2021/01/06 Council Agenda Packet

DocuSign Envelope ID: 35E2E030 AE55 4B92-80F9-06AD173830C7 Everett WA PD NDA #243 10/21/2020 Page 2 Upon the earlier of (a) ADT's request therefore or (b) any termination, expiration, or completion of this Confidentiality Agreement or Permitted Purpose whatsoever (each of (a) or (b), a 'Termination"), Recipient shall immediately and permanently: (i) cease all use of the ADT Information; (ii) return all ADT Information to ADT, or, at Recipient's option, destroy all ADT Information and certify such destruction to ADT in writing' and (iii) purge all ADT Information from its computer system. Notwithstanding any Termination or return purging, or destruction of any ADT Information this Confidentiality Agreement (and all of Recipient's obligations, covenants, representations, warranties, and indemnities hereunder) shall survive and continue in full force and effect in perpetuity with respect to all previously disclosed ADT Information. Recipient hereby agrees to be liable, to the extent permitted by applicable law, for any damages arising from Recipient's or Authorized Third Party Administrator's (if identified in the above opening paragraph) breach of this Confidentiality Agreement or its use or disclosure of any ADT Information. In addition, the parties agree that, to the extent permitted by applicable law, and without any further action on ADT's part, all ADT Information is and shall be: (i) ADT's confidential, privileged proprietary, and trade secret information under each applicable freedom of information act open records act public records act, sunshine act, or similar law (each, an "Open Records Act' ); (ii) deemed to be sufficiently marked and legends as such under each Open Records Act and (iii) exempt from disclosure or discovery under each Open Records Act. In the event that Recipient is requested or required by subpoena, court order, civil discovery device legal process, or law (including any Open Records Act) to disclose any ADT Information Recipient shall provide ADT with prompt written notice thereof. Upon ADT's failure to obtain an injunction or protective order against such requested or required disclosure, Recipient may disclose only that portion of the ADT Information required to comply with such law or court order. ALL ADT INFORMATION IS PROVIDED TO RECIPIENT "AS IS WHERE IS," AND "WITH ALL FAULTS." ADT MAKES NO (AND HEREBY DISCLAIMS ALL) EXPRESS AND IMPLIED REPRESENTATIONS AND WARRANTIES REGARDING ANY ADT INFORMATION, INCLUDING THE ACCURACY, MERCHANTABILITY, COMPLETENESS, NON -INFRINGEMENT, COMPATIBILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF ANY ADT INFORMATION. Recipient may use and rely upon ADT Information solely at Recipient's own sole risk, cost, and expense. Recipient hereby represents and warrants to ADT that this Confidentiality Agreement is enforceable against Recipient in accordance with its terms Neither this Confidentiality Agreement nor any use or disclosure of ADT Information by or to Recipient shall grant, convey, or transfer to Recipient any right, license, title, or interest in or to any ADT Information or any patent, copyright, trademark, service mark trade secret, or other proprietary right therein or thereto whether now existing or arising hereafter (collectively, 'IP Rights"), except for the limited, personal, revocable, non-exclusive, non-proprietary right granted to Recipient hereunder to use the ADT Information for the Permitted Purpose during the term hereof in compliance with this Confidentiality Agreement, which right shall automatically terminate on the effective date of any Termination. In all events, ADT shall be and remain the sole and exclusive owner of all ADT Information and all IP Rights therein and thereto. Recipient agrees, to the extent permitted by applicable law, to indemnify, defend and hold ADT harmless from and against any and all claims, actions, proceedings losses, liabilities, and damages, including reasonable attorneys' fees and costs, arising from or relating to Recipient's or its employees' or Authorized Third Party Administrator's (if identified in the above opening paragraph) breach of this Confidentiality Agreement. Notwithstanding the foregoing, the parties agree that any impending or actual breach or violation of any provision of this Confidentiality Agreement by Recipient would cause ADT irreparable harm for which ADT would have no adequate remedy at law Accordingly, in addition to the foregoing indemnity and all other rights and remedies that may be available to ADT, ADT shall be entitled to immediate injunctive and equitable relief prohibiting, remedying, or otherwise restraining any impending or actual breach or violation hereof by Recipient.