MST Attachment A - Non-Disclosure Agreement.pdf

Pennsylvania Department of Transportation (PennDOT)

Mainframe Services

MST Attachment A

Form of Non-Disclosure Agreement

RFP 3525R03

OGC Standard Form – Revised 2/2/2024 Contract #________________

NON-DISCLOSURE AGREEMENT

This non-disclosure agreement is between the Commonwealth of Pennsylvania (“Commonwealth”), acting through the _______________ (“Agency”), with its principal offices located at _________________ and______________(“Receiving Party”), with its principal offices located at

The Agency has identified a need to share confidential information with the Receiving Party. To facilitate the sharing of this information, the parties wish to set forth the terms and conditions under which the Agency will share that information with the Receiving Party.

The parties, intending to be legally bound, agree as follows:

1. Definition.

"Confidential Information" means any information the Agency directly or indirectly discloses to the Receiving Party in accordance with this agreement, including:

(i) [insert description of the information, its form, etc.];

(ii) any document, data or other information the Agency designates or has designated as "private," "proprietary," "confidential," "confidential proprietary information," or a "trade secret" under Section 707(b) of the Pennsylvania Right-to-Know Law, 65 P.S. § 67.707(b);"

(iii) proprietary methodologies, techniques, marketing plans and tools of the Agency; and

(iv) information that, under the circumstances surrounding disclosure, a reasonable person would believe ought to be treated as confidential.

Confidential Information does not include information that:

(i) is now or subsequently becomes generally available to the public through no wrongful act or omission of the Receiving Party or anyone to whom the Receiving Party permissibly disclosed the information;

(ii) was in the Receiving Party's possession prior to disclosure by the Agency;

(iii) had been independently developed by the Receiving Party without use of or reference to, directly or indirectly, any Confidential Information;

(iv) the Receiving Party obtains from a third party who has the right to transfer or disclose it;

or

(v) is required to be disclosed by applicable law or pursuant to a duly authorized subpoena, court order, or government authority.

“Effective Date” means the date of the last Commonwealth signature.

“Representatives” means those officers, employees, consultants, and attorneys of the Receiving Party who have a reasonable need to know the Confidential Information.

2. Agency Disclosure. The Agency may disclose the Confidential Information in any tangible or intangible form, including documents, visual demonstrations, electronic media, and oral communication.

3. Receiving Party’s Obligations.

a. General Confidentiality and Security Obligations. The Receiving Party shall take all appropriate action to ensure the confidentiality and security of the Confidential Information that it receives from the Agency. This obligation survives the termination of this agreement.

b. Specific Confidentiality and Security Obligations. Without limiting the generality of subparagraph 3(a), the Receiving Party shall:

(i) maintain the Agency's Confidential Information in strict confidence.

(ii) use the Confidential Information only for the purpose of the discussions contemplated by this agreement.

(iii) restrict disclosure of the Confidential Information solely to those Representatives who are bound by non-disclosure requirements or a non-disclosure agreement no less restrictive than this agreement, and who will not disclose the Confidential Information to any other party.

(iv) not copy or reproduce any portion of the Agency's Confidential Information.

(v) use at least the same degree of care to hold the Confidential Information in confidence as the Receiving Party uses in maintaining its own confidential information, but always at least a reasonable degree of care.

(vi) immediately upon sale of Receiving Party or merger of Receiving Party with a third party, return to the Agency all documentation, copies, notes, diagrams, computer memory media, and other materials containing any portion of the Confidential Information, or confirm to the Agency, in writing, the destruction of those materials.

These specific obligations survive the termination of this agreement.

4. Compelled or Required Disclosure. If the Receiving Party is compelled or otherwise required by law to disclose Confidential Information, the Receiving Party shall provide the Agency with prompt notice of any intended or compelled disclosure and provide reasonable assistance to the Agency in obtaining a protective order. If a protective order or other remedy is not obtained or the Agency grants a waiver under this agreement, the Receiving Party may furnish only that portion of the Confidential Information that the Receiving Party is legally compelled or is otherwise required to disclose.

5. Property Rights. The Confidential Information disclosed to the Receiving Party is, and will remain, the sole and exclusive property of the Agency, and nothing contained in this agreement may be construed to grant or confer any rights by license or otherwise in any Confidential Information to the

Receiving Party.

6. Return or Destruction of Confidential Information. The Receiving Party shall, upon request by the Agency, return all Confidential Information to the Agency, or destroy all Confidential Information and certify to the complete destruction of Confidential Information.

7. Representations and Warranties. The Agency makes no representation or warranty as to the accuracy or completeness of the Confidential Information.

8. Limitation of Liability. The Agency shall not have any liability relating to any Confidential Information or for any errors or omissions included in this agreement.

9. Liability for Improper Disclosure. The Receiving Party shall be liable for the improper disclosure of the Confidential Information by the Receiving Party or its Representatives. The Receiving Party shall immediately1 notify the Agency of any breach or potential breach of confidentiality upon becoming aware of the breach or potential breach.

10. Rights Related to Breach. Money damages may not be a sufficient remedy for any breach of this agreement by the Receiving Party, or its Representatives. The Agency shall be entitled to specific performance and injunctive relief as remedies upon proof of any breach. These remedies may not be deemed to be the exclusive remedies for a breach of this agreement but are in addition to all other remedies deemed proper by a court of competent jurisdiction. If the Receiving Party fails to meet the obligations under this agreement, the Commonwealth may take actions against the Receiving Party, including, but not limited to, suspension or debarment.

11. Applicable Law. This agreement is governed by and will be construed in accordance with the laws of the Commonwealth of Pennsylvania, without giving effect to the conflict of law principles. No provision in this agreement may be construed to be a waiver of the sovereign immunity of the Commonwealth.

12. Amendments and Modifications. No amendment or modification of this agreement is valid unless made in writing and signed by the parties with the same formality as this agreement.

13. No Waivers. No delay or failure of the Agency to enforce any provision of this agreement or to exercise any right or remedy under this agreement may be construed as a waiver the Agency of the provision or its right or remedy.

14. Term. The term of this agreement will commence on the Effective Date and will remain in effect for two years or until the date that the parties enter into one or more contractual relationships that address the confidentiality concerns set forth in this agreement.

15. Entire Agreement. This agreement contains the entire agreement between the parties concerning the subject matter of this agreement.

16. Counterparts. This agreement may be simultaneously executed in several counterparts, each of which are an original and all of which constitute but one and the same instrument.

1 The term “immediately” may be modified, when appropriate.

The parties, through their authorized representatives, have signed this agreement on the dates indicated below.

[RECEIVING PARTY NAME]

Signature Date

Printed Name

Title

* If a corporation, the Chairman, President, Vice-President, Senior Vice-President, Executive Vice- President, Assistant Vice-President, Chief Executive Officer or Chief Operating Officer must sign; if a sole proprietor, the owner must sign; if a general or limited partnership, a general partner must sign; if a limited liability company, a member must sign, unless it is a managed by a manager, in which case, the manager must sign; otherwise a resolution indicating authority to bind the corporation must be attached to this agreement.

COMMONWEALTH OF PENNSYLVANIA

[INSERT DEPARMTMENT/AGENCY NAME]

[Agency Head/Designee Title] Date

APPROVED AS TO FORM AND LEGALITY:

Office of Chief Counsel Date

<<104-FA-3.0>>

Office of General Counsel Date

<<104-FA-3.0>>

Office of Attorney General Date