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OPERATIONAL EXCELLENCE PROGRAM
TERMS & CONDITIONS OF USE
In using the National Hydropower Association’s Operational Excellence program and website and the information contained herein, you are deemed to have read and agreed to the following terms and conditions.
1. OPERATIONAL EXCELLENCE & PURPOSE
The National Hydropower Association’s (NHA) Operational Excellence (OpEx) program is an industry resource that includes a number of tools intended to benefit the hydropower industry in the following categories: safety (dam, employee, and public), operations, maintenance and environmental performance. Collectively, we refer to this as Operational Excellence Information or OEI. OpEx is a voluntary program where NHA’s members and the larger hydropower industry shares OEI.
OpEx has three goals:
1) be the trusted industry leader in providing a systematic means and forum for sharing hydropower operating experiences, best practices, and lessons learned among the industry in a timely manner,
2) raise the hydropower industry’s standard of performance by learning from the operating experiences of others and provide training and educational opportunities thereof, and
3) prevent the occurrence and recurrence of similar events, and avoid industry defining events.
OpEx is rooted in stewardship and is intended to raise the standard of performance across the hydropower industry by preventing the re-occurrence of adverse OEI events and developing a better understanding and knowledge of those events. The sharing of OEI and any subsequent best practices, lessons learned, and trends analysis that may result relies on the integrity of the OpEx program. Any unauthorized use or disclosure of OEI will undermine OpEx’s purpose and may impair industry participation and the ability to provide and obtain necessary information in the future, which is crucial in making well informed decisions.
As the industry contends with aging assets and an aging workforce, OpEx and the event reporting system will provide a trusted and reliable database of historical and current operational issues and serve as an educational and training resource for future personnel.
2. TERMS AND CONDITIONS OF USE
A. Confidential Information: As used in these Terms & Conditions of Use (T&C), Confidential Information includes any and all information (whether oral, written, electronic or otherwise) that is not generally known to the public or is of a kind that would not customarily be made available to the public, at the time such information is disclosed by OpEx Participants (Participant). Confidential Information does not include information that: (a) was known to the Participants at the time of receipt, so long as such information was not acquired directly or indirectly from the OpEx program; (b) is or becomes known through a third party without an obligation to maintain its confidentiality; (c) is or becomes generally known to the public through no act or omission by Participants; or (d) is independently developed without the use or knowledge of Confidential Information.
B. Confidentiality Obligations, Use & Nondisclosure: Participants will not directly or indirectly disclose or use Confidential Information provided or obtained through the OpEx program except as authorized under these T&Cs. Participants may use Confidential Information obtained through the OpEx program with employees, agents, subcontractors and other entities controlled by them on a need-to-know basis after informing each recipient that the information is confidential and directing each recipient to comply with these T&Cs. Participants will exercise reasonable efforts to protect Confidential Information from unauthorized disclosures, but in no event would a Participant exercise efforts less than it will use to protect its own Confidential Information. To the extent that OEI is analyzed to develop best practices, lessons learned or trends analysis, to name a few, results will be shared in an aggregated manner and will not identify, directly or indirectly, any Participant without first obtaining Participant’s consent. Each Participant is entitled to receive and utilize any completed analysis for independent planning purposes, but shall only disseminate pertinent portions of any completed analysis to their employees and agents necessary for such business planning purposes after informing each recipient that the information is confidential and directing each recipient to comply with these T&Cs.
C. Disclosures Required by Law: If a Participant is legally required to disclose any Confidential Information obtained from the OpEx program, then the Participant may make such disclosure after giving NHA, to the extent legally permissible, prompt written notice that affords the NHA the opportunity to seek a protective order or other remedy. Participant agrees to reasonably cooperate with NHA’s efforts to seek a protective order or other remedy, but the Participant has no obligation to seek any protective order or other legal remedy. In such case, the Participant may furnish only that portion of the Confidential Information it deems necessary to comply with the subpoena or legal requirement.
The Federal Government may be a Participant in the OpEx program, and therefore is subject to the requirements of the Freedom of Information Act (“FOIA”), which could prevent compliance with the confidentiality provisions included in these T&Cs. Municipalities or public entities may be Participants in the OpEx program and they are governed by public records laws of their respective States and these Participants must comply with those laws which could prevent compliance with the confidentiality provisions included in these T&Cs.
D. Survival of Obligations: The T&Cs continue throughout the Participants use of the OpEx program. In the event a Participant’s access to the OpEx program is revoked or terminated the Participant’s obligations under these T&Cs with respect to the use and disclosure of Confidential Information will survive such termination for two years from the termination of access to the program.
E. Responsibility & Termination: Participants shall be wholly responsible for maintaining the secrecy and confidentiality of the Confidential Information disclosed through the OpEx program, and shall be responsible for their employees, agents, subcontractors and other entities controlled by them in this regard. Any breach of these T&Cs could result in termination from the OpEx program.
F. Return or Destruction of Confidential Information: Upon request, a Participant will destroy or return Confidential Information to the extent allowed by law,and verify in writing its destruction of all tangible material embodying Confidential Information to the extent allowed by law.
G. Remedies: Participants agree that money damages would not be a sufficient remedy for any breach of these T&Cs and that non-disclosing Participants shall be entitled to injunctive or other equitable relief to remedy or prevent any breach or threatened breach of these T&Cs. Such remedy shall not be the exclusive remedy for any breach of these T&Cs, but shall be in addition to all other rights and remedies available at law or in equity. If any arbitration, litigation or other legal proceeding relating to these T&Cs occurs, the prevailing party shall be entitled to recover from the other party (in addition to any other relief awarded or granted) its reasonable costs and expenses, including attorney’s fees, incurred in the proceeding. In no event shall any Party be liable for any lost or prospective profits or any other special, punitive, consequential, incidental or indirect losses or damages of any nature whatsoever resulting from participation in the OpEx program.
H. Representations and Warranties: Participant does not make any representations or warranties, whether written or oral, statutory, expressed or implied with respect to the information which may be provided hereunder, including without limitation, any warranty or merchantability or of fitness for a particular purpose.
I. No License Created: Nothing in these T&Cs shall be construed as granting a licence under intellectual property rights of any other Participant.
J. Severability: All provisions of these T&Cs are severable, and any provision of these T&Cs found by a court of competent jurisdiction to be invalid or unenforceable will not affect the validity or enforceability of any other provision of these T&Cs. To the extent legally permissible, NHA will replace any illegal, invalid or unenforceable provision of these T&C’s with a valid provision that will implement the intended purpose of the illegal, invalid or unenforceable provision.
K. Waiver: No waiver, termination or discharge of these T&Cs, or any of the terms or provisions hereof, will be binding upon any Participants unless confirmed in writing.
L. Governing Law: These T&Cs shall be governed, interpreted and construed in accordance with the laws of the United States.