Non-Disclosure Agreement with Skidata, Inc. a0is-- aqIq
NON-DISCLOSURE.AGREEMENT
This NON-DISCLOSURE AGREEMENT("Agreement")is made as of the date last signed below by and
between The City of Miami Beach("Company"),with a business address of 1700 Convention Center Drive,Miami
Beach, Florida 33139 and SKIDATA, Inc.("SKIDATA"), a Delaware corporation with a business address of One
Harvard Way, Hillsborough, NJ 08844 (collectively, Company and SKIDATA are hereinafter referred to as the
"Parties,"each a"Party").
WHEREAS, the Parties have been and will continue to be engaged in negotiations with each other for a
potential transaction (`Transaction"). involving Software development and :'integration of the SKIDATA
Parking.Logic application and theCompany's administrative software suite. In the process of these negotiations,the
Patties:. will provide and disclose, among other things, proprietary or Confidential Information (collectively
"Confidential Information"),as defined below;
WHEREAS, the Parties acknowledge the importance of safeguarding the confidentiality of such
information;and
WHEREAS, the purpose or reason for the business relationship between SKIDATA and Company is to
perpetuate the Transaction("Purpose").
NOW THEREFORE, in consideration of the mutual promises and covenants set forth herein, the
sufficiency of which is hereby stipulated,the Parties,intending to be legally bound,hereto agree as follows:
1. Confidential.Information.
(a)The Parties anticipate that during the course of their relationship it may be necessary for either
Party to transfer to the other Confidential Information. As used herein, "Confidential Information" shall mean,.
without limitation, (i) any idea, proposal, plan, information, procedure, technique, formula, computer software and
associated documentation and data,technology or method of operation,any written or oral information of a proprietary
nature ands any intellectual property owned or licensed by either Party or relating to either Party,or any of its agents,
principals,independent contractors or.affiliates'business,projects,operations,finances,activities or affairs,whether of a
technical nature or not(including trade secrets,know=how,processes and other technical or business information)or any
proposed change thereto; and:(ii)any other information disclosed by either Party and designated by either Party as
confidential. Confidential Information includes, without:limitation, information regarding (i) all of the performance,
sales, financial, contractual and special marketing information, ideas, technical data and concepts originated by either
Party; (ii) customer lists, telemarketing lists, vendor lists,employee personnel information, the Parties'.manner and
method of conducting business and:the Parties policies and procedures;(iii).the.Parties products and services,ideas and
services;(iv)business or financial information directly or indirectly related to the Parties;and(v)the compensation to
any employees, independent contractors or agents for its services related to the Parties' products and/or:services;(vi)
con.fidential.information provided by or regarding the Parties' customers, vendors or other contractors,business plans,
customer or vendor information andforecasts.
(b)Notwithstanding the foregoing, Confidential Information shall not include information currently
in the public domain(other than as a result of a breach of this Agreement). Furthermore,Confidential Information
shall not include information that:
(i) involves operational, financial or business information relating to the "City
Parking Control System" or "System", as defined in Section 2.1 of the
agreement:between the Company and SKIDATA for the design, construction,
installation and maintenance of a parking garage:,revenue control system, dated
October 15, 2015 (the "Parking System Agreement") and/or Services to be
performed by SKIDATA under the Parking System Agreement, including,
without limitation, System revenues; System usage information; the Parking
System Agreement and any ancillary agreements executed between the parties;
any information disclosed in connection with ITN No. 2014-170-SW; any
information provided by Company to SKIDATA in connection with the Services
SKIDATA is providing :under.the Parking System Agreement; all equipment
manuals.and schematics'.in.connection,with the Parking System Agreement;any
information_created specifically for the Company and/or solely in connection
with., the :Parking:•.,System Agreement; and any other like information
¢(-collectively,"Company Information");.. . ..,4
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(ii) is,°subjectrto:disclosure:pursuant,to Public Records Laws, including;without
limitation,Chapter 119,Florida Statutes; .
(iii)., was known to;the.receiving Party.prior,.to receiving any of the Confidential
Information.from the otherxParty;.1 ° a
. ,(iv) . .was received by the receiving,party without breach rof,thise=Agreement-from,a
third party without restriction,whether or not such receipt relates to,the,use.and
disclosure of the Confidential Information;
F 11�� ,fie
n!.. •_° •z,. .�F: f'r l :S - > :3 a+« � �F 3�$: wr}�' a y e'e
(v) was independently developed by receiving Party without use of the Confidential
Information;or g
, i.: '<e!a_'<:` a ."'4f ;>'#%e� '? % mot$; !la D( s„{. gg
(vi) was ordered to be publicly released,:by law_or,the reauirement,of,a valid,order
er
court of competent jurisdiction or government agency. '
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In the event that either Party pis requested ptu scant,to or required by applicable lair or egulat}osi(11!.10S1
legal process to disclose.any Confidentiai:.Informiation the disclosmg.Party will provide the other Party:with prompt
notice-of such requests)pursuant to:°.the.notice P rovson`of thi S Agree seen o
a en ab e
o h r.P a
to seek,if it
deems appropriate or necessary,a protective order. The Party seeking the protective.order shall:do so within thirty
(30)days from notification of a reguestw;or said,Conficlenti.al Inf ationi r. The_,eveht that suchrprotective order or
,other remedyQ is not"timely requested or•skiibsequontly•obtained the disclosing 1.t.yiggrees.k q urnisli'only fat
poitioo.of;the CgafidentialInformal <”
iortwhichdisclosing:P.4.4ts advased by t 90,7.rnsel should be disclosed
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Qrm hesn,;one. artypoie heitothc.r wi01 Confidental CInomatou,-; he, ro ver 43#1.e ha use bes efforsto royidethrec p ient tivithla .P.911300.0.Offcavt of TradSeczet
wCertrttxin f gc�,a Atiloi n i n the form?atac hd;heeot as,Ehhit° A ,Adt na lly�',aCr � Ana Y� °, ue s t a the. other Tarty,,ty,complee d,Afficl vrt4ldfTrade creti ertification,
in
in connection awitht,any
information which the other Party is claiming to be Confidential4Inf'ormation
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2 te 1if} # �f= d �'��{ s °fit ( a :y ±$t'. + g
Purpose The 1?arties;acknawjedge,and,a ee that;the disclosure of=Confidential!Information.•is
solely for the_purposes ofsentering into the=TransactiQn;anci either arty's use.of the Confidential Informations shall
be-strictly.construed d.limiteci touse fur 4 ra ce o the, u -.rise
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.1` •' - ;;'.. t eR to -a,y � -�! hi a'{ >- i ."•1 S " _ fl a S t;:.. ;F<
e ablTeations.afParties 4 , , .s <.._ 3 :.: <i s
•°'as s,: 3i''!.i`t...�'' ,`-'-a?:at' I'3 i t.s':•.-'�:
a)The Parties shall maintain all Confidential Information in strict confidence in accordance with
this Agreement. /The Parties;shall not,without the etpress,:Wntten,permission;of_the Disclosing.:Party, (I)disclose
.any Confidential-.Information to third.parties;,or:(ii)use';Confidenhral Information for>anypurposes wha:tsoe;ver,,other.
than in accordance with the written instructions'of an authorized °
re p resntative of the,disclosing:Party,#n:Rfurtherance
of the Transaction.The Parties shall use its best efforts to not learn any Confidential Information of the other Party,
except.;as is necessary to effectuate_:the Transaction Notwithstanding the.foregoing,. the Parties.shall not be
precluded fom sharing the Confidential Information with its designated.accountant and/or:attorney for the
y specific
purpose,of evaluating:the merits,.of„the Transaction, so=long as he or:she,awes to be:.bound to the terms of
Confidentiality as set forth herein and:consistent wit his or her professional obligations. The Parties shall not make
any copies of the Confidential.Inforn ation rwithOnt the advance'written,approval of the other Party..
.Any copies
which are made shall;be identified as-belonging.to the appro riate.P
p'. arty and snarked confidential; proprietary or
with a similar:legend,, Where Confidential Information has not been"or cannot:be reduced to written form at:the:time
o isc osure.and.:such disclosure is:made orally aid=with prior or subseciuent assertion of°proprietary rights.
:therein;
such.orally:disclosed Confidential.Information-shall be:.protected•n1 accor°dance with:this Agreement,,regardless of
whether the.Confidential ,Inforrinatton iitselfor the'disclosure of:such.Cotiftdenttal Information is memorialized in
writing at any time. ;
Confidential Page 2 I/11/2016
(b) The Parties agree that given the nature of their business and the nature of the anticipated
Transaction, the restrictions and obligations set forth herein are necessary and reasonable. In addition, the Parties
shall ensure that any employee, contractor, agent, representative or attorney who learns Confidential Information
shall not disclose such information,except as otherwise provided herein, or otherwise act in contravention of the
force and intent of this Agreement.
(c)`:Should either Party discover that any person other than an authorized representative has
acquired or obtained access to'any of the other Party's Confidential Information,the Party will immediately:notify
the other Party, and will assist in any efforts to protect or limit such disclosure,to prevent further dissemination or
use of such Confidential Information,and to protect the confidentiality thereof.
4.. Return of Information.The'Parties.shall promptly,either return or destroy all or any part of the
previously. disclosed Coifidential Information,and all copies thereof, upon the written request by either Party,
including without limitation, all memoranda,.notes,:compilations, summaries=or other writings made,.prepared or
compiled by either Party or their representatives based upon Or including any Confidential Information and,upon
request,to provide written certification of such destruction.
5. Standard of Care. The standard of care for carrying out the above obligation and otherwise
protecting the Confidential Information imposed;on.either Party shall be at least the degree of care which either
Party uses to'prevent disclosure,publication or dissemination of its own Confidential Information.
6. Intellectual.Property. The Parties acknowledge and agree that nothing herein shall be construed as
a license or other grant of rights by one party to the other party of any trademark,patent,copyright,trade secret or
other intellectual property which is now or may hereafter be owned by such Party, Moreover, none of the.
information which is exchanged as set forth herein shall constitute any representation, warranty, assurance,
guarantee or inducement by either. Party to the other with respect to the infringement of trademarks,patents,
copyrights or any right of privacy, or other rights of any third persons. Each Party acknowledges and agrees that
nothing herein shall give either Party the right to manufactures distribute, or market parts, products or:services
utilizing any of the Confidential Information of the other Party,without their advance,express written consent.
7. Representations and Warranties. The Parties hereby make the following material representations
and warranties,upon which it intends the other Party to reasonably rely:
(a) The Parties have the full right and authority to enter into this Agreement and fulfill the
obligations and rights being granted as required hereunder;
(b)The duties and obligations of the Parties under this Agreement do not interfere or violate any
employee agreement or manual, union agreement or other collective bargaining agreement, or infringe upon any
rights of any employee or other third party;and
(c) The Agreement does not conflict with any other contract, agreement or;obligation of either
Party including without limitation,any contract which would affect the Confidential Information and/or Transaction
in accordance with this Agreement.
8. Covenants. The Parties hereby make the following covenants and agreements, that:
(a) The Parties will not privately or publicly disparage the other Party or any person affiliated
therewith;
(b) The Parties shall perform all acts and execute all supplementary instruments or documents
which may be requested by the other Party to carry out the provisions of this Agreement or to otherwise effectuate
the intent hereof;and
(c)The Parties shall not to enter into any agreements with any third parties which may conflict or
create a potential conflict with its obligations hereunder.
Confidential Page 3 1/11/2016
9. General.
(a)Any and:ail notices.,or�nther commutucatxons,Mar y,that are to be given:;under this Agreement
must::be in writing, which shall Dbe given;by:,delrvc. to:the .
ry � persons,set fortlt lierein�b ;.,way o�f;erther•,person�aI
delivery;:'certifhed:mail return recei t;requested,overnight mail by a commercial,carri r,facsinu e:transmission;gr
cegip
regular mail. Notices by , ., s
y personal delivery shall be deemed effective upon delivery ,...Notices•by> certified.mail,
return receipt requested, overnight mail.by a commercial carrier: Notices given by:regular mail shall not be
effective unless and until received atI a:address'to which:they are sent.=Notices shall ibe.addressed as set forth in
the:fast .a `
p a ragraph of thus A ement less a
� Patty?changes the'ridrlress,iri wrjtgig by providing moticei tltereof.to'
;thee.ottter xParty. Additionally,a co of all:notices;to s. SI{IDA A;;shall he c at
delivered.to�Ntssenbaum Law Group,`LGC, Attu.:Qa. r:D!:;Wissenbaum;,24QOtMnrri::Aver ue;;Union;'11PW:7erseyi
07083 and to the.City of Miami Beach,Attn;'Ofce of the City y,
Beach,Florida 33139.:. 9
Attorne 1700 oavennon Center:Drive; Miami
8 - .—�," , <r ,f.s, 0 D_1WY, a °t+°s S• sd j 1,4: s :i1 (( ,`b,
. Service ofprocess initiating any,proceeding;and otherwise shall be deemed:effective,in accordance.with'the
laws and:procedures'of�the State ofFlgtida: `ry` _ '° - °�
x 't'° 'a x� 1. >:Pe .1 at^iii, +< - 'i�� - sE `�a '� $,+�3i°tfits.,„
(b) This Agreement shall be binding on and inure to the benefit of the parties hereto and their
respective lsuccessors,perm tted assigns,.lien's and jogatrepresentatives,,as the case may.be:� ;� ;.
4 $
.t ', ,:..! ,y .. ''} # r, f 3s. .1.a 60,:=1'.:: ,i,.:.:-1 t;to A t ;t _... „.. '
(c),SKIDATI or Co r L Fl � F t£ t�l fir iY s tr a Yt 1 iu � <°,
N 7C ,xnpaay,may}assign;orso#hec settansfer4this .ggte+ament,ur►;who. or„a.paruo..
its parent,or to any subsidia affiliate or other related entity_ Subject to this: rovision this A
assi a xotherwise P A greement maynot lie
gned•�. , transferred byeither Party in¢.vr ole orx g part lwitb out the express gwritten consen€of the other
Parry,which;consent may not;be unreasonably�withi eld T g,-_ s .. .
t-,, ,'i,`,, Aa!L w L..t i.i,V. ., ,.?:::.P, 'Pi 8t,. >'b 4. `?i`'k+�13y:F/ ha€ f.1:tll:..'fls ..-f$7n.•w --8--' D. {•A•.-a(d) The Parties 1 acknowled e x .;x $ .
that one or, morepro�visions of this�Agrecenknabe;legally
nrOhib:itedior otherwise,ui enforceable m:r.ertaipiiurisdictions.andynot:others."Ittis•the RottiolifacittionAtatithis
d revailing
Mgr ,Fnent be construed;in,a manners. rat ts�cons stent�w�tl�;g --��,law in tl�etlurisdictionuwhichsit is enforced.
1110efore, the_Parties agree wthat.tif tany,.,provision#of#lvs agreementiis rohibited o X
urisdio on �vhero.it is t� . ..� - l? r otheryv�se�unenforceable�pn�;a
j. ti , , . ,:being enforced,,(a) it shall be aeye' less epforce `fullest.. xtent a11. vied{tty,`th tt
p d��tRr�es.t
prevailing Maw anal all other _ 4�,.°.
(b) provisions of this Agreement shalt remain in full.force and effect and.::shali not be
invalidated orxrende`red unenforceable. _ �g
' _ -.t�::: ',:1<'F~: s<::J�;1Fd. Jr!; +t.j.mr31 s5.iV,Len X01 ;;:t :?. t/51 r,
< :.!f.).n'—.e}-a'.,A T .si"1«51.§s'r$: ;I: "lies°: 4+,..1011 ii' "y°#1,.c°3i `:`;'>< 1::1<-
(e) This Agreement snail,not be interpreted or construed to create an association, agency,,joint
entu e;,oripartnerstup bet veers.the•- a 2es o to m
F r PP,4. *+.itabtlity attt ibutatble toi sueh a elattonship upon either
party•'hereto; nor shall it create any Obligation to:b uY o seiliproductsi.using
,,or incorparating 1the Oo fdential
Informggation.
s > 3.ir fi% r,',Y8 °Gt q,> i,' D ,,'.A-} L ;3 ,- t •i v.Yb g
', • ,;t`_ ., (.),Then section and1Eo0eT heeadmgs,conta licd tn;,this AgrOementlare;for reference u oses>onl
P.rP.:e Y
and shall not in any.way'affect the meaningor:interpretatton_af thts.A((►►r�eemett.= i. -, ,..t,,
.._. _ - '..SY-, 1 t':_sa _ wrL,II l82Y `.`01s 3°I ` t' A
I. ;_ ''' F ' ;,.. ° l> y Y p beret-ofanyTights,hereunder.in;any)particular instance
.•, E�)No�waiver�;ar forbearance°b ::an o
shall.act to preclude-such,party frrom exercising those ri is:.in;
- b � :,h. anyotlaeri•instance. atit p ;f 1f9;. : ;1>,; •;£ .11,.:;...
(h) The Parties agrees that money damages may not be a sufficient remedy in the event of any
breach of this Agreement,and that equitable.re1ief,includinginjunctive.rrelief.andforlspecifc,-may be an appropriate
remedy for such breach. Such injunctive relief will in.no way limit either Party's right to obtain other remedies
'available under applicable.law. ,
(i)This Agreement shall be governed by the laws of.the State of Florida,without giving effects to
the conflicts of laws,principles thereof.:The sole:jurisdiction for:any.litigation•arism°
E .�.� b out of this Agreement shall be
an;appropriate:federal or state court located in the State_o f Florida;•.and the parties unconditionally and irrevocably
consent to the.personal,lurisdiction of:such.:courts Farther, the parties unconditionally and irrevocably;consent that
venue-for any action shall.be:in the Superiot Courts of the State ofFlorida located in Miami Dade County, and if
jurisdiction for Federal Court.exists,to the.Untted States:District.Court.for=the.SouthernxDistrict of Florida.
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Confidential Page 4 , : 1/11/201,6 . >
(j) Each Party shall each bear their own attorney's fees and costs in connection with the
negotiation and execution of this Agreement. In the event that this Agreement is breached,the breaching party shall
pay the reasonable attorney's fees and actual costs relating to any legal services of non-breaching party, solely if a
dispute results in the institution of proceedings, directly or indirectly relating to the enforcement of the terms and
provisions of this Agreement, including without limitation,both actual pre judgment and post judgment reasonable
attorney's fees and actual costs and reasonable attorney's fees and actual costs of settlement if no proceeding is
instituted. Further, such reimbursement shall also include any such fees and costs incurred after the conclusion of
such a proceeding in which a judgment or other disposition is rendered in post judgment or post-disposition
collection efforts.
(k)This Agreement constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof and may not be amended except in a writing signed by a duly authorized representative of each
of the respective parties.
(1) The representations and warranties of the Parties made herein shall survive the execution and
delivery of this Agreement.
(m)All personal pronouns used in this Agreement,whether used in the masculine,feminine or neuter
gender,shall include all other genders;the singular shall include the plural,and the plural shall include the singular.
(n)This Agreement may be executed on separate counterparts,any one of which need not contain
signatures of more than one party,but all of which when taken together shall constitute one and same agreement.
10. NO:Contravention or liilodification
Nothing contained in this Agreement shall be construed to contravene or modify Section 10.2 of
the Parking System Agreement,entitled"Ownership of Documents and Equipment.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written
above.
SKIDATA,Inc. " i A TA")
By: a -
Name:A .atder:Christi,President&CEO
ACKNOWLEDGEMENT
On this: the /7 day ofOil1✓a 2016, in Hillsborough County of Somerset, before me came
Alexander Christl to me know, who being by .me duly sworn,did depose and say that he: the Pres.ideri .&CEO of
SKIDATA, Inc.,the corporation described in and which executed the foregoing:instrum it;the he k ", . the seal of
the company; that the seal was affixed to the foregoing instrument, and the:eke,`,tion o. th' ' a eerie_ was
authorized by order of the Board of Directors;that he signed his name to the for-n:rr instru �:.,nt by-re:.'of the
same order.
./:d :
LX,nc ,$0c laly
Confidential Page 5 1/11/2016
THE CITY OF AMI BEA l ("Company")
I
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By..........._:.. ei�� �,_
Name: Jimmy I Mor°.le , City Manager
ACKNOWLEDGEMENT. . .
On this.the day of ,..2016,in.. Miami-Dade Florida
, before me came Jimm L Morale
County of... ...
�' o me known, who being by me duly sworn, did depose and say
that he is the City Manager
, of City,:ot Miami,,Be � corporation described in and which executed
the foregoing instrument; the fcricruas--the-seal`oftherulli a,iy,thrarthe-seai
afftRet-7TT}TrftSPe-gbrtfTg
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iRstf11fFH },-dill-th exteutiOH-of-t his--"z-Agreement-w8s-etttliefized c $€ w•'t: c.
�` f-Directers; that he signed
his name to the foregoing instrument by reason of the same.order.
Rafael E. Granado,Secret.. .
,v, - \tifooe'- "..1-
T I4e ,..
1.INCORP ORATED. •
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APPROVED AS TO-
FORM & LANGUAGE
FO EXECUTION
•jaT. . �
City A".rney Date
Confidential Page 6 1/11/2016
AFFIDAVIT OF TRADE SECRET CERTIFICATION
STATE OF
COUNTY OF
I,the undersigned,being first duly sworn,do hereby state under oath and under penalty of perjury
that the following facts are true:
1. I am over the age of eighteen and am a resident of the State of . I have
personal knowledge of the facts herein,and,if called as a witness,could testify competently thereto.
2. I am the .(position) of (name of
corporate entity), a (state) (type of corporate entity),
whose principal address is
("My
Company").
•
3. My Company considers the information contained in the document(s) entitled
(provide description •
of the information)marked as Exhibit (comprised of a total of pages)a trade secret under
applicable law for the following reasons:
[Please explain in detail the specific element(s) or provision(s) of Florida Statutes that render
the document(s) at issue a trade secret, particularly in view of (1) prior disclosures; (2)
potential disclosures to other third-parties that may routinely require this information (i.e.
if it's a company's financial statements, such as rating agencies, sureties, lenders and
others; and(3)whether any Florida case has directly addressed this issue.
4.My Company has taken measures to prevent the disclosure of the information contained in Exhibit
to anyone other than those who have been selected to have access for limited purposes,and jI
intend/my company intends)to continue to take such measures.
5.. My Company considers the information contained in.Exhibit to have value and provides an
advantage or an opportunity to obtain an advantage over those who do not know or use it.
6. All of the information in Exhibit contained is not publicly available elsewhere and/or has
not been reasonably obtainable without My Company's consent by other persons by use of legitimate
means.
7.I am the person for the City of Miami Beach,Florida to contact in the-event a challenge to any
information contained in this Affidavit is received.
EXH Ba =
I
Executed on this day of s. in 'County,:
(State);
At-Rant-Full Name:
, .
Address:
Telephone:
: .
.A.£ ant Signature::
, .
s•STAIROFTAr'
COUNTY OF
SWOrilto or affirmed and signed before me on _ (date)by
A :
(Af5a110.
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