Confidentiality___Nondisclosure_Conditions_(RFP_Format_-_Construction).pdf

NATIONAL GALLERY OF ART

Confidentiality & Non-Disclosure Conditions

(Construction)

THESE TERMS AND CONDITIONS shall be fully incorporated into and made a part of the contract entered into the ________________, by and between the National Gallery of Art (“Gallery”) and

_______________ with offices ___________________ (“the Contractor”) (each a “Party” and collectively the "Parties").

WHEREAS Gallery has contractually engaged the Contractor (contract reference No. _____________)

(hereinafter the “Contract,” “Engagement,” or “Purpose”);

AND WHEREAS the Engagement may involve the disclosure by Gallery to the Contractor of confidential and proprietary information;

IN CONSIDERATION of the foregoing and of the mutual covenants and agreements contained herein, the Parties hereto covenant and agree as follows:

1. Confidential Information

(a) “Confidential Information” means all information and materials provided by the Gallery to the Contactor during the Engagement and any information or materials which otherwise come into the

Contractor’s possession that are proprietary to the Gallery or confidential information of the Gallery.

Confidential Information includes, but is not limited to: (i) the Project (ii) Work Statements, (iii) the

Submittals, (iii) Drawings, (iv) Designs, (v) Plans, (vi) Paper and Electronic Files, (vii) Specifications,

(viii) Deliverables, (ix) Reviews, (x) Estimates, (xi) Schedules, (xii) all Supporting Materials, (xiii)

Personally Identifiable Information

(xiv) every aspect of the Gallery’s Data Network and Other Wiring

Systems, and (xv) all other information in any physical, electronic, or other form disclosed by the Agency to the Contractor, either directly or indirectly, in writing, orally, or by inspection of tangible objects.

Confidential Information also includes any other information provided by the Contractor to the Gallery, if that information becomes that property of the Gallery pursuant to the Contract, and information pertaining to the Gallery’s computer systems, security measures and business affairs, and proprietary or trade secret information, in oral, graphic, written, electronic or machine readable form.

(b) Confidential Information does not include that information defined as Confidential

Information above which the receiving party can conclusively establish (i) is in the possession of the receiving party without an obligation of confidentiality at the time of disclosure; (ii) prior to or after the time of disclosure becomes part of the public domain without the act or omission of the receiving party to whom it was disclosed; (iii) is disclosed to the receiving party by a third party under no legal obligation to maintain the confidentiality of such information; or (iv) was independently developed by or on behalf of the receiving party. Term 1.(b)(iv) never applies to Personally Identifiable Information.

2. Restrictions

(a) The Contractor shall not at any time, other than in accordance with the terms of these

Terms and Conditions, disclose the Confidential Information without prior written approval of Gallery, or use any such Confidential Information for any purpose other than the Purpose (“as required to carry out

Personally Identifiable Information (PII): For the purposes of this document, PII comprises data, regardless of medium or format, that are Gallery property and can be used to distinguish or trace an individual’s identity, including but not limited to name, Social Security number, medical data, biometric records, date of birth, mother’s maiden name, or private telephone number, alone or in combination with other personal or identifying information that is linked or linkable to a specific individual.

the Purpose”), unless specifically approved in writing by Gallery. However, the Contractor may disclose

Confidential Information in accordance with a judicial or other governmental order, provided the

Contractor shall give Gallery reasonable notice prior to such disclosure and shall assist Gallery in obtaining a protective order or the equivalent to prevent or minimize disclosure of the Confidential

Information; and provided further that the disclosure permitted shall only be the extent required by the relevant order and then only in the context of the subject proceeding.

(b) The Contractor shall maintain the confidential nature of the Confidential Information by taking reasonable steps to protect the information from unauthorized use, access and disclosure. The

Contractor may disclose Confidential Information only to its employees and consultants who shall have a need-to-know such for the Purpose. The Contractor shall execute appropriate written agreements with employees and consultants sufficient to enable it to comply with all of the confidentiality provisions of these Terms and Conditions. The Contractor shall remain responsible for preventing any violation of these Terms and Conditions by a third party to whom Contractor disclosed Confidential Information, whether or not such disclosure was permitted by these Conditions. The Contractor shall indemnify

Gallery for any misuse or misappropriation of Confidential Information committed by Contractor’s employees, consultants, or other third parties receiving such Confidential Information from Contractor.

All use of the Confidential Information shall be for the Purpose only.

(c) The Contractor shall not record, make notes of, copy or reproduce the Confidential

Information by any means without the written permission of the Gallery except as necessary to carry out the Purpose. All copies, records, notes or reproductions, in whole or in part, shall contain notices identifying them as containing the Confidential Information of the Gallery and shall be protected from unauthorized disclosure or access. The Contractor agrees to segregate all Confidential Information from the confidential materials of others in order to prevent commingling.

(d) The Contractor shall not reverse engineer, decompile or disassemble any software, which is Confidential Information.

3. Rights and Remedies

(a) The Contractor acknowledges and agrees that all Confidential Information and worldwide right, title, and interest whatsoever therein and thereto, both legal and equitable, shall belong to and shall remain the sole and exclusive property of Gallery or its licensor(s). Nothing in these Terms and Conditions shall be construed as granting the Contractor any right, or interest, by license or otherwise, in the Confidential Information.

(b) The Contractor agrees to return all originals, copies, reproductions and summaries of

Confidential Information at Gallery's request, or at the sole discretion of Gallery, certify destruction of the same.

(c) The Contractor agrees to notify Gallery immediately upon discovery of any unauthorized use or disclosure of Confidential Information, or breach of these Terms and Conditions.

(d) The Contractor acknowledges that any breach of these Terms and Conditions by the

Contractor would result in significant damage to Gallery, not completely compensable monetarily, and agrees that the Gallery shall be entitled to apply for injunctive relief in a court of appropriate jurisdiction in the event of the breach or threatened breach of any of these Terms and Conditions. The Contractor shall not oppose any such application on the basis that damages would be a satisfactory or sufficient remedy.

4. Publicity The Contractor shall not refer to the Gallery or use the Gallery’s name or seal for any reason whatsoever without the express prior written approval of the Gallery provided, however, that the

Contractor shall have the right to use the name of the Gallery as it may be required by law.

5. Miscellaneous

(a) The Contractor acknowledges that the Confidential Information, is provided “as is” without representation or warranty of any kind and that the use of such Confidential Information is entirely at the Contractor's risk. The Contractor acknowledges that neither the Gallery nor its suppliers or affiliates shall be liable for any damages whatsoever relating to the Contractor’s use of Confidential

Information.

(b) If any of these Terms and Conditions shall be held to be illegal, invalid, or unenforceable by a court of competent jurisdiction, the remaining terms shall remain in full force and effect.

(c) These Terms and Conditions supersede any and all prior arrangements whether oral or written, with respect to the Confidential Information.

(d) These Terms and Conditions are personal, indivisible, and non-transferable and may not be assigned or transferred in whole or in part by either Party.