ESBD_File_296247_Attachment 3 Non-Disclosure Agreement.pdf

TEXAS DEPARTMENT OF INFORMATION RESOURCES

NON-DISCLOSURE AGREEMENT

FY 2021 – 2022 TECHNOLOGY/SHARED TECHNOLOGY, SERVICES PROCUREMENT

PROJECTS

This Non-Disclosure Agreement (“NDA”) is entered into on _________________________________, by the undersigned recipient (“Receiving Party”).

WHEREAS, the Department of Information Resources (DIR) is the owner of certain Confidential Information (as defined below) which it wishes to disclose to Receiving Party; and

WHEREAS, Receiving Party wishes to receive, under the terms and conditions of this NDA, Confidential Information.

NOW, THEREFORE, in consideration of DIR sharing Confidential Information with Receiving Party, Receiving Party acknowledges and agrees as follows:

1. Confidential Information.

a. “Confidential Information” shall mean all topics, data and information discussed or exchanged in meetings between DIR, its contractors assisting with Technology Procurement projects and Technology Services Procurement projects (Procurement Projects) (such projects include, but are not limited to: Shared Technology Services including Data Center Services (DCS), Cooperative Contracts Program, etc.), and Receiving Party. Confidential Information includes information marked confidential, restricted, or proprietary by DIR, or otherwise promptly after disclosure identified in writing as confidential. Confidential Information also includes any other information in connection with the DIR data that is treated as confidential by DIR and which would reasonably be understood to be confidential, whether or not so marked.

b. Confidential Information shall not include information Receiving Party can demonstrate (i) is, at the time of disclosure to it, in the public domain, (ii) after disclosure to it, is published or otherwise becomes part of the public domain through no fault of Receiving Party, (iii) is in the possession of Receiving Party at the time of disclosure to it without any obligation of confidentiality, (iv) is received without obligation of confidentiality from a third party having a lawful right to disclose such information, or (v) is independently developed by Receiving Party without reference to Confidential Information.

2. Receiving Party's Duties.

a. During the term of this NDA and at all times thereafter, Receiving Party shall not disclose, and shall maintain the confidentiality of, all Confidential Information. Receiving Party shall use at least the same degree of care to safeguard and to prevent disclosing to third parties Confidential Information as he or she employs to avoid unauthorized disclosure, publication, dissemination, destruction, loss, or alteration of his or her information of a similar nature, but not less than reasonable care.

b. Receiving Party shall not use or make any copies of Confidential Information except as contemplated by this NDA, and shall not sell, assign, alter, transfer, lease, or otherwise dispose of Confidential Information to third parties or commercially exploit such information.

c. Receiving Party shall not be considered to have breached its obligations under this NDA for disclosing Confidential Information as required to satisfy any law, including the Texas Public Information Act (Chapter 552 of the Government Code), or other legal, accounting, or regulatory requirement of a competent government body, provided that, promptly upon receiving any such request and to the extent that it may legally do so, Receiving Party advises DIR of the Confidential Information to be disclosed and the identity of the third party requiring such disclosure prior to making such disclosure in order that DIR may interpose an objection to such disclosure, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information.

d. Receiving Party shall (i) promptly notify DIR of any known possession, use, knowledge, disclosure or loss of Confidential Information in contravention of this NDA, (ii) subject to any legal duty or obligation, including Receiving Party’s duties under the Texas Public Information Act, reasonably cooperate with DIR in any investigation or litigation deemed necessary by DIR to protect its rights to or under Confidential Information and (iv) promptly use commercially reasonable efforts to prevent further possession, use, knowledge, disclosure, or loss of Confidential Information in contravention of this NDA.

Receiving Party shall bear its own costs in complying with this subsection.

3. Termination.

The obligation to maintain confidentiality, the restrictions on use, disclosure, duplication, protection and security of Confidential Information and indemnification for breach thereof by Receiving Party shall survive the rescission, termination, or completion of this NDA, and remain in full force and effect until such Confidential Information, through no fault of Receiving Party, becomes part of the public domain.

4. General Provisions.

a. This NDA shall be governed by and construed, in accordance with the laws of the State of Texas, without giving effect to the principles of conflicts of laws.

b. Nothing in this NDA nor any disclosure made hereunder shall be deemed to grant to Receiving Party, by implication, estoppel or otherwise, license rights, ownership rights or any other intellectual property rights in any Confidential Information.

c. Receiving Party understands that failure to comply with the terms of the NDA may subject Receiving Party to disciplinary action and criminal and civil penalties under law.

IN WITNESS WHEREOF, Receiving Party has executed this NDA as of the date set forth above.

RECEIVING PARTY

By:

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