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Home My WebLink About20212708BOARD OF COUNTY COMMISSIONERS PASS -AROUND REVIEW PASS -AROUND TITLE: Workday Non -Disclosure Agreement DEPARTMENT: Information Technology PERSON REQUESTING: Ryan Rose anklq10'1W-5231 DATE: 08/13/2021 Brief description of the problem/issue: The Information Technology department, along with members of the ERP team have started conducting demos to review potential solutions in preparation for RFP. We have requested that the demos be recorded and shared with us to reference back to and share with members of the team who were not in attendance. A NDA (Non- disclosure agreement) must be signed to obtain a copy of the recorded demo. Gabe Kalousek has reviewed and approved the agreement. What options exist for the Board? (include consequences, impacts, costs, etc. of options): IT is requesting authorization for the Chair to sign the agreement to ensure that all members of the ERP team are equally informed and up to speed on all potential solutions. Recommendation: Weld County IT recommends that the Board grant approval for the Chair to sign the attached agreement. Perry L. Buck Mike Freeman Scott K. James, Pro -Tern Steve Moreno, Chair Lon Saine cbn5e.r4- OM51ZOZl Approve Recommendation Schedule Work Session Other/Comments: e&o,uood CT -r) 2021-2708 workday. 00262007.0 — Confidential Frequently Asked Questions about Workday's Mutual Non -Disclosure Agreement Why is Workday asking for a Non -Disclosure Agreement? Workday is offering a complex Cloud -based multitenant solution that will be used for sensitive personally identifiable information. It is reasonable to anticipate that during the course of discussions about your possible use of the Workday solution, we will disclose confidential information. Workday's confidential information is likely to include detailed information about security as well as deep details about the functionality of the solution itself and plans for future improvements to the solution, none of which are available to the public. Workday wants to give your organization as much information as it needs to make a purchasing decision but cannot do so if the information would lose its confidential status. Our organization is subject to public records laws and we can't agree to anything that conflicts with those. Workday's Non -Disclosure Agreement is designed so that your organization will never find itself in the uncomfortable position of breaching a contract to obey a law. Section 3 of the Agreement identifies the process that will be followed if you receive a public records act request for information that Workday has designated as confidential. While the clause is worded broadly to encompass a large variety of processes used by different organizations, in most jurisdictions the customer/prospect informs Workday of the public records act request and the documents that it believes are responsive. Workday provides a response identifying any portions of the documents that it believes are exempt from the public records act, justification for such exemption, and a redacted copy of the documents. In the vast majority of cases, our customer/prospect has agreed with the proposed redactions and provided a redacted copy to the requestor. In a very few situations, Workday and the customer/prospect have engaged in further discussions to modify the proposed redactions. If the marked information can be disclosed pursuant to a public records act, why should we have to agree to keep it confidential? The key to most exceptions to public records acts is that the information was disclosed under an obligation of confidentiality. Accordingly, to protect our ability to assert statutory exceptions, we need a confidentiality agreement. Furthermore, even if some of the marked information may be subject to disclosure, we believe that both parties possess a set of information that should be disclosed to third parties only when there is a legal obligation to do so. As a quick example, many public universities receive an annual public records act request about the compensation of their employees from the local newspaper, which then publishes the compensation lists. All the same, our university customers expect that Workday will maintain information about employee compensation as confidential and would be quite upset if Workday published that same information on its own!" ©2021 Workday (v21.3) Page 1 of 5 Mutual Non -Disclosure Agreement with - County of Weld workday. 00262007.0 — Confidential Mutual Nondisclosure Agreement This Mutual Nondisclosure Agreement ("Agreement") is made and entered into as of the last signature date set forth below (Effective Date") by and between Workday, Inc. ("Workday") and the legal entity listed in the signature block below ("Prospective Party"). In consideration of the parties' discussions and any access by the Receiving Party to Confidential Information of the Disclosing Party, the parties hereby agree as follows: 1. Definitions. The following definitions apply to this Agreement: "Affiliate" means, in respect of a party, any entity or association controlled by, controlling or under common control with such party and for the purposes of this definition, the term "control" shall mean (i) the ownership of more than fifty percent (50%) of the voting shares in any entity or association; and/or (ii) the right or power, directly or indirectly, to elect or remove directors; and/or (iii) the right or power to control management. "Confidential Information" means all confidential information or material (tangible or intangible) which is not generally known or publicly available relating to the Project which the Disclosing Party or its Representatives or any of its Affiliates, or their Representatives, directly or indirectly disclose or make available to the Receiving Party or its Representatives, or any of its Affiliates, or their Representatives, including without limitation: computer programs, source code, object code, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), internal performance results, schematics and other technical, business, pricing, financial, and customer information and product development plans, forecasts, strategies and information, to the extent previously, presently or subsequently disclosed to the Receiving Party that (1) is or was disdosod in tangible form and is conspicuously marked "Proprietary," "Confidential" or the like, (2) is or was disclosed in non -tangible form, identified as confidential at the time of disclosure and summarized in tangible form conspicuously marked "Proprietary," "Confidential" or the like within thirty (30) days of the original disclosure, or (3) the Receiving Party knows or should reasonably know, is confidential or proprietary. "Disclosing Party" means a party to this Agreement when it discloses Confidential Information to the other party. "Project" means a potential relationship or undertaking between the parties and/or one or more of their respective Affiliates. "Receiving Party" means a party to this Agreement when it receives Confidential Information from the other party. "Representatives" means, in relation to each party and any of its Affiliates, its officers, directors, agents, employees, contractors, consultants and financial and legal advisors. 2. Obligations of Confidentiality and Limited Use. The Receiving Party agrees that it shall: a) hold the Disclosing Party's Confidential Information in confidence and take reasonable precautions to protect such Confidential Information from unauthorized use or disclosure (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials of a similar nature); b) only disclose the Disclosing Party's Confidential Information to those of its Representatives who have a need to know such Confidential Information in connection with the Project and not divulge any such Confidential Information or any information derived therefrom to any third person; c) not make any use whatsoever at any time of such Confidential Information except as necessary for the Project; d) not create derivative works of or reverse engineer any such Confidential Information; ©2021 Workday (v21.3) Page 2 of 5 Mutual Non -Disclosure Agreement with - County of Weld workday. 00262007.0 — Confidential e) ensure that its Representatives who have access to the other party's Confidential Information have signed confidentiality agreements, or are otherwise bound by confidentiality obligations, at least as restrictive as those contained herein prior to any disclosure of such Confidential Information to such Representatives; f) not export or re-export (except in compliance with applicable export control laws or regulations) any such Confidential Information; and be responsible for compliance with this Agreement by its Representatives and Affiliates to which it discloses the Disclosing Party's Confidential Information. 3. Exclusions. Without granting any right or license, the Disclosing Party agrees that the foregoing shall not apply to any information that the Receiving Party can document: a) is or becomes (through no improper action or inaction by the Receiving Party or any of its Representatives or Affiliates) generally available to the public, or b) was rightfully in its possession or known by it without confidentiality restriction prior to receipt from the Disclosing Party, or 9) c) was rightfully disclosed to it by a third party without confidentiality restriction, or d) was independently developed without use of any Confidential Information of the Disclosing Party. The parties recognize that Prospective Party may be subject to a public records law which may require the disclosure of certain documents otherwise covered by this Agreement. Workday maintains that its Confidential Information qualifies for an exception under the public records law or qualifies as a trade secret under the relevant trade secret law in Prospective Party's state. In the event that a party is required by law, governmental order, or by a court of competent jurisdiction to disclose any of the other party's Confidential Information, the Receiving Party may comply with such requirement but shall provide the Disclosing Party with advance notice of such required disclosure so as to afford the Disclosing Party the opportunity, at the Disclosing Party's sole cost and expense, to pursue a protective order or other remedy, prior to disclosure, and the Receiving Party shall reasonably cooperate with the Disclosing Party in such efforts, so long as such cooperation does not expose the Receiving Party to risk of liability or penaltyNo Grant of Rights. Nothing in this Agreement is intended to grant any rights in or to the other party's Confidential Information, except as expressly set forth herein. 4. Handling of Confidential Information. Each party may copy the other party's Confidential Information only as necessary for the Project and shall limit the number of copies made to minimize the potential for inadvertent disclosure. Each party shall reproduce the other party's confidentiality and proprietary rights notices on any such copies, in the same manner in which such notices were set forth in or on the original. Upon a request by the Disclosing Party at any time, the Receiving Party will promptly either destroy, delete or return to the Disclosing Party all Confidential Information of the Disclosing Party and any and all copies or extracts thereof. Notwithstanding the foregoing, the Receiving Party may retain a copy of Confidential Information solely to the extent required to comply with law or pursuant to bona fide automatic electronic backup procedures. Any Confidential Information retained shall remain subject to the confidentiality terms of this Agreement and may be deleted pursuant to the Receiving Party's standard electronic files disposition practices. 5. No Representations or Warranties. Each party understands and acknowledges that the Confidential Information is being provided on an "as is" basis, without any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information on the part of the Disdosing Party. The Receiving Party understands that nothing herein (i) requires the disclosure of any Confidential Information of the Disclosing Party or (ii) requires the Disclosing Party to proceed with any transaction or relationship. 6. Future Dealings. In the event that the parties execute a contract or contracts for a business relationship related to the Project, this Agreement shall apply only to Confidential Information exchanged prior to execution of such contract(s). The types of confidential information exchanged and uses of such confidential information during a business relationship are not the same as the Project and the ©2021 Workday (v21.3) Page 3 of 5 Mutual Non -Disclosure Agreement with - County of Weld work oy. 00262007.0 — Confidential contract(s) between the parties for such business relationship shall contain appropriate confidentiality clauses governing use and protection of confidential information during the business relationship. 7. Severability. In the event that any of the provisions of this Agreement are held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. 8. Governing Law; Jurisdiction. This Agreement shall be governed by the internal laws of the state in which Prospective Party's principal place of business is located without regard to its conflicts of laws rules. The Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party's Confidential Information, damages alone would not be an adequate remedy for breach of any of the provisions of this Agreement. Accordingly, without prejudice to any other rights and remedies it may have, the Disclosing Party shall be entitled to seek equitable relief (including without limitation emergency interim or injunctive relief to prevent any threatened or actual breach of any of the provisions of this Agreement) in any competent court or jurisdiction. 9. Assignment. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. 10. Entire Agreement. This Agreement supersedes any 'click -through' or online terms and conditions in accessing or using submission tools or other online portals and it supersedes all previous drafts, agreements, arrangements and understanding between the parties and constitutes the entire agreement between the parties with respect to the subject matter hereof. Notwithstanding the foregoing, this Agreement is not intended to modify or otherwise impact any existing agreement governing the provision of products or services between the parties or with their Affiliates. 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 under this Agreement by either party will be deemed a waiver of the right by that party. 11. Term and Termination. This Agreement commences on the Effective Date and shall continue until terminated by either party upon thirty (30) days' prior written notice to the other party's legal department at the address set forth herein. Notwithstanding any termination, the rights and obligations herein relating to Confidential Information disclosed prior to termination will survive any termination. 12. Notices. Notices provided to a party pursuant to this Agreement shall be delivered to the address set forth below and will be effective upon confirmed receipt or three (3) days after mailing by certified or registered mail. A copy of all notices to Workday must be sent to: legal@workday.com 13. Signatures. This Agreement may be executed in counterparts, which taken together shall form one binding legal instrument. The parties hereby consent to the use of electronic signatures in connection with the execution of this Agreement, and further agree that electronic signatures to this Agreement shall be legally binding with the same force and effect as manually executed signatures. To be valid, this document must be completed and signed without further changes. ©2021 Workday (v21.3) Page 4 of 5 Mutual Non -Disclosure Agreement with - County of Weld workday. 00262007.0 — Confidential IN WITNESS WHEREOF, the parties hereto have signed this Agreement this 12th day of August 2021. CONTRACTOR: By: 47 Date Aug 12, 2021 Name: Anthony Plachy Director, Associate General Counsel Title: ATTEST: d. ) W4-16/1404. BOARD OF COUNTY COMMISSIONERS Weld • ty Clerk t•�l? WELD COUNTY, COLORADO BY Deputy C APPRO D AS TO C ' =f Information Officer Approved as to Legal form by: Plt 9 Warneep.r Brittany Plan twg 17.7o71 II,77 MDT1 eve Moreno, Chair SEP 1 5 2021 @2021 Workday (v21.3) Page 5 of 5 Mutual Non -Disclosure Agreement with - County of Weld 2-7o 7 Contract Form New Contract Request Entity Information Entity Name* WORKDAY INC Contract Name* WORKDAY NON -DISCLOSURE AGREEMENT Contract Status CTB REVIEW Entity ID * gO0044403 ❑ New Entity? Contract ID 5231 Contract Lead* MKERKSIEK Contract Lead Email mkerksiek@co.weld.co.us Parent Contract ID Requires Board Approval YES Department Project # Contract Description* THE INFORMATION TECHNOLOGY DEPARTMENT, ALONG WITH MEMBERS OF THE ERP TEAM DEMO'D THE WORKDAY PRODUCT AS A PART OF OUR RFI PROCESS. IN ORDER TO RECEIVE A COPY OF THE DEMO FOR REFERENCE, WE MUST SIGN A NON- DISCLOSURE AGREEMENT. Contract Description 2 Contract Type* AGREEMENT Amount* S0.00 Renewable* NO Automatic Renewal NO Grant NO IGA NO Department INFORMATION TECHNOLOGY -G I S Department Email CM- InformationTechnologyGIS weldgov.com Department Head Email CM- InformationTechnologyGlS- DeptHead..weldgov. corn County Attorney GENERAL COUNTY ATTORNEY EMAIL County Attorney Email CM- COUNTYATTORNEYWELDG OV.COM Requested BOCC Agenda Date* 09A)8+2021 Due Date 09x'042021 Will a work session with BOCC be required?* NO Does Contract require Purchasing Dept. to be included? If this is a renewal enter previous Contract ID tf this is part of a MSA enter MSA Contract ID Note: the Previous Contract Number and Master Services Agreement Number should be left blank if those contracts are not in On Base Contract Dates Effective Date 09x`08.'`2021 Termination Notice Period Contact Information Contact Info Contact Name Contact Type DARRYL WARREN Purchasing Purchasing Approver CONSENT Approval Process Department Head RYAN ROSE DH Approved Date 09,x13,'2021 Final Approval BOCC Approved BOCC Signed Date BOCC Agenda Date 09, 15,''2021 Originator MKERKSIEK Review Date k 09,/67,2022 Committed Delive Contact Email Renewal Date Expiration Date' 09r07x`2022 Contact Phone 1 Contact Phone 2 PRIMARY DWARRENT' CCLLABORATIVES©LUTIONS.C©M 704-724-5236 Purchasing Approved Date 09'13x'2021 Finance Approver CONSENT Finance Approved Date 09113,'2021 Tyler Ref AG091521 Legal Counsel CONSENT Legal Counsel Approved Date 09,13x2021 Hello