Attachment 03 Amendment 01 NDA Form.docx

NON-DISCLOSURE AGREEMENT

This Non-Disclosure Agreement is by and between [NAME] and the Office of Under Secretary of Defense for Research and Engineering (OUSD R&E).

I, [NAME], (hereinafter RECIPIENT), an employee of [COMPANY NAME], a Contractor providing support to the Office of Under Secretary of Defense for Research and Engineering (OUSD R&E) ( hereinafter OUSD R&E or Government) and likely to have access to nonpublic information, agree to and promise the following:

WHEREAS RECIPIENT is engaged in delivering support services to OUSD R&E under [CONTRACT NUMBER]; and

WHEREAS it is the intention of OUSD R&E to protect and prevent access to and disclosure of nonpublic information, including but not limited to non-public Government Furnished Information as well as other contractor information including technical and potentially sensitive and proprietary data and materials applicable to [ENTER INITIATIVE TITLE] information, to anyone other than employees of the United States Government and others who have a need to know, unless so authorized by the Contracting Officer's Representative; and

WHEREAS OUSD R&D warrants that it has the right to disclose Proprietary Information hereunder for the purpose of performance under [CONTRACT NUMBER]; and

WHEREAS OUSD R&E acknowledges that RECIPIENT will have or require access to such nonpublic information in the course of delivering the contract services; and therefore, WHEREAS RECIPIENT will be given or otherwise have access to nonpublic information while providing such services; and finally, WHEREAS "nonpublic information" includes such information as classified information, Government Furnished Information, trade secrets and other confidential business information (e.g., confidential business information submitted by a contractor), information protected by the Privacy Act, and other sensitive information that would not be released by OUSD R&E under the Freedom of Information Act;

NOW THEREFORE, RECIPIENT agrees to and promises as follows:

This agreement is effective as of the date of signature below.

The term of this agreement is the period of performance of contract [CONTRACT NUMBER]

“Choice of Law” shall mean the laws of the State of Delaware or the applicable law as determined by a court of competent jurisdiction.

RECIPIENT shall hold information in confidentiality upon disclosure of Proprietary Information hereunder, and expire five (5) years after the termination or expiration of this Agreement, or any extension(s) thereof.

U.S.G. classified information, if any, disclosed under this agreement shall be handled in accordance with the National Industrial Security Program Operating Manual (NISPOM), their supplements, and other applicable U.S.G. security regulations.

RECIPIENT shall not seek access to nonpublic information beyond what is required for the performance of the support services contract;

RECIPIENT will ensure that his or her status as a contractor employee is known when seeking access to and receiving such nonpublic information from Government employees;

As to any nonpublic information to which RECIPIENT has or is given access, RECIPIENT shall not use or disclose such information for any purpose other than providing the contract support services, and will not use or disclose the information for any personal or other commercial purpose; and

RECIPIENT agrees to use a high degree of reasonable care in safeguarding Nonpublic information, including but not limited to reasonable safeguards to protect Nonpublic Information from unauthorized disclosure, access, or use, regardless of whether such information is in paper, electronic, or other form.

If RECIPIENT becomes aware of any improper release or disclosure of such nonpublic information, RECIPIENT will advise the Contracting Officer's Representative in writing as soon as possible.

RECIPIENT shall not be liable hereunder for use or disclosure of Nonpublic Information which:

a. is or becomes publicly known through no wrongful act of RECIPIENT; or

b. is already known to or in the possession of RECIPIENT prior to the disclosure thereof by OUSD R&E, as evidenced by competent proof; or

c. is rightfully received by RECIPIENT from a third party without restriction and without breach of this Agreement; or

d. is independently developed by Recipient without the use of the Nonpublic Information; or

e. is used or disclosed after the expiration of the Confidentiality Period; or

f. is disclosed to satisfy a legal order by a court of competent jurisdiction or U.S. Governmental action; provided, however, that the RECIPIENT shall first advise OUSD R&E within sufficient time prior to the disclosure so that OUSD R&E has the opportunity to seek appropriate relief from the court or Governmental order, and provided further that RECIPIENT shall disclose only those portions of the Nonpublic Information which is legally required to be disclosed and request confidential treatment of the Nonpublic Information by the court or Governmental entity.

The RECIPIENT agrees to return any nonpublic information given to him or her pursuant to this agreement, including any transcriptions by RECIPIENT of nonpublic information to which RECIPIENT was given access, if not already destroyed, upon RECIPIENT leaving the contract.

RECIPIENT may retain a single archival copy of the received nonpublic information which may be used solely for legal evidentiary purposes in the event of a dispute arising under this Agreement.

RECIPIENT understands that any unauthorized use, release or disclosure of nonpublic information in violation of this Agreement will subject the RECIPIENT to administrative, civil or criminal remedies, as may be authorized by law.

Defend Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, if RECIPIENT is an individual, RECIPIENT acknowledges that he/she shall not have criminal or civil liability under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

****These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.****

SIGNATURE AND DATE

PRINTED NAME: _____

TITLE: ______________

EMPLOYER: ____ _____

AGREEMENT REFERENCE:___________________________________________