Attachment E.pdf

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CONFIDENTIALITY & NON-DISCLOSURE AGREEMENT

This Confidentiality and Non-Disclosure Agreement ("Agreement") is executed this ____ day of __________, 2010_, by _______________________________________________ ("Consultant").

W I T N E S S E T H:

WHEREAS, Ellucian Company L.P. (successor by assignment to SunGard Higher Education Inc.), a Delaware corporation with a place of business at 4 Country View Road, Malvern, Pennsylvania 19355 ("CONTRACTOR") and the University of South Carolina, a South Carolina governmental agency ("USC"), entered into that certain Master Service Agreement, dated December 20, 2007 ("Master Agreement"); and

WHEREAS, Consultant may have access to certain confidential and proprietary information of USC, and CONTRACTOR and USC want to protect the confidentiality of any such confidential and proprietary information that may be disclosed by CONTRACTOR or USC to Consultant; and

WHEREAS, by the terms of the Master Agreement, USC is prohibited from providing Consultant with access to the Confidential Information of CONTRACTOR unless, as a condition precedent to such access, Consultant executes this Agreement, thereby agreeing to be bound by the terms, conditions and limitations contained herein.

NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Consultant agrees to the foregoing and as follows:

1. CERTAIN DEFINITIONS

1.1 “Software” means the Source Code and Object Code for the computer programs and computer coded instructions (including all related specifications, documentation, technical information, and all corrections, modifications, additions, improvements and enhancements to any of the foregoing) licensed by Ellucian Company L.P. (successor by assignment to SunGard Higher Education Inc.) (“CONTRACTOR”) to the University of South Carolina (“USC”) pursuant to the terms of a Master Agreement between CONTRACTOR and USC and having an Effective Date of December 20, 2007, as may be amended from time to time (the “License Agreement”).

1.2 “Source Code” shall include source code for the Software in both human-readable and machine-readable form.

1.3 “Confidential Information” means commercially valuable, non-public information of CONTRACTOR that is disclosed to or otherwise received by Consultant in any manner and/or by any media, whether oral, visual or in tangible form (including, without limitation, documents, devices and computer readable media) and any and all copies thereof, including, without limitation the terms and conditions of the License Agreement; and the Software, including without limitation all copies of Source Code (if provided), Object Code and all related specifications, documentation, technical information, project management methodologies, and training materials, and all corrections, modifications, additions, improvements and enhancements to and all intellectual property rights for the Software.

1.4 “Permitted Purpose” means the right to use the Confidential Information required for Consultant to perform for USC the services and tasks identified in Exhibit A to this Agreement.

1.5 “Object Code” means computer programs assembled, compiled, or converted to magnetic or electronic binary form on software media, which are readable and usable by computer equipment

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2. NONDISCLOSURE AND RESTRICTED USE OF CONFIDENTIAL INFORMATION

2.1 Nondisclosure and Restricted Use. Consultant acknowledges and understands that the Confidential Information, including without limitation the Software, is of great value to CONTRACTOR, and that the development of the Software has involved the expenditure of substantial amounts of money and the use of skilled development experts over a period of time. Consultant further acknowledges and understands that the Software and/or any other Confidential Information of CONTRACTOR being disclosed to Consultant on a strictly confidential basis is to be used only for the Permitted Purpose, and only in strict accordance with the terms, conditions and limitations of this Agreement and the License Agreement. Accordingly, Consultant will have the right to use the Confidential Information only for the Permitted Purpose, and for no other reason whatsoever. At all times during and after Consultant's access to the Confidential Information, Consultant will hold the Confidential Information in confidence and, except as is required in connection with Consultant's performance of its obligations to USC in connection with the Permitted Purpose, Consultant: (a) shall not use, copy, disclose or otherwise make the Confidential Information available to any other person or entity without the prior written consent of both CONTRACTOR and USC (such consent which either CONTRACTOR or USC can withhold for any reason or for no reason at all; and (b) shall not remove or permit to be removed from the Confidential Information any notice placed thereon by CONTRACTOR or USC indicating the confidential nature of, or the proprietary right of USC in, the Confidential Information. Consultant is being granted access to the Confidential Information for the limited and sole purpose of the Permitted Purpose; that is, to provide to USC the information technology services and related work product described in the Permitted Purpose. Accordingly, in addition to all other obligations imposed on Consultant hereunder, Consultant is prohibited from offering, providing, licensing or otherwise making available any such work product (including any modifications) to any other individual or entity other than USC. In this regard, Consultant understands and agrees that it must obtain the advance, written consent of CONTRACTOR, and additionally sign a CONTRACTOR-approved non-disclosure agreement, in each instance in which it seeks to access any Confidential Information of CONTRACTOR for any client.

2.2 Notification Obligation. If Consultant becomes aware of any unauthorized use or disclosure of the Confidential Information by any person or entity, Consultant promptly shall advise both CONTRACTOR and USC of all facts known to Consultant concerning such unauthorized use or disclosure, and provide both CONTRACTOR and USC with reasonable assistance and cooperation with regard to the enforcement by CONTRACTOR and/or USC of their respective rights and interests under and arising from this Agreement.

2.3 Return of Confidential Information. Upon the termination of Consultant's obligations to USC, or at any time upon USC's request, Consultant shall return to USC all of the Confidential Information (including all complete and/or partial copies thereof) that are in Consultant's possession, custody or control. In connection with any such return, upon CONTRACTOR's or USC's request, Consultant shall provide USC with an affidavit stating that: (a) Consultant has returned to USC all Confidential Information to which Consultant had access;

(b) Consultant does not have any Confidential Information, or copies thereof, in Consultant's possession, custody or control; and (c) Consultant has not made the Confidential Information, or any part thereof, available to any other person or entity without the express and prior written consent of both CONTRACTOR and USC, Consultant acknowledging that either USC or CONTRACTOR will have the right to withhold such consent for any reason or for no reason whatsoever. If Consultant has made the Confidential Information available to another person or entity without the prior written consent of CONTRACTOR and USC, Consultant agrees to promptly document the extent and nature of such dissemination, including, without limitation, identifying: (d) what Confidential Information was disclosed; (e) to whom the Confidential Information was disclosed; (f) the manner and means by which the Confidential Information was disclosed; and (g) the date(s) on which such disclosure occurred..

2.4 Access to the Confidential Information. Access to the Confidential Information shall be restricted to those of Consultant’s personnel with a “need to know” who are engaged in the Permitted Purpose. Both before and after termination of the License Agreement for any reason, Consultant will refrain from permitting any other person, firm, corporation, organization or entity to have access to or have use of, directly or indirectly, all or any part of the Confidential Information, including without limitation the Software Consultant shall maintain the Confidential Information in strict confidence and shall not disclose any Confidential Information in any manner to any other person, firm, corporation, organization or entity. Consultant shall not use, copy, duplicate, recreate, or reverse engineer all or any part of the Confidential Information, including without limitation any component of the

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Software, for any purpose other than the Permitted Purpose, and only in strict accordance with the terms, conditions and limitations of this Agreement and the License Agreement. Further, and without limitation, Consultant acknowledges and agrees that, notwithstanding whether Consultant or any other person or entity is the creator thereof, CONTRACTOR will exclusively own any and all right, title and interest in and to any and all modifications or derivative works of the Software, in whole and/or in part (“Developments”), regardless of who develops such modifications and derivative works, and Consultant hereby assigns to CONTRACTOR its entire right, title and interest thereto for the United States and all foreign countries without further compensation. Consultant agrees to execute such documents and other materials as may be reasonably requested by CONTRACTOR to obtain protection for such Developments and to perfect exclusive title thereto in CONTRACTOR, all at the sole expense of CONTRACTOR. Consultant shall insure that all employees of Consultant who are providing the services in connection with the Permitted Purpose shall be apprised of and shall comply with this Agreement.

2.5 Proprietary Legends. Consultant will not remove any proprietary rights legend from, and will, upon CONTRACTOR’s reasonable request, add any proprietary rights legend to, materials disclosing or embodying Confidential Information.

2.6 Legal Process. In the event Consultant receives a subpoena or other validly issued administrative or judicial process demanding all or any part of the Confidential Information, Consultant shall promptly notify both CONTRACTOR and USC, and tender to CONTRACTOR the defense of such demand. Unless the demand shall have been timely limited, quashed or extended, Consultant shall thereafter be entitled to comply with such demand to the extent permitted by law. If requested by CONTRACTOR, Consultant shall cooperate (at the expense of CONTRACTOR) in the defense of a demand. CONTRACTOR shall have no liability to Consultant or to USC for any claims asserted by either of them in connection with Consultant’s access to the Confidential Information or any other matter arising under or as a result of this Agreement.

2.7 Disclaimer of Warranties. ALL CONFIDENTIAL INFORMATION IS DISCLOSED TO

CONSULTANT “AS IS.” CONTRACTOR MAKES NO WARRANTIES REGARDING THE ACCURACY

OF THE CONFIDENTIAL INFORMATION. CONTRACTOR HEREBY DISCLAIMS ANY AND ALL

WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED

WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND/OR OF FITNESS FOR A

PARTICULAR PURPOSE.

2.8 Term of Confidentiality Obligations. In each instance, Consultant’s obligations of confidentiality pursuant to this Agreement will remain in full force and effect for a period of ten (10) years following the date an item of Confidential Information is first disclosed to Consultant; but in any event, such obligations of confidentiality will continue in full force and effect for all of perpetuity with regard to the Software and any part of the Confidential Information which at such time CONTRACTOR treats as a trade secret (the “Non-Disclosure Period”).

2.9 No License. Other than the limited right of use for the Permitted Purpose, neither USC nor CONTRACTOR grants ANY license to Consultant under any copyrights, patents, trademarks, trade secrets or other proprietary rights to use or reproduce Confidential Information

3. GENERAL PROVISIONS

3.1 Injunctive Relief. Because of the unique and highly confidential nature of the Confidential Information, Consultant acknowledges and agrees that CONTRACTOR and/or USC may suffer irreparable harm if Consultant breaches any of Consultant's obligations under this Agreement, and that monetary damages may be inadequate to compensate for such breach. Accordingly, in addition to any other rights and remedies that may be available to CONTRACTOR and USC at law and in equity, CONTRACTOR and/or USC shall be entitled to enforce the provisions of this Agreement by seeking injunctive relief, and Consultant shall not assert as defenses that an adequate remedy at law exists and/or that CONTRACTOR and/or USC will not be irreparably harmed.

3.2 Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the validity or enforceability of any other part or provision of this Agreement.

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3.3 No Waiver. No delay or omission by CONTRACTOR or USC to exercise any right occurring upon Consultant's non-compliance or default with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by CONTRACTOR or USC of any of the covenants, conditions or agreements to be performed by Consultant shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement herein contained.

3.4 Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the State of South Carolina, and venue shall be proper in the state and federal courts for Richland County, State of South Carolina. This Agreement is not and shall not operate as a waiver of either USC's sovereign immunity or USC's immunity under the Eleventh Amendment of the United States Constitution.

3.5 Third Party Beneficiary. CONTRACTOR is a direct and intended third-party beneficiary of the terms of this Agreement. Specifically, but without limitation, CONTRACTOR will have the right to enforce the terms and conditions of this Agreement with regard to all Confidential Information and/or proprietary information of CONTRACTOR, including but without limitation the Software, in whole and/or in part.

3.6 No Assignment. Consultant shall not have the right to assign this Agreement or its obligations under this Agreement.

3.7 Exclusive Agreement; Modifications. This Agreement constitutes the complete and exclusive statement of the agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior oral and written proposals, negotiations, representations, promises, agreements, warranties or understandings concerning such subject matter. All provisions that, by their express terms, and/or that, by their nature require survival, shall survive after any termination of this Agreement. This Agreement may be modified only pursuant to a writing executed by USC, CONTRACTOR and Consultant.

IN WITNESS WHEREOF, this Confidentiality and Non-Disclosure Agreement has been executed on the date and year first above written.

[CONSULTANT]

By:

Printed Name: