Attachment 3 - NDA - Contractor.docx

Attachment 3

NON-DISCLOSURE AGREEMENT (CONTRACTOR ENTITY)

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 or non-public information. For purposes of this Agreement, “confidential or non-public information” is defined as SEC information that is not available to the public and that is commercially valuable, trade secret, market sensitive, proprietary, 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. “SEC information” includes information that is generated by or in the possession of the SEC, as well as information that is collected on behalf of the SEC or that is otherwise accessible by virtue of performing an SEC contract. The definition of SEC confidential or non-public information applies to information in any form, including documents, electronic mail, computer files, conversations, and audio or video recordings. For purposes of this Agreement, examples of SEC confidential or non-public information include corporate financial data provided to the SEC that has not been made public; information related to SEC examinations, investigations, and enforcement actions, including planned or contemplated courses of action, that have not been made public; SEC PII or other personnel information covered by the Privacy Act, 5 U.S.C. § 552a; and usage statistics, search histories, or other data specific to the SEC’s use of a particular information source or service.

B. The Contractor acknowledges that any conditional access to SEC confidential or 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 are 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 abide by the prohibitions of § 200.735-3(b)(1) & (b)(2) as if those provisions were directly applicable to Contractor and its employees, agents, and subcontractors.

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 performing the underlying 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 information as provided for under 17 C.F.R. § 200.735-3(b)(2)(ii). Confidential or 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:

1. 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);

1. 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);

1. 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=&TYPE=TEXT);

1. 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 04, 17 C.F.R. § 240.04 (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. § 240.24b2 (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;

1. 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

1. Section 210(b) of the Investment Advisers Act of 1940, 15 U.S.C. § 80b10 (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 or 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. 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. In the underlying Contract, Contract Clause 6012.05, Personally Identifiable Information (PII), imposes certain requirements on Contractor if it will design, develop, or operate a system of records on individuals, or otherwise collect, transmit, or have access to PII in the performance of the underlying Contract. Contractor affirms that it has established policies and procedures to safeguard SEC PII as required by Clause 6012.05, or that it will do so prior to designing, developing, or operating a system of records on individuals, or otherwise collecting, transmitting, or accessing PII in the performance of the underlying Contract. Contractor affirms that it has provided a copy of the policies and procedures, or otherwise made such policies and procedures available, to all employees, agents, and subcontractor personnel who will perform the underlying Contract, or that Contractor will do so prior to designing, developing, or operating a system of records on individuals or otherwise collecting, transmitting or accessing PII in the performance of the underlying Contract. A copy of the policies and procedures are attached to this submission, or will be promptly provided to the Contracting Officer once created, and all updates will be provided to the Contracting Officer within 15 days of the effective date. Contractor agrees to enforce compliance with any such policies and procedures.

L. 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.

M. Contractor further agrees that it will not disclose any classified information received in the course of performing the underlying Contract unless specifically authorized to do so by the United States Government.

N. This Agreement does not bar disclosures to Congress or to an authorized official of an executive agency or the Department of Justice that are essential to reporting a substantial violation of law.

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 information accessed by Contractor that remains confidential or non-public.

P. Contractor acknowledges that if the underlying Contract is related to any actual or reasonably foreseeable SEC investigation, litigation, or dispute that the provisions in Addendum One shall apply to Contractor’s employee(s) working on the Contract during the performance of the underlying SEC Contract. The underlying Contract |_|IS |_|IS NOT related to any actual or reasonably foreseeable SEC investigation, litigation, or dispute.

Q. Contractor acknowledges that Addendum Two, the substance of which is required by law to be included in this Agreement, is attached.

R. 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.

S. 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

ADDENDUM ONE

ADDENDUM TWO

The provisions and restrictions of this Agreement are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection [collectively, including but not limited to Executive Order No.13526 (75 Fed. Reg. 707), or any successor thereto; section 7211 of title 5, United States Code (governing disclosures to Congress); section 1034 of title 10, United States Code, as amended by the Military Whistleblower Protection Act (governing disclosure to Congress by members of the military); section 2302(b)(8) of title 5, United States Code, as amended by the Whistleblower Protection Act of 1989 (governing disclosures of illegality, waste, fraud, abuse or public health or safety threats); the Intelligence Identities Protection Act of 1982 (50 U.S.C. 421 et seq.) (governing disclosures that could expose confidential Government agents); sections 7(c) and 8H of the Inspector General Act of 1978 (5 U.S.C. App.) (relating to disclosures to an inspector general, the inspectors general of the Intelligence Community, and Congress); section 103H(g)(3) of the National Security Act of 1947 (50 U.S.C. 403–3h(g)(3) (relating to disclosures to the inspector general of the Intelligence Community); sections 17(d)(5) and 17(e)(3) of the Central Intelligence Agency Act of 1949 (50 U.S.C. 403q(d)(5) and 403q(e)(3)) (relating to disclosures to the Inspector General of the Central Intelligence Agency and Congress); and the statutes which protect against disclosure that may compromise the national security, including sections 641, 793, 794, 798, and 952 of title 18, United States Code, and section 4(b) of the Subversive Activities Control Act of 1950 (50 U.S.C. 783(b))]. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions, including those listed above, are incorporated into this agreement and are controlling.

Revised 7/19/13 1