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HomeMy WebLinkAboutData Sharing Agreement - Uptake Technologies Inc - Authorization to Collect Data from IT network monitoring devicesDATA SHARING AGREEMENT This Data Sharing Agreement and all exhibits hereto (the "Agreement") is entered into as of November 14, 2017 (the "Effective Date"), between Uptake Technologies, Inc., a Delaware Corporation located at 600 W. Chicago Ave, Suite 620, Chicago, Illinois 60654 ("Uptake") and the City of South Bend, Indiana ("Data Provider") (each, a "party" and, collectively, the "parties"). WHEREAS, Data Provider is in control of certain data related to its operations and wishes for Uptake to access such data for the limited purposes outlined in this Agreement; NOW, THEREFORE, the parties hereby agree as follows: 1. Data Access. 1.1 Delivery. Data Provider will make available to Uptake, in a manner and by means determined by mutual agreement, the information described in Exhibit A hereto (hereinafter, "Data"). The term "Data" includes such information as may be revised or supplemented by Data Provider during the term of this Agreement. 1.2 License. From and after Data Provider's delivery of the Data to Uptake, and subject to any additional rights or restrictions set forth in Exhibit A hereto, Data Provider hereby permits Uptake to review, reproduce, modify, and otherwise use the Data (in whole or in part) for the purposes set forth in Exhibit A ("Purposes"). At any time and for any reason or no reason, Data Provider may revoke and termination its permission of such use of the Data by Uptake. 2. Confidentiality. Uptake will not disclose, or permit to be disclosed, the Data to any third party without Data Provider's prior written consent, except that Uptake may disclose the Data to Uptake's employees and agents who have a need to know and who are bound in writing to keep such information confidential pursuant to confidentiality agreements consistent with this Agreement. Uptake will exercise due care in protecting the Data from unauthorized use and disclosure, and in any case will not use less than the degree of care Uptake uses in protecting its own confidential data against unauthorized disclosure. Upon expiration or termination of this Agreement, and upon Data Provider's written request to Uptake, Uptake will return to Data Provider or destroy and certify such destruction, all copies of the Data within thirty (30) days of the written request. The foregoing restrictions will not apply to any information that: (a) was in the public domain or was lawfully in Uptake's possession at the time it was delivered or communicated to Uptake by Data Provider; (b) entered the public domain subsequent to the time it was made available to Uptake through no fault of Uptake or any of its employees or agents to whom Uptake granted access to the Data; (c) was developed by employees or agents of Uptake independently of and without reference to any information communicated to Uptake by Data Provider; or (d) is expressly permitted to be disclosed pursuant to the terms of this Agreement. Notwithstanding the above, Uptake shall not be in violation of this Section with regard to a disclosure that was in response to a valid order by a court or other governmental body, provided that, to the extent permitted by law, Uptake provides Data Provider with prior written notice of such disclosure in order to permit Data Provider to seek a protective order or other confidential treatment of such information. The parties mutually agree and acknowledge that no term of this Section 2 will be construed to supersede, limit, or otherwise impair the parties' respective rights and obligations under the parties' Mutual Non -Disclosure Agreement dated July 12, 2017. 3. Data Export. In order to fulfill the Purposes of this Agreement, Uptake may need to provide the Data to Uptake employees or agents located in the United States, and Uptake may do so without seeking prior consent from Data Provider. Before providing any of the Data to any of its employees or agents outside of the United States, Uptake must obtain Data Provider's prior written consent to such provision, which consent Data Provider may withhold, condition, or deny in its sole discretion. 4. Ownership. 4.1 Data Provider Data. Subject to the rights granted to Uptake in this Agreement, Data Provider will retain and own all right, title, and interest in and to the Data. Uptake will not disclose, lease, rent, loan, or otherwise transfer the Data to any third party. 4.2 Ownership. Uptake will own all right, title, and interest (including all intellectual property rights) in and to any information and/or intellectual property created or generated by or on behalf of Uptake through its access, review, reproduction, modification, analysis, derivation, or any other use of the Data. Uptake will retain all right, title and interest in and to its proprietary data analytics ingestion engine, software tools, and platform. 5. Term and Termination. 5.1 Term. This Agreement will begin on the Effective Date and will continue until terminated in accordance with Section 5.2, 5.2 Termination. Either party may terminate this Agreement immediately upon written notice of termination delivered to the other party. 5.3 Survival. Upon the expiration or termination of this Agreement for any reason, the following sections will continue to govern the parties and any Data that was accessed by Uptake prior to such expiration or termination: 2 (Confidentiality), 4 (Ownership), 5.3 (Survival), 7 (Warranty Disclaimer), and 8 (General). 6. Warranty. Data Provider expressly represents and warrants that it has the authority to allow Uptake to possess, transfer, and process the Data as necessary for the Purposes. 7. _Warranty Disclaimer. EXCEPT ANY EXPRESS WARRANTIES THAT MAY BE MADE IN SECTION 6 OF THIS AGREEMENT, ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AS TO ALL DATA, PRODUCTS, AND SERVICES, ARE HEREBY DISCLAIMED BY BOTH PARTIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE DATA ARE PROVIDED "AS IS," WITHOUT ANY WARRANTY WHATSOEVER. S. General. 8.1 Governing Law, Jurisdiction and Venue. This Agreement will be governed by and interpreted in accordance with the laws of the State of Indiana, without reference to conflict of laws principles. The parties hereby expressly consent to the jurisdiction and venue of the courts located in St. Joseph County, Indiana, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts. Each party may seek injunctive or other emergency relief in any competent court located in St. Joseph County, Indiana. 8.2 Partial Invalidity. If any provision in this Agreement is found or be held to be invalid or unenforceable in any jurisdiction in which this Agreement is being performed, then the meaning of said provision will be construed, to the extent feasible, so as to render the provision enforceable, and if no feasible interpretation would save such provision, it will be severed from the remainder of this Agreement, which will remain in full force and effect. In such event, the parties will negotiate, in good faith, a substitute, valid and enforceable provision which most nearly effects the parties' intent in entering into this Agreement. 8.3 Independent Contractors. The parties hereto are independent contractors. Nothing contained herein or done in pursuance of this Agreement will constitute either party the agent of the other party for any purpose or in any sense whatsoever, or constitute the parties as partners or joint venturers. 8.4 Publicity. Neither party shall make reference to the other party in a press release or any other written statement in connection with the subject matter of this Agreement without the other parry's prior consent, which consent shall not be unreasonably withheld, if it is intended for use in the news media. If there is no notice of disapproval within one hundred twenty (120) hours after delivery to the other party for its review, any press release or related materials delivered by the requesting party shall be deemed approved. Notwithstanding the foregoing, Uptake shall be permitted to use Data Provider's name in a list of partners, which may also include a brief description of the Purposes. 8.5 Modification. No alteration, amendment, waiver, cancellation or any other change in any term or condition of this Agreement will be valid or binding on either party unless the same is mutually assented to in writing by both parties. 8.6 Waiver, The failure of either party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by the other party of any of the provisions of this Agreement, will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of either party to enforce each and every such provision thereafter. The express waiver by either party of any provision, condition or requirement of this Agreement will not constitute a waiver of any future obligation to comply with such provision, condition or requirement. 8.7 Assignment. Neither party may assign this Agreement (by operation of law or otherwise) hereunder without the prior written consent of the other party. Any attempted assignment in violation of this section shall be void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. 8.8 Notices. Any notice required or permitted to be given by either party under this Agreement will be in writing and will be personally delivered or sent by commercial courier service, by first class mail (certified or registered if available), or by email confirmed by first class mail (registered or certified if available), to the other party at its address first set forth above, or such new address as may from time to time be supplied hereunder by the parties hereto. If mailed, notices will be deemed effective five (5) business days after deposit, postage prepaid, in the mail. 8.9 Force Majeure. Notwithstanding anything else in this Agreement, no default, delay or failure to perform on the part of either party will be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond reasonable control of the party charged with a default, including, but not limited to, causes such as strikes, lockouts or other labor disputes, riots, civil disturbances, actions or inactions of governmental authorities or suppliers, epidemics, war, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy, nuclear disasters, or default of a common carrier. 8.10 Entire Agreement. Except as specified in Section 2, the terms and conditions herein contained, including all exhibits hereto, constitute the entire agreement between the parties and supersede all previous agreements and understandings, whether oral or written, between the parties hereto with respect to the subject matter hereof. 8.11 Indemnification. Uptake will indemnify, defend, and hold harmless Data Provider (and its employees, officials, contractors, and agents) from and against any and all damages, losses, costs, and liabilities of any kind that Data Provider (or its employees, officials, contractors, or agents) may suffer arising but of Uptake's acceptance, review, reproduction, modification, processing, or other use of the Data, in each case that does not comply with the terms of this Agreement. Data Provider will indemnify, defend, and hold harmless Uptake (and its employees, officials, contractors, and agents) from and against any and all damages, losses, costs, and liabilities of any kind that Uptake (or its employees, officials, contractors, or agents) may suffer arising out of Data Provider's breach of Section 6. [Signature.page follows.] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed by duly authorized officers or representatives as of the Effective Date. Uptake Technologies, Inc. By: Print Name: Title: Date: 3000.0000003 54894641.004 City of South Bend Board of ublic Works mpyn Gary Gilot, Pifesident James Mueller, Member ATTEST: �Einda Martin, Clerk 4 EXHIBIT A Description of Data: All data delivered by Data Provider to Uptake under this Agreement, which will be limited to the following and will in no event include any personally identifiable information (including protected health information and financial and payment card information): (a) Data from IT network monitoring devices (firewall, etc.) (b) Data from EmNet or other telemetric sensors (c) SGADA data (d) Work order and maintenance management data re: wastewater facilities (e) Public Works (but not public safety) vehicle fleet data (fuel, maintenance, location history) Purpose of Use: Uptake may use the Data in whole or in part for its own internal research and development purposes. Uptake may disclose the anonymized results of its analysis of the Data (but not the Data itself) to the public after obtaining Data Provider's prior written consent, which consent Data Provider will not unreasonably withhold, condition, or delay. Fees: None. Additional Terms: None. c r 1