Attachment_1_-_NonDisclosure_Agreement_-_Contractor.pdf

SECHQ1-12-R-T-002

Attachment 1

Attachment A

NON-DISCLOSURE AGREEMENT (CONTRACTOR)

A. Intending to be legally bound, _________________________ (the “Contractor”) hereby accepts the obligations contained in this Agreement in consideration of being granted conditional access to SEC confidential and non-public information to include personally identifiable information (PII). For purposes of this Agreement, “confidential or non-public information,” is defined as information generated by or in the possession of the SEC that is commercially valuable, trade secret, market sensitive, proprietary, related to an SEC enforcement or examination matter, subject to privilege, protected by the Privacy Act (5 U.S.C. § 552a), or otherwise deemed confidential or non-public by an SEC division director or office head, and is not otherwise available to the public. This definition applies to confidential or non-public information in any form, including documents, electronic mail, computer files, conversations, and audio or video recordings.

For purposes of this Agreement, examples of confidential or non-public information include corporate financial data provided to the SEC that has not been made public; SEC planned or contemplated courses of action regarding SEC examinations, investigations, and enforcement actions; and SEC personnel information covered by the Privacy Act, 5 U.S.C. § 552a.

B. The Contractor acknowledges that any conditional access to SEC confidential and non-public information is granted to Contractor for the sole purpose of performing its obligations under SEC Contract ___________________ (the “underlying Contract”). This Agreement does not grant Contractor access to information or materials that the SEC determines in its sole discretion is inappropriate for disclosure to Contractor.

C. Contractor acknowledges that the SEC Regulation Concerning Conduct of Members and

Employees and Former Members and Employees of the Commission expressly prohibits the improper use and unauthorized disclosure of confidential or non-public information or documents.

See 17 C.F.R. § 200.735-3(b)(1) & (b)(2) available at http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&rgn=div5&view=text&node=17:2.0.1.1.1&idno=17#17:2.0.1.1.1.13.3.3. Contractor, for itself and its employees, agents, and subcontractors, agrees to be bound by the prohibitions of § 200.735-3(b)(1) & (b)(2) and the terms set forth herein. Contractor, for itself and its employees, agents, and subcontractors, agrees not to disclose to any unauthorized person any confidential or non-public documents or information to which Contractor or its employees, agents, or subcontractors have access in the performance of duties under the underlying Contract.

D. In accordance with the SEC Regulation at 17 C.F.R. § 200.735-3(b)(1), the Contractor, for itself and its employees, agents, and subcontractors, agrees not to engage, directly or indirectly, in any personal business transaction or private arrangement for personal profit the opportunity for which arises because of performance under the Contract, or that is based upon confidential or non-public information which the Contractor and its employees, agents, and subcontractors gain in the course of performance under the Contract.

E. In accordance with the SEC Regulation at 17 C.F.R. § 200.735-3(b)(2)(i), the Contractor, for itself and its employees, agents, and subcontractors, agrees not to disclose to any unauthorized person or release in advance of authorization for its release, any confidential or non-public document or information: (1) protected from disclosure under 5 U.S.C. §§ 552, 552a, and 552b or any rules or regulations of the SEC; or (2) in circumstances where the SEC has determined to accord such information confidential treatment, unless the SEC authorizes the disclosure of such http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&rgn=div5&view=text&node=17:2.0.1.1.1&idno=17#17:2.0.1.1.1.13.3.3 http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&rgn=div5&view=text&node=17:2.0.1.1.1&idno=17#17:2.0.1.1.1.13.3.3 information as provided for under 17 C.F.R. § 200.735-3(b)(2)(ii). Confidential and non-public information shall be shared with authorized persons only on a need-to-know basis.

F. For purposes of this Agreement, an "unauthorized person" is anyone other than (1) an officer or employee of the SEC, (2) an employee of the Contractor who has executed a non-disclosure agreement with the SEC under the Contract, (3) an employee of a subcontractor of the Contractor who has executed a non-disclosure agreement with the SEC under the Contract, and whose employer advises Contractor as such, or (4) any individual that the Contracting Officer expressly designates as a person authorized to receive the confidential or non-public information at issue.

G. Contractor acknowledges that other federal laws and regulations, including but not limited to the following, may also prohibit the disclosure of confidential and non-public information received pursuant to the Contract:

• the Government Trade Secrets Act, 18 U.S.C. § 1905 (disclosure of confidential information generally) (currently available at http://assembler.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00001905----000- .html);

• 18 U.S.C. § 641 (theft of public property or records) (currently available at http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000641----000-.html);

• Rule 122 under the Securities Act of 1933, 17 C.F.R. § 230.122 (nondisclosure of SEC confidential information obtained in the course of examinations and investigations) (currently available at http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?YEAR=current&TITLE=17&PART=230&SECTION=122&SUBPART=&TYP

E=TEXT);

• Section 24(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78x (disclosure and use for personal benefit of SEC confidential information) (currently available at http://www.sec.gov/about/laws/sea34.pdf), and Rule 0-4, 17 C.F.R. § 240.0-4 (nondisclosure of SEC confidential information obtained in examinations and investigations) (currently available at http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?YEAR=current&TITLE=17&PART=240&SECTION=0- 4&SUBPART=&TYPE=TEXT), Rule 10b-5, 17 C.F.R. § 240.10b-5 (employment of manipulative and deceptive devices in connection with the purchase or sale of any security) (currently available at http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?YEAR=current&TITLE=17&PART=240&SECTION=10b- 5&SUBPART=&TYPE=TEXT), and Rule 24b-2, 17 C.F.R. § 240.24b-2 (nondisclosure of SEC confidential information filed with the Commission and with any exchange) (currently available at http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?YEAR=current&TITLE=17&PART=240&SECTION=24b- 2&SUBPART=&TYPE=TEXT), thereunder;

• Section 45(a) of the Investment Company Act, 15 U.S.C. § 80a-44 (disclosure and use for personal benefit of nonpublic information filed or transmitted to the SEC) (currently available at http://www.sec.gov/about/laws/ica40.pdf); and http://assembler.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00001905----000-.html http://assembler.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00001905----000-.html http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000641----000-.html http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?YEAR=current&TITLE=17&PART=230&SECTION=122&SUBPART=&TYPE=TEXT http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?YEAR=current&TITLE=17&PART=230&SECTION=122&SUBPART=&TYPE=TEXT http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?YEAR=current&TITLE=17&PART=230&SECTION=122&SUBPART=&TYPE=TEXT http://www.sec.gov/about/laws/sea34.pdf http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?YEAR=current&TITLE=17&PART=240&SECTION=0-4&SUBPART=&TYPE=TEXT http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?YEAR=current&TITLE=17&PART=240&SECTION=0-4&SUBPART=&TYPE=TEXT http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?YEAR=current&TITLE=17&PART=240&SECTION=0-4&SUBPART=&TYPE=TEXT http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?YEAR=current&TITLE=17&PART=240&SECTION=10b-5&SUBPART=&TYPE=TEXT http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?YEAR=current&TITLE=17&PART=240&SECTION=10b-5&SUBPART=&TYPE=TEXT http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?YEAR=current&TITLE=17&PART=240&SECTION=10b-5&SUBPART=&TYPE=TEXT http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?YEAR=current&TITLE=17&PART=240&SECTION=24b-2&SUBPART=&TYPE=TEXT http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?YEAR=current&TITLE=17&PART=240&SECTION=24b-2&SUBPART=&TYPE=TEXT http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?YEAR=current&TITLE=17&PART=240&SECTION=24b-2&SUBPART=&TYPE=TEXT http://www.sec.gov/about/laws/ica40.pdf

• Section 210(b) of the Investment Advisers Act of 1940, 15 U.S.C. § 80b-10 (no public release of existence of SEC examinations or investigations, or results of or facts ascertained during any such examinations or investigations) (currently available at http://www.sec.gov/about/laws/iaa40.pdf).

Contractor is aware of such laws and regulations and agrees to comply with the standards for protecting confidential and non-public information in accordance with the laws and regulations, including any superseding revisions or updates, that are applicable to the specific information to which it has access.

H. If there is doubt as to whether a document or information is confidential or non-public, or whether a proposed recipient of a document or information is an unauthorized person, the Contractor shall request clarification from the Contracting Officer.

I. The Contractor acknowledges that it has received and read the SEC Regulations at 17

C.F.R. § 200.735-3(b)(1) & (b)(2) and has referred any questions regarding those Regulations or this Agreement to the Contracting Officer.

J. The Contractor acknowledges that disclosure of confidential or non-public information in violation of this agreement could subject the Contractor to administrative, civil, or criminal action, as appropriate, under the laws and regulations applicable to the information involved. Violation of this Agreement may also constitute a ground for termination of the Contractor’s underlying Contract with the SEC, and/or suspension and debarment from receiving future federal contracts.

Contractor understands that the United States Government may seek any remedy available to it to enforce this Agreement, including but not limited to application for a court order prohibiting disclosure of information in violation of this Agreement.

K. Contractor affirms they have established policies and procedures to safeguard SEC personally identifiable information (PII) and confidential or non-public information as required by Clause 6012.05 Personally Identifiable Information (PII). A copy of the policies and procedures are attached to this submission and all updates will be provided within 15 days of the effective date.

Contractor affirms enforcement of compliance with the policies and procedures.

L. Contractor affirms that handling electronic SEC personally identifiable information (PII) and other confidential or non-public information will done in compliance with SEC Clause 6012.06 Security Requirements.

M. Contractor hereby assigns to the United States Government all royalties, remunerations, and emoluments that have resulted, will result, or may result from any personal business transaction in violation of the terms of this Agreement or any disclosure, publication, or revelation of confidential or non-public information in violation of the terms of this Agreement.

N. Each provision of this Agreement is severable. If a court should hold any provision of this Agreement unenforceable, all other provisions shall remain in full force and effect.

O. Contractor acknowledges that all conditions and obligations created by this Agreement apply during the performance of the underlying SEC Contract and thereafter with respect to http://www.sec.gov/about/laws/iaa40.pdf information accessed by Contractor that remains confidential or non-public.

P. The person signing this Agreement on behalf of Contractor warrants that he or she has the authority to enter into this Agreement on behalf of Contractor.

Contractor Name: ___________________________ by

Signature & Title: _________________________________

Date: _________________________________

This Agreement was accepted by the undersigned on behalf of the SEC as a prior condition of conditional access to confidential and non-public information to include personally identifiable information (PII).

SEC Representative Date

REVISED 1/12/2012