08A8E1A0-0DBB-43C6-987E-571E1DDD0995.pdf

MUTUAL NON-DISCLOSURE AGREEMENT FOR DEPARTMENT OF TECHNOLOGY PROCUREMENTS

Consistent with the requirements of Ohio Revised Code §9.64 related to political subdivision cybersecurity and Ohio Revised Code §149.433 exempting security and infrastructure records from disclosure, this Mutual Non-Disclosure Agreement (“Agreement”) is made and entered into between (“Company”), to include its employees, agents, directors, officers, and representatives, and the City of Columbus, a municipal entity (“City”), and collectively, the “Parties”). The Parties wish to exchange Confidential Information (as defined in Section 2) for the following purpose(s): (a) to evaluate whether to bid for a contemplated business transaction (“Transaction”); and (b) if the Parties enter into an agreement related to such Transaction, to fulfill each party’s confidentiality obligations to the extent the terms set forth below are incorporated therein (the “Purpose”). The Parties enter into this Agreement to protect the confidentiality of information in accordance with the following terms:

1. The Effective Date of this Agreement is the date the last party below signs.

2. In connection with the Purpose, a party may disclose certain information it considers confidential and/or proprietary (“Confidential Information”) to the other party, including, but not limited to, tangible, intangible, oral, visual, electronic present, and/or future information, however and whenever acquired, including, but not limited to, by post, fax, e-mail, text message (SMS), or pre-bid walkthrough, such Confidential Information to include, but not be limited to: (a) trade secrets (whether or not subject to or protected by copyright, patent, or trademark (registered or unregistered); (b) financial information, including pricing; (c) technical information, including research, development, procedures, algorithms, data, designs, and know-how; (d) business information, including operations, planning, marketing interests, and products; (e) infrastructure records and security records, as defined by Ohio Revised Code Section 149.433(A) and Ohio Revised Code Section 9.64(F); (f) information technology, network, and systems architecture, security controls, tools, and practices, source code, object code, algorithms, database schemas, data models, and technical documentation, identities, configurations, contractual terms, access privileges, service providers, contractors, or managed service/security providers, internal organizational information relating to information technology or associated personnel (including roles, responsibilities, reporting structures, and access privileges), any known or suspected vulnerabilities, defects, or security gaps therein, and any other information or records the disclosure of which could be reasonably foreseen to substantially increase the likelihood of a security breach; and/or (g) the terms of any agreement entered into between the parties as well as the discussions, negotiations, and proposals related thereto, to the extent that such terms include information described in (a) through (e).

3. The Parties acknowledge that City is a public office subject to Ohio’s Public Records Law (Ohio Revised Code Section 149.43) (the

“Act”). The Act generally requires the City, upon proper request, to prepare and make available “public records” (as defined in the Act) within a reasonable period of time, unless the subject of the requested records fall within one of the exemptions from the Act’s disclosure requirements. The Parties recognize and acknowledge that certain types of records are exempted from the Act’s disclosure requirements, including the following: trade secrets and economic development project information (Ohio Revised Code Sections

122.36 and 1333.61 et seq.); tax returns and related information (Ohio Revised Code Sections 718.13, 5703.21, 5711.101); records confidential under other state or federal law (Ohio Revised Code Section 149.43(A)(1)(v)); internet access to social security numbers (Ohio Revised Code Section 149.45); certain financial information (Ohio Revised Code Section 122.75); certain materials and data relating to “energy resource development facilities” as defined in Ohio Revised Code Section 1551.01(B) (Ohio Revised Code Section 1551.11(B)); security and infrastructure records (Ohio Revised Code Section 149.433); records, documents, or reports related to the City’s cybersecurity program and framework as well as any reports pertaining to a cybersecurity incident or ransomware incident pertaining to the City (Ohio Revised Code Section 9.64); and certain records received by JobsOhio (Ohio Revised Code Section 187.04(C)(2)).

4. In the event that City receives a request for records pursuant to the Act and related to the Transaction or the Company, the City shall provide a copy of that request to the Company. If Company, within 10 business days of being notified, does not / take action to prevent the release of such records, including seeking an injunctive order from a court of competent jurisdiction, City shall release the requested records in accordance with the Act and shall have no liability for the release.

5. The Parties agree that certain information provided to the City by or on behalf of the Company may be exempt from the disclosure requirements of the Act. The Company hereby agrees to designate in writing any information provided to the City that the Company considers to be exempt from disclosure requirements of the Act (collectively, “Exempted Materials”). Any Exempted Materials related to the Project or the Company and clearly marked as such by the Company, including such Exempted Materials subsequently incorporated in materials produced by the City for its own purposes, shall be treated by the City as exempt from disclosure under the Act, and not as public records, and the City will not release such Exempted Materials (including any component information contained therein) to any third party without prior written notice to the Company, per Section 4 above, or unless mandated by a court of competent jurisdiction. It will be the responsibility of Company, not City, to defend the designation of any information as exempt from disclosure under the Act, including initiation of any court proceedings necessary to prevent disclosure as a public record. Company shall indemnify the Cityagainst all costs, expenses, and damages, including without limitation attorneys’ fees incurred by reason of that dispute.

6. Unless requested and disclosed pursuant to the Act, per Sections 4 and 5, the party receiving Confidential Information (a “Recipient”) will have a duty to protect Confidential Information disclosed to it by the other party (“Discloser”) only: (a) if it is clearly and conspicuously marked as “confidential” or with a similar designation; (b) if it is identified by the Discloser as confidential and/or proprietary before, during, or promptly after presentation or communication.

7. A Recipient will use the Confidential Information only for the Purpose described above. A Recipient will use the same degree of care, but no less than a reasonable degree of care, as the Recipient uses with respect to its own information of a similar nature to protect the Confidential Information and to prevent: (a) any use of Confidential Information in violation of this Agreement; and/or (b) communication of Confidential Information to any unauthorized third parties. Confidential Information may only be disseminated to Recipient and to employees, officers or directors of Recipient with a need to know and who have first been notified by Recipient of this Agreement and its terms and instructed by Recipient to comply with them (collectively, “Authorized Personnel”). A Recipient acknowledges that a breach of this agreement causes irreparable harm. A Recipient will be liable as primary obligor for any breaches of this Agreement notwithstanding that such breaches were committed by Authorized Personnel (with or without Recipient’s knowledge). Nothing in this paragraph is meant to waive any and all immunity the City, in the event it is the Recipient, may have as a municipality under the laws of the State of Ohio.

8. Each party will not do the following, except with the advanced review and written approval of the other party: (a) issue or release any articles, advertising, publicity or other matter relating to this Agreement (including the fact that a meeting or discussion has taken place between the parties, unless required under applicable law) or mentioning or implying the name of the other party; or (b) make copies of documents containing Confidential Information.

9. This Agreement imposes no obligation upon a Recipient with respect to Confidential Information that: (a) the Recipient can demonstrate was already in the Recipient’s actual possession or knowledge and which the Recipient lawfully acquired other than from the Discloser; (b) is or becomes publicly available through no fault, action, omission or intervention of the Recipient; (c) is received by the Recipient from a third party without a duty of confidentiality (express or implied) owed to the Discloser; (d) is independently developed by the Recipient without a breach of this Agreement; (e) is disclosed by the Recipient with the Discloser’s prior written approval; or (f) is required to be disclosed by operation of law, court order or other governmental demand (“Process”); provided that

(i) the Recipient will promptly notify the Discloser of such Process; and (ii) the Recipient will not produce or disclose Confidential Information in response to the Process unless the Discloser has: (a) requested protection from the legal or governmental authority requiring the Process and such request has been denied; (b) consented in writing to the production or disclosure of the Confidential Information in response to the Process; or (c) taken no action to protect its interest in the Confidential Information within 14 business days after receipt of notice from the Recipient of its obligation to produce or disclose Confidential Information in response to the Process.

10. EACH DISCLOSER WARRANTS THAT IT HAS THE RIGHT TO DISCLOSE ITS CONFIDENTIAL INFORMATION. NO OTHER

WARRANTIES ARE MADE. ALL CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER IS PROVIDED “AS IS”.

11. This Agreement will remain in effect until it is terminated by agreement of both Parties. Notwithstanding the foregoing, this Agreement will survive with respect to Confidential Information that is disclosed before the effective date of termination.

12. A Recipient, upon Discloser’s written request, will promptly return all Confidential Information received from the Discloser, together with all copies, or certify in writing that all such Confidential Information and copies thereof have been destroyed, unless returning or destroying such Confidential Information will violate Recipient’s record retention requirements under state law.

13. This Agreement imposes no obligation on a party to exchange Confidential Information, proceed with any business opportunity, or purchase, sell, license, transfer or otherwise make use of any technology, services or products.

14. Should the Company, to properly bid or as part of fulfilling the terms and conditions of any contract, need to share confidential information it receives with one or more subcontractors, Company shall provide each and every subcontractor with notice of this NDA Agreement and require each and every subcontractor to comply with this NDA Agreement.

15. No party acquires any intellectual property rights under this Agreement (including, but not limited to, patent, copyright, and trademark rights) except the limited rights necessary to carry out the Purpose in accordance with this Agreement.

16. Each party acknowledges that damages for improper disclosure of Confidential Information may be irreparable; therefore, the injured party is entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies available to it.

17. This Agreement does not create any agency or partnership relationship. This Agreement will not be assignable or transferable by either party

18. This Agreement may be executed in two or more identical counterparts, each of which will be deemed to be an original and all of which taken together will be deemed to constitute the agreement when a duly authorized representative of each party has signed the counterpart.

19. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes any prior oral or written agreements, and all contemporaneous oral communications. All additions or modifications to this Agreement must be made in writing and must be signed by the Parties. Any failure to enforce a provision of this Agreement will not constitute a waiver thereof or of any other provision.

20. This Agreement shall be subject to the laws of the State of Ohio and may only be enforced in the Franklin County Court of Common Pleas.

21. If any provision of this Agreement shall be deemed unenforceable, that provision shall be struck out and the remainder of this Agreement shall remain in full force and effect.

COMPANY: __________________________________________ PARTICIPANT: CITY OF COLUMBUS

Signature: ___________________________________________ Signature: ___________________________________________

Name: ______________________________________________ Name: ______________________________________________

Title: _______________________________________________ Title: ________________________________________________

Date: _______________________________________________ Date: _______________________________________________