Armed Security Services Contractor NDA.docx

NON-DISCLOSURE AGREEMENT

This Non-Disclosure Agreement is between the Commonwealth of Pennsylvania (“Commonwealth”), acting by and through the Department of Military and Veterans’ Affairs (“Disclosing Party”) and _____________ (“Receiving Party”).

The Disclosing Party must share confidential information with the Receiving Party as a result of the armed security guard services that the Receiving Party pursuant to [Insert Contract Title and Number] (“Armed Security Services Contract”). To facilitate the sharing of this information, the parties have agreed to enter into an agreement that sets forth the terms and conditions under which the Disclosing Party will share that information with the Receiving Party.

The parties, intending to be legally bound, agree as follows:

1) The Disclosing Party will disclose or provide access to Confidential Information (as defined below) to the Receiving Party.

2) “Confidential Information” means any information the Disclosing Party directly or indirectly discloses to the Receiving Party in accordance with this agreement, including: (i) the Critical Information List, attached as Exhibit A; (ii) information marked as “private” or “confidential”; (iii) information of confidential nature that the Receiving Party becomes aware as a result to the provision of service pursuant to the Armed Security Services Contract; and (iv) information that due to its character and nature, a reasonable person under like circumstances would treat as confidential. Confidential Information may be furnished or observable in any tangible or intangible form, including written or printed documents, visual demonstrations, computer disks, tapes, other electronic media, and oral communication.

3) The restrictions of this agreement do not apply to Confidential Information that the Receiving Party demonstrates: (i) was available or became generally available to the public for reasons other than a disclosure by the Receiving Party or anyone to whom the Receiving Party permissibly disclosed the information; (ii) was available, or became available, to the Receiving Party on a non-confidential basis prior to its disclosure to the Receiving Party by the Disclosing Party or its representative, but only if the information was not made available through a breach of confidentiality owed to the Disclosing Party; (iii) was requested or legally compelled (by the Pennsylvania Right-to-Know Law, 65 P.S. § 67.101 et seq., oral questions, interrogatories, requests for information or documents, subpoena, civil or criminal investigative demand or similar process) or is required by applicable law or regulatory body to make any disclosure that is prohibited or otherwise constrained by this agreement; or (iv) was independently developed by the Receiving Party, as demonstrated by the Receiving Party’s written records, without use of or reference to, directly or indirectly, any Confidential Information. If the Receiving Party is compelled or otherwise required by law to disclose Confidential Information, the Receiving Party shall: (A) provide the Disclosing Party with prompt notice of any such request(s) so that the Receiving Party may seek an appropriate protective order or other remedy, and (B) provide reasonable assistance to the Disclosing Party in obtaining any such protective order. If such protective order or other remedy is not obtained or the Disclosing Party grants a waiver under this agreement, then the Receiving Party may furnish that portion (and only that portion) of the Confidential Information that the Receiving Party is legally compelled or is otherwise required to disclose. In such a case, the Receiving Party shall use reasonable efforts to obtain reliable assurance that confidential treatment will be afforded any Confidential Information so disclosed.

4) The Receiving Party shall take all appropriate action to ensure the confidentiality and security of the Disclosing Party’s Confidential Information, which obligation survives termination of this agreement. Without limiting the generality of the foregoing, the Receiving Party, unless otherwise approved in writing by the Disclosing Party, shall:

a. maintain the Disclosing Party’s Confidential Information in strict confidence;

b. use the Confidential Information only for the purpose of discussions with the Disclosing Party regarding the findings of reports required to be generated following a reportable incidents and courses of action that will appropriately resolve the problems identified in those reports. Reportable incidents include, but are not limited to, weapon discharges, breaches of security, accidents, procedural violations and injury to persons or property;

c. not disclose, distribute, publish, provide, transmit, or otherwise make available any of the Disclosing Party’s Confidential Information, in whole or part, except in confidence solely to those officers, directors, employees, or attorneys of the Receiving Party who have a reasonable need to know the Confidential Information; and

d. not copy or reproduce the Disclosing Party’s Confidential Information in whole or in part.

5) The Receive Parting shall require each of its employees, contractors, and subcontractors to execute a Non-Disclosure Contract prior to its employees, contractors, or subcontractors obtaining any access to the Disclosing Party’s Confidential Information or performing any services for the Disclosing Party pursuant to the Armed Security Services Contract. The Non-Disclosure Agreement between the Receiving Party and its employees, contractors, and subcontractors must include the same or substantially similar provisions to those contained in this agreement. It is the responsibility of the Receiving Party to ensure its employees’, contractors’, and subcontractors’ compliance with this agreement. The Receiving Party shall maintain copies of its fully executed Non-Disclosure Agreements with its employees, contractors, and subcontractors. The Receiving Party shall maintain these records for not less than three years after the expiration of Armed Security Services Agreement. The Receiving Party shall give full and free access to all Non-Disclosure Agreements executed by its employees, contractors, and subcontractors at the request of the Disclosing Party or its authorized representatives to ensure compliance. Failure to provide the required documentation will be interpreted as the Receiving Party not complying with the terms and conditions of this agreement.

6) The term of this agreement will commence on the date of the last Commonwealth signature (“Effective Date”) and will remain in effect until the expiration or termination date of the Armed Security Services Contract, whichever date is sooner. Upon the expiration or termination of the Armed Security Services Contract, the Receiving Party shall return all Confidential Information to the Disclosing Party or the Receiving Party shall certify, in writing, the destruction of the Confidential Information.

7) The Confidential Information disclosed to the Receiving Party is, and will at all times remain, the sole and exclusive property of the Disclosing Party. The Receiving Party shall, upon request by the Disclosing Party, return all Confidential Information to the Disclosing Party, or destroy all Confidential Information and certify to the complete destruction of the Confidential Information. The Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Confidential Information. As a result, the Disclosing Party will not have any liability relating to any Confidential Information or for any errors or omissions included therein.

8) The Receiving Party shall be liable for its improper dissemination of the Confidential Information by the Receiving Party, or its representatives. The Receiving Party shall immediately notify the Disclosing Party of any breach or potential breach of confidentiality when the Receiving becomes aware of the breach or potential breach.

9) Money damages are not a sufficient remedy for any breach of this agreement by the Receiving Party or its representatives and the Disclosing Party shall be entitled to specific performance and injunctive relief as remedies upon proof of any breach of this agreement. The remedies are the exclusive remedies for a breach of this agreement but are in addition to all other remedies deemed proper by a court of competent jurisdiction.

10) All notices, requests, and correspondence required under this Agreement shall be in writing and sent to the address listed below:

Any written notices are deemed sufficient if delivered personally, or by facsimile, telecopy, electronic or digital transmission (provided such delivery is confirmed), or by a recognized overnight courier service (e.g., DHL, Federal Express, etc.), with confirmed receipt, or by certified or registered United States mail, postage prepaid, return receipt requested, sent to the applicable address above.

11) No Waiver. The Disclosing Party will not be deemed to have waived any of its rights under this agreement by lapse of time or by any statement or representation other than in an explicit written waiver.

12) Choice of Law & Jurisdiction. This agreement is governed by and must be interpreted and enforced in accordance with the laws of the Commonwealth of Pennsylvania (without regard to any conflict of laws provisions) and the decisions of the Pennsylvania courts. The Receiving Party consents to the jurisdiction of any court of the Commonwealth of Pennsylvania and any federal court in Pennsylvania, waiving any claim or defense that the forum is not convenient or proper. Any Pennsylvania court will have in personam jurisdiction over the Receiving Party, and the Receiving Party consents to service of process in any manner authorized by Pennsylvania law. No provision in this agreement may be construed to limit the sovereign immunity of the Commonwealth.

13) Immunity. The Commonwealth reserves all immunities, defenses, rights, or actions arising out of its sovereign status or under the Eleventh Amendment to the United States Constitution, except to the extent waived by statute. No waiver of any such immunities, defenses, rights, or actions will be implied or otherwise deemed to exist because of the Commonwealth’s entry into this agreement, by any express or implied provision of this agreement or by any actions or omissions to act by the Commonwealth or any representative or agent of the Commonwealth, whether taken prior to or pursuant to this agreement.

14) Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this agreement invalid or otherwise unenforceable in any respect. If a provision of this agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this agreement will continue in full force and effect.

15) Construction. The terms of this agreement result from negotiations between the parties. This agreement will not be construed in favor of or against any party to this agreement because of authorship. Moreover, the titles and captions of this agreement may not be utilized in its construction.

16) Amendment and Modifications. No alterations or variations to this agreement will be valid unless made in writing and signed by the parties. Amendments to this agreement will require a written document signed by the parties with the same formality as the original agreement

17) Entire Agreement. This agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. No party has relied upon any such prior or contemporaneous communications.

18) Counterpart Signatures. This agreement may be simultaneously executed in several counterparts, each of which is an original and all of which constitute one and the same instrument.

The parties have executed this agreement as of the Effective Date.

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF MILITARY AND VETERANS’ AFFAIRS

[RECEIVING PARTY]

By: ______________________________

By: _____________________________

Name: ______________________________

Name: ________________________________

Title: __________________ ____________

Title: _________________________________

APPROVED AS TO FORM AND LEGALITY

Department of Military and Veterans’ Affairs Office of Attorney General Date Slps/contracts/mutual.NDA