Exhibit J.2.6 - OSP Non-Disclosure Form.docx

NON-DISCLOSURE AGREEMENT

THIS NON-DISCLOSURE AGREEMENT (“Agreement”) is made as of this __ day of ______________, 201__, by and between the South Carolina State Fiscal Accountability Authority (“SFAA”) and ___________________________ (“Recipient”).

In connection with the limited purpose of preparation of offers in response to Solicitation #5400022195 (the “Approved Purpose”), the SFAA may disclose to the Recipient, or allow the Recipient to access, certain Confidential Information, as defined below.

“Confidential Information" is defined as all data, information, documents, reports, records, metadata, software, forms, and other materials furnished, disclosed, or made accessible by the SFAA to the Recipient, either directly or indirectly, in connection with the Approved Purpose.

Confidential Information includes, but is not limited to, the following:

(a) Current Environment

(b) Security policies, procedures, and standards

(c) Operation Reports

(d) Equipment and architecture

(e) Customers and Services

(f) MSS Contract

In consideration of the promises and mutual covenants herein, the parties agree as follows:

1. Recipient’s Responsibilities. Recipient shall maintain the Confidential Information in accordance with the following terms and conditions:

(a) Recipient shall not disclose Confidential Information to any third party without the express written authorization of the SFAA;

(b) Recipient shall take all necessary steps to protect the Confidential Information. Recipient may disclose Confidential Information only to its employees, agents, consultants and contractors on a need-to-know basis and only if such employees, agents, consultants and contractors have executed written confidentiality agreements with Recipient in a form substantially the same as this Non-Disclosure Agreement. Recipient agrees that it shall not make copies of the Confidential Information in whole or in part except as necessary for the Approved Purpose described above;

(c) Recipient agrees to immediately notify the SFAA, in writing, of any misuse, misappropriation, or unauthorized release of the Confidential Information or violation of this Agreement that may come to Recipient’s attention;

(d) Any oral discussions between the SFAA and Recipient, which relate to the Confidential Information shall be kept secret and confidential by Recipient and are deemed to be Confidential Information; and

(e) If Recipient receives a governmental, judicial, or administrative order, subpoena, discovery request, or other request for disclosure of Confidential Information, Recipient will immediately notify the SFAA, in writing. Recipient agrees, to the extent practicable, to cooperate with efforts by the SFAA to seek a protective order or similar relief. In the event that any Confidential Information is ordered produced in an action or proceeding, the Confidential Information shall not lose its confidential status through such use, and the Recipient shall take all reasonable and necessary steps to protect the Confidential Information’s confidentiality during such use, to the extent possible.

2. Term. Recipient’s duty to hold in confidence Confidential Information disclosed under this Agreement shall remain in effect indefinitely or until the SFAA sends Recipient written notice releasing it from its confidentiality obligations under this Agreement.

3. Termination. The SFAA may terminate this Agreement and/or access to the SFAA’s Confidential Information at any time for any reason and without liability of any kind, if (i) Recipient’s engagement with the SFAA terminates, or (ii) the SFAA suspects any violation of the terms of this Agreement. The Recipient’s obligation to keep Confidential Information confidential, as required by the terms herein, shall survive termination of this Agreement.

4. Exclusions. Notwithstanding the foregoing, the obligations of confidentiality under this Agreement shall not apply to Confidential Information that: (a) is already known to Recipient at the time it is disclosed to Recipient; (b) has been independently developed by Recipient; (c) becomes, or has become publicly known, through no wrongful act of Recipient; (d) has been, or is, received by Recipient from a third party without a restriction on disclosure; or (e) is required by law, court or administrative order to be disclosed.

In addition, the obligations of confidentiality under this Agreement do not apply to public information intended or required for sharing with the public. Examples of public information include, but are not limited to, information provided on State web sites, information for public distribution, and meeting agendas and minutes of public bodies.

5. Employees and Contractors of Recipient. Recipient shall cause its employees and contractors who are exposed to Confidential Information to comply with this Agreement, and Recipient accepts responsibility for the acts or omissions of its employees and contractors with respect to this Agreement.

6. Standard of Care. Recipient hereby agrees to hold all Confidential Information in strict confidence and to adopt or establish operating procedures and physical security measures that are necessary to protect Confidential Information from unauthorized disclosure or inadvertent release. Recipient will take reasonable measures to avoid unauthorized disclosure or use of Confidential Information, including, at a minimum, those measures it takes to protect its own proprietary and confidential information.

7. No Implied Waiver; Modification; Amendment. Any waiver, modification or amendment of any provision of this Agreement shall be effective only if in writing in a document that specifically refers to this Agreement and such document is signed by both parties.

8. Entire Agreement; Severability. This Agreement constitutes the full and complete understanding and agreement of the parties hereto with respect to the subject matter covered herein and supersedes all prior and contemporaneous oral or written understandings and agreements with respect thereto. In the event that any provision of this Agreement may be held to be invalid or unenforceable for any reason, it is hereby agreed that said invalidity or unenforceability shall not affect the other provisions of this Agreement, and that the remaining terms and conditions or provisions thereof shall remain in full force and effect, and that any court of competent jurisdiction may so modify the objectionable provision or provisions to make it valid, reasonable, and enforceable.

9. Governing Law; Choice of Forum. This Agreement shall be governed by and construed in accordance with the laws of the State of South Carolina, excluding its conflict of laws provisions, and the parties consent and submit to the jurisdiction and venue of the state courts located in the State of South Carolina, Richland County.

10. Survival of Rights and Obligations; Assignment. This Agreement shall inure to the benefit of, and be binding upon, the parties hereto and their respective successors and assigns, provided that Recipient may not subcontract or assign its work performed in furtherance of the Approved Purpose nor may it assign its obligations relating to the SFAA’s Confidential Information without the prior express written consent of the SFAA. Any assignment by Recipient without such consent shall be null and void and a material breach of this Agreement.

11. Equitable Relief. Recipient recognizes that the SFAA may suffer irreparable harm if Confidential Information or any portion thereof is disclosed or used in an unauthorized manner, and, accordingly, the parties agree that the SFAA may seek to enjoin such disclosure as well as pursue any other remedies available at law or in equity.

12. Indemnity. Recipient agrees it will indemnify and hold harmless the SFAA from all losses, damages, causes of action, and attorneys’ fees incurred by the SFAA from the breach of this Agreement by Recipient.

13. Return of Confidential Information. Recipient will promptly return, or certify destruction of (when applicable), all material embodying Confidential Information (in any form and whatever media including, without limitation, all originals, copies, notes, summaries, drawings, excerpts or derivative information deriving therefrom) upon the earlier of (i) the completion of the Approved Purpose, (ii) termination of this Agreement, or (iii) the SFAA’s written request.

IN WITNESS WHEREOF, the parties intending to be legally bound, have executed this Agreement as of the later date set forth below.

Columbia, SC 29201