Attachment A Non-Disclosure Agreement.docx

Attachment A: Non-Disclosure Agreement Bid-Related Confidentiality Agreement THIS AGREEMENT (the “Agreement”), is entered into [INSERT DATE], by and between Arkansas Department of Transformation and Shared Services Employee Benefits Division, a state agency (“Purchaser”); Foster & Foster Consulting Actuaries, Inc., a Florida corporation, on behalf of itself and its subsidiaries and affiliates (“Consultant”) and [INSERT BIDDER NAME] a(n) [STATE][ENTITY TYPE] (“Company”). Purchaser, Consultant and Company may be referred to individually as a “Party” and collectively as the “Parties”.

WHEREAS, Purchaser has issued a Request For Proposal for Third Party Administrator Services (the “RFP”);

WHEREAS, Purchaser has retained Consultant to assist Purchaser in drafting the RFP and analyzing the bids, proposals or other replies to the RFP (each a “Proposal”);

WHEREAS, Company desires to submit a Proposal to Purchaser in response to the RFP;

WHEREAS, in connection with Company’s Proposal, the Parties will need to exchange certain data and information pertaining to their respective businesses (the “Purpose”); and WHEREAS, the Parties desire to protect the confidentiality of Confidential Information (as defined herein) exchanged.

NOW, THEREFORE, the Parties hereto agree as follows:

1. Definitions.

(a) Confidential Information. Confidential Information is any information and data related to the Purchaser, which may include personally identifiable, individually identifiable, or deidentified health information and membership data, pertaining to a Purchaser’s employees, participants, and/or beneficiaries. Except as set forth below, all Confidential Information is and shall remain the sole and exclusive property of the Purchaser. No right or license, either express or implied, is granted to the Party receiving the Confidential Information (the “Receiving Party”).

(b) Exclusions. Confidential Information does not include information which: (i) is or becomes a part of the public domain through no fault of the Receiving Party; (ii) is independently developed by the Receiving Party without reliance on the disclosing Purchaser’s Confidential Information; or (iv) is required to enforce a Party’s rights hereunder.

2. Use and Disclosure of Confidential Information. With respect to the disclosure of Purchaser’s Confidential Information, Receiving Party agrees to:

(a) Maintain such Confidential Information in confidence, using at least the same standard of care with respect to the Confidential Information that it uses in maintaining the confidentiality of its own Confidential Information, which shall be a reasonable standard of care;

(b) Not use or disclose such Confidential Information for any reason other than the Purpose or as explicitly permitted herein, without the express permission of the Purchaser;

(c) Not misappropriate or use Confidential Information in order to intentionally damage the Purchaser’s business or reputation or otherwise gain a competitive advantage over Purchaser;

(d) Disclose, or otherwise make available, Confidential Information only to those of its affiliates, shareholders, directors, officers, employees, agents and representatives (“Representatives”) who have a legitimate need to know the Confidential Information in furtherance of the Purpose and have been made aware of the obligations of this Agreement and their responsibility for complying with those obligations. Receiving Party acknowledges that it is fully responsible for a breach of this Agreement by its Representatives; and

(e) Notify the Purchaser, in writing, immediately upon the occurrence of any unauthorized use, disclosure, or release of Confidential Information of which it is aware.

3. Other Permitted Disclosures.

(a) Other Disclosures Required by Law. A Receiving Party may disclose Confidential Information that is required to be disclosed pursuant to a subpoena or other legal process, provided that to the extent not prohibited by applicable law, the Receiving Party gives the Purchaser a reasonable opportunity to contest the disclosure and/or seek any available protections for the Confidential Information.

(b) Use of Host Website. Purchaser may conduct the RFP process electronically through the use of a third party hosted website selected by Purchaser (“Host Website”). Company will adhere to any disclaimers posted on the Host Website that relate to Confidential Information. Purchaser will take all reasonable steps to ensure that the Host Website maintains Confidential Information in accordance with this Agreement.

4. Cybersecurity. Each Party maintains procedures, consistent with industry standards and as required by law, to ensure the security of all data maintained on its information technology systems. In addition, each Party shall maintain a business continuity/disaster recovery program, consistent with industry standards and as required by law. Each Party agrees to provide the other Party with any reasonably requested information related to its information security protocols and disaster recovery program. Such information will constitute Confidential Information and be subject to the Party’s obligations under this Agreement.

5. Return of Purchaser Information. At the conclusion of the RFP process and/or upon the request of the Purchaser, the Company and Consultant shall immediately return or securely destroy (and certify as to such destruction) any Confidential Information in written or other tangible form; except that Company or Consultant may, upon notice to Purchaser, retain archival copies of Confidential Information that are automatically created as part of Company or Consultant’s written business continuity/disaster recovery programs. Company and Consultant will not use or disclose such Confidential Information for any purpose.

6. Any Confidential Information retained after the conclusion of the RFP process or other request for return/destruction will be maintained in accordance with Receiving Party’s obligations hereunder until securely destroyed in the course of Receiving Party’s business.

7. Term. The Receiving Party’s obligations hereunder shall remain in effect for so long as it maintains Confidential Information in any form.

8. Indemnification. Company shall and does hereby agree to indemnify, defend and hold harmless Purchaser, Consultant, and their respective officers, directors, employees and shareholders from and against any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies, including interest, penalties, and reasonable attorney fees and costs, that they may incur or suffer and that result from, or are related to, any breach or failure of Company or Company’s Representatives to perform any of the representations, warranties and agreements contained in this Agreement that pertain to Confidential Information.

9. Injunctive Relief. Receiving Party acknowledges that a failure by Receiving Party or its Representatives to comply with the terms of this Agreement may cause irreparable damage to Disclosing Party and that, in addition to any other legal remedies or equitable relief available to Disclosing Party for the breach of this Agreement, Disclosing Party may seek, from a court of appropriate jurisdiction, specific performance to prevent, inhibit or enjoin any action taken by Receiving Party or its Representatives in breach hereof.

10. Governing Law. Except to the extent superseded by federal law, the validity, interpretation, enforceability, and performance of this Agreement will be governed by the laws of the State of Arkansas. Unless otherwise agreed by the Parties, any dispute, controversy or claim arising out of or to enforce the terms of this Agreement may be brought in the appropriate state court in the State of Arkansas, Pulaski County.

11. Notices. Any notices or other communications under this Agreement will be in writing and will be given to the Parties by hand, by electronic mail, nationally recognized overnight courier service or by express, registered or certified mail, postage prepaid, return receipt requested, at the addresses set forth below:

Department of Transformation And Shared Services Employee Benefits Division Foster & Foster Consulting Actuaries, Inc.

Attention: Director Grant Wallace Attention: Jonathan R. Davidson, Chief Legal Officer

12. General

(a) Entire Agreement; Modification of Agreement. This Agreement constitutes the entire agreement between the Parties regarding the exchange of Confidential Information. No modification or amendment hereto will be valid unless it is in writing and signed by all Parties.

(b) Severability and Waiver. If any provision of this Agreement is found to be illegal or otherwise unenforceable, that provision will be severed and the remainder of this Agreement will remain in full force and effect. No consent to or waiver of any default hereunder will be effective unless in writing and no such consent or waiver will be construed as a consent to or waiver of any default in the future or of any other default hereunder.

(c) No Third Party Beneficiaries. This Agreement is made and entered into solely for the benefit and protection of the Parties hereto, their successors and permitted assigns, and, except as specifically set forth herein, does not confer any rights or privileges upon any third parties.

(d) Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but such counterparts shall constitute one and the same instrument.

Execution Page Follows

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.

State of Arkansas Department of Transformation And Shared Services - Employee Benefits Division [Company Name]

Foster & Foster Consulting Actuaries, Inc.

By:

Name:

Title:

Date: