S000000300 Non-Disclosure Agreement.doc

STATE OF ARKANSAS

DEPARTMENT OF TRANSFORMATION AND SHARED SERVICES

NON-DISCLOSURE AGREEMENT

This Non-Disclosure Agreement (the “Agreement”) is made and entered into as of this date between State of Arkansas, Department of Transformation and Shared Services (TSS), 501 Woodlane Street, Suite 201, Little Rock, Arkansas 72201 and _____________.

IN CONSIDERATION OF THE PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT CONCERNING THE DISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO AGREE AS FOLLOWS:

1. Purpose. In preparation for responding to Request for Proposal S000000300 for Strategic Management Consultant Services, the parties may disclose to each other certain confidential technical and business information which the Disclosing Party desires the Receiving Party to treat as confidential.

2. “Confidential Information” means any nonpublic information disclosed by the Disclosing Party to the other party (Receiving Party), either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation documents, prototypes, samples, plant and equipment), and designates such information as being confidential or which, under the circumstances surrounding disclosure ought to be treated as confidential by the Receiving Party. Confidential Information includes, without limitation, information in tangible or intangible form relating to and/or including released or unreleased Disclosing Party services or products, network security functions and operations, Disclosing Party's business policies or practices, and information received from others that Disclosing Party is obligated to treat as confidential. Except as otherwise indicated in this Agreement, the term “Disclosing Party” also includes all Affiliates of the Disclosing Party and, except as otherwise indicated, the term “Receiving Party” also includes all Affiliates of the Receiving Party. An “Affiliate” means any person, partnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or indirectly, control, are controlled by, or are under common control with a party. Information communicated orally shall be considered Confidential Information if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure.

Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the Disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the receiving party through no action or inaction of the Receiving Party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the Receiving Party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; (v) is independently developed or acquired by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the Receiving Party’s possession; or (vi) is required by law to be disclosed by the Receiving Party, provided that the Receiving Party gives the Disclosing Party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure.

3. Non-use and Non-disclosure. The Receiving Party agrees not to use any Confidential Information of the other party for any purpose except for responding to a Request for Proposal S000000300 for Strategic Management Consultant Services. The Receiving Party agrees not to disclose any Confidential Information of the other party to third parties or to such party’s employees and consultants, except to those employees and consultants of the receiving party who are required to have the information in order to evaluate or engage in discussions concerning responding to a Request for Proposal S000000300 for Strategic Management Consultant Services. The Receiving Party shall not reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information and which are provided to the party hereunder.

4. Maintenance of Confidentiality. The Receiving Party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, the Receiving Party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees who have access to Confidential Information of the other party have signed a non-use and non-disclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to such employees. The Receiving Party shall not make any copies of the Confidential Information of the other party unless previously approved in writing by the disclosing party. The Receiving Party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.

5. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning responding to Request for Proposal S000000300 for Strategic Management Consultant Services if any, and to also cease further disclosures, communications or other activities under this Agreement upon written notice to the other party.

6. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.” EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.

7. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of the disclosing party and shall be promptly returned to the disclosing party upon the disclosing party’s written request. If the Confidential Information disclosed is electronic in format, then the Receiving Party shall delete, destroy, and securely erase the Disclosing Party’s Confidential Information and shall provide, upon written request of the Disclosing Party, a written certification to the Disclosing Party to this effect within thirty (30) days of the completion of responding to Request for Proposal S000000300 for Strategic Management Consultant Services.

8. No License. Nothing in this Agreement is intended to grant any rights to either party under any patent, mark, work right, or copyright, trade secret or other intellectual property right of the other party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set forth herein.

9. Term. The obligations of each receiving party hereunder shall survive until the earlier of (i) such time as all Confidential Information of the other party disclosed hereunder becomes publicly known and is made generally available through no action or inaction of the receiving party or (ii) the third anniversary of the disclosure; provided, that, to the extent that the Disclosing Party has disclosed information to the Receiving Party that constitutes a trade secret under law, the Receiving Party agrees to protect such trade secret(s) for so long as the information qualifies as a trade secret under applicable law.

10. Remedies. Each party agrees that any violation or threatened violation of this Agreement may cause irreparable injury to the other party, entitling the other party to seek injunctive relief in addition to all legal remedies.

11. Miscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This Agreement shall be governed by the laws of Arkansas, USA, without reference to conflict of laws principles. This document contains the entire agreement between the parties with respect to the subject matter hereof, and neither party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth herein. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto.

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Date Arkansas Department of Transformation and Shared Services