ESBD_449249_1756228522462_0006727 Attachment G - Confidentiality and Non-Disclosure Agreement.docx

RFP #0006461

AE Services for JE Rudder Bldg. Utilization and Modernization Attachment H

CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT

FOR PROTECTION OF

TEXAS FACILITIES COMMISSION CONFIDENTIAL INFORMATION

The Texas Facilities Commission (TFC or “Disclosing Party”) is seeking proposals for Project 25-026-3113 for AE services for JE Rudder Bldg. Utilization and Modernization project located at 1019 Brazos Street in Austin, Texas (the “Purpose”). _________________________________________ (“Receiving Party”) is interested in submitting a proposal. TFC and Receiving Party shall be referred to collectively herein as the “Parties.”

In fulfilling the Purpose, it is contemplated that TFC may disclose certain confidential and/or proprietary information to Receiving Party unknown to the general public (hereinafter referred to as "Confidential Information"). The Parties agree the terms of this Agreement shall apply to any and all confidential and/or proprietary information that may be disclosed under this Agreement, and that such Confidential Information shall be used solely for the benefit of the TFC.

1. PROTECTION OF CONFIDENTIAL INFORMATION. Receiving Party hereby acknowledges, understands and agrees: (a) that in the course of TFC’s performance of the Purpose, certain Confidential Information (as defined below) will be disclosed to Receiving Party; and (b) that whether developed by TFC or others employed by or associated with TFC, all Confidential Information is, and shall remain, the exclusive and confidential property of TFC, and shall be at all times regarded, treated and protected as such by Receiving Party in accordance with this Agreement. Failure to mark any information “Confidential” shall not affect the confidential nature of such information.

2. DEFINITION OF CONFIDENTIAL INFORMATION. For the purposes of this Agreement, “Confidential Information” shall mean any and all information, whether or not originated by TFC, revealed by or through TFC in connection with the Purpose, which the Receiving Party either knows or reasonably should know to be proprietary, sensitive or confidential in nature, including without limitation:

(a) information either expressly or implicitly identified as originating with or belonging to TFC or marked or disclosed as confidential;

(b) information traditionally recognized as proprietary or as critical infrastructure information of TFC; and

(c) information deemed confidential or otherwise protected from disclosure under Texas law. Such Confidential Information includes, but is not limited to, the following types of information and other information of a similar nature (whether or not reduced to writing or designated as “Confidential”):

(i) Architectural and engineering drawings and specifications in any format including, but not limited to, CAD files, building information management and modeling (BIM) systems and technological system plans (e.g., information technology systems, security systems, fire controls and building automated systems).

(ii) Work product resulting from, or related to, work, projects, or services performed or to be performed by TFC for Receiving Party that are related to the business and/or operations of TFC, including but not limited to, methods, processes, procedures, analysis, techniques, and audits used in connection therewith.

(iii) Computer software of any type or form in any stage of actual or anticipated research and development, including, but not limited to, programs and program modules, routines and subroutines, processes, algorithms, design concepts, design specifications (design notes, annotations, documentation, flowcharts, coding sheets, and the like), source code, object code and load modules, programming, program patches, and system designs.

(iv) Information relating to TFC’s proprietary rights prior to any public disclosure thereof, including but not limited to, the nature of the proprietary rights, production data, technical and engineering data, test data and test results, the status and details of research and development of products and services, and information regarding acquiring, protecting, enforcing and licensing proprietary rights (including patents, copyrights, and trade secrets).

(v) Internal personnel and financial information, vendor names and other vendor information (including vendor characteristics, services, and agreements), customer lists and contacts, business plan(s), purchasing and internal cost information, internal services and operational manuals, pricing, marketing, and all other manner and methods of conducting TFC’s business.

(vi) Marketing and development plans, price and cost data, price and fee amounts, pricing and billing policies, quoting procedures, marketing techniques and methods of obtaining business, forecasts and forecast assumptions and volumes, and future plans and potential strategies of TFC which have been or are being discussed.

(vii) Any information obtained from TFC regarding its pursuit or negotiation of agreements with any potential “Contracting Person” regarding a potential “Qualifying Project” as those terms are defined in the Tex. Gov’t. Code Ann. § 2267.001, as the same may be amended from time to time, including, but not necessarily limited to: (i) the names of the Contracting Person, including their representatives (collectively referred to as “Business Customers”); (ii) the parties to and substance of any agreements between TFC and said Business Customers; (iii) services and data provided, or to be provided, by or to said Business Customers; and (iv) the type, quantity and specifications of products and services purchased, leased, licensed or received, or to be purchased, leased, licensed or received, by Business Customers.

3. EXCLUSIONS FROM CONFIDENTIAL INFORMATION. Confidential Information shall not be deemed to include information that the Receiving Party can demonstrate by competent written proof:

(a) is now, or hereafter becomes, publicly known or available through no act or failure to act on the part of the Receiving Party;

(b) was known by the Receiving Party at the time of receipt of such information as evidenced by its records;

(c) is hereafter furnished to the Receiving Party by a third party as a matter of right and without violating any confidentiality obligation to the TFC; or

(d) was independently developed by employees of the Receiving Party without use or knowledge of the Confidential Information of the TFC.

4. USE OF CONFIDENTIAL INFORMATION. Receiving Party agrees it will use the Confidential Information solely pursuant to the Purpose, and for no other purpose whatsoever. The Confidential Information, including any documents, drawings, sketches, designs, materials or samples supplied hereunder, shall remain the property of the TFC and no rights or licenses are granted to the Receiving Party in the same, whether patented or not, except the limited right to use the Confidential Information as set forth above.

5. CONFIDENTIAL OBLIGATIONS. (a) Receiving Party agrees to exert all necessary and reasonable efforts to maintain the Confidential Information in confidence and to take all necessary and reasonable precautions to prevent its unauthorized disclosure and to ensure it does not fall into the public domain or the possession of unauthorized third parties.

(a) Receiving Party shall restrict access to the Confidential Information to those officers, employees, contractors, subcontractors, consultants, and agents, of the Receiving Party having a need to know the Confidential Information to fulfill the Purpose, provided that, Receiving Party shall ensure that any individual having access to the Confidential Information is made expressly aware of the obligation of confidence according to the terms hereof prior to gaining access to the Confidential Information.

(b) To the extent that Receiving Party perceives a need for disclosure of the Confidential Information it receives from TFC to any third party, such third party shall first be identified to TFC and written permission to disclose shall be obtained from TFC. A written non-disclosure agreement shall be obtained from the third party and a copy shall be promptly provided to TFC.

(c) Receiving Party agrees to notify TFC immediately if a security violation of this Agreement is detected, or if Receiving Party suspects that the security or integrity of TFC’s Confidential Information has been, or may be, compromised in any way.

(d) In accordance with 13 Tex. Admin. Code § 6.94(a)(9), Receiving Party shall, upon request, provide to the TFC the descriptions of its business continuity and disaster recovery plan as it regards TFC’s vital state records as defined in Tex. Gov’t. Code Ann. § 441.180(13).

6. PUBLIC INFORMATION ACT REQUEST OR SIMILAR REQUESTS FOR INFORMATION. In the event that Receiving Party receives a request to disclose all or any part of the Confidential Information under the terms of the Texas Public Information Act, a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency, Receiving Party shall, as appropriate:

(a) notify TFC of the existence, terms, and circumstances surrounding such a request within one (1) business day of the receipt of the request;

(b) notify the entity requesting the information that such a request for information should be submitted to TFC, not Receiving Party;

(c) provide the entity requesting the information the contact information of TFC’s public information coordinator; and

(d) forward all responsive information to TFC within two (2) business days of the receipt of the request.

7. LEGALLY REQUIRED DISCLOSURE. If a Receiving Party is legally required by court order, law, or other governmental regulation or authority to disclose Confidential Information received from TFC, including a public information request pursuant Tex. Gov’t Code Ann. Ch. 552, such disclosure may be made only after giving written notice to TFC and providing a reasonable opportunity for pursuit of appropriate process to prevent or limit such disclosure. In any event, required disclosure shall be limited to only that portion of the Confidential Information which is legally required to be disclosed. The Receiving Party is not however, required to pursue any claim, defense, cause of action, or legal process or proceeding on the TFC’s behalf.

8. PUBLIC RECORDS. This Agreement and/or any amendment to this Agreement and all data and other information generated or otherwise obtained in its performance is subject to the Texas Public Information Act. Notwithstanding any provisions of this Agreement to the contrary, Receiving Party understands that TFC will comply with the Texas Public Information Act, Tex. Gov’t. Code Ann. Ch. 552. If contacted by TFC, Receiving Party will cooperate with TFC in the production of documents responsive to the request. Receiving Party agrees to provide the documents responsive to the request in the format and within the time frame specified by TFC. Receiving Party may request that TFC seek an opinion from the Office of the Attorney General of Texas. However, the final decision whether to seek a ruling from the Office of the Attorney General of Texas will be made by TFC in its sole discretion to comply with the legal requirements of the Texas Public Information Act. Additionally, Receiving Party will notify TFC’s general counsel within twenty-four (24) hours of receipt of any third-party requests for information written, produced, collected, assembled, or maintained in connection with this Agreement and/or any amendment to this Agreement. Receiving Party agrees to maintain the confidentiality of information received from TFC during the performance of this Agreement, including information which discloses confidential personal information particularly, but not limited to, social security numbers.

9. INDEMNIFICATION. To the extent permitted by law, Receiving Party, its officers, employees, contractors, subcontractors, consultants and agents agree to indemnify and hold harmless TFC, the State of Texas, and their employees and officials for any loss, damages, judgements, and costs of liability arising from any acts or omissions or alleged acts or omissions of Receiving Party or its officers, employees, contractors, subcontractors, consultants and agents, including the inappropriate release or use, by Receiving Party, of the information provided by TFC.

10. RETURN OF DOCUMENTS. It is understood that the Confidential Information disclosed by each Party shall remain the property of the TFC. All material or documents furnished by the TFC, including all copies, shall upon request of the TFC, or in any event at the termination of this Agreement, be promptly returned to the TFC or destroyed.

11. SURVIVAL OF TERMS. Termination of the Purpose for any reason shall not release Receiving Party from any obligation set forth in this Agreement.

12. EFFECTIVE DATE AND TERMINATION PROVISIONS. This Agreement shall be effective as of the date signed and continues until terminated in writing by an authorized representative of TFC.

13. PROPER AUTHORITY. Receiving Party represents and warrants that the person executing this Agreement on behalf of Receiving Party has full power and authority to enter into this Agreement.

RECEIVING PARTY

Vendor Name

By: Date signed:

Printed Name:____________________________ Title: __________________________________

Email Address*:

*Please Note: Participation for RFQ #0006461 AE Services for JE Rudder Bldg. Utilization and Modernization project is by invitation only. This email address will be invited to register in Bonfire to have access the solicitation’s documents and drawings.

rev 3.2025