ProCertification Non-disclosure Agreement

This Non-disclosure Agreement (this "Agreement") is made effective as of (the "Effective Date"), by and between the National Roofing Contractors Association (the "NRCA", a term which includes all officers, directors, managers, employees, agents, advisors, consultants, contractors, affiliated business entities, affiliated persons, subsidiaries, affiliates or divisions, and any of its successors, assigns, beneficiaries, related companies, legal representatives, insurers, and heirs), of 10255 W. HIGGINS RD. STE. 600, ROSEMONT, Illinois 60018, and the recipient signing this agreement (the "Recipient").

Documents and records relating to the exam, exam items, exam item bank, exam scoring and exam candidates may be disclosed to the Recipient and possibly its employees and other organizational staff, only for use in pursuing the duties and tasks NRCA appoints to the recipient and may not be disclosed to others. The Recipient will protect these documents and records in a manner that maintains conformity with the standards set forth by the international standard ISO/IEC 17024- "Conformity assessment—General requirements for bodies operating certification of persons,” 2012 edition and other applicable credentialing standards. NRCA has requested and the Recipient agrees that the Recipient will protect the confidential material and information which may be disclosed between NRCA and the Recipient. Therefore, the parties agree as follows:

I. CONFIDENTIAL INFORMATION. The term "Confidential Information" means any information or material which is proprietary to the NRCA, whether or not owned or developed by the NRCA, which is not generally known other than by the NRCA, and which the Recipient may obtain through any direct or indirect contact with the NRCA. Confidential Information may exist or be presented in any medium, whether in writing, via spoken communication, or through electronic delivery or storage, regardless of whether such information is marked or designated confidential or proprietary. Regardless of whether specifically identified as confidential or proprietary, Confidential Information shall include any information provided by the NRCA concerning the business, technology and information of the NRCA or concerning NRCA ProCertification exam content, scoring, or candidates, including, without limitation, business records and plans, trade secrets, technical data, product ideas, contracts, financial information, pricing structure, discounts, computer programs and listings, source code and/or object code, copyrights and intellectual property, inventions, sales leads, strategic alliances, partners, customer and client lists, ProCertification exams, exam items/questions, proposed exam items/questions, exam item banks, exam scoring information, and ProCertification candidateinformation. The nature of the information and the manner of disclosure are such that a reasonable person would understand it to be confidential.

  1. "Confidential Information" does not include:
    1. matters of public knowledge that result from disclosure by the NRCA;
    2. information rightfully received by the Recipient from a third party without a duty of confidentiality;
    3. information independently developed by the Recipient;
    4. information disclosed by operation of law;
    5. information disclosed by the Recipient with the prior written consent of the NRCA; and any other information that both parties agree in writing is not confidential.

II. PROTECTION OF CONFIDENTIAL INFORMATION. The Recipient understands and acknowledges that the Confidential Information has been developed or obtained by the NRCA by the investment of significant time, effort and expense, and that the Confidential Information is a valuable, special and unique asset of the NRCA which provides the NRCA with a significant competitive advantage, and needs to be protected from improper disclosure. In consideration for the receipt by the Recipient of the Confidential Information, the Recipient agrees as follows:

  1. No Disclosure. The Recipient will hold the Confidential Information in strict confidence and will not disclose the Confidential Information to any person or entity without the prior written consent of the NRCA.
  2. No Copying/Modifying. The Recipient will not copy or modify any Confidential Information without the prior written consent of the NRCA.
  3. Unauthorized Use. The Recipient shall promptly advise the NRCA if the Recipient becomes aware of any possible unauthorized disclosure or use of the Confidential Information.
  4. Application to Employees. The Recipient shall not disclose any Confidential Information to any employees of the Recipient, except those employees who are required to have the Confidential Information to perform their job duties in connection with the limited purposes of this Agreement. Each permitted employee to whom Confidential Information is disclosed shall sign a non-disclosure agreement substantially the same as this Agreement at the request of the NRCA.

 

III. UNAUTHORIZED DISCLOSURE OF INFORMATION - INJUNCTION. The Recipient understands and acknowledges that his/her obligations under this Agreement are necessary and reasonable to protect the NRCA’s legitimate business interests and that monetary damages would be inadequate to compensate for any breach of this Agreement. Accordingly, the Recipient agrees that any such breach will cause irreparable injury to the NRCA and that, in addition to any other remedies that may be available at law or in equity, fi it appears that the Recipient has disclosed (or has threatened to disclose) Confidential Information in violation of this Agreement, the NRCA shall be entitled to an injunction to restrain the Recipient from disclosing the Confidential Information in whole or in part, without bond or security and without the necessity of proving actual damages. The NRCA shall not be prohibited by this provision from pursuing other remedies, including a claim for losses and damages.

IV. RETURN OF CONFIDENTIAL INFORMATION. Upon the request of the NRCA, the Recipient shall, within five (5) business days, return to the NRCA all Confidential Information in the Recipient’s possession, custody, or control. The Recipient shall also deliver to the NRCA a written statement signed by the Recipient certifying that all materials have been returned within five (5) business days of receipt of the request. The Recipient shall not retain any copy, version, or rendition of such Confidential Information nor cause or permit any third party to retain the same.

V. RELATIONSHIP OF PARTIES. Neither party has an obligation under this Agreement to purchase any service or item from the other party, or commercially offer any products using or incorporating the Confidential Information. This Agreement does not create any agency, partnership, or joint venture.

VI. NO WARRANTY. The Recipient acknowledges and agrees that the Confidential Information is provided on an "AS IS" basis. THE NRCA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONFIDENTIAL INFORMATION AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL THE NRCA BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OR USE OF ANY PORTION OF THE CONFIDENTIAL INFORMATION. The NRCA does not represent or warrant that any product or business plans disclosed to the Recipient will be marketed or carried out as disclosed, or at all. Any actions taken by the Recipient in response to the disclosure of the Confidential Information shall be solely at the risk of the Recipient.

VII. LIMITED LICENSE TO USE. The Recipient shall not acquire any intellectual property rights under this Agreement except the limited right to use as set forth above. The Recipient acknowledges that, as between the NRCA and the Recipient, the Confidential Information and all related copyrights and other intellectual property rights, are (and at all times will be) the property of the NRCA, even if suggestions, comments, and/or ideas made by the Recipient are incorporated into the Confidential Information or related materials during the period of this Agreement.

VIII. INDEMNITY. Each party agrees to defend, indemnify, and hold harmless the other party and its officers, directors, agents, affiliates, distributors, representatives, and employees from any and all third-party claims, demands, liabilities, costs and expenses, including reasonable attorney's fees, costs and expenses resulting from the indemnifying party's material breach of any duty, representation, or warranty under this Agreement.

IX. ATTORNEY'S FEES. In any legal action between the parties concerning this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees, experts’ fees, and costs, whether incurred pre-suit or at arbitration, mediation, trial court, or appellate court.

X. TERM. The obligations of this Agreement shall survive in perpetuity from the Effective Date or until the NRCA sends the Recipient written notice releasing the Recipient from this Agreement. After that, the Recipient must continue to protect the Confidential Information that was received during the term of this Agreement from unauthorized use or disclosure indefinitely.

XI. WAIVER. No waiver by the NRCA of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No waiver by the NRCA of any right under this Agreement shall be construed as a waiver of any other right. No waiver by the NRCA of any breach or threatened breach by any other signatory to a similar or identical non-disclosure agreement signed by that signatory shall be construed as a waiver by the NRCA of any breach, threatened breach, or right against the Recipient under this Agreement.

XI. GENERAL PROVISIONS. This Agreement sets forth the entire understanding of the parties regarding confidentiality. Any amendments must be in writing and signed by both parties. This Agreement shall be construed under the laws of the State of Illinois. This Agreement shall not be assignable by either party. Neither party may delegate its duties under this Agreement without the prior written consent of the other party. The confidentiality provisions of this Agreement shall remain in full force and effect at all times in accordance with the term of this Agreement. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the remaining portions of this Agreement shall remain in full force and effect and construed so as to best effectuate the original intent and purpose of this Agreement. Venue for any proceeding relating to this Agreement shall be in the federal district court or state circuit court for Cook County, Illinois, and each party waives any defense whether asserted by motion or pleading, that Cook County, Illinois is an improper or inconvenient venue.

XII. SIGNATORIES. This Agreement shall be executed by John Schehl on behalf of NRCA and the recipient signing this agreement and delivered in the manner prescribed by law as of the date first written above.

 

OWNER:

National Roofing Contractors Association
John Schehl
Vice-president of Certification and International Engagement

 


RECIPIENT: