NON-DISCLOSURE AGREEMENT
This AGREEMENT is entered into by and between The Trustees of the University of Pennsylvania (“Customer”), a Pennsylvania nonprofit corporation with address of 3451 Walnut Street, Philadelphia, PA, 19104-6228, and <COMPANY LEGAL NAME>, a Corporation
(“Supplier”), with its principal place of business at <ADDRESS> .
1.
In General: Supplier agrees to maintain strict confidentiality concerning confidential information, including but not limited
to all personal information supplied by Customer, as well as all business planning, financial information, trade secret or
other proprietary information, written (paper or electronic), oral, acquired, shared, provided, or developed under this
Agreement ("Confidential Information"). Personal information is Confidential Information relating to an individual that
either identifies the individual or with respect to which there is a reasonable basis to believe the information can be used to
identify the individual. The confidentiality and non-use obligations created by this Agreement shall be binding upon
Customer and Supplier, and shall inure to the benefit of, and be enforceable by, their respective successors and assigns, and
shall continue with respect to each item of information until the earlier of (i) the occurrence of any of the conditions set
forth herein with respect to such item, or (ii) the longest period permitted by applicable law.
2.
Each officer, employee, agent, or Affiliate to whom Information is to be disclosed shall be advised by Supplier of the terms
of this Agreement and shall be bound by the confidentiality and non-use obligations herein, mutatis mutandis. For the
purposes of this Agreement, the term “Affiliate” shall mean: (a) any corporation or business entity fifty percent (50%) or
more of the voting stock or voting equity interests of which are owned directly or indirectly by such party; or (b) any
corporation or business entity which directly or indirectly owns fifty percent (50%) or more of the voting stock or voting
equity interests of such party; or (c) any corporation or business entity directly or indirectly controlling or under control of a
corporation or business entity described in (a) or (b).
3.
No agency or partnership relationship between Customer and Supplier, either express or implied, shall be created by this
Agreement. Each party agrees to keep the existence and nature of the relationship between the parties as well as the
terms of this Agreement confidential and not to use the names of the other parties in any publicity or advertisement with
regard to this Agreement, without the prior written consent of the other party.
4.
Exclusions: This section shall not apply to any information or data which:
a.
b.
c.
d.
e.
Supplier shall have lawfully possessed before entering into this Agreement;
shall be lawfully acquired by Supplier in circumstances or in a manner not resulting from, or related to, this Agreement
or the performance of the Services;
becomes part of the public domain in any manner other than the publication thereof in violation of this Agreement or
otherwise unlawfully;
is disclosed by Supplier with the prior written approval of the Customer; or,
is otherwise required by applicable law to be disclosed by Supplier (but then only to the extent that, and only to the
recipient or recipients to whom or which, such disclosure is required; and only after Supplier has given the Customer at
least ten (10) days' advance written notice of such disclosure)
5.
Property of Customer: Confidential Information shall remain the sole property of Customer. Supplier expressly
acknowledges and agrees that Supplier has no property right or interest whatsoever in any such data. Supplier shall not
acquire any license or any other intellectual property interest in any Confidential Information. Further, disclosure of
Confidential Information shall not result in any obligation to grant Supplier any right in and to said Confidential Information.
Any and all discoveries, improvements and/or inventions by Supplier, whether patentable, resulting from Supplier’s use of
Customer’s Confidential Information shall be the sole and exclusive property of Customer, and shall be deemed to be
Customer’s Confidential Information for purposes of this Agreement. Within thirty (30) calendar days of any discovery,
improvement, or invention, Supplier shall notify Customer, in writing, of the event and shall assist Customer in protecting
Customer's proprietary rights to said discovery, improvement and/or invention.
6.
Security Safeguards: Supplier shall maintain adequate administrative, technical and physical safeguards against
unauthorized access, use, or disclosure. Confidential Information shall not be removed from the Supplier’s work site unless
authorized by Customer as necessary for Agreement related purposes, shall not be transmitted by email unless by means of
an approved secure system, and shall not be downloaded to a portable device unless authorized by Customer. Supplier
personnel shall follow all applicable procedures to ensure physical and electronic security of all Confidential Information.
7.
Use and Disclosure Limitation: Supplier shall not use, provide, trade, give away, barter, lend, sell, or otherwise disclose
Confidential Information, and shall not make any copies of such data or any type whatsoever, in readable or encrypted
form, or in individually identifiable or aggregate form, except:
a.
b.
as necessary for the services and/or goods provided by Supplier; or,
as expressly permitted by Customer in a separate writing.
8.
Restricted Access: Supplier shall only permit access to personal data supplied by Customer to employees, agents or
independent contractors of Supplier:
a. who are directly involved in performing the Services for Customer and have a specific need to know such Confidential
Information, and,
b. who have entered into written confidentiality agreements which impose, or are otherwise bound by, restrictions on
the Confidential Information at least equivalent to those imposed under this Agreement.
9.
Breach: Supplier shall immediately report to Customer any use or disclosure of Customer’s Confidential Information not
provided for by this Agreement and any attempted or successful unauthorized access, use, disclosure, modification, or
destruction of Customer’s Confidential Information or interference with system operations in an information system
containing Customer’s Confidential Information of which Supplier becomes aware.
10. Remediation/ Mitigation: Upon notification of breach to Customer, Supplier shall:
a.
b.
c.
determine the scope of the breach,
restore the reasonable integrity of the data system which hosts Customer’s Confidential Information, and
work with Customer, in light of the circumstances and applicable law, to determine what risks are posed by the breach
and whether and how those persons whose data was accessed, acquired or disclosed should be notified.
11. Disputes: The parties shall attempt to resolve amicably any dispute arising out of or relating to this Agreement through
good faith negotiations. In the event that said negotiations are not successful, the dispute shall be resolved through
arbitration before three (3) arbitrators. Such arbitration shall take place in Philadelphia, Pennsylvania, and shall proceed in
accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and the laws of the
State of Pennsylvania without regard or reference to any of its rules or provisions governing conflict of laws. Within seven
(7) calendar days of either party making a demand for arbitration, Customer and Supplier shall each select one (1)
arbitrator. Within thirty (30) days of a demand for arbitration, a third arbitrator shall be selected by the arbitrators selected
by the parties. If, within the prescribed time, either party shall fail to appoint its arbitrator, or the two arbitrators selected
by the parties fail to appoint the third arbitrator, then either party may apply to the AAA for the appointment of such third
arbitrator. The determination of a majority of the panel of arbitrators shall be the decision of the arbitrators and shall be
binding upon the parties regardless of whether one of the parties fails or refuses to participate in the arbitration. The
decision of the arbitrators shall be enforceable by any court of competent jurisdiction. Each party shall pay for its
arbitrator, with all fees and expenses of the third arbitrator being split equally between the parties. All other expenses
directly associated with holding an arbitration proceeding shall be split equally between the parties. Either party may enter
any arbitration award in any court having jurisdiction or may make application to any such court for a judicial acceptance of
the award and an order of enforcement, as the case may be. Notwithstanding anything to the contrary in this Section,
Supplier understands and agrees that any use or disclosure of information in violation of this Agreement will cause
Customer irreparable harm leaving it without an adequate legal remedy and shall therefore entitle Customer, among all
other remedies, to injunctive relief from any court having jurisdiction.
12. Severability. If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the
remainder of this Agreement shall continue in full force and effect. The parties shall negotiate in good faith to substitute a
valid, legal, and enforceable provision that reflects the intent of such invalid or unenforceable provision. It is understood
and agreed that no failure or delay by either party in exercising any right, power, or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise
of any right, power, or privilege hereunder.
13. Return of Confidential Information: Upon the expiration, notice by Customer, or earlier termination of the Agreement,
Supplier will, at its own expense, immediately return to Customer all Confidential Information of Customer embodied in
tangible form, whether reduced to such form by Supplier including all copies thereof or certify in writing to Customer that all
such Confidential Information has been destroyed, except that Supplier may retain Confidential Information to the extent
that its retention is required by law, is needed to document performance under this Agreement. In the event destruction is
requested by Customer, Supplier shall certify such destruction in writing.
14. External Request for Confidential Information: In the event that the Supplier receives a request for Confidential
Information from a court or governmental authority, or accrediting agency, the Supplier shall give prompt written notice to
Customer in order to allow Customer the opportunity to seek the appropriate protective order to protect the Confidential
Information.
This Agreement shall be interpreted, construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania, without
regard or reference to any of its rules or provisions governing conflict of laws.
IN WITNESS WHEREOF, the undersigned parties have caused this Agreement to be executed as of the ____ day of ________, 2014.
THE TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA
COMPANY LEGAL NAME
By:
By:
_________________________
_________________________
Name: _________________________
Name: _________________________
Title:
Title:
_________________________
_________________________