaiina Title; Vice President Sales & Marketing Page <J of 7 EXHIBIT A - LICENSE FEES AND PERMITTED USE LICENSE A Fare Collection Media License - Subject to the terms and conditions of the Agreement, Genfare hereby grants a limited, non-exclusive license to Customer in and to the Information for sole puipose of encoding, creating or manufacturing tickets and other electronic fare media for use with the Genfare fare collection system. Customer shall have the right to sublicense the information solely for the Permitted Use identified above to one or more Authorized Recipients upon (a) receipt of the fee identified below and (b) execution by such Authorized Recipient, Customer and Genfare of the acknowledgment contained in Exhibit B hereto. Upon signature of this Agreement $xx,xxx,00 Upon signature of the Acknowledgement by each Authorized Recipient $xx,xxx,00 The License granted above shall expire once Customer is no longer in possession and making use of the fare collection equipment purchased pursuant to the Purchase Agreement. Upon expiration of the License, the Customer will promptly return to Genfare all of the Information received from Genfare, including all copies, reproductions, summaries, analyses or extracts thereof or based thereon, in its possession or in the possession of any of its Representatives or Authorized Recipients, and certify to Genfare that it has done so. Notwithstanding the return or destruction of the Information, the Customer and any representatives will continue to be bound by the obligations of confidentiality and other obligations hereunder. LICENSE B Integrator Original Equipment Manufacturer (OEM) License - Subject to the terms and conditions of the Agreement, Genfare hereby grants a limited, non-exclusive license to Customer to for the sole purpose of using the Information to make third party ticket vending machines and other fare collection equipment compatible with the Information and/or the Genfare fare collection equipment sold to Customer under the Purchase Agreement. Customer shall have the right to sublicense the information solely for the Permitted Use identified above to one or more Authorized Recipients upon (a) receipt of the fee identified below and (b) execution by such Authorized Recipient, Customer and Genfare of the acknowledgment contained in Exhibit B hereto. Upon signature of this Agreement $ 10,000.00 Upon signature of the Acknowledgement by each Authorized Recipient $10,000.00 The License granted above shall expire once Customer is no longer in possession and making use of the fare collection equipment purchased pursuant to the Purchase Agreement, Upon expiration of the License, the Customer will promptly return to Genfare all of the Information received from Genfare, including all copies, reproductions, summaries, analyses or extracts thereof or based thereon, in its possession or in the possession of any of its representatives, and certify to Genfare that it has done so; provided the Customer may retain one copy of such information for archival puiposes only. Notwithstanding the return or destruction of the Information, the Customer and any representatives will continue to be bound by the obligations of confidentiality and other obligations hereunder. Page 5 of 7 EXHIBIT B - AUTHORIZED RECIPIENT ACKNOWLEDGMENT OF LICENSE AND CONFIDENTIALITY AGREEMENT FOR GENFARE PROPRIETARY IJSfFORMATION This Acknowledgment is effective as of October 25, .2(13 (the "Effective Date"), and is by and between Genfare, a division of SPX Corporation ("Genfare") and Scheidt & Bachniann USA Inc. ("Authorized Recipient"). 1) Authorized Recipient hereby agrees and acknowledges that is lias received, read and understands the terms of the LICENSE AND CONFIDENTIALITY AGREEMENT FOR GENFARE PROPRIETARY INFORMATION (the "Agreement") between Genfare and Customer (as defined in the Agreement) and agrees to be bound by the terms, conditions, rights and obligations of Customer to the extent that they relate to the non-disclosure, protection and use of Information as if Authorized Recipient were a party thereto. 2) Authorized Recipient hereby agrees and acknowledges that it may use Information only to the extent that Customer is permitted to use such Information pursuant to the Agreement. 3) Authorized Recipient further agrees with the foregoing by signing and returning one copy of this Acknowledgment to the undersigned, whereupon this Acknowledgment shall become a binding agreement between Authorized Recipient and Genfare. IN WITNESS WHEREOF, this Acknowledgment has been duly executed as of the day and year first above written. Scheidt & Bachmann USA Inc. Natr^!DuvhTMaCaluay Title:Executive Vice President Genfare, a division of SPX Corporation By: / ^1^,,/^ . Name: Tony Sharmaj Title: Vice President| [Sale's & Marketing Customer: MM ot jio^t Col 11ns Bv: W Tjtie: Director of Purchasing EXHIBIT C - INFORMATION This agreement will allow for the sharing of magnetic encoding formats for all fare media that is in use by Transfort, (City of Fort Collins). Page 7 of 7