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Appendix E Non-Disclosure Agreement
MUTUAL NONDISCLOSURE AGREEMENT
This Nondisclosure Agreement (this “Agreement”) is entered into as of _______________, 20__ (the “Effective Date”) by the County of Ventura (County); SOCIAL FINANCE, INC., a Massachusetts-based nonprofit corporation (“Social Finance”). Each party may disclose or provide access to Confidential Information (as defined below) of that party (“Disclosing Party”) to the other party (“Receiving Party”). The Disclosing Party may also provide the Receiving Party with access to one or more places of business at which Confidential Information may be available or observable. The parties wish to protect the confidentiality of such information as described in the below terms and provisions of this Agreement.
1. Confidential Information refers to the following information the Disclosing Party directly or indirectly discloses to the Receiving Party: (i) any document or other information the Disclosing Party designates or has designated as “private,” “proprietary” or “confidential;” (ii) proprietary methodologies, techniques, marketing plans and tools of the Disclosing Party; and (iii) information that, under the circumstances surrounding disclosure, a reasonable business person would believe ought to be treated as confidential. Such “Confidential Information” may be furnished or observable in any tangible or intangible form, including, without limitation, written or printed documents, visual demonstrations, computer disks, or tapes, other electronic media and oral communication. “Confidential Information” does not include any record, or information from any record, held or maintained by the Ventura County Probation Agency regarding any adult probationer, or otherwise governed by California Penal Code sections 1203.7(b) or 1203.10.
The foregoing obligations and restrictions do not apply to that part of the Confidential Information that the Receiving Party demonstrates:
(i) was available or became generally available to the public other than as a result of a disclosure by the Receiving Party;
(ii) was available, or became available, to the Receiving Party on a non-confidential basis prior to its disclosure to the Receiving Party by the Disclosing Party or its representative, but only if such information was not made available through a breach of confidentiality owed to the Disclosing Party;
(iii) was requested or legally compelled (by oral questions, interrogatories, requests for information or documents, subpoena, civil or criminal investigative demand or similar process), is required by a regulatory body to be disclosed, or is governed by the California Public Records Act (Cal. Gov. Code, § 6250, et seq.), provided, that Receiving Party shall: (A) provide the Disclosing Party with prompt notice of any such request(s) so that the Receiving Party may seek an appropriate protective order or other appropriate
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remedy, and (B) provide reasonable assistance to the Disclosing Party in obtaining any such protective order. The parties acknowledge and understand that any such protective order must be sought within 10 days of a request that is governed by the California Public Records Act. If such protective order or other remedy is not obtained or the Disclosing Party grants a waiver hereunder, then the Receiving Party may furnish that portion (and only that portion) of the Confidential Information that the Receiving Party is legally compelled or is otherwise required to disclose; provided further that, except for disclosures governed by the California Public Records Act, the Receiving Party shall use reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information so disclosed; or
(iv) was independently developed by the Receiving Party without breach of this Agreement.
2. Confidentiality. The Receiving Party shall take all appropriate action to ensure the confidentiality and security of the Disclosing Party’s Confidential Information. Without limiting the generality of the foregoing, the Receiving Party agrees that, unless otherwise approved in writing by the Disclosing Party, it shall:
2.1. Maintain the Disclosing Party’s Confidential Information in strict confidence, which obligation arises upon its first access thereto and survives termination of this Agreement.
2.2. Use the Confidential Information only for purposes of determining whether to enter into an agreement with the Disclosing Party, such as evaluating the Disclosing Party’s capabilities, products, and services, and shall not disclose, distribute, publish, provide, transmit, or otherwise make available any of the Disclosing Party’s Confidential Information, in whole or part, except in confidence to employees on a need-to-know basis.
2.3. Have no right to copy or reproduce the Disclosing Party’s Confidential Information in whole or in part, except as reasonably necessary to enable the Receiving Party to use the Confidential Information, and shall not disassemble, decompile, or reverse engineer software provided by the Disclosing Party (if any). Each party will return the other party’s Confidential Information (and any copies) upon completion of its review or upon the owner’s request.
3. Term, Termination & Return. This Agreement begins on the Effective Date and ends on the date that the parties’ primary engagement terminates, or the date on which one of the parties notifies the other party that this Agreement has terminated. At that time, or upon the Disclosing Party’s written request, whichever first occurs, the Receiving Party will return any copies of Confidential Information in its possession to the Disclosing Party or certify, in writing, the destruction of same. The obligations of Section 2 above will terminate three years after this Agreement comes to an end.
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4. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. The Disclosing Party will retain all right, title, and interest in and to all of Disclosing Party’s Confidential Information.
5. Miscellaneous.
5.1. Notices. Notices pursuant to this Agreement will be delivered in person or sent to the address most recently provided by the party being notified. Such notices will be deemed received at such addresses upon the earlier of (i) actual receipt or (ii) delivery in person, by fax with written confirmation of receipt, or by certified mail return receipt requested.
Notices shall be sent to:
County of Ventura
800 S. Victoria Avenue
Ventura, CA 93009
Contact Name: Christy Madden Email: Christy.madden@ventura.org Phone:805-654-2679
Social Finance, Inc.
10 Milk Street, Suite 1010 Boston, MA 02108
Contact Name: Rashmi Khare Email: rkhare@socialfinance.org Phone: 617-939-9900 ext59
5.2. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other and neither may bind the other in any way.
5.3. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than in an explicit written waiver.
5.4. Choice of Law & Jurisdiction. This Agreement will be governed solely by the laws of the State of California.
5.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be
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interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
5.6. Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
5.7. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any such prior or contemporaneous communications.
5.8. Amendment. This Agreement may not be modified except in a written contract signed and dated by both parties.
IN WITNESS THEREOF, the parties have executed this Agreement as of the Effective Date.
County of Ventura: ______________________
(date)
________
SOCIAL FINANCE, INC.:
_______________
By: ___________
_______________
By: ___________
______________________ (signature)
______________________ (signature)
______________ Title: ____________________________
Name: ___________________ ______________ (print)
Title: _____________________________  ____
Name: ___________________ (print)
(date)
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