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Home My WebLink About20132945.tiffRESOLUTION RE: CONSIDER MUTUAL NONDISCLOSURE AGREEMENT AND AUTHORIZE CHAIR TO SIGN - ACS GOVERNMENT SYSTEMS, INC. WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to Colorado statute and the Weld County Home Rule Charter, is vested with the authority of administering the affairs of Weld County, Colorado, and WHEREAS, on October 16, 2013, the Board was presented with a Mutual Nondisclosure Agreement between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, and ACS Government Systems, Inc., commencing January 1, 2008, and ending December 31, 2018, with further terms and conditions being as stated in said agreement, and WHEREAS, after review, the Board deems it advisable to approve said agreement and authorize the Chair to sign the same. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that Mutual Nondisclosure Agreement between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, and ACS Government Systems, Inc., be, and hereby is, approved and the Chair authorized to sign the same. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 16th day of October A.D., 2013. BOARD OF COUNTY COMMISSIONERS WELD COOJN1Y. COLORADO ATTEST:er.AAJLp3;)6.--ka- Weld County Clerk to the Board BY/4441.44_, 4441.44_, Deputy Cler o the Board ounty Attorney Date of signature Qr -sy A-cS l William F. Garcia, Chair Barbara Kirkmeyer • rlt OAS WI✓S 2013-2945 DP0016 A AC S A xerox ��l Company NONDISCLOSURE AGREEMENT ACS Government Systems, Inc. Weld County, Colorado This mutual nondisclosure agreement ("Agreement") is made by and between ACS Government Systems, Inc., 8260 Willow Oaks Corporate Drive, Fairfax, VA 22031 ("ACS") and Weld County, Colorado, 1150 O Street, Greeley, CO 80632 ("Weld County") During the Term of this Agreement, ACS and Weld County (each individually a "party" and collectively, the "parties") understand and agree that either or both parties may disclose to the other party trade secrets or other information of a confidential and proprietary nature ("Proprietary Information") including, but not limited to, business plans, financial information, protected health information, marketing and sales information, contractual information, operational and technical data and concepts, and other non-public information related to: Provision of information on ACS employees working under the Purchase of Service Agreement dated January 1, 2008, as amended ("Prime Contract") between ACS and Weld County including, but not limited to, compensation information (salary, payroll tax, bonus, commission, scheduled work hours), paid time off plans (holiday, sick time, vacation), health and welfare plans (medical, dental, vision, health savings account, health care flexible spending account, dependent flexible spending account, short term disability, long term disability, basic life insurance, supplemental life insurance, death benefits, legal), Xerox Business Services Savings Plans (401k), career and education assistance (tuition, licenses, certifications) and other fringe benefits (cell phone, WIFI devices). In consideration of the mutual covenants and obligations set forth in this Agreement, the parties also agree as follows: 1. TERM This Agreement is effective on October 16, 2013 ("Effective Date") and the obligations of the parties under this Agreement shall remain in effect for five (5) years after the termination or expiration of the Prime Contract ("Term"). 2. IDENTIFICATION OF PROPRIETARY INFORMATION All information provided to Weld County regarding ACS employees working under the Prime Contract, whether written, oral, or in any tangible or intangible form, shall be deemed to be Proprietary Information. 3. OWNERSHIP OF PROPRIETARY INFORMATION No title, license, intellectual property rights, or any other right of ownership or use shall be granted (expressly, by implication, or by estoppel) to the receiving party under any patent, trademark, copyright, or trade secret owned or controlled by the disclosing party by the disclosure of Proprietary Information. 4. OBLIGATIONS OF lilt RECEIVING PARTY In addition to the duty of a party to comply with all applicable criminal and civil laws, the party receiving Proprietary Information shall exercise all reasonable care to preserve and protect the Proprietary Information from any unauthorized access, use, disclosure, or theft. ACSGovSys - weld County CO - HR Data NDA 10-2013 A AC S A Xerox 1Company Nondisclosure Agreement For purposes of this Agreement, "reasonable care" shall be at least the same level of care and discretion that is used by the receiving party to protect the trade secrets or other confidential information of the receiving party. In any event, the receiving party shall be non -negligent in handling the Proprietary Information disclosed by the other party. The receiving party shall restrict access to the Proprietary Information to only those receiving party employees, affiliates, parents, agents, counsel, consultants, and advisors who directly participate in the activities covered by this Agreement, and who have a legitimate need to know that Proprietary Information for purposes of this Agreement, and who also agree to be bound by terms and conditions consistent with this Agreement; provided that, the receiving party shall remain liable for compliance by its employees, affiliates, parents, agents, counsel, consultants, and advisors. Proprietary Information shall not be reproduced by the receiving party in any form except as required to accomplish the intent of this Agreement. The receiving party shall notify the disclosing party, in writing, promptly after the receiving party becomes aware of any unauthorized access, use, disclosure, or theft of the Proprietary Information and shall identify actions taken by the receiving party to contain and prevent further unauthorized access, use, disclosure, or theft of the Proprietary Information. Notwithstanding any other provision of this Agreement, the obligations of the receiving party under this Section shall survive the expiration or termination of this Agreement. 5. RELIANCE ON PROPRIETARY INFORMATION Each party understands and agrees that the provision of Proprietary Information by the other party under this Agreement does not include, establish, or otherwise provide any express or implied representation or warranty as to the accuracy or completeness of the Proprietary Information. Each party expressly disclaims any and all liability that may be based on the receipt or use of the Proprietary Information, including any errors or omissions, unless that Proprietary Information becomes subject to representations and warranties set forth in a teaming agreement, contract, subcontract, or other definitive agreement between the parties. Nothing in this Agreement shall be deemed to impose any obligation on a party to exchange Proprietary Information with the other party or to purchase, sell, license, transfer, or otherwise make use of any technology, services, or products. 6. LEGAL PROCESS If a subpoena or other legal process concerning any Proprietary Information is served on a receiving party (including, but not limited to, legal action to compel disclosure under the Colorado Open Records Act), the receiving party shall notify, in writing, the disclosing party promptly upon receipt of the subpoena or other legal process. The receiving party shall cooperate with any lawful effort by the disclosing party to contest the validity of the subpoena, to seek a protective order, or to pursue other legal process to protect the Proprietary Information. The receiving party shall at all times limit the disclosure of Proprietary Information to disclosure that is required by law or legal process. 7. INFORMATION KNOWN TO RECEIVING PARTY The receiving party shall not be liable for use or disclosure of any Proprietary Information if that Proprietary Information was already legally known to the receiving party prior to receipt from the disclosing party. 8. PUBLICLY AVAILABLE INFORMATION The receiving party shall not be liable for use or disclosure of any Proprietary Information if that Proprietary Information was publicly known, was publicly disclosed in a patent or copyright issued to the disclosing party (subject to applicable intellectual or industrial property law rights and limitations), was provided to the government without restricted rights, was in the public domain as a matter of law, or was available through no breach of this Agreement by the receiving party. ACSCOVSys - Weld County CO - HR Data NDA 10-2013 2 A ACS A xeIOx ) Company Nondisclosure Agreement 9. INDEPENDENTLY DEVELOPED INFORMATION The receiving party shall not be liable for use or disclosure of any Proprietary Information if that Proprietary Information was independently developed by the receiving party without breach of this Agreement. 10. THIRD PARTY SOURCE The receiving party shall not be liable for use or disclosure of any Proprietary Information if that Proprietary Information was obtained from a third party, and that third party had an unrestricted right to disclose the Proprietary Information at the time the information was disclosed. 11. DESTRUCTION OF PROPRIETARY INFORMATION Within six (6) months after the Effective Date of this Agreement or upon completion of the purpose for which the information is being provide to the receiving party, whichever occurs first, the receiving party shall destroy all copies and documentation of all or any part of the Proprietary Information. 12. WAIVER Any delay or failure by either party to insist on strict performance of any obligation under this Agreement or exercise any right or remedy under this Agreement shall not be a waiver of the right to demand strict compliance in the future, irrespective of the length of time for which the delay or failure continues. No term or condition of this Agreement shall be waived and no breach excused unless the waiver or excuse of that breach is in writing and signed by the party claimed to have waived or excused the breach. No consent to or waiver of any right, remedy, or breach shall constitute a consent to or waiver of any other right, remedy, or breach in the performance of the same obligation or any other obligation under this Agreement. 13. INDEPENDENT PARTIES The parties to this Agreement are independent parties and neither party shall act as agent for or representative of the other party for any purpose. Nothing in this Agreement shall grant to either party any right to make any commitment of any kind for or on behalf of the other party without the prior written consent of the other party. This Agreement shall not constitute, create, give effect to, or otherwise imply a joint venture, partnership, or business organization of any kind. Neither party shall have any obligation under this Agreement to purchase or otherwise acquire any service or item from the other party. 14. NON -DIVERSION The receiving party shall not use the Proprietary Information for any purpose other than the internal evaluation of the Proprietary Information for purposes of potential employment by Weld County of the ACS employees about whom the information is provided. 15. NOTICES TO PARTIES Unless otherwise specified in this Agreement, all notices, requests, or consents required under this Agreement to be given in writing shall be delivered by hand, first class mail (postage prepaid), or express delivery service to the person indicated below, unless either party notifies the other party, in writing, of a change in the designated addressee: To ACS: ACS Government Systems, Inc. 8260 Willow Oaks Corporate Drive Fairfax, VA 22031 Attn: Contracts Department AcsCovsys - Weld County CO - HR Data RDA 10-2013 To: Weld County Weld County, Colorado 1150 O Street, Greeley, Co 80632 Attn: Weld County Attorney 3 AACS A Xerox j ) Company Nondisclosure Agreement 16. SEVERABILITY If all or part of any term or condition of this Agreement, or the application of any term or condition of this Agreement, is determined by any court of competent jurisdiction to be invalid or unenforceable to any extent, the remainder of the terms and conditions of this Agreement (other than those portions determined to be invalid or unenforceable) shall not be affected, and the remaining terms and conditions (or portions of terms or conditions) shall be valid and enforceable to the fullest extent permitted by law. If a judicial determination prevents the accomplishment of the purpose of this Agreement, the invalid term or condition (or portions of terms or conditions) shall be restated to conform to applicable law and to reflect as nearly as possible the original intention of the parties. 17. INJUNCTION AND OTHER REMEDIES Each party acknowledges and agrees that if the receiving party breaches any nondisclosure obligation under this Agreement, the disclosing party will not have an adequate remedy at law. Therefore, the disclosing party shall be entitled to seek an immediate injunction against an alleged breach or anticipated breach of this Agreement from any court of competent jurisdiction. The right to seek and obtain injunctive relief shall not limit the right to pursue other remedies. All remedies available to either party for breach of this Agreement by the other party are and shall be deemed cumulative and may be exercised separately or concurrently. The exercise of a remedy shall not be an election of that remedy to the exclusion of other remedies available at law or in equity. 18. GOVERNING LAW AND VENUE This Agreement shall be governed by, interpreted, construed, and enforced solely and exclusively in accordance with the laws of the State of Colorado, without reference to the principles of conflict of laws or Colorado conflict of laws rules, and all disputes shall be adjudicated or otherwise decided solely and exclusively in the State District Court in Weld County, Colorado, or Federal District Court in Denver, Colorado. Legal action solely for injunctive relief may be brought in any court of competent jurisdiction. 19. ENTIRE AGREEMENT AND ASSIGNMENT This Agreement shall be binding on the parties and their successors and assigns. Neither party may assign or otherwise transfer this Agreement or any rights, duties, or obligations under this Agreement without the prior written consent of the other party. The contents of this Agreement constitute the entire understanding and agreement between the parties with respect to the information specifically referred to in the introductory paragraph above, and supersede any prior agreements, written or oral, that are not specifically referenced and incorporated in this Agreement. The provisions of this Agreement shall not be amended except by written agreement signed by both parties. IN WITNESS WHEREOF the authorized representatives of the parties execute this Agreement: ACS Government Systems, Inc. Weld County, Colorado orized Signature Au orize Signature ame and Title (T e/Print) ACSCovSys - Weld County CO - HA Data aDA 10-2013 Name and Title (Type/Print) 4 Donna Bechler From: Bruce Barker Sent: Tuesday, October 15, 2013 4:58 PM To: CTB Subject: FW: Employee Info NDA - Final Attachments: ACS GovSys - Weld County NDA HR Info 10-16-13 DAS.docx Here is the other document. Bruce T. Barker, Esq. Weld County Attorney P.O. Box 758 1150 "O" Street Greeley, CO 80632 (970) 356-4000, ext. 4390 Fax: (970) 352-0242 Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is attorney privileged and confidential, or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. From: Splitt, David [mailto:DAVID.SPLITT@xerox.com] Sent: Tuesday, October 15, 2013 4:23 PM To: Bruce Barker Cc: Moore, Michael L; Monica Mika; Don Warden; Rich, Brad Subject: Employee Info NDA - Final Change incorporated into the attached NDA. This is OK to sign. Thanks, Dave David A. Splitt SVP and Senior Corporate Counsel Office of General Counsel - Xerox Business Services, LLC 12410 Milestone Center Drive Germantown, MD 20876 Office: 240.686-2915 Fax: 240-686-2864 Cell: 301-300-2818 dayid.splittfWxerox.com This email message and all attachments are for the sole use of the intended recipients, are confidential, and may be protected by the attorney -client privilege or attorney work -product doctrine. Any unauthorized review, use, disclosure, storage, or distribution is prohibited. if you are not the intended recipient or you believe this message has been sent to you in error, please notify the sender by reply to this email and delete the message without disclosure. Thank you 1 From: Bruce Barker[mailto:bbarker(thco.weld.co.us] Sent: Tuesday, October 15, 2013 1:12 PM To: Splitt, David Cc: Moore, Michael L; Monica Mika; Don Warden; Rich, Brad Subject: RE: Employee Info Dave: Thanks. See attached. Only one slight change to Paragraph 6 to clarify that it includes an action to compel disclosure pursuant to the Colorado Open Records Act (highlighted in yellow). Otherwise looks fine. Bruce T. Barker, Esq. Weld County Attorney P.O. Box 758 1150"O" Street Greeley, CO 80632 (970) 356-4000, ext. 4390 Fax: (970) 352-0242 Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is attorney privileged and confidential, or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. From: Splitt, David [mailto:DAVID.SPLITT©xerox.com] Sent: Tuesday, October 15, 2013 11:01 AM To: Bruce Barker Cc: Moore, Michael L; Monica Mika; Don Warden; Rich, Brad Subject: RE: Employee Info The NDA for the provision of employee information is attached. I have used a simplified, narrowly focused version of our standard Xerox government nondisclosure agreement. I think I have addressed your issues, but if you want any other changes, please mark-up or just let me know and I am sure we can reach an expedited agreement. Thanks, Dave David A. Splitt SVP and Senior Corporate Counsel Office of General Counsel - Xerox Business Services, LLC 12410 Milestone Center Drive Germantown, MD 20876 Office: 240.686-2915 Fax: 240.686-2854 Cell: 301-300-2818 day s d.s p i itt(Wx a rox. c o rn 2 This email message and all attachments are for the sole use of the intended recipients, are confidential, and maybe protected by the attorney -client privilege or attorney work -product doctrine. Any unauthorized review, use, disclosure, storage, or distribution is prohibited. If you are not the intended recipient or you believe this message has been sent to you in error, please notify the sender by reply to this email and delete the message without disclosure. Thank you From: Rich, Brad Sent: Tuesday, October 15, 2013 7:37 AM To: Bruce Barker Cc: Splitt, David; Moore, Michael L; Monica Mika; Don Warden Subject: Re: Employee Info Bruce, The NDA I provided was not correct. Dave Splitt will be sending you an updated form today that considers you comments below. I apologize for any time wasted on the review cycle. Thanks, Brad On Oct 14, 2013, at 5:39 PM, "Bruce Barker" <bbarker@co.weld.co.us> wrote: Brad: Monica sent to me the NDA for my review. Two changes I would like to see: Please have the last paragraph of Section 1 state the following (with the additional language being shown in yellow): Notwithstanding the foregoing, Proprietary Information shall not include any information to the extent the receiving Party can show: (i) it is or becomes a part of the public domain through no act or omission on the part of the receiving Party; (ii) it is disclosed to the receiving Party by a third party having no obligation of confidentiality with respect thereto; (iii) alleged violative material is independently developed by the receiving Party without reference to Proprietary Information of the disclosing Party; ec (iv) it is released from confidential treatment by written consent of the disclosing Party; or the receiving Party is forced to disclose the information by order of a court of competent jurisdiction. The second change is to modify the governing law in Section 11 to the State of Colorado, with jurisdiction being in State District Court in Weld County, Colorado, or Federal Court in Denver, Colorado. Rest looks good. Thanks! Bruce T. Barker, Esq. Weld County Attorney P.O. Box 758 1150 "O" Street Greeley, CO 80632 (970) 356-4000, ext. 4390 Fax: (970) 352-0242 <i m age001.j pg> Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is 3 attorney privileged and confidential, or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. From: Monica Mika Sent: Monday, October 14, 2013 3:26 PM To: Bruce Barker Subject: FW: Employee Info Here u go. <i m age001.j pg> Monica Daniels -Mika Director of Finance and Administration 1150 0 Street Greeley, Co 80632 (970) 336 7205 ext. 4210 mmikaPco.weld.co.us Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. From: Rich, Brad [mailto:Brad.Rich©xerox.com] Sent: Monday, October 14, 2013 3:19 PM To: Monica Mika Subject: RE: Employee Info Monica, Attached is a proposed NDA to cover the release of employee salary information, Thanks, Brad From: Monica Mika [mailto:mmika©co.weld.co.us] Sent: Monday, October 14, 2013 10:37 AM To: Rich, Brad Subject: RE: Employee Info Brad, Thanks, I appreciate it. We will also be sending the revised Contract Amendment you requested. M <image001.jpg> Monica Daniels -Mika 4 Director of Finance and Administration 1150 0 Street Greeley, Co 80632 (970) 336 7205 ext. 4210 mmika@co.weld.co.us Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. From: Rich, Brad [mailto:Brad.Rich@xerox.com] Sent: Monday, October 14, 2013 9:33 AM To: Monica Mika Subject: Employee Info Monica, I confirmed with our HR that we can provide salary information provided an NDA is in place. I will forward our NDA today so we can get that out of the way. I would imagine our staff will have questions around the timeline for offers, seniority, benefits, and vacation approach by the County. Thanks, Brad Rich Vice President IT Managed Services Americas Local Government Xerox State & Local Solutions, Inc. m) 214.548.2853 wviw.xerox.com/businessservices <Xerox Mutual Non -Disclosure Weld County.docx> 5 Hello