JLTV TDP NDA.docx

NONDISCLOSURE AGREEMENT

Technical Data Package (TDP) for the JLTV Program RPP

THIS AGREEMENT is made by and between (insert name of company) -- “Receiving Party” -- with the principal address of (insert company address) and the US Government -- "Disclosing Party" -- represented by the Contracting Office (NCD-Frederick) with the address of 110 Thomas Johnson Dr, Frederick, MD, hereinafter referred to individually as a Party or collectively as the Parties, to facilitate the following described “Stated Purpose” by protecting non-public and privileged (FOUO) information in the Technical Data Package (TDP) from misuse and unauthorized disclosure. This Agreement shall become effective upon the date of last signature by the authorized representatives of each of the Parties.

SUBJECT MATTER AND STATED PURPOSE:

a. The general subject of information is the Technical Data Package (TDP) applicable to the Program Office (CCDC SC), BOTAA-17-01 Request for Project Proposal (RPP) issued by Contracting Office (NCD-Frederick).

b. The Stated Purpose of this Agreement is to permit the viewing of the TDP for use in the submission of White papers, or subsequent full proposal if requested, in response to the RPP issued under the BOTAA under an obligation that the Receiving Party will not disclose any of the TDP information to any other parties except as authorized by this Agreement.

THE PARTIES AGREE AS FOLLOWS:

1. DEFINITIONS AND SPECIFIC REQUIREMENTS. As used in this Agreement, the following terms shall have the meanings as defined.

1.1. Information. As used in this Agreement, the term information shall mean the information in the TDP.

1.2. Disclosure of Information. As used in this Agreement, "Disclosure of Information" means the disclosure of information of any type in the TDP by any means to include orally, visually, or on any human or machine readable medium including, but not limited to, oral and visual expressions, demonstrations, audio tapes, video tapes, drawings, computer memory devices, models, prototypes and samples.

1.3. Disclosing Party. As used in this Agreement, "Disclosing Party" shall mean the US Government.

1.4. Receiving Party. As used in this Agreement, "Receiving Party" shall mean the Party receiving a “Disclosure of Information.”

1.5. Protected Information. As used in this Agreement, “Protected Information” shall mean information in the TDP provided by a Disclosing Party to a Receiving Party under this Agreement that has been clearly identified through the use of an “appropriate marking” that puts the Receiving Party on notice that the Disclosing Party considers the Information to be Protected Information under the terms of this Agreement.

1.6. Appropriate Markings. As used in this Agreement, "Appropriate Markings" shall mean any reasonable method by which a Disclosing Party clearly identifies to a Receiving Party that information is being disclosed under this Agreement, and is considered by the Disclosing Party to be Protected Information. The Government has marked the TDP cover page as shown below which marking shall apply to the entire TDP and all information therein, whether or not each page of the TDP is so marked:

Non-public – Privileged (FOUO) - Do Not Disclose outside of the Government except as authorized by NDA

2. AUTHORIZED ACCESS AND DISCLOSURE.

2.1. A Receiving Party shall not use or disclose Protected Information other than in accordance with the terms and conditions of this Agreement.

2.2. A Receiving Party shall take reasonable and appropriate measures to safeguard Protected Information from misuse, theft, loss, destruction, and unauthorized disclosure. Such measures shall be no less than that degree of care the Receiving Party normally takes to preserve and safeguard its own proprietary Information. The Parties shall not be liable for the use or disclosure of Protected Information used or disclosed despite the exercise of reasonable care provided that, upon discovery of any unauthorized use or disclosure, it promptly notifies the Disclosing Party in writing and takes action to prevent further disclosure and to recover any Protected Information already disclosed.

2.3. If Protected Information is included in any analyses, reports, or other documents or physical embodiments prepared by the Receiving Party, all such documents and embodiments shall be appropriately protected by the Receiving Party in the same manner as the Disclosing Party protected the source Protected Information.

2.4. A Receiving Party may provide access to Protected Information to its own employees who reasonably require such access in order to accomplish the Stated Purpose of this Agreement. Prior to being granted access to Protected Information, all employees of a Receiving Party shall be advised concerning the requirements and restrictions of this Agreement, directed to use and protect the Protected Information properly, and not to disclose Protected Information without proper authorization. The Receiving Party will document which of its employees have been granted access to Protected Information and so advise the Disclosing Party upon request.

2.5. A Receiving Party may provide access to Protected Information to its agents, service contractor employees, collaborators and other non-Parties to this Agreement who reasonably require such access in order to accomplish the Stated Purpose of this Agreement. Before any such non-Party organizations or individuals are granted access to Protected Information, the Receiving Party shall notify and obtain the concurrence of the Disclosing Party. The Receiving Party shall also require non-Party organizations and individuals (other than U.S. Government officers and employees) to execute the Supplemental Agreement at Appendix A prior to disclosing any Protected Information.

2.6. A Receiving Party shall not disclose Protected Information to any person (including its own employees), nor shall a Receiving Party export any Protected Information from the United States, if such disclosure or export would violate the Arms Export Control Act, the International Traffic in Arms Regulation (22 C.F.R. Part 121 et seq.), the Export Administration Act, the Department of Commerce Export Regulation (15 C.F.R. Part 770 et seq.), the DoD Industrial Security Regulation (D0D 5220.22-R), or any other law or regulation of the United States. A Receiving Party shall first obtain the written consent of the Disclosing Party before requesting authority to export Protected Information from the United States.

2.7. The parties agrees the non-disclosure obligations under this Agreement do not apply to confidential information and material that:

2.7.1. a Receiving Party can show, prior to disclosure and upon concurrence by the Disclosing Party, is generally available to the public at the time of the disclosure or thereafter becomes generally available to the public through no act or omission of a Receiving Party or its employees; or

2.7.2. a Receiving Party can show, prior to disclosure and upon concurrence by the Disclosing Party, by written records to have been in the possession of said information and material prior to the time of the disclosure and was not acquired, directly or indirectly, from the Disclosing Party; or

2.7.3. a Receiving Party can show, prior to disclosure and upon concurrence by the Disclosing Party, by written records to have been independently made available as a matter of right to a Receiving Party by others, provided such others did not acquire the Confidential Information and Material directly or indirectly from the Disclosing Party or the submitter of the data to Disclosing Party; or

2.7.4. is required to be disclosed by law or court order subject to the requirements of Section 3.9 of this agreement.

2.8 Nothing contained in this Agreement shall be construed to grant to a Disclosing Party any rights in respect of such confidential information and material other than use for the purposes stated herein.

2.9. The following individuals are designated as the principal points of contact for the transmittal of Protected Information under this Agreement.

For CCDC SC:

Mr. Richard Totten 110 Thomas Johnson Drive Fort Detrick, MD 21702 Richard.w.totten2.civ@us.army.mil

3. GENERAL PROVISIONS.

3.1. All rights to the Protected Information including Protected Information owned by a Disclosing Party, or Protected Information to which unlimited rights are held by a Disclosing Party, shall remain as such to the Disclosing Party. Protected Information in tangible form may be retained in the possession of the Receiving Party after termination or expiration of this Agreement only to the extent expressly authorized by the Disclosing Party. Within thirty (30) days after termination or expiration of this Agreement, or upon receipt of a written demand from the Disclosing Party for the return of Protected Information, the Receiving Party shall promptly return (or destroy, if so requested) all tangible forms of Protected Information received from the Disclosing Party. If destruction is requested, the Receiving Party will provide written notification to the Disclosing Party certifying that the destruction has been accomplished.

3.2. Each Party shall bear its own costs and expenses incurred under or in connection with this Agreement. Nothing in this Agreement shall be construed as an obligation by either Party to enter into a contract, subcontract, or other business relationship with the other Party excluding the flow-down NDA required by Section 2.6 of this Agreement.

3.3. This Agreement shall not be construed as a Teaming Agreement, Joint Venture, or any other such agreement nor shall it be construed as a commitment to procure or provide any specific products or services. Nothing contained herein shall be construed to grant or confer any rights other than to use the Protected Information for the Stated Purpose under the terms of this Agreement, nor shall anything herein be construed to grant license or other rights to any patents, trademarks, copyrights or other intellectual property whatsoever. The Parties expressly agree that this is an Agreement for protecting Information only.

3.4. A RECEIVING PARTY SHALL ACCEPT ALL PROTECTED INFORMATION AND EMBODIMENTS THEREOF ON AN “AS IS” BASIS. THE DISCLOSING PARTY MAKES NO WARRANTY OR REPRESENTATION OF FITNESS FOR ANY PURPOSE.

3.5. Either Party, upon thirty (30) days written notice to the other Party, may terminate this Agreement.

3.6 Duration. Unless sooner terminated, this Agreement shall expire three (3) years from its effective date.

3.7 Effective Period. Notwithstanding the termination or expiration of this Agreement, all obligations incurred by a Receiving Party with respect to protection, use, disclosure and return or destruction of Protected Information shall survive and remain in effect indefinitely from the date the Protected Information was received.

3.7. This Agreement may not be assigned by either Party without the prior express written authorization of the other Party. All obligations incurred by a Receiving Party under this Agreement with respect to Protected Information shall be binding on its authorized successors and assigns.

3.8. This Agreement shall be governed by the Federal laws of the United States.

3.9. In the event a Receiving Party is subjected to any legal process that seeks to require it to produce Protected Information for inspection or review in a judicial or administrative proceeding, the Receiving Party shall promptly provide notice and a copy of the legal process to the Disclosing Party in order that the Disclosing Party may have an opportunity to challenge the legal process or seek a protective order. If, in the absence of a protective order, a Receiving Party is compelled to produce Protected Information to a tribunal or be found liable in contempt and subjected to a penalty, the Receiving Party may disclose such Protected Information to the tribunal provided the Protected Information so disclosed is clearly marked as Protected Information.

4. This Agreement constitutes the entire agreement between the Parties, and supersedes any prior or contemporaneous agreements, representations and understandings of the Parties with respect the disclosure of Information covered by this Agreement. It shall not be suspended, modified, or amended except by written agreement of the Parties. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that any other provision may be found invalid or unenforceable.

IN WITNESS WHEREOF, the Parties hereto have caused this instrument to be executed by their duly authorized representatives who also warrant their authority to enter into the Agreement on behalf of their respective Parties:

For: NGIA Participant Company/Receiving Party

Signature: _______________________________

Name: _______________________________

Title: _______________________________

Signature: ________________________________

Name: _______________________________

Title: _______________________________

Dated: _______________________________

Appendix A

In accordance with, and as required by Section 2.5 of the NDA, all collaborators to be granted access to Protected Information by the Receiving Party will sign and enter into the below Supplemental Non-Disclosure Agreement before being granted access to Protected Information.

Supplemental Non-Disclosure Agreement Technical Data Package (TDP) for the JLTV Program RPP

THIS AGREEMENT is made by and between ____________________ (hereinafter - Company) located at address ___________________and __________________________ (hereinafter Collaborator Company________________________________) located at address______________ to facilitate the following described “Stated Purpose.” This Agreement shall become effective upon the date of last signature by the authorized representatives of each of the Parties.

SUBJECT MATTER AND STATED PURPOSE:

a. The general subject of information is the Technical Data Package (TDP) applicable to the JLTV Program that was provided to the Company by the US Government under the attached NDA dated _____________ hereby incorporated by reference into this Supplemental Non-Disclosure Agreement.

b. The Stated Purpose of this Supplemental Non-Disclosure Agreement is to permit the Collaborator Company to view so much of the information contained in the TDP as the RPP Participant Company deems useful in the Company’s submission of White papers in response to the RPP issued under the BOTAA-17-01 under an obligation that the Collaborator Company will not disclose any of the TDP information to any other Parties.

c. In consideration of gaining access to TDP information as may be provided to the Collaborator Company by the Company in accordance with the Stated Purpose of this Supplemental Non-Disclosure Agreement, the Company Collaborator hereby agrees that, with respect to said information, all terms and conditions applicable to a “Receiving Party” under the TDA incorporated by reference into this Supplemental Non-Disclosure Agreement shall likewise apply to and be binding upon the Collaborator.

IN WITNESS WHEREOF, the Parties hereto have caused this instrument to be executed by their duly authorized representatives who also warrant their authority to enter into the Agreement on behalf of their respective Parties:

For: NGIA Participant Company

Signature: _______________________________

Name: _______________________________

Title: _______________________________

Signature: ________________________________

Name: _______________________________

Title: _______________________________

Dated: _______________________________