Appendix D1- Non Disclosure Agreement .docx

Appendix D1

Procurement Office (Purchasing and Contracts) 601 East 18 th Avenue, Suite 180 Denver, CO 80203

Non-Disclosure Agreement (“Agreement”)

In consideration of the State of Colorado (“State”) acting by and through Governor’s Office of Information Technology (“OIT”) disclosing either directly or indirectly to ____________________________________ (insert company name) employees, agents, contractors, subcontractors, or respective heirs, legal representatives, successors, and assigns (collectively “You” or “Your”) Confidential Information of the State, OIT or OIT’s contractors and subcontractors, You agree as follows:

1. “Confidential Information” includes any and all information that is sensitive, confidential, proprietary, copyrighted, and/or considered a trade-secret, whether in oral and/or written form, obtained from OIT during discussions or communications with You. Confidential Information may include, but shall not be limited to, information concerning the State’s and OIT’s systems, staff, telephone numbers, any and all taxpayer information (name, phone numbers, social security numbers, benefits received, taxes paid, etc.), processes, current architecture (including hardware, middleware, software, etc.), source code, passwords, security architecture, security management, security audits, intellectual property, current services, services not yet publicly announced, strategic plans, operating costs and budgets, financials, HIPAA and PII data as defined by law, and so forth.

2. You shall institute special precautions to protect OIT’s Confidential Information from misuse, unauthorized intrusion, duplication, transmittal, theft, alteration, modification or deletion.

3. You agree the Confidential Information is confidential and proprietary to OIT and You agree not to disclose or provide any Confidential Information to any other party without OIT’s written permission. Unauthorized use or disclosure of the Confidential Information may cause irreparable harm to OIT for which You will be held liable for.

4. You agree to promptly report any unauthorized use or disclosure to the OIT representative identified below and shall provide reasonable assistance to OIT to bring about the cessation of such unauthorized use or disclosure.

Judy Giovanni, Purchasing Agent Governor’s Office of Information Technology 601 E 18th Ave, Suite 150 Denver, CO 80203 Phone: 303-764-7931 E-mail: judy.giovanni@state.co.us

5. You may use the Confidential Information only for the purpose of providing feedback to OIT in accordance with the direction OIT provides You. You will not, at any time, use the Confidential Information in any other fashion, form, or manner or for any other purpose.

6. You agree not to disclose the Confidential Information in any manner to anyone other than persons within the undersigned's organization and with employees of the State (and other contractors/subcontractors as identified by OIT) who have a need to know for the purpose set forth above and who have acknowledged in writing the obligations hereunder and have agreed to abide by the terms hereof. Under no circumstances will You disclose the Confidential Information to any third party without express prior written consent of OIT.

7. You agree that any Confidential Information in whatever form is, as between OIT and You, the property of OIT and shall remain so at all times. You may not copy any Confidential Information for any purpose without the express prior written consent of OIT, and if consent is granted, any such copies shall contain such confidential/proprietary rights notices as appear on the original. Any copies of Confidential Information that OIT may have permitted You to make, or other written materials incorporating Confidential Information, shall be the sole property of OIT and must be returned to OIT or destroyed upon the first to occur of (a) completion of Your use of the same for the purpose described above or (b) the request by OIT.

8. Nothing in this Agreement shall prohibit or limit Your use of information You can demonstrate is (i) previously known to You, (ii) independently developed by You, (iii) acquired by You from a third party not under similar nondisclosure obligations to the State or OIT, or (iv) which is or becomes part of the public domain through no breach by You of this Agreement.

9. License to any trade secrets, copyrights, or other rights of OIT is not granted by this Agreement or to any disclosure of Confidential Information hereunder.

10. You acknowledge that the Confidential Information disclosed and/or made available to You hereunder is valuable to OIT and that any threatened or actual breach of this Agreement would cause irreparable injury to OIT, for which monetary damages would be inadequate. Accordingly, You agree that OIT shall have the right to seek an immediate injunction enjoining any such breach or threatened breach of this Agreement and liquidated damages in the amount of One Hundred Thousand and 0/100 Dollars ($100,000.00). You agree to be responsible for all costs including, but not limited to, attorney fees incurred by OIT in any action enforcing the terms of this Agreement and the undersigned hereby agrees to hold OIT harmless and to defend any and all lawsuits brought by reason of Your disclosure of such Confidential Information. Additionally, disclosure of Confidential Information by You for any reason may be cause for legal action by third parties against the State, OIT, or their respective agents. As a result, You shall indemnify, save, and hold harmless the State and OIT, its employees and agents, against any and all claims, damages, liability and court awards including costs, expenses, and attorney fees and related costs, incurred as a result of any act or omission by You pursuant to this Agreement.

11. You agree not to engage in any business or personal activities or practices or maintain any relationships which conflict in any way with the full performance of Your obligations hereunder. You acknowledge that with respect to this Agreement, even the appearance of a conflict of interest is harmful to the State’s and/or OIT’s interests. Absent OIT’s prior written approval, You agree to refrain from any practices, activities or relationships that reasonably appear to be in conflict with the full performance of Your obligations to OIT hereunder. If a conflict or appearance exists, or if You are uncertain whether a conflict or the appearance of a conflict of interest exists, You shall submit to OIT a disclosure statement setting forth the relevant details for OIT’s consideration. Failure to promptly submit a disclosure statement or to follow OIT’s direction in regard to the apparent conflict constitutes a breach of this Agreement.

12. This Agreement shall become effective as of the date any Confidential Information is first made available to You and shall terminate the later of five (5) years from either the termination of this Agreement or the date Your signature is affixed below. Notwithstanding anything to the contrary herein, Your responsibilities as they relate to Confidential Information shall survive the termination of this Agreement.

13. This Agreement may be executed in multiple identical original counterparts, all of which shall constitute one (1) binding agreement.

14. Except as specifically provided in this Agreement, modifications of this Agreement shall not be effective unless agreed to in writing by both parties in an amendment to this Agreement, properly executed and approved in accordance with applicable law and individuals legally authorized to act on behalf of the parties.

15. Except as otherwise provided herein, all provisions herein contained, including the benefits and burdens of the Parties, shall extend to and be binding upon the Parties’ respective heirs, legal representatives, successors, and assigns.

16. If any provision or part of any provision in the Agreement is void for any reason, it shall be severed without affecting the validity of the balance of the Agreement.

17. Within ten (10) days after being served with any pleading in a legal action filed with a court or administrative agency, related to this Agreement or which may affect Your ability to perform the obligations hereunder, You shall notify OIT of such action and deliver copies of such pleadings to OIT’s representative as identified in §4 of this Agreement.

18. The laws of the State of Colorado shall govern this Agreement.

19. Waiver of any breach under a term, provision, or requirement of this Agreement, or any right or remedy hereunder, whether explicitly or by lack of enforcement, shall not be construed or deemed as a waiver of any subsequent breach of such term, provision or requirement, or of any other term, provision, or requirement.

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By signing below You certify that You have read this Agreement and that You have been advised of the confidentiality requirements and You agree to will comply therewith. You hereby swear and affirm that You are authorized to act and bind the individual and/or company You are acting on behalf of and acknowledge that OIT is relying on Your representations to that effect.

Company’s legal name __________________________________________________________________

Authorized Individual & Title ______________________________________________________________

By:

555 Street Address, Room 555, Denver, CO 55555-5555 P 555.555.5555 F 555.555.5555 www.colorado.gov/ xxx 601 East 18th Avenue, Suite 250 , Denver, CO 80203 P 303.764.7700 F 303.764.7725 www.colorado.gov/ oit image1.png image2.png image3.png