Attachment-F-5.7.2026-FINAL-30thToKNDA.pdf

CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT

FOR SAFEGUARDING SAFETY SENSITIVE INFORMATION PROVIDED BY SEPTA

TO

This Confidentiality and Non-Disclosure Agreement (“Agreement”) entered into on this ____ day of ________, ____between the Southeastern Pennsylvania Transportation Authority (“SEPTA”/”Discloser”)), a body corporate and politic which exercise the public powers of the Commonwealth of Pennsylvania as an agency and instrumentally thereof with its principal offices located at 1234 Market Street, Philadelphia, PA 19107 and __________“Recipient”) on behalf of itself and its contractors and subcontractors is entered into on the date last executed below (collectively the Recipient and the Discloser are the “Parties”).

WHEREAS, Recipient has been contracted by SEPTA to construct the “30th to K OCS and Structures Replacement Project” which includes, but is not limited to, the construction of several fixtures and infrastructure that require caisson drillings and the movement of earth and other materials within an area that has been identified as likely to have been utilized as a burial site; and

WHEREAS, Recipient acknowledges that the Work it has been contracted to perform is subject to an Archaeological Monitoring Protocol and an Unanticipated Discovery Protocol for Human Remains and that strict adherence to state and/or federal rules and protocols are required in the event that remains subject thereto are unearthed; and

WHEREAS, Recipient shall require absolute compliance and nondisclosure from it’s employees, subcontractors, agents and any and all other persons granted access to the Work Site and the Project as a result of Recipient’s completion on the Work under its Agreements with SEPTA.

NOW THEREFORE, for good and sufficient consideration and with the intent to be bound, the Parties hereto agree as follows:

1. DEFINITIONS:

a. Confidential Information.

The parties agree that the Confidential Information referred to in this agreement includes all oral, written, or other forms of data, that Discloser provides to Recipient and Recipient’s representatives as part of Recipient’s completion of the Project including, but not limited to:

(i) The November 16, 2022 Archaeological Monitoring Protocol

(ii) The November 16, 2022, Unanticipated Discovery Protocol for Human Remains

(iii) The specific location and areas that are subject to such protocols and policies shown in the attached Exhibit “A”.

(iv) Any photographic or documentary evidence collected as part of a discovery subject hereto.

b. Recipient shall treat all information received pursuant to this request as Confidential or propriety information which Discloser believes in good faith to be confidential, privileged, proprietary, a trade secret, or otherwise entitled to such description, identification or proprietary claims. The following will not be considered Confidential Information:

(i) Information that was already known to the Recipient without the obligation of confidentiality prior to disclosure of it to the Recipient by the Discloser;

(ii) Information that is disclosed to the Recipient without the obligation of confidentiality by a third party who has the right to make such disclosure;

(iii) Information that is or becomes lawfully available to the public or within the public domain (other than as a result of a disclosure by the Recipient in violation of this Agreement) and is obtained from public sources by the Recipient;

(iv) Information that is disclosed pursuant to the provisions of a Court Order.

2. LIMITATION ON USE: Discloser is providing the Confidential Information to Recipient for the sole purpose of Recipient designing and constructing the Project in a way that protects SEPTA infrastructure from damage and in accordance with the Project Specifications that are part of the contract awarded to Recipient. Recipient agrees to use the Confidential Information solely for these purposes, and furthermore agrees that commercialization of the data or information conveyed in any way shape or form is strictly forbidden.

3. LIMITATION ON DISCLOSURE: Recipient agrees to limit dissemination of the Confidential

Information to those personnel of the Recipient who require access to the information to perform work for the Project and to no other person, group, entity or organization. Under no circumstances will Recipient allow any notification be made to the media about the discovery, nor posts about the discovery be made on social media. Recipient agrees that all personnel who are granted access must be made aware of the obligation to strictly maintain the confidentiality of Discloser’s Confidential Information and those personnel shall be bound by a written agreement that prohibits unauthorized disclosure or use of Confidential Information (“Recipient Employee Acknowledgement”). A copy of the Recipient Employee Acknowledgement shall be kept on file and made available to SEPTA upon request. In the event that sub-contractors, consultants or other non-employees of the Recipient require access to the Confidential Information, the Recipient shall direct them to SEPTA for completion of a non-disclosure agreement.

a. NOTICE RESPONSIBILITY: Recipient shall ensure that it’s employees and all people that gain access to the Work Site because of Recipient’s Work therein shall be fully informed of the applicable protocols and these nondisclosure requirements. Recipient shall post signage throughout the work site and shall remind employees daily of these nondisclosure requirements. Recipient shall provide SEPTA with advance notice via a submittal of Recipient’s proposed notification signage and must receive SEPTA’s approval before posting any notification signage on the Work Site.

4. INDEMNIFICATION: Recipient shall and does hereby fully defend, indemnify and hold harmless SEPTA from and against any and all claims, demands, actions, suits, losses, damages, liabilities, consequential damages, expenses (including, but not limited to, the fees and costs of attorneys and other professionals), judgments, penalties, settlement payments, and/or fines by reason of or in connection with Recipient and/or any of Recipient’s employees, contractors or agents violation of this Confidentiality and Nondisclosure Agreement.

5. DUTY OF CARE: Recipient will use the same degree of care to avoid unauthorized disclosure of

Confidential Information that is employed with respect to its/his/her own Confidential Information of like importance and take any additional steps as are reasonably requested by the Discloser to prevent or stop a breach or threatened breach of this Agreement. Recipient agrees that it will not disclose Discloser’s Confidential Information to any third party without Discloser’s prior written approval, except as required by law. In the event that Recipient determines that it is required to disclose Discloser’s Confidential Information to a third party, Recipient will provide Discloser with prompt written notice in order to allow Discloser to challenge such disclosure by obtaining a court order or other appropriate remedy. If any Confidential Information is required to be disclosed in litigation, Recipient agrees to seek a protective order limiting use of the information to the particular litigation.

6. ACCURACY OF INFORMATION: In providing any information hereunder, each disclosing

Party makes no representations, either express or implied, as to the information’s adequacy, sufficiency, or freedom from defect of any kind, including freedom from any patent infringement that may result from the use of such information, nor shall either Party incur any liability or obligation whatsoever by reason of such information, except as provided under this Agreement.

7. UNAUTHORIZED DISCLOSURE: Recipient shall immediately notify the Discloser if it becomes aware of any unauthorized use, access, copying, or disclosure of any of the Discloser’s Confidential Information.

8. REMEDIES: The parties agree that unauthorized disclosure to third parties of Discloser’s

Confidential/Proprietary Information could be detrimental to the Discloser. Therefore, without limiting its other rights and remedies, the Discloser shall be entitled to request an immediate injunction against the Recipient should this Agreement be breached.

9. APPLICABLE LAW AND VENUE: This Agreement shall be governed and construed in accordance with the laws of the location in which the Project is located without regard to its choice of law provisions. Any disputes between the parties shall be resolved in an appropriate court in the jurisdiction in which the Project is located.

10. RETURN/DESTRUCTION: Except as specified below, within ten (10) days of receipt of

Discloser's written request, Recipient will return all tangible forms of the Confidential Information (including all hard and electronic copies thereof) to Discloser along with all copies and portions thereof, and certify in writing that all Confidential Information has been destroyed in accordance with industry best practices for destruction of such material, as elected by Discloser.

Notwithstanding the preceding, within thirty (30) days of completion, cancellation, or any other termination of the Project, the Recipient shall return all tangible forms of the Confidential Information (including all hard and electronic copies thereof), along with all copies and portions thereof, or may choose to destroy all tangible forms of such Confidential Information in accordance with industry best practices for destruction of such material, and certify such destruction to SEPTA.

11. TERM: This Agreement commences on the date this Agreement is executed by all of the Parties and terminates sixty (60) days after the termination of the Project or upon sixty (60) days’ notice from either party of its intent to terminate the Agreement.

12. COUNTERPARTS: This Agreement may be executed in counterparts, each of which shall be considered the original. This Agreement contains the entire agreement of the parties as to all subject matters addressed herein.

13. SEVERABILITY: In the event that any provision of this Agreement may be held to be invalid or unenforceable for any reason, it is agreed that said invalidity or unenforceability shall not affect the other provisions of this Agreement, and that the remaining covenants, terms and conditions or portions thereof shall remain in full force and effect and any court of competent jurisdiction may modify the objectionable provisions as to make them valid, reasonable and enforceable.

14. SURVIVAL: The nondisclosure and destruction/certification obligations shall survive this

Agreement and the termination of any future agreement or business relationship entered between the parties addressing or related to the subject matter of this Agreement.

15. REPRESENTATION AND WARRANTY: By signing below the signatory represents and warrants to SEPTA that 1) they have the power and authority to bind the Recipient to the terms and conditions; and 2) that they acknowledge and understand the duties and obligations imposed on the Recipient to protect SEPTA Confidential Information as contained in this Non-Disclosure Agreement.

16. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, excluding its conflict of laws provisions. This Agreement, and any dispute or claim with respect hereto, shall be subject to the sole and exclusive jurisdiction of the federal or state courts located in the City of Philadelphia to the absolute exclusion of any other courts and any other jurisdictions. Notwithstanding the preceding sentence, Disclosing Party may bring an action to enjoin the wrongful disclosure or use of any of its Confidential Information in the jurisdiction and forum in which the wrongful disclosure or use has occurred or is anticipated to occur.

If any legal action or proceeding is commenced in connection with any dispute arising under, relating to or otherwise concerning this Agreement, the prevailing party, as determined by the court, will be entitled to recover its attorneys’ and experts’ fees and all costs and necessary disbursements actually incurred in connection with such action or proceeding. Nothing contained in this Agreement shall constitute a waiver by SEPTA of any rights conferred upon SEPTA by the Metropolitan Transportation Authorities Act of 1963, 74 Pa.C.S.A. §§1701 et seq., as may be amended, restated or supplemented from time to time, or other applicable laws, nor waiver by SEPTA of any of its rights with respect to the subject matter hereof. Nothing contained in this Agreement shall be construed as a waiver by SEPTA of those rights, defenses, immunities and limitations on damages available to SEPTA under the Sovereign Immunity Act, 42 Pa.C.S.A. § 8521 et seq., as may be amended, restated or supplemented from time to time, nor as a limitation on the rights or defenses available to SEPTA under law.

17. ENTIRE AGREEMENT: This Non-Disclosure Agreement contains the entire agreement relative to the protection of information to be exchanged hereunder, and supersedes all prior or contemporaneous oral or written understandings and agreements regarding this issue. This Non- Disclosure Agreement shall not be modified or amended, except in a written instrument executed by the Parties.

IN WITNESS WHEREOF, the Parties have caused this Equipment Agreement to be executed by their duly authorized officials and effective as of the Effective Date specified above.

RECIPIENT SEPTA

Name: __________________ Name: __________________

Title: ___________________ Title: ___________________

Date: ___________________ Date: ___________________

EXHIBIT “A”