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Article 9. Confidentiality

Article 9 of the Pathways to Economic Success Pay for Success Contract.

Table of Contents

Section 9.01 Confidentiality

(a) Each Party acknowledges that, during the term of this PFS Contract, it may disclose (the “Disclosing Party”) to each other or the Independent Evaluator and any employees thereof (the “Receiving Party”) who need to know in connection with their work under this PFS Contract certain confidential information and data (the “Confidential Information”), including as permitted under the terms of the attached Data Sharing Agreements. To the extent any disclosures of Confidential Information are covered by the terms of the attached Data Sharing Agreements, those terms shall govern and the provisions of this Article 9 shall not apply.

(b) The Parties will label any Confidential Information they may provide in the scope of their duties under this PFS Contract as such. The Parties agree to maintain the confidentiality of such Confidential Information, except as provided herein.

(c) For purposes of this Section 9.01, “Confidential Information” does not include, and there will be no obligation hereunder with respect to, information that (i) was available or became available to the public other than as a result of a disclosure by the Receiving Party; or (ii) was available, or became available, to the Receiving Party on a non-confidential basis prior to its disclosure to the Receiving Party by the Disclosing Party or its representative, but only if such information was not made available through a breach of an obligation of confidentiality owed to the Disclosing Party; (iii) is subject to disclosure in accordance with state or federal law, including the Massachusetts public records law and the U.S. Freedom of Information Act, or (iv) is legally compelled (by oral questions, interrogatories, requests for information or documents, subpoena, civil or criminal investigative demand or similar legal process) or the disclosure of which is required by a regulatory body or court, provided, that Receiving Party shall: (A) provide the Disclosing Party with prompt notice of any such request(s) so that it may seek an appropriate protective order or other appropriate remedy, and (B) provide reasonable assistance to the Disclosing Party in obtaining any such protective order. If such protective order or other remedy is not obtained or the Disclosing Party otherwise consents to disclosure, then the Receiving Party may furnish that portion (and only that portion) of the Confidential Information which, in the opinion of counsel to the Receiving Party, the Receiving Party is legally compelled to disclose.

(d) For the avoidance of doubt, any disclosure of Proprietary Educational Materials is governed exclusively by Section 5.01(c).

Section 9.02 Confidentiality Breach

(a) In the case of a breach of the provisions of Section 9.01, by JVS, SFI or SFMA, the breaching Party will promptly, upon such Party’s obtaining knowledge of such breach, inform the Operating Committee of the breach and will have 60 days to cure (which means that the breaching Party has taken prompt and satisfactory corrective action to remedy such breach of data confidentiality, and to restore data security so as to prevent further breaches of Section 9.01), and at least one extension of thirty days and approval of further extensions shall not be unreasonably withheld if the breaching Party is proceeding with diligence to remedy the breach of data confidentially and restore security to prevent further breaches. At the end of such period (and any extension thereof), if such breach is not remedied, then the Commonwealth acting by and through the Secretary, may terminate this PFS Contract pursuant to Section 8.02(e), and in accordance therewith, by written notice; provided, however, that the giving of such notice or the receipt thereof shall not be a condition precedent to such termination.

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