Freight Data Sharing Guidebook (2013)

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B-1 A P P E N D I X B Mutual Nondisclosure Agreement _____________________________________ This Mutual Nondisclosure Agreement (“Agreement”) is entered into as of [__________ __, ____,] -OR- [the date of the last signature below] (“Effective Date”) between your agency, located in city, state, and ___________________, a [for-profit/ nonprofit corporation organized under the laws of the State of _________________] -OR- [a governmental agency of/in the State of ______________________] having [its principal place of business] -OR- [a place of business] located in [city, state] (“Company”). Recitals WHEREAS, the parties desire to share certain Confidential Information as defined below relating to ___________________, a field of common interest, for the purpose of ______________________ (“Authorized Use”); and WHEREAS, the Confidential Information is [describe with a reasonable degree of specificity the nature and form of the Confidential Information]; and WHEREAS, the disclosure of Confidential Information will be carried out under the direction and supervision of ______________, (position title) and ___________________, a [_______________] in the Company’s ___________ Division (“Company Representative)”; and WHEREAS, your agency and Company also [optional relevant recitals]. NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein, your agency and Company hereby agree as follows: 1. Definitions. For purposes of this Agreement, the following definitions apply: “Confidential Information” means nonpublic information in written, graphic, electronic, oral or other tangible form, including without limitation data, algorithms, formu- lae, techniques, improvements, technical drawings, computer software and materials, owned or controlled by a party to this Agreement. “Disclosing Party” means a party disclosing and “Receiving Party” means a party receiving Confidential Informa- tion under this Agreement. 2. Nondisclosure and Nonuse of Confidential Information. The Receiving Party, on behalf of itself, its affiliates, employees, and agents, agrees not to make, either directly or indirectly, any unauthorized disclosure of Confidential Information or make any use other than an Authorized Use of the Confidential Information, and to take reasonable measures to prevent any unauthorized disclosure or use of Confidential Information. The Receiving Party further agrees to limit access to Confidential Information to its affiliates, employees, and agents having a need to know in connection with the purposes of this Agreement and to use reasonable efforts to ensure that anyone receiving or having access to Confidential Information understands its confidential nature and agrees not to make any unauthorized disclosure or use thereof. The Receiving Party additionally agrees to employ no less than the same measures to protect Confidential Information that it uses to protect its own valuable information.

B-2 Freight Data Sharing Guidebook 3. Exceptions to Confidentiality and Nonuse. Notwithstanding any other provisions of this Agreement to the contrary, a Receiv- ing Party shall be free from any obligations of confidentiality and nonuse hereunder regarding any information which is or becomes: (i) already known to the Receiving Party, other than under an obligation of confidentiality, at the time of disclosure; (ii) generally available to the public or otherwise part of the public domain at the time of disclosure to the Receiving Party; (iii) generally available to the public or otherwise part of the public domain after its disclosure other than through any act or omission of the Receiving Party in breach of this Agreement or other agreement or legal obligation; (iv) subsequently law- fully disclosed to the Receiving Party by a third party; (v) independently developed by the Receiving Party as documented by written evidence; (vi) approved for release by written authorization of the Disclosing Party; (vii) furnished to a thirty party by the Disclosing Party without a similar confidentiality restriction on the third party’s rights; or (viii) disclosed pursuant to the requirement of a governmental agency or legally required to be disclosed, including with respect to the your agency, disclosures of public records pursuant to the State Public Records Act xxxx [and with respect to Company, disclosures of public records pursuant to the {applicable law}]. 4. Identification of Confidential Information. The Disclosing Party will take reasonable measures to mark and identify all Confi- dential Information as confidential. Confidential Information disclosed in oral form will be identified as such by the Disclosing Party to the Receiving Party in writing within thirty (30) days of any such disclosure. Upon termination of the Project and to the extent otherwise consistent with this Agreement, any Confidential Information of the Disclosing Party in the possession of the Receiving Party will be promptly returned or destroyed upon written request of the Disclosing Party. 5. Retention of Rights. The parties agree that in no event will the Receiving Party have any right or license, express or implied, to the Disclosing Party’s intellectual property nor to use the Confidential Information except to the limited extent and only for such period of time necessary to facilitate the Authorized Use. All Confidential Information disclosed under this Agree- ment will remain the property of the Disclosing Party. 6. No Implied Commitments or Restrictions. The parties understand and agree that neither this Agreement nor the disclosure of Confidential Information under this Agreement will be interpreted as any understanding or commitment by either party to enter into any kind of future business or other relationship or to make any disclosures of any other information in the future. In no event will the obligations of confidentiality set forth in this Agreement be construed to limit either party’s right to independently develop products or conduct research without the use of the other party’s Confidential Information. 7. Term and Termination; Termination of Obligation. This Agreement will begin on the Effective Date and end one (1) year after the Effective Date, unless earlier terminated. Either party may terminate this Agreement upon ten (10) days’ written notice to the other party. Unless otherwise mutually agreed to in writing, the obligations regarding nondisclosure, protection and nonuse of Confidential Information set forth in this Agreement will, in any event, end two (2) years after disclosure of Confidential Information. 8. Relationship of the Parties. The parties hereby agree that they are at all times each acting as independent contractors. Noth- ing in this Agreement will be construed or deemed to create a relationship of employer and employee, partner, joint venturer, or principal and agent between your agency and Company, their faculty, employees, agents or officers. The parties understand and agree that nothing herein shall be interpreted as establishing any form of exclusive relationship between the parties. The parties further understand and agree that nothing herein shall be interpreted as precluding either party from entering into agreements similar to this Agreement with third parties or from conducting educational, research or other activities that may involve the same or similar subject matter as this Agreement, the conduct of which is outside and independent of this Agreement, providing that any such educational, research or other activities are not done in a manner that is inconsistent with the rights and obligations of the parties to this Agreement. 9. Representations, Warranties, Disclaimers, and Limitations. Each party represents and warrants that it has the legal right and authority to disclose and receive, as the case may be, the Confidential Information disclosed under the terms of this Agree- ment. Excepting only the foregoing, neither party to this Agreement makes any warranties and hereby disclaims any such warranties with respect to the Confidential Information and its use. 10. Notices. All notices, demands, requests or other communications required to be given or sent by a party under this Agree- ment will be in writing and will be delivered by at least one of the following methods: (i) in person, (ii) mailed by first-class mail, postage prepaid, (iii) transmitted by facsimile, or (iv) transmitted by electronic mail (e-mail) addressed as set forth below, providing a party may designate a change of address at any time by notice in writing to the other party. All notices, demands, requests, or communications that are mailed by first class mail will be deemed received five (5) business days after deposit in the U.S. mail, postage prepaid, and all notices transmitted by facsimile or by e-mail will be deemed received upon written confirmation by the receiving party of successful facsimile or e-mail transmission.

Mutual Nondisclosure Agreement B-3 To your agency: [Company] [Street Address] [Mailing Address, if different] [City, State, Zip] (___) _________ (Voice) (___) _________ (Facsimile) _____@___________ (Electronic Mail) To the Company: [Company] [Street Address] [Mailing Address, if different] [City, State, Zip] (___) _________ (Voice) (___) _________ (Facsimile) _____@___________ (Electronic Mail) With a copy to 11. Disputes. Prior to commencing any legal action, the parties will attempt in good faith to resolve through negotiation any dispute, claim or controversy arising out of or relating to this Agreement. Either party may initiate such negotiations by providing written notice to the other party specifying that this provision of this Agreement is being utilized and setting forth the subject of the dispute and the relief requested. The party receiving such notice will respond in writing within ten (10) business days with a statement of its position on and recommended solution to the dispute. If the dispute is not resolved by this exchange of correspondence, then representatives of each party with full settlement authority shall meet at a mutually agreeable time and place within ten (10) business days of the date of the initial notice in order to exchange relevant informa- tion and perspectives, and to attempt in good faith to resolve the dispute. If the dispute is not resolved by these negotiations, the matter will be submitted to a mutually agreeable and recognized nonbinding mediation service prior to initiating legal action. Any such mediation shall be conducted in city, state and the costs of the mediation service shall be shared equally by the parties. 12. Governing Law, Jurisdiction and Venue. This Agreement shall be governed by and enforced according to the laws of the State of xxx and the United States, without giving effect to its or any other jurisdiction’s choice of law provisions. 13. Attorney Fees. The prevailing party in any action sought to enforce or interpret this Agreement or any provision of this Agreement shall be entitled to its reasonable attorney’s fees and costs, including any appeals thereon, as determined by a court in conjunction with any such legal proceeding. 14. Export Control. The parties understand that they are subject to and that their respective obligations under this Agreement are contingent upon compliance with certain laws and regulations of the United States applicable to the export of techni- cal data and information, computer software, laboratory prototypes and other commodities (including without limitation the Arms Export Control Act, as amended, and the Export Administration Act of 1979) (“Export-Controlled Materials”). The parties understand that the transfer of any Export-Controlled Materials under this Agreement, including transfers to a party’s affiliates and permitted uses by certain third parties, may require a license from a cognizant agency of the United States Government and/or written assurances by a party that it shall not transfer Export-Controlled Materials to certain foreign countries without the prior approval of an appropriate agency of the United States government. The parties neither represent that any such export license shall not be required, nor that, if required, it shall be issued. The parties agree that they will not provide nor make accessible to each other or their employees, officers, or agents any Export-Controlled Materials without first notifying the other in writing of the existence and nature of the Export-Controlled Materials and obtaining the

B-4 Freight Data Sharing Guidebook prior written agreement of the other party, through a duly authorized representative, for the party to receive such Export- Controlled Materials. All Export-Controlled Materials shall be conspicuously labeled “Export Controlled” together with any applicable Export Control Classification Number. 15. Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes all prior oral or written agreements, commitments, or understandings concerning the matters provided for herein. 16. Amendment. This Agreement may only be modified by a subsequent written agreement executed by the duly authorized representatives of the parties. 17. Severability. If any provision of this Agreement or of any other agreement, document or writing pursuant to or in connec- tion with this Agreement shall be wholly or partially invalid or unenforceable under applicable law, said provision will be ineffective to that extent only, without in any way affecting the remaining parts or provision of said agreement, provided that the remaining provisions continue to effect the purposes of this Agreement. 18. Waiver. Neither the waiver by any of the parties hereto of a breach of or a default under any of the provisions of this Agree- ment, not the failure of either of the parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder will thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any such provisions, rights or privileges hereunder. 19. Assignment and Successors in Interest. Except as otherwise provided herein no party may assign, subcontract, or delegate any right or obligation under this Agreement, in whole or in part, without the express prior written consent of the other party. This Agreement shall inure to the benefit of and be binding upon each party’s successors and assigns. 20. Counterparts. This Agreement may be executed in any number of counterparts or, if mutually agreeable to the undersigned authorized signatories for the parties, through the exchange by facsimile or other electronic means of duly signed duplicates hereof, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. [Signature Page Follows] Your Agency [Company Name] By:___________________________ By:____________________________ Print Name:____________________ Print Name:______________________ Title:__________________________ Title:___________________________ Date:__________________________ Date:___________________________ READ AND REVIEWED: Your Agency Representative Company Representative By:___________________________ By:____________________________ Print Name:____________________ Print Name:______________________ Title:__________________________ Title:___________________________ Date:__________________________ Date:___________________________