This Confidentiality Agreement (“Agreement”) is entered into as of today (“Effective Date”) by and between between Duquesne Light Company, a Pennsylvania limited liability company, on behalf of itself and its affiliates (collectively, “Duquesne”), and you, the individual accessing the Confidential and Proprietary Information (defined below) and any single legal entity on behalf of which you are acting (“You” or “Your”).
WHERAS, Duquesne wishes to protect and preserve the confidential and/or proprietary nature of information and materials and contracts that may be disclosed or made available to you in connection with the “Monitoring Electrical Cable Challenge” (the “Challenge”).
WHEREAS, Confidential and Proprietary Information shall mean all information and materials received in any form or in any medium both oral, in writing and by demonstration, and whether disclosed on, before or after the date of the Agreement, whether or not indicated to be Confidential and Proprietary Information or marked as such at the time of disclosure, pertaining to Duquesne or the Challenge, including the terms of the Challenge Specific Agreement (CSA), (collectively, the “Confidential and Proprietary Information”).
NOW, THEREFORE, You, intending to be legally bound, agrees that any Confidential and Proprietary Information received from Duquesne shall be governed by the following terms and conditions:
- For and in consideration of the disclosure and divulgence of the Confidential and Proprietary Information by Duquesne, You shall maintain the information secret and confidential and exercise the same care, but no less than reasonable care, to prevent the disclosure of such information as it exercises to prevent disclosure of its own proprietary and confidential information.
- EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANOTHER AGREEMENT BETWEEN THE PARTIES, THE CONFIDENTIAL AND PROPRIETARY INFORMATION IS PROVIDED ON AN “AS-IS” BASIS WITHOUT ANY WARRANTY OF ANY KIND, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION ALL WARRANTIES REGARDING ACCURACY, COMPLETENESS, CONDITION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
- You shall not use the Confidential and Proprietary Information for any purpose other than in connection with the Challenge without prior written approval of Duquesne. You expressly agrees that without such prior approval, You shall not use any of the Confidential and Proprietary Information for any party other than Duquesne.
- You shall not make copies, excerpt or in any way reproduce the Confidential and Proprietary Information, except as may be specifically required in furtherance of the performance of the Challenge with Duquesne without the prior written approval of Duquesne. Where reproductions are permitted in accordance with this paragraph, each reproduction shall be appropriately marked to show that it contains Confidential and Proprietary Information of Duquesne and shall contain all applicable copyright notices and proprietary legends, if any. You shall keep all such reproductions separately from its own documents and only at its usual premises.
- Duquesne retains all rights, title and interest in and to the Confidential and Proprietary Information.
- You warrant that, if receiving Confidential and Proprietary Information relating to:
- the Bulk Electric System (“BES”) and BES Cyber Assets and BES Cyber Systems, as defined by the North American Reliability Corporation (“NERC”);
- information relating to Critical Energy Infrastructure Information, as defined by the Federal Energy Regulatory Commission; or
- any other information relating to or describing Duquesne's electrical distribution and transmission infrastructure, including but not limited to the information on Duquesne’s transmission stations and substations and their associated primary control centers, that if rendered inoperable or damaged as a result of a physical attack could result in widespread instability, uncontrolled separation or cascading within an interconnection as defined under PJM Interconnection LLC or any other regional transmission organization's and/or NERC's Reliability Standards
(collectively, the "Critical Infrastructure Information"), You and any employee, agent, representative or subcontractor who will have access to the Critical Infrastructure Information shall have received all required approvals from any applicable governmental agencies or other entities prior to accessing such Critical Infrastructure Information.
- You shall immediately notify Duquesne of any changes in the status of any employees or subcontractors with access to Confidential and Proprietary Information, including suspension, termination (including for cause terminations) or criminal activity that would be considered a potential concern to the reliability of Duquesne's operations and security. In the event an employee or a subcontractor ceases to be employed by You, You must immediately terminate the employee’s or subcontractor’s access to Confidential and Proprietary Information and shall cause such employee or subcontractor to immediately return or dispose of the Confidential and Proprietary Information. After the termination of the employment or contract, You shall ensure that its former employee or subcontractor will remain bound by the terms of this Agreement.
- Upon the written request of Duquesne, You shall either return or destroy, in the manner reasonably required by Duquesne, the Confidential and Proprietary Information and all reproductions thereof in accordance with Duquesne’s instructions.
- Nothing in this Agreement shall affect Your right to use and/or disclose to others any and all Confidential and Proprietary Information or any part thereof which:
- Is documented as being already known to the You without obligation of confidentiality;
- Is or becomes publicly known through no wrongful acts of You;
- Is contained in any issued patent or becomes published or otherwise generally known in Your trade through no wrongful act of You from the date it becomes published or generally known;
- Is received from a third party without restriction and through no wrongful act of You;
- Is independently developed by You; or
- Is approved for release by written authorization of Duquesne.
- You agree to defend, indemnify and hold harmless Duquesne for any costs and expenses, including without limitation attorneys’ fees and expenses, resulting from Your, Your employees’ or subcontractors’ breach of its obligations hereunder and Duquesne’s actions to enjoin such breach and/or enforce its rights hereunder.
- Notwithstanding anything to the contrary in this Agreement, You may disclose the Confidential and Proprietary Information if and to the extent required by law. You shall give prompt notice to Duquesne of such disclosure request as far in advance as practicable prior of making disclosure and assist Duquesne in restricting any disclosure required by law.
- You hereby acknowledges that, due to the unique nature of the Confidential and Proprietary Information, Duquesne’s remedies at law may be inadequate and that Duquesne may suffer irreparable harm in the event of breach or threatened breach of any provision of this Agreement. Accordingly, in such event, Duquesne shall be entitled to seek preliminary and final injunctive relief without a requirement to post bond, as well as any and all other applicable remedies available to Duquesne at law or in equity, including the recovery of damages.
- The obligations of confidentiality hereunder with respect to any Confidential and Proprietary Information shall continue for a period of five (5) years from the date of the last disclosure of Confidential and Proprietary Information under this Agreement, except that the following Confidential and Proprietary Information shall remain subject to the confidentiality obligations indefinitely:
- Critical Infrastructure Information; and
- Duquesne customer or employee information or data naming or identifying a natural person such as: (a) personally identifying information that is explicitly defined as a regulated category of data under any data privacy or data protection laws applicable to Duquesne; (b) non‑public information, such as a home address or email address, national identification number, passport number, social security number, driver's license number; (c) health or medical information, such as insurance information, medical prognosis, diagnosis information or genetic information; (d) financial information, such as a policy number, credit card number and/or bank account number; and/or (e) sensitive personal data, such as mother's maiden name, race, marital status, gender or sexuality.
- This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania, except for its conflicts of law provisions. The courts of the Commonwealth of Pennsylvania shall have the exclusive jurisdiction over any disputes or controversy arising out or in connection to this Agreement.
- You agree not to assign this Agreement without the prior written approval of Duquesne. Any purported assignment without such prior approval shall be null and void.
- This Agreement may not be superseded, amended or modified except by written agreement.
- Failure to enforce any provision of this Agreement, or any delay or omission exercising any right under this Agreement, will not constitute a waiver of that provision or right, or of any future enforcement of that provision or right, or of any other term of this Agreement.
IT IS IMPORTANT THAT YOU READ CAREFULLY AND UNDERSTAND THIS AGREEMENT. BY CLICKING THE "ACCEPT" BUTTON LOCATED ON THIS PAGE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL THE TERMS OF THIS AGREEMENT AND DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE DO NOT CLICK THE "ACCEPT" BUTTON. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE CONFIDENTIAL AND PROPRIETARY INFORMATION. YOU SHOULD PRINT AND KEEP A COPY OF THIS AGREEMENT FOR YOUR RECORDS.