Confidentiality Agreements – A Guide for Researchers

Confidentiality agreements go by many names and acronyms. The most common are:

• NDA – non-disclosure agreement
• CDA – confidential disclosure agreement
• CA – confidentiality agreement

We will refer to all of them as NDAs. An NDA is a contract through which the entities or individuals signing the agreement agree not to disclose to others the confidential information the agreement protects. At times, the agreement may specify particular ways of storing or transmitting the information.

A company or the University may want an NDA to keep the following confidential: new ideas, unpublished work, business plans, unpublished patent applications, and other information they share.

NDAs can be either:

• Bilateral – both parties are sharing confidential information
• One way – only one party is sharing confidential information.

It is important that you are aware of the terms of the NDA so you know if it is ok for you (as a University employee) to share or receive confidential information.

An NDA is needed to protect information that is not publicly available or is proprietary. However, don’t assume that if you have an NDA with a company, it covers everything and anything you might discuss or share. The agreement defines what is “confidential information.”

Common items protected by an NDA:

• Unpublished/proprietary materials, data, or information described in an unpublished manuscript, patent filing, and data set(s) from notebooks
• Any business discussions for the potential use of the unpublished information
• Use of our data/information relative to the company's proprietary data/information

Typically, an NDA does not protect:

• Information already public or that becomes public through no fault of the receiving party
• Sharing potential objectives/goals for your work (e.g., grant proposals)
• Ideation and open-ended discussions about future plans
   

You don’t need an NDA to speak to a company or potential collaborator. Initial conversations are often high-level to determine if there is a shared interest in a collaboration.

• Keep initial discussions general and non-confidential
• Ask for an NDA only when conversations become very technical and when non-public or proprietary ideas will be discussed.

If a company does insist on having an NDA for an initial conversation, push back (gently) and ask why they think it is needed. If they insist, request an NDA.

Mark all documents containing confidential information as “Confidential.” If you share confidential information orally or visually, follow up with a written summary identifying the information as confidential.

Do not share confidential information from a company or other collaborator with anyone who is not a University employee. Before sharing with another University employee, check the terms of your NDA to determine if there are restrictions on sharing within the University.

Share confidential information only with those who absolutely need to know, even if they are a UMN employee. If you share confidential information with a UMN employee, you must inform them and confirm that they understand that the information is confidential and protected under the established NDA.

Carefully read the NDA to understand your and your department’s obligations. Failure to comply with the terms of an NDA can have serious financial and reputational consequences for you and the University. Failure to mark patentable information properly can adversely affect the patentability of a University invention. In other words do not take NDA’s lightly. Read them, understand them, follow them, and make sure your team does the same.

Sponsored Projects Administration (SPA) - For NDAs needed for research-related discussions and potential collaborations.

• To request an NDA, contact the UFRA (Unfunded Research Agreements) team via email (ufra@umn.edu) and include information such as the name(s) of the faculty or researcher involved, name and email address for the external contact, and a copy of the external party’s proposed agreement if available. Visit Unfunded Research Agreements to learn more.

Technology Commercialization - For NDAs specific to technologies reported to Tech Comm for which there may or may not be a patent or patent application.

• Use the NDA Request Form to start the process of obtaining an NDA. 
• Contact the Technology Licensing Officer (TLO) or Technology Portfolio Manager (TPM) managing your technology with questions.

Faculty and researchers should not sign research-related NDAs on behalf of the University. Generally, only SPA and Tech Comm have the authority to sign an NDA for the purposes described within this guide.

It often takes about three weeks minimum to get an NDA in place, so be sure to put in your request as early as possible.

Some legal and practical limitations make complying with an NDA potentially more challenging.

• The University utilizes shared drives for storage. Suppose an NDA restricts disclosure to only those University employees who need to know. In that case, you may need to set up specific permissions in your document storage to ensure that only particular people may access the files.
• No central University database stores all NDAs the University has signed. This means other employees may not know about the NDA when they receive or access the information. The department, faculty, and researcher are responsible for protecting the information and informing its staff of the NDA.
• Faculty are interested in publishing their research. The company will have the right to review your draft publication and remove confidential company information. Do not accept an NDA if you need to publish the confidential information you receive.