CAHI_NDA.v1_(provided_to_OCon_2018.10.05)_(002).docx

Non-Disclosure Agreement

This Non-Disclosure Agreement, effective as of the date of the last signature below, is entered into by and between ___________________________ and the Smithsonian Institution (“Smithsonian”), a trust instrumentality of the United States created by Act of Congress in 1846 (20 U.S.C. § 41 et seq.).

WHEREAS, the Smithsonian, on August 31, 2018, issued Request for Proposals #F18R010038 for a Consolidated Administrative Headquarters Facility (“RFP”);

WHEREAS, the RFP contains a provision in Section C, titled “Confidential Information,” governing the submission by proposers of information or materials proposers believe to be confidential;

WHEREAS, the Smithsonian, on September 5, 2018, amended the RFP to state in pertinent part that Facility Security Level II of the Smithsonian Institution Security Design Criteria is applicable to this solicitation, and that proposers would need to sign a non-disclosure agreement in order to be able to obtain a copy of the Security Design Criteria;

WHEREAS, the Smithsonian is making available to proposers this Non-Disclosure Agreement to allow them to obtain the Security Design Criteria for the purposes of responding to the RFP;

NOW, THEREFORE, in consideration of the mutual promises and agreements set forth herein, the parties agree as follows:

1. Limited Disclosure. The receiving party agrees that it will not disclose the Security Design Criteria to others except as authorized in this paragraph. The receiving party may disclose the Security Design Criteria to the extent that it is necessary to disclose the same to its directors, officers, representatives, legal and financial consultants, and employees having a need to know of the Security Design Criteria (“authorized parties”) for the purpose of pursuing a business and contractual relationship between the parties. The receiving party shall use at least the same degree of care that it uses to protect its own Confidential Information of similar importance, but no less than a reasonable degree of care. Further, the receiving party may disclose the Security Design Criteria if required by law, subpoena, order or request of a federal governmental authority or court of competent jurisdiction, and further, provided that the party obligated to disclose the same shall (i) assert the confidential nature of the Security Design Criteria to be disclosed, (ii) use reasonable efforts to obtain confidential treatment for any information from the Security Design Criteria so disclosed, and (iii) immediately notify the other party of the requirement, order, or request to disclose in advance of such disclosure in order to afford the other party the opportunity to contest disclosure. No other use or disclosure of the Security Design Criteria may be made by the receiving party without the prior written consent of the Smithsonian. The receiving party shall notify the other promptly in writing of any misappropriation, unauthorized disclosure, or unauthorized use by any person of the Security Design Criteria which may come to the recipient party’s attention. Recipient will take all steps reasonably requested by Discloser to stop, limit, or otherwise remedy such misappropriation, unauthorized disclosure, or unauthorized use.

2. Return of Confidential Information. The receiving party will either return or destroy all tangible materials embodying the Security Design Criteria within ten business days of receipt of the disclosing party’s written request to do so, and, if further requested by the disclosing party, the receiving party will provide written certification of such destruction.

3. No Implied Waiver. Either party’s failure or delay in exercising any of its rights will not constitute a waiver of such rights unless expressly waived in writing.

4. No Assignment. This Agreement may not be assigned by either party.

5. Term. This Agreement is effective as of the date of the last signature below and continues until 2 years following the last disclosure of the Security Design Criteria. Either party may terminate this agreement upon written notice to the other party; provided, however, that all obligations to protect the Security Design Criteria shall survive any termination.

6. Entire Agreement and Governing Law. This Agreement constitutes the entire agreement with respect to the Security Design Criteria disclosed pursuant to this Agreement and supersedes all prior or contemporaneous oral or written agreements concerning the same. This Agreement may not be amended except by written agreement signed by the authorized representatives of both parties. This Agreement will be governed by and construed in accordance with applicable federal law and the laws of the District of Columbia, regardless of place of execution or performance and without reference to its choice of law rules.

7. Warranty. The person signing this Agreement for the respective party warrants and represents that he or she has the authority to sign this Agreement and to bind the respective party to the terms and conditions herein.

AGREED

SMITHSONIAN INSTITUTION [insert name]

Date: _____________________ Date: ______________________