Attachment_5-_Confidential_Disclosure_Agreement.docx

Attachment 5

CONFIDENTIAL DISCLOSURE AGREEMENT

6/12/2019

This Confidential Disclosure Agreement (“Agreement”), effective as of ____________ (“Effective Date”), is made by and between the Department of Health and Human Services (“HHS” or “Government”) and _____________, (“Recipient”), having its principal office at ________________________. HHS and Recipient are referred to individually herein as a “Party” and, collectively, as the “Parties”.

HHS desires to provide the Emergency Response Support Services (ERSS) IDIQ Solicitations and Contract/Task Order award documents to Recipient, and any subcontractors of the Recipient, in accordance with the terms and conditions of this Agreement. The purpose of this solicitation and potential contract is to provide the Government with ERSS services (“Purpose”).

NOW, THEREFORE, in consideration of the foregoing and subject to the covenants and conditions set forth herein, the Parties agree as follows:

1. Treatment of Confidential Information. The Recipient shall guarantee strict confidentiality of any information/data of a sensitive nature that is provided by the Government during the solicitation of this award and/or the performance of any resulting contract or task order. The Government has determined that the information/data that the Recipient will be provided during the solicitation and potential performance of the contract is of a sensitive nature. Disclosure of information/data that is sensitive in nature, in whole or in part, by the Recipient can only be made after the Recipient receives prior written approval from the Contracting Officer. Whenever the Recipient is uncertain with regard to the proper handling of information/data under the contract, the Recipient shall obtain a written determination from the Contracting Officer. (See also HHSAR clause 352.224-70).

Notwithstanding the foregoing, such information/data shall not be deemed of a sensitive nature with respect to the Recipient if such information/data: (a) was already known to the Recipient; (b) was generally available or known, or was otherwise part of the public domain, at the time of its disclosure to the Recipient; (c) became generally available or known, or otherwise became part of the public domain, after its disclosure to, or, with respect to the information/data by, the Recipient through no fault of the Recipient; (d) was disclosed to the Recipient, other than under an obligation of confidentiality or non-use, by a third party who had no obligation to the Government that controls such information/data not to disclose such information/data to others; or (e) was independently discovered or developed by the Recipient, as evidenced by its written records, without the use of information/data belonging to the Government.

Recipient may disclose information/data of a sensitive nature provided by the Government to the extent that such disclosure is: (a) made in response to a valid order of a court of competent jurisdiction or other supra-national, federal, national, regional, state, provincial or local governmental or regulatory body of competent jurisdiction; provided, however, that the Recipient shall first have given notice to the Government and give the Government a reasonable opportunity to quash such order and to obtain a protective order requiring that the information/data of a sensitive nature that is the subject of such order be held in confidence by such court or agency or, if disclosed, be used only for the purposes for which the order was issued; and provided further that if a disclosure order is not quashed or a protective order is not obtained, the information/data disclosed in response to such court or governmental order shall be limited to that information which is legally required to be disclosed in response to such court or governmental order; (b) otherwise required by law, in the opinion of legal counsel to the Recipient as expressed in an opinion letter in form and substance reasonably satisfactory to the Government, which shall be provided to the Government at least two (2) business days prior to the Recipient’s disclosure of the information/data; or (c) made by the Recipient to the Regulatory Authorities as required in connection with any filing, application or request for Regulatory Approval; provided, however, that reasonable measures shall be taken to assure confidential treatment of such information/data.

2. Use of Confidential Information. Recipient shall not any information obtained during the solicitation or performance of this contract for any purpose except for the Purpose. Recipient may disclose information pertaining to this solicitation or the resulting contract on a need-to-know basis to its employees, officers, directors, consultants, subcontractors, vendors, or agents, provided that those entities are legally bound to protect the confidentiality of this solicitation and/or contract under terms at least as restrictive as those provided in this Agreement, subject to the provisions of Section 4, below. Recipient shall immediately notify HHS in the event of any unauthorized use or disclosure of information obtained from this solicitation or the resulting contract.

3. Representations and Warranties. Each Party hereby represents and warrants that it has the full right and authority to enter into this Agreement. Recipient represents and warrants that it will use its best efforts to protect the secrecy of and avoid disclosure and unauthorized use of any and all information obtained via the DMAT IDIQ and any resulting contract and task orders. Without limiting the foregoing, Recipient shall take at least those measures that Recipient takes to protect its own confidential information, but in no event less than a reasonable degree of care.

4. Term and Termination; Binding Effect. This Agreement shall continue in effect for the period of performance of any resulting contract and task orders. The Recipient’s obligations of confidentiality, nondisclosure, and nonuse under this Agreement shall survive any expiration or termination of the final Task Order or resulting contract (whichever is later) for a period of ten (10) years. Recipient shall exercise all commercially reasonable good faith efforts to secure the same period of continuing obligation from any consultants, subcontractors, vendors, or agents, but, in any event, shall agree that such obligations survive the applicable agreement between Recipient and such consultant, subcontractor, vendor, or agent for a period of no less than (5) years. All terms and provisions of this Agreement shall be binding on the Parties and their respective successors and permitted assigns.

5. Return/Destruction. Upon written request of HHS, at any time during the term or upon termination or expiration of this Agreement, Recipient shall, at its own cost and expense, promptly return the solicitation and any resulting contract or task order documents to HHS or destroy all copies thereof; provided, however, that Recipient may retain one (1) copy in secured storage for record-keeping purposes only.

6. Entire Agreement; Counterparts; Miscellaneous. This Agreement contains the entire understanding of the Parties with respect to the provision and disclosure of the DMAT IDIQ solicitation and any resulting contract/task orders. Signatures upon this Agreement transmitted by facsimile or electronic mail shall have the same legal and binding effect as original signatures.

IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the Effective Date by signature of their duly authorized officers.

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