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HomeMy WebLinkAboutTSYS MERCHANT SOLUTIONS JUL 2 1 1-025 Return FULLY EXECUTED Copy to City Clerk, M-30 N-2026-181 MUTUAL NONDISCLOSURE AGREEMENT This agreement is entered into between TSYS MERCHANT SOLUTIONS, LLC DBA GLOBAL PAYMENTS, a Delaware limited liability company, and its Affiliates (collectively referred to as "TSYS"), with its principal place of business located at One Heartland Way, Jeffersonville, IN 47130, and CITY OF SANTA ANA, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"),with its principal place of business located at 20 Civic Center Plaza,#M13, Santa Ana, CA 92701.This agreement is effective on the date TSYS signs the agreement("Effective Date").TSYS and City agree as follows: 1. PURPOSE. The above parties contemplate discussions and analyses concerning the possible furnishing or acquisition of data,services,or goods with the potential that the parties may do business together (the"Purpose"). 2. INFORMATION. In order to facilitate such discussions and analyses,each party is prepared to disclose to the other orally and/or in writing certain information which is non-public,confidential or proprietary in nature (irrespective of the form of communication and in whatever form maintained,whether documentary,computerized or otherwise) and which includes,without limitation,all reports,analyses,notes or other information (the "Information").With respect to TSYS, Information shall include (i) TSYS or its Affiliates' Service Organization Control Report pursuant to standard promulgated by the American Institute of CPAs ("AICPA") and any similarly functioning audit report/attestation (cumulatively,hereinafter"SOC Report"),and (ii) TSYS or its Affiliates'Attestation of Compliance under any standard promulgated by the Payment Card Industry Security Standards Council("PCI-SSC")and any similarly functioning audit report/attestation(cumulatively,hereinafter"AOC"). 3. AGREEMENT. This agreement will confirm the understanding between the City and TSYS concerning their mutual obligations of confidentiality with respect to Information for the Purpose of this agreement. 4. IDENTIFICATION OF CONFIDENTIAL TREATMENT. Information of any kind pertaining to the disclosing party's business, whether in written form or disclosed verbally, shall be treated by the receiving party as secret and confidential. Other Information to be treated as confidential or proprietary by the receiving party shall be identified as such in writing by the disclosing party;if orally disclosed,such other Information shall be identified as such at the time of disclosure and confirmed as such in writing by the disclosing party within 15 days of such disclosure. S. DURATION AND OBLIGATIONS OF CONFIDENTIALITY. For a period of three years from the date of disclosure, disclosed Information, unless written consent is otherwise granted by the disclosing party, shall be restricted to those employees and persons in the receiving party's organization with a need to know in order to perform services specifically requested by one party of the other in order to fulfill the Purpose of this agreement. Such employees or persons shall be notified of the proprietary nature of such Information, and the receiving party shall use the same degree of care as it employs with its own confidential and proprietary information,but in all events shall use at least a reasonable degree of care. Notwithstanding the foregoing, if the receiving party is entitled to receive a SOC Report in the receiving parry's capacity as a "User Entity," the receiving party may disclose the SOC Report only to its legal counsel and financial auditors who are bound to an obligation of confidentiality similar to those set forth herein for purposes of evaluation of the effect of TSYS's controls on a User Entity's internal control system. Notwithstanding the foregoing,if the receiving party is entitled to receive a copy of an AOC,the receiving party may disclose the AOC only to its legal counsel and PCI-SSC Qualified Security Assessor(s) ("QSA") who are bound to an obligation of confidentiality similar to those set forth herein. Except as provided in the preceding two sentences,the receiving party may not share a SOC Report or AOC with any other third-party without the prior written consent of TSYS. 6. EXCEPTION TO CONFIDENTIALITY. The obligations imposed upon either party herein shall not apply to Information that: (a) is or becomes generally available to the public other than as a result of a disclosure by the receiving party in violation of the terms of this agreement; (b) the receiving party can demonstrate is rightfully in the receiving party's possession prior to the disclosure by the disclosing party pursuant to this agreement, provided that the source of such information was not known by the receiving party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party with respect to such material; (c) is received from a third party without restriction and without breach of this agreement; (d) is independently developed by the receiving party; (e) is disclosed pursuant to a requirement or request of a government agency;or Co is required by applicable law. 7. RETURN OR DESTRUCTION OF INFORMATION. All Information furnished by the disclosing party to the receiving party is considered loaned for use solely in connection with the data,services or furnishing or acquisition of goods which may be requested or required pursuant to this agreement, and shall promptly be returned by the TMS_GP NDA v1.2024 Page 1 of 3 CONFIDENTIAL receiving party to the disclosing party upon request by the disclosing party. The receiving party shall certify that it has destroyed or returned all copies of the Information in its possession. 8. NO REPRESENTATION OR WARRANTY. Although the disclosing party has endeavored to include in the Information information known to it which it believes to be relevant for the Purpose of this agreement, neither the disclosing party nor any of its affiliates have made or make any representation or warranty,expressed or implied,as to the accuracy or completeness of the Information. The disclosing party and its affiliates shall have no liability whatsoever to the receiving party or its affiliates relating to or resulting from the use of the Information or any errors therein or omissions therefrom. Receiving party acknowledges and agrees that this agreement does not obligate TSYS to disclose to receiving party any information of any kind,including any Information. 9. RELATIONSHIP.No furnishing of Information and no obligation hereunder shall obligate either party to enter into any further agreement or negotiation with the other or to refrain from entering into an agreement or negotiation with any other party. 10. NOTICE. All notices to the parties to this agreement shall be effective upon receipt and shall be delivered to the addresses stated above,or to such other addresses as may be designated by the parties in writing. 11. REMEDIES. The parties acknowledge and agree that monetary damages would not be a sufficient remedy for a breach of this agreement and that, in addition to other remedies available at law, a party shall be entitled to seek equitable relief including, without limitation, injunction and specific performance, as a remedy for any such breach without posting bond. 12. SEVERABILITY. All sections and subsections of this agreement are severable, and the unenforceability or invalidity of any of the sections or subsections of this agreement shall not affect the validity or enforceability of the remaining sections or subsections of this agreement. The waiver by a party of a default or breach of any provision of this agreement by the other party shall not operate or be construed as a waiver of any subsequent default or breach of the same or of a different provision of this agreement by such the breaching party. 13. GENERAL. 13.1. Entire Agreement. This agreement constitutes the entire agreement between the parties and supersedes any prior or contemporaneous oral or written representations with regard to the subject matter herein. No agent, employee or representative of either party has any authority to bind such party to any affirmation,representation or warranty unless such is specifically included within this written agreement. All modifications of,waivers of and amendments to this agreement or any part hereof must be in writing and signed on behalf of each party. 13.2. Governing Law; Venue; Attorneys' Fees. The substantive and procedural laws of State of California (without regard to its conflicts of law provisions) govern all matters arising out of or relating to this agreement whether based in contract,tort,or statute.The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this agreement.The parties each consent to the exclusive jurisdiction and venue of the federal or state courts located in Orange County,California for any legal suit,action,or proceeding arising out of or relating to this agreement.The prevailing party in an action brought against the other to enforce the terms of this agreement or any rights or obligations hereunder,will be entitled to receive its reasonable costs and expenses of bringing such action including its reasonable attorneys'fees in addition to any other recoverable damages to the extent permitted by applicable law. 13.3. Waiver of Jury Trial. The parties waive any right to trial by jury in any action arising out of, in connection with,or in any way related to this agreement 13.4. Third Party Disclosures.Except as may be required by law, neither party shall disclose to third parties the fact that the discussions contemplated herein have taken place, nor disclose any information concerning their discussions. 13.5. Severability and Waiver. If any particular sentence, right, duty, or requirement of this agreement is held invalid or unenforceable by a court or agency having proper jurisdiction, all other provisions of this agreement will remain in full force and effect. Neither failure nor delay on the part of any party in exercising any right,power or privilege hereunder shall operate as a waiver, nor shall any single or partial exercise preclude any further exercise of any other right,power or privilege. All waivers must be signed by the party waiving its right(s). Page 2 of 3 13.6. Electronic Signature. If City elects to execute this agreement by electronic means, City acknowledges that under the Electronic Signatures in Global and National Commerce Act (E-Sign), this agreement and all electronically executed documents related hereto are legally binding in the same manner as are hard copy documents executed by hand signature when: (a) City's electronic signature is associated with the agreement and related documents, (b) City consents and intends to be bound by the agreement and related documents, and (c) the agreement is delivered in an electronic record capable of retention by the recipient at the time of receipt (i.e., print or otherwise store the electronic record). This agreement and all related electronic documents shall be governed by the provisions of the applicable law set forth in this section and in section 13.2. 13.7. Execution of Agreement. By executing this agreement by electronic means, City agrees: (a) that the agreement and related documents shall be effective by electronic means, (b) to be bound by the terms and conditions of this agreement and related documents, and (c) that City has the ability to print or otherwise store the agreement and related documents. By signing below, each party acknowledges that it has carefully read and fully understood this agreement, and each agrees to be bound by the terms of this agreement. TSYS MERCHANT SOLUTIONS,LLC DBA GLOBAL CITY OF SANTA ANA(CITY CLERK) PAYMENTS (VENDOR) t=j i . By: By: .s Name: Na �-. en ' Title: Title: City Clerk Date: Date: CITY OF SANTA ANA(CAO) CITY OF A ANA(CMO By: r By. Name:Jonathan T.Martinez Name:Alvaro Nunez Title:Assistant City Attorney Title: Cry Manager Date: Date: 1 ltA-( CITY OF SANTA ANA(DEPARTMENT HEAD) By: ni-- �ia 77,2,27A to i j iq pnT? Name:Alexander Trinidad Title:Executive Director,Finance&Management Services Date: Page 3 of