RFP 99-25 Confidentiality and Non-Disclosures Agreement.pdf

CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT

THIS CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT (“Agreement”), by and between Massachusetts Bay Transportation Authority, a body politic and corporate and a political subdivision of the Commonwealth of Massachusetts, having a place of business at Ten

Park Plaza, Boston, MA 02116 (“MBTA” or “Authority”), and the undersigned, a bidder/ responder/proposer (“Proposer”) to RFP No. 99-25 with respect to The RIDE Access Center

(TRAC), a centralized call and control center for The MBTA’s Paratransit Program, The RIDE.

1. Purpose; Confidential Information. In connection with a proposal for services potentially to be provided by the undersigned Proposer with respect to RFP No. 99-25 (TRAC)

(the “Purpose), MBTA may disclose to Proposer certain information which it desires to keep as proprietary and confidential including, but not limited to, information containing or related to cost model(s), operating procedures, business practices, equipment, management and operational issues, and pricing and financial information. Confidential Information is designated in Section

A Section 3.4 Dissemination of Confidential Information of RFP No. 99-25. To the extent so disclosed by MBTA to Proposer, or learned by Proposer, including all information relating to

RFP No. 99-25 whether learned or developed by Proposer, shall be hereinafter referred to as

“Confidential Information.” Confidential Information shall not include information (a) which is lawfully in the possession or knowledge of the non-disclosing party prior to the time of disclosure, (b) which prior to or after the time of disclosure becomes lawfully available to the non-disclosing party though a source without any obligation of confidentiality, or (c) is developed by the non-disclosing party without making any use of the Confidential Information.

2. Confidential Treatment. Proposer shall maintain the confidentiality of the

Confidential Information using procedures at least as rigorous as those used to protect and preserve the confidentiality of Proposer’s own proprietary information. In no event shall

Proposer use less than a reasonable degree of care to protect and preserve MBTA’s Confidential

Information including Proposer’s obligation to not, without MBTA’s prior written permission: (i) transfer or disclose any of MBTA’s Confidential Information to any third party; (ii) use any of

MBTA’s Confidential Information for any purpose other than for the Purpose; or (iii) take any other action with respect to MBTA’s Confidential Information inconsistent with the confidential and proprietary nature of such information. Notwithstanding clause (i) above, Proposer may disclose MBTA’s Confidential Information, in accordance with the terms of this Agreement, to its Representatives who have a need to know such Confidential Information solely in connection with the Purpose. Proposer shall: (a) cause its Representatives to comply with the terms of this

Agreement; and (b) assume full responsibility for any breach of this Agreement caused by any of its Representatives. As used herein, “Representatives” means a party’s and its affiliates’ officers, directors, employees, agents, contractors, subcontractors, consultants, advisors, attorneys and accountants. Proposer shall keep a list of all Representatives to whom Confidential Information was disclosed.

3. Legal Requirements. If Proposer is requested or required to disclose any of MBTA’s

Confidential Information pursuant to a subpoena, court order, statute, law, rule, regulation or other similar requirement, Proposer shall provide prompt notice of the legal requirement to

MBTA to permit MBTA to seek an appropriate protective order or other appropriate remedy or to waive compliance with the provisions of this Agreement. If MBTA is not successful in obtaining a protective order or other appropriate remedy and Proposer is, in the opinion of its counsel, compelled to disclose such Confidential Information, Proposer may disclose such

Confidential Information as necessary to comply with such legal requirement.

4. Term of Confidentiality. The confidentiality obligations under this Agreement regarding Confidential Information will continue for ten (10) years from the date of disclosure of such Confidential Information.

5. Termination. Proposer’s obligations regarding Confidential Information as stated in this Agreement will survive the expiration or termination of this Agreement as set forth herein.

At the request of MBTA, Proposer shall promptly destroy or return all Confidential Information furnished by MBTA, as directed by MBTA. If destroyed, Proposer shall provide certification of such destruction.

6. Complete Agreement. This Agreement is the complete and exclusive statement of agreement between the parties with respect to the treatment of Confidential Information and supersedes all prior agreements and communications between the parties related to the subject matter hereof. Each party represents and warrants to the other that it has full power and authority to enter into and perform this Agreement. This Agreement may not be amended, changed, altered or modified in any way except by a writing signed by both parties.

7. Reserved.

8. Injunctive Relief. Proposer acknowledges that money damages may not be a sufficient remedy for a breach of this Agreement and MBTA shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach.

9. Notices. Any notice, demand or other communication required or permitted to be given under this Agreement shall be in writing and shall be deemed delivered to a party when delivered by hand or overnight courier to the address of such party set forth above (or at such other address as the party may from time to specify by notice delivered in the foregoing manner).

10. Governing Law. All questions concerning the validity, interpretation and performance of this Agreement shall be governed by and decided in accordance with the Laws of the Commonwealth of Massachusetts, without regard to any conflicts of laws and principles thereof.

11. Waiver. A waiver of a breach or default under this Agreement shall not be a waiver of any other or subsequent breach or default. The failure or delay in enforcing compliance with any term or condition of this Agreement shall not constitute a waiver of such term or condition unless such term or condition is expressly waived in writing.

12. Construction. The parties are sophisticated and have been represented by counsel during the negotiation of this Agreement. As a result, the parties believe the presumption of any laws or rules relating to the interpretation of contracts against the drafter thereof should not apply, and hereby waive any such presumption.

13. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which taken together shall constitute one and the same instrument. Both parties agree that signature pages may be detached from separate counterparts and attached to a separate counterpart so that all signature pages are physically attached to the same document. Transmission by facsimile or email of an executed counterpart to this Agreement will be deemed due and sufficient delivery of such counterpart, and a photocopy or scan of an executed counterpart sent by facsimile or email transmission may be treated by the parties as a duplicate original.

14. Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or be impaired thereby.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the day and year first set forth above.

PROPOSER

By: ____________________________

Company Name: _____________________

Signer’s Name: ______________________

Title: ________________________

Date: ________________________