CRITICAL ENERGY INFRASTRUCTURE
INFORMATION (“CEII”) NON-DISCLOSURE AGREEMENT
This CEII
NON-DISCLOSURE AGREEMENT (this “Agreement”) is made by the undersigned
(“Recipient”) in favor of the New York Independent System Operator, Inc.
(“NYISO”) a New York not-for-profit corporation, whose principal place of
business is located at 10 Krey Boulevard, Rensselaer, New York 12144.
WHEREAS,
Recipient has requested that NYISO disclose to Recipient certain information,
all or a portion of which may be classified by NYISO as CEII using the Federal
Energy Regulatory Commission (“FERC”) definition of CEII; and
WHEREAS, FERC
has defined CEII as “specific engineering, vulnerability, or detailed design
information about proposed or existing critical infrastructure that: (1)
relates details about the production, generation, transportation, transmission,
or distribution of energy; (2) could be useful to a person in planning an
attack on critical infrastructure; (3) is exempt from mandatory disclosure
under the Freedom of Information Act, 5 U.S.C. 552 (2000); and (4) does not
simply give the general location of the critical infrastructure”; and
NOW, THEREFORE,
for access to certain CEII in the possession and/or control of the NYISO,
and/or other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, Recipient agrees as follows:
1. Definition of CEII. For purposes of this
Agreement, “CEII” shall mean: (i) all information designated as such by NYISO,
whether furnished to Recipient before or after the date hereof, whether oral,
written or recorded/electronic, and regardless of the manner in which it is
furnished; and (ii) all reports, summaries, compilations, analyses, notes or
other information which contain such information.
2. Use and Protection of CEII.
(a)
Recipient shall maintain all CEII in a
secure place. Recipient may make copies of CEII, but such copies become CEII
and subject to this Agreement. Recipient may make notes of CEII and may perform
analyses in reliance on CEII, consistent with Section 2(c) of this Agreement,
which notes and analyses shall also be treated as CEII if they contain CEII.
Recipient shall clearly mark all CEII as “Critical Energy Infrastructure
Information.”
(b)
Recipient shall not discuss the CEII it has
received with another individual, and shall not disclose the CEII it has
received to another individual, without first checking with the NYISO to
confirm that the individual in question has also received the same.
(c)
Recipient shall not knowingly use CEII
directly or indirectly for an illegal or non-legitimate purpose. Recipient
shall use the CEII only for the purpose Recipient specified in the NYISO CEII
Request Form or amendments thereto, if any.
(d)
In the event that Recipient is required to
disclose CEII in compliance with an order or subpoena of a court, administrative
agency, arbitration panel, or similar authority, Recipient shall (i) first
provide the NYISO with prompt written notice of such order or subpoena,
provided such notice is not prohibited by law, (ii) afford the NYISO an
opportunity to seek a protective order or other protective relief, and (iii)
provide reasonable cooperation and assistance to the NYISO with such efforts.
In the event Recipient is required to disclose CEII in compliance with such
order or subpoena, Recipient shall furnish only that portion of the CEII which
Recipient’s legal counsel advises it is legally required to disclose, and shall
exercise its best efforts to secure confidential, non-public treatment of the
CEII it is required to disclose.
3.
Return of
CEII. The NYISO retains all right, title and interest in any and all CEII
that it provides to Recipient under this Agreement. The NYISO may, at any time
and in its sole discretion, direct Recipient by written notice to return some
or all of the CEII that the NYISO has provided to Recipient. Upon receipt of
such notice, Recipient shall promptly and fully comply with the NYISO’s
directions, returning all CEII as specified, including all copies,
reproductions, summaries, compilations, analyses or extracts thereof recorded
in any medium. Recipient shall certify to the NYISO in writing that it has done
so. Provided, however, Recipient may, only if and to the extent required by
law, retain a record copy of the CEII it returns.
4.
Change in
Status. If any of the information provided to the NYISO by Recipient in the
CEII Request Form changes (e.g., Recipient leaves his or her employ, the
consulting engagement cited in the request is terminated, Recipient’s employer
is no longer a Market Participant) Recipient shall immediately provide written
notice to the NYISO of that fact, together with complete and accurate updated
information. The NYISO may, on the basis of such change of information, direct
Recipient to return some or all of the CEII previously provided to Recipient.
5.
No NYISO
or Facility Owner Liability. Neither the NYISO nor the owner(s) of facilities depicted in the CEII makes any express or implied warranty or representation
as to the accuracy or completeness of the CEII provided to Recipient
under this Agreement. Neither the NYISO nor the owner(s) of facilities depicted in the CEII shall have any liability whatsoever based upon
the CEII that is provides to Recipient under this Agreement, and shall have no
liability based upon any errors or omissions contained in that CEII.
6.
Indemnity.
To the greatest extent permitted by law, Recipient shall indemnify and hold
harmless the NYISO and its offices, employers, directors, agents, contractors
and assigns (“NYISO Indemnitees”) from and against any and all claims, losses,
liabilities and expenses, including attorney’s fees, incurred by a NYISO
Indemnitee as a result of Recipient’s violation of its obligations under this
Agreement.
7.
Equitable
Remedies. Recipient agrees and acknowledges that money damages alone would
be an inadequate remedy for its breach of this Agreement. In the event that
Recipient breaches or threatens to breach this Agreement, the NYISO, in addition
to any other remedies available at law or in equity, shall be entitled to
obtain a restraining order, injunction or similar remedy in order to
specifically enforce the provisions of this Agreement.
8.
Term.
This Agreement shall commence on the date signed by Recipient and shall remain
in effect until all of the CEII, provided by the NYISO to Recipient under this
Agreement is either (i) no longer classified by the NYISO as CEII or (ii)
returned to the NYISO by Recipient.
9.
No Recipient
Assignment. Recipient shall not assign, subcontract or otherwise delegate
any of its rights or obligations under this Agreement without the prior written
consent of the NYISO, which consent the NYISO may withhold or condition in its
absolute discretion. Any such assignment without the NYISO’s prior written
consent shall be void.
10.
Notices.
(a)
Notices provided under this Agreement shall
be in writing and addressed or delivered to the representatives specified in
this Agreement. Notices shall be delivered by any one of the methods set forth
below and shall be deemed received (i) upon delivery, when personally
delivered; (ii) upon receipt, when sent by registered or certified mail; (iii)
upon receipt when sent by recognized overnight delivery service (such as
FedEx); (iv) upon receipt when sent by electronic mail and (v) upon
confirmation of receipt by facsimile machine printed confirmation. Copies of
all correspondence regarding this Agreement shall also be sent to these
representatives.
(b)
Notices
to Recipient shall be directed to the following individual(s):