18-140.00 TRS Recovery Services: TracFone NDA 18-lyo
THREE-WAY CONFIDENTIALITY AND
NON-DISCLOSURE AGREEMENT
This Three-Way Confidentiality and Non-Disclosure Agreement ("Agreement") is entered
into as of the date of the last signature below (the "Effective Date") by and between TracFone
Wireless, Inc., a Delaware corporation, with its principal place of business located at 9700 N.W.
112th Avenue, Miami, Florida 33178 ("TRACFONE"), The City of Spokane Valley,
Washington, with its principal place of business located at 10210 East Sprague Avenue Spokane
Valley, WA 99206 ("CITY") and Tax Recovery Services, LLC a Washington State limited
liability company with its principal place of business located at 1902 157th Street East, Tacoma,
WA 98387 (mailing address of PO Box 608, Spanaway, WA 98387)) ("COMPANY").
TRACFONE, CITY and COMPANY each being referred to herein individually as a "Party"
and collectively as the"Parties".
The Parties hereby agree as follows:
1. Purpose. TRACFONE, CITY and COMPANY are entering into this Agreement
in order to prevent the unauthorized disclosure of Confidential Information as defined below. If
the purpose is not defined below,then the Parties wish to exchange certain proprietary
information to evaluate the feasibility and prospects of a potential transaction between them(the
"Transaction"). The Transaction may include but is not limited to the following: A municipal
utility tax audit.
2. Party. Unless the context clearly requires otherwise, references herein to a
"Party" shall include the affiliates, subsidiaries, parents, directors, officers, employees, agents
and advisors (including, without limitation, financial advisors, attorneys, consultants, bankers
and accountants) of that Party (collectively,the"Representatives").
3. Relationship. Nothing contained in this Agreement shall be deemed to constitute
either Party a partner,joint venturer or employee of the other Party for any purpose.
4. Provider/Recipient. For purposes of this Agreement, TRACFONE, CITY and
COMPANY shall each be referred to as "Provider" and "Recipient," where the term "Provider"
shall mean the Party providing Confidential Information, and the term "Recipient" shall mean
the Party receiving Confidential Information. The rights of the Provider, the obligations of the
Recipient and the phrase "Confidential Information" will adhere to each of the Parties hereto, as
applicable, and as more fully provided herein.
5. Confidential Information. Each Party may receive access to, among other
things, certain of the other Party's confidential, non-public, or proprietary information pertaining
to the other Party or to a third party with whom a confidentiality obligation exists. For purposes
of this Agreement, "Confidential Information" includes, but is not limited to, information
evidencing, concerning, or related to trade secrets, financial and operational information,
products, services, software, sales, marketing, advertising, security, plans, forecasts, financial
models, financial statements, test results, records,prospects, designs, ideas, prototypes, formulas,
patterns, specifications, analyses, compilations, programs, source code, methods, techniques,
processes, or any other type of information from which independent economic value may be
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derived, whether actual or potential, which Recipient may receive, in whole or in part, from the
Provider. Confidential Information also includes personally identifiable information, including,
but not limited to, the names, addresses, telephone numbers and call records of TRACFONE's
customers (referred to as "Customer Proprietary Network Information" or "CPNI").
Confidential Information may be exchanged or transmitted between the Parties orally, in writing,
electronically, or in any other form, and failure by the Provider to mark or verbally disclose that
such information is protected, confidential, or proprietary is not determinative of the protected,
confidential or proprietary character of the disclosed information if, owing to its inherent
character or the circumstances of its disclosure, a reasonable person would conclude that it
should be considered Confidential Information. In consideration of such disclosure, Recipient is
herein obligated to maintain the confidentiality of the Confidential Information as set forth
below.
6. Exceptions. Notwithstanding any language contained herein, Confidential
Information will not include any information that:
(a) is in the public domain at the time of Provider's communication to Recipient;
(b) entered the public domain through no fault of Recipient subsequent to the time of
Provider's communication thereof to Recipient;
(c) was in Recipient's possession, free of any obligation of confidence, at the time of
Provider's communication thereof to Recipient, provided that Recipient promptly
notifies and provides evidence to Provider of such fact following disclosure;
(d) was rightfully communicated to Recipient free of any obligation of confidence
subsequent to the time of Provider's communication thereof to Recipient; or
(e) was developed by employees or agents of the Recipient, independently of and
without reference to, the Confidential Information.
In addition to the foregoing, the obligation to not disclose Confidential Information shall not
apply to the extent the Confidential Information is required to be disclosed by law, regulation,
court order, search warrant or subpoena, and only if prior to such disclosure, Recipient promptly
notifies Provider of such request or requirement in order to enable Provider to (i) seek an
appropriate protective order or other remedy, (ii) consult with Recipient with respect to Provider
taking steps to resist or narrow the scope of the request for Confidential Information, or
(iii)waive compliance in whole or in part, with the terms of this Agreement. In the event that
such protective order or other remedy is not obtained, or Provider waives compliance in whole or
in part, with the terms of this Agreement, Recipient shall use good faith and reasonable efforts to
ensure that the Confidential Information that is so disclosed will be accorded confidential
treatment and that any disclosure will be the minimum disclosure required under the
circumstances.
The City is subject to the Washington State Public Records Act and its case law and other •
guidance; in the event of any actual, potential or perceived conflict between the terms of this
Agreement and the Public Records Act, the Public Records Act shall govern and the City shall
not be in breach of this agreement. However, the City will give TracFone advanced notice prior
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to any disclosure so that TracFone may elect to seek a court order against the disclosure.
Notwithstanding the foregoing, the Parties acknowledge and agree that certain taxpayer
information as specified pursuant to RCW 42.56.230 and RCW 82.32.330 is exempt from
disclosure.
7. Consideration. As a condition to, and in consideration of, being furnished with
Confidential Information, each Party agrees to treat any information concerning the other Party
that is furnished by or on behalf of the other Party, in accordance with the provisions of this
Agreement. Recipient will hold in confidence all Confidential Information and will use same
only for the purpose of evaluating the proposed Transaction. Recipient will not use Confidential
Information for any other purpose, including, any commercial purpose or for its own benefit.
Recipient also agrees that it will not disclose Confidential Information to third parties.
Confidential Information will only be disclosed to those Representatives of Recipient who (a)
have a need to know same in order to evaluate the proposed Transaction, and (b) have been
advised of the terms of this Agreement and agree that they will be bound by the restrictions
contained herein. Accordingly, Recipient will be responsible for any breach of this Agreement
by its Representatives. Furthermore, Confidential Information received by Recipient will not be
copied, duplicated, used or exploited by Recipient in any manner, except to evaluate Confidential
Information or the feasibility of the Transaction. Recipient will not modify or remove any
legend on any Confidential Information provided to Recipient. In particular, Recipient will not
use Confidential Information to solicit Provider's customers, vendors or employees, or to engage
in a business that is competitive to Provider.
8. Offer/Acceptance. The execution of this Agreement by the Parties hereto does
not constitute an offer, acceptance of an offer, or commitment on the part of either Party to
undertake a Transaction or to refrain from terminating negotiations at any time and for any
reason.
9. Rights. The disclosure of Confidential Information by either Party hereunder
shall not result in any obligation by Provider to grant Recipient rights therein other than as
expressly stated in this Agreement. It is acknowledged and agreed to by the Parties that no
license under any patent, copyright, trademark or other proprietary right is granted or conveyed
by this Agreement. All Confidential Information shall remain the property of Provider and no
license or other rights to the Confidential Information are granted or implied hereby.
10. Competition. Notwithstanding the foregoing, this Agreement shall not be
construed to limit either Party's rights to engage, or to continue to engage, in any business
whatsoever, without the use of the other Party's Confidential Information, including a business
that is competitive with the business of any other Party hereto. Each Provider of Confidential
Information understands that each Recipient and its affiliates may now have or in the future may
develop or receive from third parties, information, products or services that may be similar to the
Confidential Information disclosed hereunder or to the products or services offered or
contemplated to be offered hereunder. Accordingly, nothing in this Agreement shall be
construed as a representation or implication that each Recipient or its affiliates will not develop
or acquire, for itself or others, products or services that compete with the products, systems or
methods contemplated by Provider's Confidential Information, provided that Recipient or its
affiliates do not do so in breach of this Agreement.
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11. Termination and Obligation to Protect Confidential Information. This
Agreement shall terminate upon the non-terminating Party's receipt of written notice of
termination by the terminating Party. In the event the Parties enter into a definitive written
agreement after entering into this Agreement, this Agreement shall be deemed to be incorporated
into such definitive agreement, whether it is referenced therein. Any integration or merger
clause in such definitive agreement or agreements, which would appear to exclude this
Agreement, shall be void as to this Agreement. Each Party agrees that all of the obligations
undertaken herein as a Recipient shall, with respect to Confidential Information received or
disclosed prior to any termination of this Agreement, survive and continue in perpetuity.
Further, within ten (10) days following either a written request from Provider or the completion
of business dealings between the Parties hereto, Recipient will deliver to Provider all tangible
copies of the Confidential Information, including, but not limited to, magnetic or electronic
media containing the Confidential Information, notes and papers in whatever form containing the
Confidential Information or parts thereof, and any other copies of the Confidential Information in
any form, certifying in writing to Provider that no copies have been retained. Provider, at its sole
option, may request in writing that Recipient destroy all copies of the Confidential Information.
If Provider requests that such Confidential Information be destroyed, Recipient will promptly
destroy the Confidential Information and, within ten (10) days of the notice from Provider to
destroy the Confidential Information, will certify in writing to Provider that the Confidential
Information has been completely destroyed. However, final audit papers will be retained by the
City, along with any materials required to comply with the Washington State Records Act. This
obligation to return or destroy Confidential Information shall not apply to automatically
generated computer backup or archival copies generated in the ordinary course of the Recipient's
information systems procedures,provided that Recipient shall make no further use of such copies
and provided further that such automatically generated computer backup or archival copies shall
be deleted in accordance with the Recipient's then current data retention policy and shall be
subject to the provisions of this Agreement until destroyed.
12. Assignability. This Agreement is not assignable by either Party. Any attempt by
either Party to assign any of the rights or obligations of this Agreement is void ab initio.
13. Modification. No modification of this Agreement or waiver of the terms and
conditions hereof shall be binding upon either Party unless approved in writing by each Party.
14. Waiver. The failure or delay of either Party in exercising any right, power or
privilege hereunder shall not operate as a waiver therefrom, nor shall any single or partial
exercise preclude any other or future exercise of any right, power or privilege provided in this
Agreement.
15. Severability. Should any provision of this Agreement be declared invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby. Such remaining provisions shall remain in full force
and effect. Further, in the event that any provision of this Agreement is deemed to exceed the
time or geographic limitations permitted by applicable law, then such provision shall be deemed
reformed herein to the maximum time or geographic limitations permitted by such applicable
law.
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16. Choice of Law and Venue. This Agreement shall be governed and construed in
accordance with the laws of the State Washington without regard to the conflicts of laws or
principles thereof. All controversies, disputes, or claims arising from or relating to this
Agreement shall be initiated in the state or federal courts located in Spokane County,
Washington.
17. Remedies. The Parties acknowledge and agree that any breach of this Agreement
by any Party may cause irreparable harm to the other Party for which monetary damages may be
inadequate, and that in addition to any other remedies that may be available, including the
recovery of damages, the injured Party shall be entitled to seek specific performance of the
provisions thereof, or the exercise of any right,power or privilege hereunder, including by means
of injunctive relief(without proof of actual damages or the need to post bond or other security)
against the threatened breach of this Agreement or the continuation of any such breach, without
the necessity of proving actual damages.
18. Headings. The headings in this Agreement have been inserted for convenience
and identification purposes only. These headings are not intended to describe, interpret, define
or limit the scope, extent or intent of this Agreement or any provisions therein.
19. Integration. This Agreement constitutes the entire agreement between the
Parties regarding the subject matter hereof and supersedes all proposals or prior agreements,
whether oral or written, and all other communications between TRACFONE, CITY, and
COMPANY relating to the subject matter of this Agreement.
20. Execution. This Agreement may be executed in counterparts, each of which shall
be deemed to be an original agreement, but all of which taken together shall constitute one and
the same instrument, binding upon the Parties, their Representatives, assigns and successors
when signed by each.
21. Authority to Sign. The undersigned warrant and represent that they are hereby
authorized to execute this Agreement on behalf of TRACFONE, CITY and COMPANY
respectively.
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DULY EXECUTED by an authorized Representative of each Party and effective as of
the Effective Date first written above.
"TRACFONE":
TRACFONE WIRELESS,INC.
By:
Name:
Title:
Date:
"CITY":
CITY OF SPOKANE VALLEY,WASHINGTON
By:
/4/ (j;? MO/t/L_N
Mark Calhoun
Title: City Manager
Date: 6 z4 72.08
"COMPANY"
TAX RECOVERY SERVICES,LLC
By:
Name:
Title:
Date:
Version No.2016-01
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