MUTUAL NONDISCLOSURE AGREEMENT
This Mutual Nondisclosure Agreement (the “Agreement”) is effective this____ day of
____________, 201_ the (“Effective Date”) between ________________ (“Interconnection
Requester”), a ___________________________, and _____________________ a Vermont
Corporation (“Interconnecting Utility”) (Interconnection Requester and Interconnecting
Utility each may be referred to as a “Party” or collectively as the “Parties”).
Interconnection Requester has submitted an Interconnection Application to
Interconnecting Utility, and in connection therewith, certain studies may be required. The
intent and purpose of this agreement is to allow for the expeditious exchange of information
between the Parties and to provide for protection of allegedly Confidential Information
exchanged between Interconnection Requester and Interconnecting Utility in the course of
said studies and any other matters performed in the course of the Interconnection
Application and process, but only to the extent allowed by the rules, laws and regulations
that govern the Interconnection Application and process.
NOW, THEREFORE, in consideration, of the mutual covenants contained herein,
the Parties agree as follows:
Section 1. Definitions. In addition to terms defined with initial capital letters when
introduced in the text of the Agreement, as used herein the following terms shall have the
1.1 “Confidential Information” means any information of a confidential or proprietary
nature and identified as “Confidential” that is disclosed by the Disclosing Party to the
Receiving Party or its Representatives, whether before or after the date hereof and
irrespective of the format in which the information is provided. “Confidential
Information” includes information relating to operating systems, data and plans,
facilities information, manner and methods of construction, finances, costs, studies,
reports, business opportunities, customers, suppliers and methods of operation of a
Party and any Evaluation Material prepared by the Receiving Party to the extent it
incorporates allegedly Confidential Information of the Disclosing Party. The receipt
by the Receiving Party or its Representative of allegedly Confidential Information
does not waive any rights the Receiving Party or its Representative may have to
defend themselves against future liability for disclosing such information including
the defense that such information was not or is not confidential or proprietary.
"Confidential Information" does not include information that the Receiving Party can
(a) is, or subsequent to disclosure becomes, part of the public domain
through no fault of the Receiving Party;
(b) is lawfully disclosed to the Receiving Party by a third party which, to
Discussion Draft of May 17, 2010 Provided Without Prejudice
the knowledge of the Receiving Party, does not have a confidentiality obligation to
the Disclosing Party;
(c) was lawfully in the possession of the Receiving Party prior to
disclosure by the Disclosing Party;
(d) has been lawfully and independently developed by the Receiving
Party without use of the Confidential Information disclosed by the Disclosing Party;
(e) was not or is not confidential or proprietary information under the
laws of the State of Vermont.
1.2 “Disclosing Party” means the Party disclosing allegedly Confidential Information.
1.3 “Evaluation Material” means notes, reports, plans, studies or other documents which
reflect, interpret, evaluate, include or are derived from the Confidential Information.
1.4 “Party” means a signatory to this Agreement and its permitted assigns.
1.5 “Permitted Purpose” means performing any obligations or rights as set forth in the
Interconnection Application or process, or exercising any obligations or rights arising
under this Agreement or any Resulting Agreement.
1.6 “Receiving Party” means the Party receiving allegedly Confidential Information.
1.7 “Representatives” with respect to a Party means the employees, officers, directors,
members, attorneys, accountants, and agents, of that Party.
1.8 “Resulting Agreement” means a subsequent agreement between the Parties into which
this Agreement is incorporated.
Section 2. Permitted Use and Nondisclosure. Each Receiving Party agrees to use the
allegedly Confidential Information disclosed to it hereunder solely for the Permitted
Purposes. Further each Party as Receiving Party commits it will not, without the prior
written consent of the Disclosing Party, disclose the Confidential Information of the
Disclosing Party, in whole or in part, to any other person except as permitted herein. Each
Party shall use the same care in protecting the other’s Confidential Information as it uses to
protect its own confidential information of a similar nature, provided that neither Party shall
use less than commercially reasonable, diligent efforts to prevent the unauthorized use or
disclosure of the allegedly Confidential Information of the other Party. Notwithstanding the
foregoing, the Receiving Party may: (a) disclose allegedly Confidential Information to its
Representatives or to regulatory bodies or a court of competent jurisdiction subject to a
request for an appropriate protective order, to the extent such disclosure is reasonably
believed to be necessary in connection with the Permitted Purposes with respect to that
Confidential Information, and in the case of disclosure to Representatives, so long as those
Representatives have been informed of the confidentiality restrictions contained in this
Agreement and have separately agreed with the Receiving Party to abide by nondisclosure
and use restrictions at least as restrictive as those of this Agreement; and (b) make a limited
number of copies of the Confidential Information in order for the Receiving Party to
adequately use the Confidential Information for the Permitted Purposes.
Each Party agrees to be responsible for any breach of the confidentiality obligations under
this Agreement caused by its Representatives as fully as if such breach were directly caused
by that Party.
Regardless of any provision in this Agreement that may conflict, to the extent allowed
and/or required by law, Interconnecting Utility may disclose to third party transmission
providers Confidential Information it reasonably believes to be required as necessary to
facilitate the Interconnection Application, Resulting Agreement (if applicable) and any
studies required by virtue of said Interconnection Application.
Section 3. Ownership Confidential Information. All allegedly Confidential Information
(except Evaluation Material) shall remain the property of the Disclosing Party or its
suppliers. No license or other rights under any patents, trademarks, copyrights or other
proprietary rights is granted or implied by the disclosure of the allegedly Confidential
Section 4. Disposition of Confidential Information. The Receiving Party, upon written
request from the Disclosing Party, shall promptly return or destroy all allegedly Confidential
Information in its possession except to the extent the Receiving Party is entitled to retain and
use that information under any Resulting Agreement; provided, however, with respect to
Evaluation Material, the Receiving Party may at its discretion destroy such Evaluation
Material instead of returning it. If requested by the Disclosing Party, the Receiving Party
shall provide the Disclosing Party with certification that all Confidential Information and
Evaluation Material has either been returned or destroyed, as appropriate. Notwithstanding
the foregoing, the Receiving Party may retain one copy of the Confidential Information
solely for archival purposes and for the purpose of demonstrating compliance with this
Agreement. The return or destruction of the Confidential Information shall not extinguish
any rights or obligations under this Agreement with respect to the Confidential Information
Section 5. Legally Required Disclosures. If a Party is legally compelled by a
regulatory body or court of competent jurisdiction to disclose any of the allegedly
Confidential Information, the Party required to make the disclosure shall promptly notify the
other Party of that required disclosure. In such cases, the Party making the disclosure shall,
if requested by the other Party, reasonably cooperate with the other Party to obtain a
protective order or other reasonable assurance that the Confidential Information will be
accorded confidential treatment. If the Party making the disclosure is nonetheless legally
required to disclose the Confidential Information, then such Party may disclose the
information without liability hereunder provided that such Party may only furnish that
portion of the Confidential Information which is legally required or necessary for the
purposes stated in this subsection.
Section 6. Term. The term of this Agreement shall commence as of the Effective Date
and continue for the longer of (i) five (5) years after the Effective Date; or (ii) six (6) months
after the date on which the Interconnection Application is terminated, withdrawn or ceases
to have legal effect, or the effective date of a Resulting Agreement. Except as otherwise
provided for herein, upon termination, the Receiving Parties shall return to the Disclosing
Party all allegedly Confidential Information or otherwise certify the destruction of said
Section 7. Right to Disclose and Disclaimer. Each Party represents to the other that it
has the legal right to provide the Confidential Information supplied by it hereunder without
requiring the approval or consent of any third party or violating the rights of any third party.
The Disclosing Party makes no representation or warranty under this Agreement to the
Receiving Party as to the reliability, accuracy or completeness of the Confidential
Information except as otherwise agreed or set forth between the Parties.
Section 8. Remedies. The Parties acknowledge that improper or unauthorized use or
disclosure of Confidential Information could cause irreparable harm to the Disclosing Party
and that monetary damages would not be an adequate remedy for a breach of this
Agreement. In the event of any breach or threatened breach of this Agreement, the non-
breaching Party shall be entitled to pursue injunctive, and other equitable relief, and the
allegedly breaching Party agrees to waive any requirement for the posting of a bond in
connection with such remedy. Such injunctive and equitable relief shall not be deemed to be
the exclusive remedy for a breach of this Agreement, but shall he in addition to all other
Section 9. Critical Energy Infrastructure Information “CEII”. FERC defines CEII as
specific engineering, vulnerability or detailed design information about proposed or existing
critical infrastructure that relates details or strategic information about the production,
generation, transmission or distribution of energy. In the event that a disclosure of CEII is
contemplated, Receiving Party agrees that it shall first execute Disclosing Party’s standard
form of CEII Confidentiality Agreement, and that the disclosure of CEII shall be governed
Section 10. General
10.1. Governing Law; Forum. This Agreement shall be construed and enforced in
accordance with the laws of the State of Vermont, and the United States of America,
without regard to choice of law principles. Any litigation relating to this Agreement
shall take place in a Vermont state court or a federal court sitting in Vermont, and
each Party agrees to the jurisdiction thereof.
10.2. Entire Agreement. This Agreement constitutes the entire Agreement between the
Parties and supersedes any prior understandings or representations with respect to the
confidential treatment and use of information, and shall not be modified except by a
written agreement signed by both Parties.
10.3. Assignability. This Agreement may not be assigned by either Party without the prior
written consent of the other Party which consent shall not be unreasonably withheld.
Absent the written agreement of the non-assigning Party, no such permitted
assignment shall relieve the assigning Party of its obligations under this Agreement.
Any attempted assignment made in violation of this subsection will be void and will
constitute a material breach of this Agreement.
10.4. Severability. All provisions of this Agreement are severable, and the
unenforceability of any of the provisions of this Agreement shall not affect the
validity or enforceability of the remaining provisions of this Agreement.
10.5. No Waiver. Acceptance by either Party of allegedly Confidential Information shall
not be deemed a waiver by that Party of their rights to contend such information was
not or is not confidential or proprietary under the laws of Vermont. Failure of either
Party to insist upon strict performance of any of the terms and conditions shall not be
deemed to be a waiver of those terms and conditions.
10.6. Counterparts and Faxed Signatures. This Agreement may be executed in counterparts
and in the absence of an original signature, faxed signatures will be considered the
equivalent of an original signature.
10.7 Notices. Notices shall be in writing and shall be sent to the addresses listed below,
either by personal delivery, by the U.S Mail, overnight mail, fax or other similar
means. All notices shall be effective upon receipt.
Intending to be legally bound, each Party has caused its duly authorized representative to
execute this Agreement as of the Effective Date.
INTERCONNECTING UTILITY INTERCONNECTION
Authorized Signature Authorized Signature
Name: _____________________ Name: _____________________
Title: _____________________ Title: _____________________
Date: ______________________________ Date: ___________________________