Att 2_ NDA Contractor Personnel.pdf

ATTACHMENT 2 February 7, 2018

NON-DISCLOSURE AGREEMENT (CONTRACTOR PERSONNEL)

Non-Disclosure Agreement (Contractor Personnel)

A. Intending to be legally bound, I, _________________________ hereby accept the obligations contained in this Agreement in consideration of being granted conditional access to

SEC confidential or non-public information. For purposes of this Agreement, “confidential or non-public information” is defined as SEC information that is not available to the public and that is commercially valuable, trade secret, market sensitive, proprietary, subject to privilege, protected by the Privacy Act (5 U.S.C. § 552a), or otherwise deemed confidential or non -public by an SEC division director or office head. “SEC information” includes information that is generated by or in the possession of the SEC, as well as information that is collected on behalf of the SEC or that is otherwise accessible by virtue of performing an SEC contract. The definition of SEC confidential or non-public information applies to information in any form, including documents, electronic mail, computer files, conversations, and audio or video recordings. For purposes of this Agreement, examples of SEC confidential or non-public information include corporate financial data provided to the SEC that has not been made public;

information related to SEC examinations, investigations, and enforcement actions, including planned or contemplated courses of action, that have not been made public; SEC PII or other personnel information covered by the Privacy Act, 5 U.S.C. § 552a; and usage statistics, search histories, or other data specific to the SEC’s use of a particular information source or service.

B. I acknowledge that any conditional access to SEC confidential or non-public information is granted to me for the sole purpose of performing obligations under SEC Contract

___________________ (the “underlying Contract”). This Agreement does not grant me access to information or materials that the SEC determines in its sole discretion are inappropriate for disclosure.

C. I acknowledge that the SEC Regulation Concerning Conduct of Members and

Employees and Former Members and Employees of the Commission expressly prohibits the improper use and unauthorized disclosure of confidential or non-public information or documents. See 17 C.F.R. § 200.735-3(b)(1) & (b)(2). I agree to abide by the prohibitions of §

200.735-3(b)(1) & (b)(2) as if those provisions were directly applicable to me.

D. In accordance with the SEC Regulation at 17 C.F.R. § 200.735-3(b)(1), I agree not to engage, directly or indirectly, in any personal business transaction or private arrangement for personal profit the opportunity for which arises because of performance under the Contract, or that is based upon confidential or non-public information which I gain in the course of performing the underlying Contract.

E. In accordance with the SEC Regulation at 17 C.F.R. § 200.735-3(b)(2)(i), I agree not to disclose to any unauthorized person or release in advance of authorization for its release, any confidential or non-public document or information: (1) protected from disclosure under 5 U.S.C.

§§ 552, 552a, and 552b or any rules or regulations of the SEC; or (2) in circumstances where the SEC has determined to accord such information confidential treatment, unless the SEC authorizes the disclosure of such information as provided for under 17 C.F.R. § 200.735-https://www.ecfr.gov/cgi-bin/text-idx?SID=1a5c874d916c4046dfcee99c97a9e0f0&mc=true&node=se17.3.200_1735_63&rgn=div8 https://www.ecfr.gov/cgi-bin/text-idx?SID=1a5c874d916c4046dfcee99c97a9e0f0&mc=true&node=se17.3.200_1735_63&rgn=div8

3(b)(2)(ii). Confidential or non-public information shall be shared with authorized persons only on a need-to-know basis.

F. For purposes of this Agreement, an "unauthorized person" is anyone other than (1) an officer or employee of the SEC, (2) an employee of the Contractor who has executed a non-disclosure agreement with the SEC under the Contract, (3) an employee of a subcontractor of the Contractor who has executed a non-disclosure agreement with the SEC under the Contract, and whose employer advises Contractor as such, or (4) any individual that the Contracting

Officer expressly designates as a person authorized to receive the confidential or non-public information at issue.

G. I acknowledge that other federal laws and regulations, including but not limited to the following, may also prohibit the disclosure of confidential and non-public information received pursuant to the Contract:

The Government Trade Secrets Act, 18 U.S.C. § 1905 (prohibition on disclosure of confidential information generally);

18 U.S.C. § 641 (prohibition on theft of public property or records);

Section 24(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78x (prohibition on disclosure and use for personal benefit of SEC confidential information); Rule 0-4, 17

C.F.R. § 240.0-4 (prohibition on disclosure of SEC confidential information obtained in examinations and investigations); and Rule 10b-5, 17 C.F.R. § 240.10b-5 (prohibition on employment of manipulative and deceptive devices in connection with the purchase or sale of any security);

Rule 122 under the Securities Act of 1933, 17 C.F.R. § 230.122 (prohibition on disclosure of SEC confidential information obtained in the course of examinations and investigations);

Section 45(a) of the Investment Company Act, 15 U.S.C. § 80a-44 (prohibition on disclosure and use for personal benefit of nonpublic information filed or transmitted to the SEC); and

Section 210(b) of the Investment Advisers Act of 1940, 15 U.S.C. § 80b-10 (prohibition on public release of existence of SEC examinations or investigations, or results of or facts ascertained during any such examinations or investigations);

H. I am aware of such laws and regulations and agree to comply with the standards for protecting confidential or non-public information in accordance with the laws and regulations, including any superseding revisions or updates that are applicable to the specific information to which I have access.

http://uscode.house.gov/view.xhtml?req=(title:18%20section:1905%20edition:prelim)%20OR%20(granuleid:USC-prelim-title18-section1905)&f=treesort&edition=prelim&num=0&jumpTo=true http://uscode.house.gov/view.xhtml?req=(title:18%20section:641%20edition:prelim)%20OR%20(granuleid:USC-prelim-title18-section641)&f=treesort&edition=prelim&num=0&jumpTo=true http://uscode.house.gov/view.xhtml?req=(title:15%20section:78x%20edition:prelim)%20OR%20(granuleid:USC-prelim-title15-section78x)&f=treesort&edition=prelim&num=0&jumpTo=true http://www.ecfr.gov/cgi-bin/text-idx?SID=892c29beaeee3f94eaf7f6a08c4ef188&mc=true&node=se17.4.240_10_64&rgn=div8 http://www.ecfr.gov/cgi-bin/text-idx?SID=892c29beaeee3f94eaf7f6a08c4ef188&mc=true&node=se17.4.240_10_64&rgn=div8 http://www.ecfr.gov/cgi-bin/text-idx?SID=892c29beaeee3f94eaf7f6a08c4ef188&mc=true&node=se17.4.240_110b_65&rgn=div8 http://www.ecfr.gov/cgi-bin/text-idx?SID=4bb6377ab0fd241ce146766ce5c41c63&mc=true&node=se17.3.230_1122&rgn=div8 http://uscode.house.gov/view.xhtml?req=(title:15%20section:80a-44%20edition:prelim)%20OR%20(granuleid:USC-prelim-title15-section80a-44)&f=treesort&edition=prelim&num=0&jumpTo=true http://uscode.house.gov/view.xhtml?req=(title:15%20section:80b-10%20edition:prelim)%20OR%20(granuleid:USC-prelim-title15-section80b-10)&f=treesort&edition=prelim&num=0&jumpTo=true

I. If there is doubt as to whether a document or information is confidential or non-public, or whether a proposed recipient of a document or information is an unauthorized person, I shall request clarification from the Contracting Officer.

J. I acknowledge that I have read the SEC Regulations at 17 C.F.R. § 200.735-3(b)(1) &

(b)(2) and has referred any questions regarding those Regulations or this Agreement to the

Contracting Officer.

K. I acknowledge that disclosure of confidential or non-public information in violation of this

Agreement could subject me to administrative, civil, or criminal action, as appropriate, under the laws and regulations applicable to the information involved. Violation of this Agreement may also constitute a ground for termination of the Contractor’s underlying Contract with the SEC, and/or suspension and debarment from receiving future federal contracts. I understand that the

United States Government may seek any remedy available to it to enforce this Agreement, including but not limited to application for a court order prohibiting disclosure of information in violation of this Agreement.

L. In the underlying Contract, a contract clause for the safeguarding of Personally

Identifiable Information (PII) imposes certain requirements on me if I will design, develop, or operate a system of records on individuals, or otherwise collect, transmit, or have access to PII in the performance of an SEC contract. I affirm that I have reviewed my company’s established policies and procedures on safeguarding SEC PII, or that I will do so prior to designing, developing, or operating a system of records on individuals, or otherwise collecting, transmitting, or accessing PII in the performance of the underlying Contract. I acknowledge that it is my responsibility to comply with my company’s policies and procedures on safeguarding SEC PII.

M. I hereby assign to the United States Government all royalties, remunerations, and emoluments that have resulted, will result, or may result from any personal business transaction in violation of the terms of this Agreement or any disclosure, publication, or revelation of confidential or non-public information in violation of the terms of this Agreement.

N. I further agree that I will not disclose any classified information received in the course of performing the underlying Contract unless specifically authorized to do so by the United States

Government.

O. This Agreement does not bar disclosures to Congress or to an authorized official of an executive agency or the Department of Justice that are essential to reporting a substantial violation of law.

P. I acknowledge that all conditions and obligations created by this Agreement apply during the performance of the underlying SEC Contract and thereafter with respect to information that remains confidential or non-public.

https://www.ecfr.gov/cgi-bin/text-idx?SID=1a5c874d916c4046dfcee99c97a9e0f0&mc=true&node=se17.3.200_1735_63&rgn=div8 https://www.ecfr.gov/cgi-bin/text-idx?SID=1a5c874d916c4046dfcee99c97a9e0f0&mc=true&node=se17.3.200_1735_63&rgn=div8

Q. I acknowledge that if the underlying Contract is related to any actual or reasonab ly foreseeable SEC investigation, litigation, or dispute that the provisions in Addendum One shall apply during the performance of the underlying SEC Contract. The underlying Contract ☐ IS

☐ IS NOT related to any actual or reasonably foreseeable SEC investigation, litigation, or dispute.

R. I acknowledge that Addendum Two, the substance of which is required by law to be included in this Agreement, is attached.

S. Each provision of this Agreement is severable. If a court should hold any provision of this Agreement unenforceable, all other provisions shall remain in full force and effect.

Note: Electronic and digital signatures are prohibited.

Employee Name: ________________________________________________

Signature : ________________________________________________

Date: _______________________

Addendum One

(1) To avoid any conflict of interest or the appearance of a conflict of interest, I agree that except as permitted by subsection (2) below I will not participate personally and substantially as part of the underlying Contract on any particular SEC matter in which, to my knowledge, any of the following individuals or entities have a financial interest: me; my spouse; my minor child; my general partner; an organization in which I am serving as officer, director, trustee, general partner, or employee; or any person or organization with whom I am negotiating or have any arrangement concerning prospective employment or independent contractor work. In particular, unless otherwise permitted by subsection (2) below, I acknowledge that this provision prevents me from seeking, accepting, or arranging for employment or independent contractor work during performance of the underlying Contract with any party other than the SEC that has a financial interest in the outcome of the particular matter on which I am working at the SEC.

(2) Subsection (1) shall not apply -

(a) to the financial interest that I and/or my employer have in performance of the underlying Contract itself; or

(b) if I first advise the C.O. of the nature and circumstances of the particular matter and make full disclosure of the financial interest and receive in advance a written determination made by the C.O. that the interest is not so substantial as to be deemed likely to affect the integrity of the services which the Government may expect from me.

(3) Nothing in this provision shall limit FAR 9.5 or other responsibilities in the underlying

Contract relating to organizational conflicts of interest.

Addendum Two

The provisions and restrictions of this Agreement are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling

Executive orders and statutory provisions are incorporated into this agreement and are controlling.