PROPRIETARY INFORMATION EXCHANGE
AND
NONDISCLOSURE AGREEMENT
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THIS PROPRIETARY INFORMATION EXCHANGE AND NONDISCLOSURE AGREEMENT (“Agreement”) is effective as of the ____ day of ______, 20__, by and between PACIFIC GAS AND ELECTRIC COMPANY, a California corporation ("PG&E"), and ______, a ______("______"). PG&E and ______ are sometimes collectively referred to as the "Parties" or individually as a "Party."
RECITALS
WHEREAS, each Party may disclose to and receive from the other Party Proprietary Information, as defined below in Paragraph 1, “Definition,” and
WHEREAS, each Party intends to protect, use, handle, and safeguard the Proprietary Information it receives from the other Party in accordance with the duties and responsibilities set forth herein, giving it the same degree of care as the receiving Party exercises with its own Proprietary Information to prevent its unauthorized disclosure, and
WHEREAS, it is to the mutual benefit of each Party to enter into this Agreement and provide for a procedure to exchange and protect Proprietary Information.
AGREEMENT
NOW, THEREFORE, for valuable consideration, the Parties agree as follows:
1. DEFINITION: "Proprietary Information" as used herein means information or data, including but not limited to: information relating to PG&E’s health and welfare plans, plan design, employee and participant-related information, information provided through RFP 6541 and PG&E’s business intentions relating to the foregoing, which the disclosing Party considers to be a trade secret, confidential or competitively sensitive. It may include written or verbal/visual information. In order to be considered Proprietary Information, (a) to the extent practical, written information must be identified at the time of the disclosure with an appropriate legend, marking, stamp or positive written identification on the face thereof as Proprietary Information, and (b) verbal or visual information must be so identified at the time of the disclosure. Magnetic tape, computer software or any other similar type of machine-readable format shall be considered as a verbal disclosure and the disclosing Party shall comply with the requirements for verbal disclosures set forth above.
2. PURPOSE AND USE: The purpose of this Agreement is to permit each Party to transmit or exchange Proprietary Information to or with the other Party for the purpose of evaluating and reviewing such Information in connection with the following: PG&E Health & Welfare Administration Outsourcing RFP #6541. The receiving Party shall use any Proprietary Information received hereunder only for internal evaluation and use consistent with the purpose of this Agreement. Any other use shall be only with the prior written consent of the disclosing Party.
3. NON DISCLOSURE: Subject to Paragraph 6, “Exceptions to Non Disclosure,” each Party agrees to keep Proprietary Information received from the other Party in confidence and not disclose such Information to third parties (including but not limited to any affiliate of PG&E that produces energy or energy-related products or services) or any other persons except employees, agents, consultants, or subcontractors of the receiving Party with a "need to know" in order to accomplish the sole purpose stated above, and provided that such third parties shall first have agreed in writing to be bound by a like obligation of confidentiality with respect to such Proprietary Information as the receiving Party is bound.
4. OWNERSHIP OF PROPRIETARY INFORMATION: All Proprietary Information delivered by either Party to the other Party pursuant to this Agreement shall be and remain the property of the disclosing Party. Any written analyses or summaries of Proprietary Information created by the receiving Party or its agents shall remain the property of the disclosing Party. The receiving Party shall promptly return to the disclosing Party all such Proprietary Information, and any copies thereof, upon written request.
5. NO LICENSE RIGHTS: This Agreement and any Proprietary Information used or disclosed hereunder shall not be construed as granting, expressly or by implication, the receiving Party any rights by license or otherwise to such Proprietary Information or to any invention or patent or patent application now or hereafter owned or controlled by the disclosing Party.
6. EXCEPTIONS TO NON DISCLOSURE: Notwithstanding Paragraph 3, “Non Disclosure,” neither Party shall be liable under this Agreement for a disclosure or use of Proprietary Information received hereunder where the Proprietary Information:
6.1 was in the public domain at the time of the disclosure or is subsequently made available to the general public without restriction and without breach of this Agreement by the receiving Party; or
6.2 was known by the receiving Party at the time of disclosure without restrictions on its use, or was independently developed by the receiving Party without reliance on, use of, or strategic guidance derived from the Proprietary Information, each as shown by adequate documentation; or
6.3 is disclosed to the receiving Party by a third party without restriction and without breach of any agreement; or
6.4 is disclosed with the prior written approval of the disclosing Party; or
6.5 is used or disclosed pursuant to a court order, subpoena or other lawful order of a court or governmental authority of competent jurisdiction, provided that prior to such disclosure, the disclosing Party is given prompt notice of the required disclosure so that it may take whatever action it deems appropriate, including intervention in any proceeding and the seeking of an injunction to prohibit such disclosure; or
6.6 is used or disclosed by the receiving Party after a period three (3) years from date of receipt.
7. INJUNCTIVE RELIEF: Each Party hereby acknowledges and agrees that because (a) an award of money damages is inadequate for any breach of this Agreement, and (b) any breach causes the disclosing Party irreparable harm, for any violation or threatened violation of any provision of this Agreement, in addition to any remedy the disclosing Party may have at law, the disclosing Party is entitled to equitable relief, including injunctive relief and specific performance, without proof of actual damages.
8. LIMITATION OF LIABILITY: NEITHER PARTY SHALL BE LIABLE FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE. IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF PG&E ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED $100,000 (ONE HUNDRED THOUSAND DOLLARS) WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE.
9. TERM: The term of this Agreement shall be two (2) years from the effective date set forth above; provided however, that either Party may terminate this Agreement by giving the other Party thirty (30) days written notice. Termination shall not abrogate either Party's obligations hereunder for Proprietary Information received prior to the date of termination. The nondisclosure provisions of this Agreement shall survive the termination hereof and shall continue for a period of three (3) years from the date of receipt of the Proprietary Information by the receiving Party.
10. RETURN OF PROPRIETARY INFORMATION: Upon termination of this Agreement, each Party shall promptly return to the other Party any and all Proprietary Information, including copies thereof received under this Agreement, unless otherwise instructed in writing by the disclosing Party.
11. GENERAL PROVISIONS
11.1 NOT A JOINT VENTURE: Each Party shall use its own resources and funds in carrying out the provisions of this Agreement, and neither Party shall be required to reimburse the other for expenditures or costs incurred hereunder. This Agreement shall not constitute, create or otherwise imply a joint venture, teaming or pooling agreement, partnership or business combination of any kind.
11.2 NO FUTURE CONTRACT RIGHTS: This Agreement and the disclosure of Proprietary Information hereunder is not an offer, promise or acceptance of any future contract or amendment of any existing contract. Each Party shall retain such rights with respect to its own Proprietary Information as it had prior to entering into this Agreement. Unless and until a definitive agreement has been executed and delivered between the Parties relating to the subject matter of this Agreement, neither Party shall have any legal obligation with respect to any contemplated transaction because of this Agreement or any other written or oral expression with respect to any transaction except, in the case of this Agreement, for the matters specifically agreed to herein.
11.3 NO WARRANTIES OR REPRESENTATIONS: Neither Party makes any warranty or representation of any kind, either express or implied, concerning the Proprietary Information exchanged under this Agreement. The receiving Party shall not rely on the Proprietary Information for any purpose other than to make its own evaluation thereof.
11.4 GOVERNING LAW: This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, without regard to its conflict of laws principles.
11.5 BINDING AGREEMENT: This Agreement shall be binding upon the Parties, their successors and assigns. Neither Party shall assign this Agreement nor any Proprietary Information received from the other Party pursuant to this Agreement without the other Party's prior written consent.
11.6 COMPLETE AGREEMENT; MODIFICATIONS AND CONFLICTS: This Agreement contains the entire understanding between the Parties with respect to Proprietary Information received hereunder. No change or modification shall be made effective unless in writing and signed by an authorized representative of each Party. Any conflict between the language on any specified legend or stamp on any Proprietary Information received hereunder and this Agreement shall be resolved in favor of the language of this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement by their authorized representatives as of the date set forth above.
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PACIFIC GAS AND ELECTRIC COMPANY,
a California corporation
______
Signature
______
Name
______
Title
______
Date
[insert FULL COMPANY NAME]
______
Signature
______
Name
______
Title
______
Date
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