NDA_RFP Licensing Agent.docx

Non-Disclosure Agreement

This Non-Disclosure Agreement (this “Agreement”) is entered into this on ______________, by and between Company Name and the Smithsonian Institution, a trust instrumentality of the United States created by Act of Congress in 1846 (20 U.S.C. 41 et. seq.), by and through Smithsonian Enterprises.

WHEREAS, each party (the “disclosing party”) may provide certain information to the other party (the “receiving party”), for the purposes of considering mutually beneficial opportunities and

WHEREAS, the Smithsonian Institution is a trust instrumentality of the United States and has adopted a written policy, available at http://www.si.edu/OGC/Records-Requests, for responding to requests for Smithsonian Institution records, including paper documents, electronic data, email, contracts, and other information stored or maintained by the Smithsonian, consistent with the principles of disclosure under the Freedom of Information Act, 5 U.S.C. § 552;

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

1. Confidential Information. Confidential Information consists of trade secrets and commercial or financial information that is customarily treated as private and provided under an assurance of privacy, as well as information the release of which would violate the privacy rights of the disclosing party or a third party with no overriding public interest. Confidential Information shall be designated in writing by the disclosing party as confidential. To have information disclosed other than in writing treated as Confidential Information, the disclosing party must confirm the status of that information as Confidential Information within 14 days of the original disclosure.

2. Exceptions to Confidential Information. Confidential Information does not include any information, whether or not designated in writing as Confidential Information, which:

1. was publicly available at the time of disclosure to the receiving party;

1. was known by the receiving party prior to such disclosure;

1. becomes publicly available after disclosure to the receiving party through no fault of the receiving party;

1. is obtained by the receiving party from a third party who acquired the information without committing a wrongful or tortious act; or

1. is developed independently by the receiving party without reference to or use of Confidential Information.

The receiving party shall notify the disclosing party promptly in writing of any misappropriation, unauthorized disclosure, or use by any person of the Confidential Information disclosed to the receiving party which may come to the receiving party’s attention. The receiving party will take all steps reasonably requested by the disclosing party to stop, limit, or otherwise remedy such misappropriation, unauthorized disclosure, or use.

3. Limited Disclosure. In maintaining Confidential Information, each 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. Each party agrees that it will not disclose Confidential Information provided to it by the other party to others except to the extent that it is necessary to disclose such Confidential Information to its Regents, directors, officers, representatives, legal and financial consultants, and employees having a need to know such Confidential Information (“authorized parties”) for the purpose of pursuing a relationship between the parties. Further, the parties may disclose Confidential Information if required by law, subpoena, order or request of a federal governmental authority or court of competent jurisdiction, and provided that the party obligated to disclose such Confidential Information shall (i) assert the confidential nature of the Confidential Information to be disclosed, (ii) use reasonable efforts to obtain confidential treatment for any Confidential Information 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. In the event disclosure of Confidential Information is requested in accordance with Smithsonian’s records disclosure policy, Smithsonian will provide the disclosing party the opportunity to identify Confidential Information prior to release, but final decisions regarding release shall be made by Smithsonian in accordance with its policy. No other use or disclosure of Confidential Information may be made by any party without the prior written consent of the disclosing party.

4. Return of Confidential Information. The receiving party will either return or destroy all tangible materials embodying Confidential Information 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.

5. No Implied Waiver. A party’s failure or delay in exercising any of its rights under this Agreement will not constitute a waiver of such rights unless expressly waived in writing.

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

7. Term. This Agreement is effective as of the date of the last signature below and will remain in effect until 2 years following the last disclosure of Confidential Information between the parties. Either party may terminate this agreement upon written notice to the other party; provided, however, that all obligations to protect Confidential Information shall survive any termination.

8. Entire Agreement and Governing Law. This Agreement constitutes the entire agreement with respect to Confidential Information disclosed pursuant to this Agreement and supersedes all prior or contemporaneous oral or written agreements concerning such Confidential Information. 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, to the extent there is no applicable federal law, the laws of the District of Columbia, regardless of place of execution or performance and without reference to its choice of law rules.

9. Warranty. Each person signing this Agreement for a party warrants and represents that they have the authority to sign this Agreement and to bind their respective party to the terms and conditions in this Agreement.

AGREED

SMITHSONIAN INSTITUTION Company Name

By: President, Smithsonian Enterprises By Its:

Date: _____________________ Date: ______________________