NDA RFP 19_2396.docx

DEPARTMENT OF TECHNOLOGY MANAGEMENT AND BUDGET

NON-DISCLOSURE AGREEMENT

DTMB-0049 Revised 4/11/2019 This Non-disclosure Agreement (Agreement) is between the Michigan Department of Treasury located at 7280 Parsons Drive, Dimondale, Michigan 48821, and Entity Name (Name short form) located at Street, City, State, Zip.

During the Exchange Period set forth below, the parties intend to exchange confidential or proprietary information in furtherance of the Business Purpose described below:

Confidential Information. For the purposes of this Agreement, Confidential or Proprietary Information (Confidential Information) includes: all technical information shared by any party with the other party in connection with the Business Purpose, including development plans, technical plans, costs, finances, technical configurations, data, access, or security codes and related procedures; security-related information; infrastructure-related information; trade secrets; information designated as confidential in writing or identified as confidential at the time of disclosure if such disclosure is verbal or visual and confirmed in writing to the recipient party within 15 days of disclosure; and any copies of the prior categories or excerpts included in other materials created by the recipient party. Confidential Information also includes all information protected by state or federal law including “Personal Information” as defined in the Michigan Identity Theft Protection Act, MCL 445.63(r). “Trade Secrets” as defined under section 2 of the Uniform Trade Secrets Act, MCL 445.1902, or “Financial or Proprietary Information” as defined in the Management and Budget Act, MCL 18.1261(13)(b). Confidential Information does not include contracts entered into between the parties, or any pricing information included within contracts. Although Confidential Information may include “Personal Health Information” as defined under the Health Insurance Portability and Accountability Act (“HIPAA”) and its related rules and regulations, this Agreement is not intended to, and does not, replace a Business Associate Agreement that may be otherwise required pursuant to HIPAA and its related rules and regulations.

Duties. Each party must: (a) use the same degree of care it uses to protect its own Confidential Information, exclusive of corporate document marking conventions, but in any event not less than reasonable care, to protect the disclosing party’s Confidential Information during the Exchange Period from unauthorized use, dissemination, or publication; (b) use the disclosing party’s Confidential Information only in connection with the Business Purpose; and (c) limit access to the disclosing party’s Confidential Information to those employees performing work in connection with the Business Purpose. Each party must advise its employees and agents who receive or have access to any of the other party’s Confidential Information of its confidential nature.

Exclusions. Confidential Information does not include information that: (a) was or becomes generally available to the public other than as a result of disclosure in violation of this Agreement; (b) becomes available to the recipient party from a source other than the disclosing party, provided that the recipient party has no reason to believe that the source is itself bound by a confidentiality or non-disclosure agreement with the disclosing party or is otherwise prohibited from disclosing the Confidential Information by a legal, contractual, or fiduciary obligation; (c) was developed by the recipient party without the use of the disclosing party’s Confidential Information; (d) is subject to disclosure by the recipient party under the Freedom of Information Act (FOIA), MCL 15.231 et seq.; (e) or is required to be disclosed by other law, regulation, or court order, so long as the recipient party provides the disclosing party with written notice of the required disclosure promptly upon receipt of notice of the disclosure.

Return of Confidential Information. Except as otherwise provided by law, including retention and disposal schedules of governmental agencies, at the written request of the disclosing party, the recipient party must return all copies of the disclosing party’s Confidential Information or certify in writing that all copies thereof have been destroyed. Either party may return the other party’s Confidential Information, or any part thereof, at any time.

Survival. The provisions of this Agreement that impose continuing obligations with respect to confidentiality will survive the expiration or termination of this Agreement, to the extent that either party retains Confidential Information of the other after the expiration of the Agreement.

Equitable Relief. Each party to this Agreement acknowledges and agrees that (a) a breach or threatened breach by such party of any of its obligations under this Agreement may give rise to irreparable harm to the other party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by such party of any such obligations, the other party hereto is entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy.

No Third-Party Beneficiaries. DTMB’s Confidential Information may include information that belongs to a third party that is assisting DTMB with the Business Purpose. Nothing in this Agreement, however, is intended to confer any rights or remedies upon any person or entity not a party to this Agreement.

No Warranties or Further Rights. Neither party makes any representations or warranties, express or implied, with respect to any of its Confidential Information. Nothing contained in this Agreement shall be construed as granting or conferring to either party any rights by license or otherwise in or to the other party’s Confidential Information, except for the use of such Confidential Information as expressly provided in this Agreement. Neither party may use the other party’s Confidential Information for any purpose except in relation to the Business Purpose.

Miscellaneous. Neither party may act or has the authority to act as an agent of the other party for any purpose. This Agreement is governed by and construed in accordance with the laws of the State of Michigan. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party. Any modification of this Agreement must be in writing and signed by both parties.

Counterparts and Electronic Documents. This Agreement may be executed and delivered in counterparts, including by a facsimile or an electronic transmission thereof, each of which shall be deemed an original.

FOR DTMB

By:

Name Department of Technology, Management & Budget Dated: , 2019 FOR Entity Name By:

Name Title Entity Name Dated: , 2019