Attachment 6 - ITS Consultant Confidentiality & NDA Form.pdf

CONSULTANT CONFIDENTIALITY & NON-DISCLOSURE AGREEMENT

THIS AGREEMENT is between the State of New York (“State”), acting by and through the New York

State Office of Information Technology Services (“ITS”), having its principal place of business at State

Capitol, Empire State Plaza, Albany, New York 12220-0062, and ________________________________

(“Consultant”), an employee or subcontractor of __________________________________ (“Contractor”) with its principal place of business at __________________________________________. This Agreement is signed in relation to the provision by Consultant of services to ITS under Contract/Statement of Work

No. ________________________ (hereinafter “Engagement”).

1. Definitions. For the purposes of this Agreement, the following terms shall be defined as follows:

I. Confidential Information

“Confidential Information” shall be defined to include any information that ITS or the State, regardless of form or medium of disclosure (e.g., verbal, hard copy, or electronic) or source of information (e.g., ITS, other state agencies, state employees, electronic systems, or third party contractors) provides to Consultant, or which Consultant obtains, discovers, derives or otherwise becomes aware of as a result of the

Engagement other than:

(a) information that is previously rightfully known to Consultant without restriction on disclosure;

(b) information that is or becomes, from no act or failure to act on the part of the Consultant, generally known in the relevant industry or in the public domain; or

(c) information that is independently developed by Consultant without the use of Confidential

Information.

II. Authorized Person

“Authorized Person” shall be defined as a person authorized by ITS as having a need to receive, possess, store, access, view and/or use Confidential Information for an Authorized Use.

III. Authorized Use

“Authorized Use” shall be defined as the use of Confidential Information by Consultant or Authorized

Persons, solely for the purpose of performing the Engagement.

2. Term

Consultant’s obligations under this Agreement shall commence upon the execution of this Agreement or the start of the Engagement, whichever occurs first, and shall survive in perpetuity.

3. Duty to Protect Confidential Information

Consultant agrees not to disclose Confidential Information to anyone, except as provided in this Agreement.

In addition, Consultant shall safeguard all Confidential Information from unauthorized access, loss, theft, destruction, and the like. Consultant shall notify ITS immediately upon becoming aware that confidential information is in the possession of or has been disclosed to an unauthorized person or entity.

4. Press Releases

Consultant shall not issue any press releases, give or make any presentations, or give to any print, electronic or other news media information regarding his/her Engagement - nor shall Consultant authorize or permit any other person or entity to do so - without ITS’s prior written approval. Consultant shall immediately refer any media requests or other requests for information to ITS.

ITS NDA FORM

Consultant Confidentiality & Non-Disclosure Agreement

5. Use Restriction

Consultant shall not receive, possess, store, access, view and/or use Confidential Information for any purpose other than an Authorized Use. Consultant shall not permit unauthorized persons or entities to gain access to Confidential Information and shall not divulge methods of accessing Confidential Information to unauthorized persons.

6. Security Obligations Regarding Confidential Information

Consultant agrees to comply with the following security obligations as well as any other such obligations conveyed to him/her during the course of the Engagement in accordance with the Engagement’s scope of work:

a. Unless otherwise authorized by ITS, Confidential Information may NOT be stored on personal (non-ITS) computing or other electronic or mobile storage devices, or taken or removed in any form from ITS.

b. Consultant shall comply with all federal and State laws.

c. Consultant shall comply with all ITS policies and procedures including but not limited to those that provide for accessing, protecting and preserving State assets.

d. Consultant shall take no action to intrude upon, disrupt or deny services to ITS.

e. Consultant shall use only those access rights granted by ITS.

7. Certification by Consultant of Return of Confidential Information

Upon termination of the Engagement, Consultant shall return Confidential Information stored in a tangible format to ITS, or destroy such Confidential Information that Consultant possesses in a format that cannot be returned, and further agrees to submit to ITS on Contractor’s letterhead, a Certification of Return or

Destruction of Confidential Information certifying that all copies of Confidential Information have been returned or destroyed.

8. Termination

Consultant’s Authorized Use of Confidential Information shall terminate automatically upon the first to occur of any of the following: (a) breach of this Agreement; (b) completion or termination of Consultant’s

Engagement; or, (c) termination of Contractor’s State contract.

9. Compliance

Should Consultant breach this Agreement, the State shall have all equitable and legal rights (including the right to obtain injunctive relief) to seek redress for such breach, prevent further breaches and to be fully compensated (including litigation costs and reasonable attorney’s fees) for losses or damages resulting from such breach. Consultant acknowledges that compensation for damages may not be sufficient and that injunctive relief to prevent or limit any breach of confidentiality may be the only viable remedy available to ITS.

10. Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State of New York.

If any provision of Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the other provisions shall remain in full force and effect.

Consultant Confidentiality & Non-Disclosure Agreement

IN WITNESS WHEREOF, Consultant has signed this Agreement as of the date set forth below.

By: ____________________________________

Signature

Name

Date

Acknowledgment for Consultant Confidentiality & Non-Disclosure Agreement

STATE OF NEW YORK }

} SS

COUNTY OF ALBANY }

On the ___ day of _______ in the year ___, before me personally appeared

________________________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the foregoing Consultant Confidentiality & Non-Disclosure Agreement (instrument) and acknowledged to me that he executed the same in his capacity, and on his own behalf.

Notary Public

Registration No.