SPECIAL BIDS AND AWARDS COMMITTEE FOR THE INTEGRATED GOVERNMENT

PHILIPPINES PROJECT (BAC4IGOV)

Supplemental Bid Bulletin No. 2

CONSTRUCTION OF NATIONAL GOVERNMENT DATA CENTER 3

Bid Reference No. BAC4IGOV-2017-03-003

Please be advised that the original schedule of the submission of the signed and notarized
Confidentiality and Non-Disclosure Agreement is extended to 11 April 2017, 10AM. The
Confidentiality and Non-Disclosure Agreement is attached in this Supplemental Bid Bulletin.

All terms, conditions and instructions to bidders specified in the Bidding Documents
inconsistent with this Bid Bulletin are hereby superseded and modified accordingly.

For information and guidance of all concerned.

Issued this 10th day of April 2017.

(Original Signed)
ALONA H. ISIDRO
Vice Chairperson, BAC4IGOV

Supplemental Bid Bulletin No. 2

Construction of National Government Data Center 3
Bid Reference No. BAC4IGOV-2017-03-003
 CONFIDENTIALITY AND
NON-DISCLOSURE AGREEMENT

This agreement (“Agreement”) made and entered into this _________ day of
________________ by and between:

The DEPARTMENT OF INFORMATION AND COMMUNICATIONS

TECHNOLOGY, a government agency duly organized and existing under
Republic Act No. 10844, otherwise known as, the DICT Act of 2015, with
principal office at DICT Building, C.P. Garcia Avenue, U.P. Diliman, Quezon City,
and represented in this act by its Undersecretary for Development and
Innovation, DENIS F. VILLORENTE, hereinafter referred to as the “Disclosing
Party”.
-and-
(Company Name) a corporation duly organized and existing under Philippine
laws, with principal office address at (Corporate Address), represented
herein by (Authorized Signatory for this NDA), hereinafter referred to as
the “Receiving Party”.

WITNESSETH: That

WHEREAS, the Disclosing Party, in relation to the implementation of National

Government Data Center (NGDC) Facility Project, has granted the Receiving Party access to
valuable confidential information that may be essential in the fulfillment of the required services
as per Terms of Reference and/or through verbal discussions.

WHEREAS, the Receiving Party, in connection with the grant by the Disclosing Party,
recognize that all analysis, studies, compilations, technical designs, specifications, plans,
roadmaps, memorandums and other documents or records pertaining to the project including
the information of the service providers are confidential propriety information.

WHEREAS, the Disclosing Party desires to prevent the unauthorized use and disclosure
of its confidential propriety information;

WHEREAS, the Receiving Party agrees to keep and maintain confidentiality of disclosed
information, as described herein, and shall not openly disclose, share and/or distribute without
the consent of the Disclosing Party;

NOW THEREFORE, in consideration of the foregoing premises, the Parties hereby covenant
and agree as follows:

1. COVERAGE
Disclosing Party will, at its discretion, disclose to the Receiving Party its information (“the
Confidential Information”) only under the terms and conditions of this Agreement. The
extent of Confidential Information to be disclosed will, at all times, be at the discretion of
the Disclosing Party.

2. DEFINITION
Confidential Information refers to any information disclosed by Disclosing Party to the
Receiving Party, either directly or indirectly, in writing, electronically, orally or by inspection
of site locations, tangible objects, system configurations and includes information relating to
Disclosing Party’s product plans, designs, protocols, products, know-how, processes, costs,
prices, finances, marketing plans, business opportunities, personnel, research and
development.

It shall likewise refer to all information not generally available to the public relating to the
Project or relating to the Disclosing Party, its subsidiaries, affiliates, and related parties,
their past existing and future business, operations, plans, or projects which the Disclosing
Party may disclose or provide access to the Receiving Party in the course of presentations,
discussions, or negotiations between the Parties.
3. RECEIVING PARTY’S OBLIGATION
Receiving Party promises and agrees to receive and hold the Confidential Information in
confidence. Without limiting the generality of the foregoing, Receiving Party further
promises and agrees:

a. to protect and safeguard the Confidential Information against unauthorized use,

publication or disclosure;

b. not to use Confidential Information or any part thereof except pursuant to the
project;

c. not to disclose, share and/or distribute, under any circumstances, the contents of
the Confidential Information received from the Disclosing Party, to any third party
including independent contractors or consultants without prior written approval of
Disclosing Party (with the exception of Receiving Party’s affiliates on a need-to-know
basis and under the same confidential obligations as under this Agreement).
Disclosure must be made only to persons who have agreed to be bound by the
terms of this Agreement;

d. to promptly advise the Disclosing Party in writing of an unauthorized use or

disclosure of Confidential Information of which the Receiving Party becomes aware
and to provide reasonable assistance to the Disclosing Party to terminate such
unauthorized use or disclosure;

e. to voluntarily and promptly advise the Disclosing Party should the Receiving Party is
compelled to share and disclose Confidential Information to any of its Partners, Sub-
Contractors and other parties enjoined in fulfilling the service requirements;

f. not to remove nor add any proprietary right legends to materials disclosing or
embodying Confidential Information, unless upon Disclosing Party’s reasonable
request;

g. to keep a record of persons to whom Confidential Information is divulged in the

interim, and to supply said list to the Disclosing Party, at its request;

h. not to translate, reverse engineer, modify, change, or enhance any software,

documentation and other materials received from Disclosing Party without prior
written consent from the Disclosing Party;

i. not to use or permit the use of, the Confidential Information or any part thereof to
compete, directly or indirectly, with the Disclosing Party or to obtain unfair
advantage vis-à-vis Disclosing Party in any commercial activity which may be
comparable to the commercial activities contemplated by the Disclosing Party;

j. to restrict access to the Confidential Information to those of the Receiving Party’s

officers, directors, employees, and agents, including the officers, directors,
employees, and agents, and professional advisors of its subsidiaries, affiliates and
related parties, who clearly need to know such information for purpose of the
project;

k. to advise each of the persons to whom it provides access to any of the Confidential
Information, that such persons are strictly prohibited from using, publishing or
otherwise disclosing to others or permitting others to use for their benefit or to the
detriment of the Disclosing Party, any of the Confidential Information and, upon
request of Disclosing Party, to provide Disclosing Party with a copy of a written
agreement to the effect signed by such persons;

l. to, in any event, assume liability for the failure of its officers, directors, employees,
agents and professional advisors to comply with the terms and provisions of this
Agreement;

m. not to make any copies of the Confidential Information except with the prior written
consent of the Disclosing Party;
 n. to comply with any other reasonable security measures requested in writing by the
Disclosing Party; and

o. not to, directly or indirectly, in any way reveal, report, publish, or disclose that
Receiving Party is in discussions with Disclosing Party in connections with the project
without the prior written consent of Disclosing Party.

4. DISCLOSING PARTY’S RIGHTS AND PRIVILEGES

Disclosing Party shall enjoy the following rights, privileges, and conditions:

a. to give information to the Receiving Party on a non-exclusive basis;

b. to remain free to deal with others at any time at its own option;
c. to have the sole and exclusive ownership of the copyrights and all other intellectual
property rights of whatever nature in and to all software, documentation and other
materials received by the Receiving Party from Disclosing Party;
d. other than as expressly specified herein, the Disclosing Party grants no license to
Receiving Party under any copyrights, patents, trademarks, trade secrets or other
propriety right to use or reproduce Confidential Information

5. EXCEPTIONS
The confidentiality obligations herein shall not apply to:

a. information which can be demonstrated to have been designated as non-confidential

by Disclosing Party;

b. information which can be demonstrated to have been of public knowledge or in the

public domain at the time of disclosure or has become public knowledge other than
through the fault or negligence of the Receiving Party or other than by breach of the
provisions of this Agreement;

c. information which is in the possession of the Receiving Party with the full right to
disclose prior to its receipt from the Disclosing Party, as evidenced by written records
predating the date of disclosure by the Disclosing Party;

d. information which is independently received by Receiving Party from a Third Party

with no restrictions on disclosure; or

e. information which is mandatorily required to be disclosed by law or by a valid order

of a court of competent jurisdiction or of a government or regulatory agency,
including a stock exchange, provided that Receiving Party will promptly give
Disclosing Party written notice to seek legal relief to prevent the disclosure of the
Confidential Information. In case Disclosing Party fails to obtain legal relief,
Receiving Party will disclose only that portion of the Confidential Information
determined by its counsel as legally required to be disclosed.

6. PRIVATE INFORMATION
The Parties acknowledge and agree that specific information shall not be deemed to be
available to the public merely because it is:

a. embraced by more general information available to the public or in the Receiving

Party’s prior possession; or
b. expressed in public literature in general terms not specifically in accordance with the
Confidential Information.

7. NO RIGHTS TO CONFIDENTIAL INFORMATION

Receiving Party acknowledges and agrees that:
 a. Receiving Party does not have any claim, right, title, or property or other interest of
any kind or nature in the Confidential Information belonging to the Disclosing Party;

b. the disclosure of any information hereunder will not be considered a “publication”

thereof for patent or copyright purposes, nor will it constitute release of said
information into the public domain;

c. nothing in this Agreement shall be construed as preventing the Receiving Party from
itself using in any manner or disclosing third parties any and all of its own
information; and

d. nothing in this Agreement shall be construed as obligating either party to enter into
a further agreement and/or a business arrangement with the other party.

8. WARRANTIES AND REPRESENTATIONS

Disclosing Party makes no warranty or representations whatsoever concerning the
Confidential Information provided to the Receiving Party under this Agreement. Receiving
Party acknowledges the Confidential Information may still be under development, or may be
incomplete, and that such information may relate to products that are under development
or are planned for development. Disclosing Party makes no warranties regarding the
accuracy of the Confidential Information. Disclosing Party accepts no responsibility for any
expenses, losses or action incurred or undertaken by Receiving Party as a result of
Receiving Party’s receipt of use of confidential Information. Disclosing Party makes no
warranties or representations that it will introduce any product relating to Confidential
Information.

9. RETURN/DESTRUCTION OF CONFIDENTIAL INFORMATION

Upon the written request of the Disclosing Party, the Receiving Party agrees to promptly
deliver to the Disclosing Party:

a. All records, notes, and other written, printed or tangible materials in the possession
of the Receiving Party, embodying or pertaining to the Confidential Information or
any part thereof;
b. A sworn certification from its president or officer of equal rank that all computer data
materials embodying or pertaining to the Confidential Information or any part
thereof, have been deleted and destroyed, unless return or destruction is prevented
by system limitations, applicable laws, or internal policies on retention for a
particular period. In any case the retained Confidential Information shall be covered
by this requirement of this paragraph have been fully complied with.

The Receiving Party agrees that the destruction or return of the copies, records, notes, and
other written, printed, or tangible materials referred to in the immediately preceding
paragraph shall not relieve it from compliance with the terms and conditions of this
Agreement.

10. LOSSES
The Receiving Party agrees to indemnify the Disclosing Party against any and all losses,
damages, claims or expenses incurred or suffered by the Disclosing Party as a result of the
Receiving Party’s breach of this Agreement.

11. REMEDIES
The Receiving Party understands and acknowledges that any disclosure or misappropriation
of any of the Confidential Information in violation of this Agreement may cause the
Disclosing Party irreparable harm and, therefore, agrees that the Disclosing Party shall have
the right to apply to a court of competent jurisdiction for an order restraining any such
further disclosure or misappropriation and for such other relief as Disclosing Party shall
deem appropriate. Such right of Disclosing Party shall be in addition to remedies otherwise
available to the Disclosing Party at law or in equity.
12. NON-WAIVER
No breach of any term or provision of this Agreement shall be deemed waived unless
expressly waived in writing by the party who may assert such breach. The waiver by any
part hereto of a breach of any terms or provision of this Agreement will not be construed as
a waiver of any prior or subsequent breach. The failure to enforce or require the
performance at any time of any one of the provisions of this Agreement shall not and
cannot be construed to be a waiver of such provisions of this Agreement, and will not affect
either the validity of this Agreement, or any part hereof, or the right of any party thereafter
to enforce each and every provision in accordance with the terms of this Agreement.

13. GOVERNING LAW

The laws of the Philippines shall govern the validity of this Agreement, the construction of
its terms and interpretation and enforcement of the rights and duties of the parties hereto.

14. LIMITED VENUE OF COURT ACTION

In case of suit arising from or in connection with the interpretation, implementation or
enforcement of this Agreement, the parties agree to submit to the jurisdiction of the proper
court of Quezon City, Philippines, to the exclusion of all other courts.

15. ATTORNEY’S FEES

If, in order to assert its rights under this Agreement, the Disclosing Party shall bring any
action at law or in equity to enforce or interpret the provisions of this Agreement, the
Disclosing Party shall be entitled to reasonable attorney’s fees.

16. SUCCESSORS AND ASSIGNS

The Receiving Party shall have no right to assign its rights under this Agreement whether
expressly or by operation of law, without the prior written consent of the Disclosing Party.
This Agreement and the Receiving Party’s obligations hereunder shall be binding on
representatives, permitted assigns, and successors of the Receiving Party and shall inure to
the benefit of representatives, assigns, successors of the Disclosing Party.

17. ENTIRE AGREEMENT

This Agreement constitutes the entire agreement and understanding of the Parties with
respect to the subject matter hereof and may not amend or modified except in writing
signed by each of the Parties to this Agreement.

18. SEVERABILITY
If any one or more of the provisions of this Agreement is held to be invalid, illegal or
unenforceable, the validity, legality or enforceability of the remaining provisions of this
Agreement will not be affected thereby, and Parties will use reasonable efforts to substitute
one or more valid, legal and enforceable provisions which insofar as practicable implement
the purpose and intent hereof. To the extent permitted by applicable law, each Party waives
any provision of law which renders any provision of this Agreement invalid, illegal or
unenforceable in any respect.

19. COOPERATION
Should either the Receiving Party be required through legal action or an order of a
government agency to disclose Confidential Information received from Disclosing Party
hereunder, the Receiving Party shall promptly notify the Disclosing Party, and both parties
shall cooperate in contesting such disclosure order or in protecting the rights of the
Disclosing Party prior to disclosure.

20. REASONABLE AND NECESSARY

Both parties acknowledge that the restrictions relating to Confidential Information contained
in this Agreement are reasonable and necessary to protect their legitimate interests. The
Receiving Party acknowledges and agrees that any violation of this Agreement would
subject Disclosing Party to irreparable injury. Therefore, in addition to any remedies
 otherwise available, Disclosing Party will be entitled to any injunctive relief to enforce the
terms of this Agreement.

21. EFFECTIVITY
This Agreement shall become effective on the day it has been signed by both Parties. The
provision of this Agreement shall however apply retroactively to any Confidential
Information that may have been disclosed to the Receiving Party prior to the Effective Date.

22. TERMINATION
The obligations of the Parties arising pursuant to this Agreement shall be continuing until
the Confidential Information disclosed to the Receiving Party is no longer confidential as
declared by the Disclosing Party in writing or unless Agreement is terminated. Unless earlier
terminated in accordance with the provisions hereof, this Agreement shall remain in full
force and effect for the duration of the Non-Disclosure Period, whereupon it shall expire.
Either party may terminate this Agreement at any time, without cause, effective
immediately upon written notice of termination. In the event this Agreement is terminated,
its provision shall survive, for the Non-Disclosure Period, with respect to Confidential
Information disclosed prior to the effective date of termination. Any cause of action accrued
on or before such expiration or termination shall survive until the expiration of the
applicable statute of limitations. Upon termination of this Agreement, the Receiving Party’s
right to use the Confidential Information, as granted herein, shall immediately terminate.

23. NON-DISCLOSURE AGREEMENT

The confidentiality obligation of this Agreement shall survive the termination of this
Agreement by three (3) years.

IN WITNESS, WHEREOF, the parties have signed this Confidentiality and Non-
Disclosure Agreement on the date first above written.

DISCLOSING PARTY RECEIVING PARTY

DENIS F. VILLORENTE [Name of Authorized Signatory]

Undersecretary [position, service/office]

Signed in the presence of:

__________________________ ________________________
Witness Witness
 ACKNOWLEDGMENT

REPUBLIC OF THE PHILIPPINES }

QUEZON CITY } S.S.

BEFORE ME, a notary public for and in the above-jurisdiction this ____ day of 2017,
personally appeared the following persons and presenting to me competent proof of their
identities:

Govt Issued ID
Place/Date Issued Valid Until
DENIS F. VILLORENTE __________________ __________________ ______________

Known to me to be the same person who executed this instrument consisting of ten (11) pages,
including this page, duly signed by the parties and their instrumental witnesses on each and
every page thereof, and acknowledged that the same is his own free and voluntarily act and
deed and of the entity that he represents.

WITNESS MY HAND AND SEAL at Quezon City, this ______ day of ______________,
2017.

Doc No. ____;

Page No. ____;
Book No. ____;
Series of 2017.
 ACKNOWLEDGMENT

REPUBLIC OF THE PHILIPPINES }

QUEZON CITY } S.S.

BEFORE ME, a notary public for and in the above-jurisdiction this ____ day of 2017,
personally appeared the following persons and presenting to me competent proof of their
identities:

Govt Issued ID Place/Date Issued Valid Until

Name of Authorized __________________ __________________ __________________

Signatory

Known to me to be the same person who executed this instrument consisting of ten (11) pages,
including this page, duly signed by the parties and their instrumental witnesses on each and
every page thereof, and acknowledged that the same is his own free and voluntarily act and
deed and of the entity that he represents.

WITNESS MY HAND AND SEAL at Quezon City, this ______ day of ______________,
2017.

Doc No. ____;

Page No. ____;
Book No. ____;
Series of 2017.