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UT Arlington Research Administration Non-Disclosure Agreement (NDA) Frequently Asked Questions


NDA BASICS: WHAT, WHEN, WHY

Q 1. What is an Non-Disclosure Agreement (NDA)?

Q 2. Are there different kinds of NDAs?

Q 3. When should I use an NDA?

Q 4. How does an NDA protect my information?

Q 5. Why should I use an NDA?

Q 6. What happens if I don’t use an NDA?

Q 7. What is an NDA “not” used for?

NDA PROCESS: HOW TO GET AN NDA

Q 8. My proposed project will involve confidential information. I need an NDA. What information will UT Arlington need from me?

Q 9. My proposed project will involve confidential information. Does UT Arlington have any Non-Disclosure Agreement templates I can use?

Q 10. Is all this contact information and detail necessary?

Q 11. How long does it take to negotiate an NDA?

Q 12. Can I help speed up the NDA process?

Q 13. The company already has an NDA with UT Arlington. Can I work off of this agreement?

Q 14. Can I sign an NDA?

Q 15. Can an NDA have more than two parties to it?

Q 16. My NDA has expired. Can I have it amended to cover my project?

Q 17. When an NDA has been negotiated for my project, should I obtain signatures from all personnel working on the project?

Q 18. Can NDAs be signed and then scanned and emailed, instead of duplicate original fully signed pen-and-ink copies by US Mail or overnight courier?

Q 19. Good news! My NDA is signed by everyone. Now what do I do?

Q 20. Who should I talk to if I have more questions about an NDA?

NDA UNIQUE CIRCUMSTANCES AND SPECIAL TERMS

Q 21. Help! I am attending a meeting off campus and, when I got here, I found out that one of the requirements of the meeting is to sign an NDA before any information will be provided to me! What should I do?

Q 22. Is Export Control language really necessary in an NDA?

Q 23. Is there a difference between the period of exchange and the period of confidentiality?

Q 24. Is there a standard period of confidentiality protection for UT Arlington?

Q 25. The sponsor wants to have me hold trade secrets indefinitely. Can I do that?

Q 26. The sponsor wants me to keep their identity, and that we are talking to each other, secret too, under an NDA. Can I?



 

NDA BASICS: WHAT, WHEN, WHY

 

Q 1. What is an NDA?

A. Non-Disclosure Agreements (NDAs) have many titles: Confidentiality Agreements, Proprietary Information Agreements, Secrecy Agreements, and the like. No matter its title, an NDA is a binding contract, commonly used when two or more parties wish to enter into initial discussions about specific confidential processes, methods or technology, to consider a potential, future relationship, and to agree to restrict the usage and additional disclosure of the shared information, knowledge, or materials.

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Q 2. Are there different kinds of NDAs?

A. Yes. NDAs can be one-way (unilateral), where use or disclosure restrictions are agreed to by just one of the parties, or mutual, where restrictions are on all parties.

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Q 3. When should I use an NDA?

A. Use an NDA when you will exchange (give information, receive information, or both) confidential or proprietary information during your initial discussions about a future business relationship with parties outside the UT Arlington community.

Use an NDA when you will share internally sensitive information, or legally or contractually restricted University data, with parties outside the UT Arlington community.

This includes potential research sponsors and subcontractors, consultants, and collaborators from other universities.

No NDA is needed for discussions about UT Arlington’s public, non-confidential capabilities and research interests, or if collaborating using only public information on proposal submissions, for example. 


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Q 4. How does an NDA protect my information?

A. An NDA documents the parties involved in the exchange of confidential information, how to inform the other party what information is confidential, the period in which confidential information will be disclosed, how long information will be kept confidential, and stipulates how that information may be used by the recipient. An NDA requires the recipient to take reasonable measures to keep the information confidential and prohibits each recipient from disclosing it to any unauthorized party. This way, your information is only used by those who you want to use it, and then only for the purposes you want it used for.

Confidential information relating to UT Arlington inventions that is disclosed pursuant to a NDA is not considered a “public disclosure” for purposes of patent laws (US and foreign).  This means that the University retains the ability to apply for patent protection for the invention in any country, if deemed appropriate.  Disclosure of such information without obligations on the receiving party to maintain the confidentiality of the information makes such disclosure a “public disclosure” or “publication” for purposes of patent laws.

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Q 5. Why should I use an NDA?

A. Use an NDA so your information remains confidential, and can’t be misused for other purposes.

Use an NDA to protect intellectual property. By using an NDA, you preserve the ability to apply for patent protection in any country. All countries, other than the US, require “absolute novelty” for a claimed invention.  This means that, if the claimed invention is described in a printed publication, or disclosed to anyone without insisting upon obligations of confidentiality, then it will not be possible to obtain a patent directed to the subject matter disclosed in that country.  In the US, it is possible to apply for patent coverage with respect to subject matter that has been publicly disclosed by the inventor for up to a year after the disclosure. However, the patent laws regarding the definition of prior art (including with respect to subject matter disclosed by an inventor) have significantly changed in the past year and it is unclear how these laws will be interpreted going forward.  It is best to either (a) make sure that a US provisional patent application is filed before any disclosure relating to UTA inventions, whether pursuant to a confidentiality agreement or not; or (b) ensure that a NDA is in place with any third party with whom you will be discussing an invention. 

It is UT System and UT Arlington policy that any inventions created by faculty, staff or students using University resources or funds be disclosed to the University Office of Technology Management before a public disclosure of the invention is made.

By using an NDA, you can also ensure that your secret technology know-how and information remains confidential (this enables you to rely on trade secret protection).

Use an NDA to protect your rights in new processes, unpublished data or other sensitive information before discussing outside UT Arlington.

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Q 6. What happens if I don’t use an NDA?

A. If you possess confidential information, and disclose it to a third party without an NDA, several bad things can happen.

For example, if you do not use an NDA, and you disclose potentially patentable inventions and discoveries that have not been filed with the US PTO or another patent office, they will be considered made public, and you will lose the ability to obtain patent protection for the disclosed subject matter in any country other than the US (you may lose the ability to obtain patent protection for the disclosed subject matter in the US.

If you do not use an NDA, and you disclose trade secrets, it will no longer be possible to maintain the information as a trade secret.  This may be important for a company that eventually licenses and commercializes a product incorporating the subject matter (e.g., made by a trade secret process).

If you do not use an NDA, and you disclose information that UT Arlington has promised to keep confidential, in, say, another agreement or by law, you expose UT Arlington to potential liability for breach of contract or violation of law. You could even be personally liable.

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Q 7. What is an NDA “not” used for?

A. An NDA is a specific contract format that we use to talk to someone else about a future business relationship. At UT Arlington, it is really just a framework for folks participating in that sort of discussion, to protect their confidential information.

There should be no funded work performed under the scope of an NDA. This is handled under a separate, formal, written research or services agreement in which there is a clear scope of work defined and pursuant to which ownership of any IP resulting from the work is clearly defined.

There should be no work or research that could result in invention and the creation of intellectual property under an NDA. Same thing: separate, formal, written agreement.

Ask yourself: am I having a discussion about possibly collaborating or having a project that might lead to brainstorming sessions or the creation of intellectual property? That is OK. Am I actually having that collaboration or brainstorming session right now, under an NDA? That is NOT OK.

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NDA PROCESS: HOW TO GET AN NDA


Q 8. My proposed project will involve confidential information. I need an NDA. What information will UT Arlington need from me?

A. You will need to provide the following information for UT Arlington to draft an NDA for you:

  • The name and address of the recipient individual or company or organization. A link to their Website (if any) is also helpful.

  • The name of the designated contact person for the recipient, and if you are not the only UT Arlington contact, who else is on your team. A mailing and email address, phone and other contact information (fax, if any, for example), is very helpful.

  • A description of the information you intend to disclose

  • Estimated time period the exchange of information will occur (typically one year)

  • Time period (how many years) we require to protect confidentiality. See FAQ on standard period of confidentiality protection for more info [cite].

  • The reason you are disclosing the information (e.g. research collaboration, grant application)

 You should let UT Arlington know if there are any particular concerns or issues involved.

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Q 9. My proposed project will involve confidential information. Does UT Arlington have any Non-Disclosure Agreement templates I can use?

A. Yes. UT Arlington has a model NDA template, available here [cite]. You can click to download the template in (Word) (PDF).

Using our standard forms will allow you to begin exchanging information sooner.

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Q 10. Is all this contact information and detail necessary?

A. Yes, it really does help.  The more we know, the easier the process.  Without full information, we will need to ask the PI or the sponsor independently for the information, likely delaying the NDA.

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Q 11. How long does it take to negotiate an NDA?

A. An NDA should not be a controversial document, nor take very long to negotiate. In fact, most agreements can be signed by UT Arlington in less than a week, often as little as a day or two, especially if you use the UT Arlington model format. The more common delay is practical, not legal: everyone who needs to sign is not readily available.

That said, there are a few NDA terms commonly used between private entities or in NDAs suggested by outside parties, which simply do not apply to us, as a public university. We must negotiate some terms, and that potentially creates a delay. Terms such as:

  • Governing law (if not Texas). UT Arlington is a public university, part of the Texas state government, and by law can only agree to Texas law, applicable US federal law, or silence.

  • Indemnification (if the Constitution and the laws of the State of Texas are not referenced and covered off). UT Arlington is a Texas state agency, part of the Texas state government, with legal limitations on certain promises it may make.

  • Intellectual property (should not be in an NDA).  No work or research that could result in invention and the creation of intellectual property should be performed under an NDA, but rather such work or research should only be performed under a separate, formal agreement.

  • Overly broad definition of confidential information (should include the usual and customary exceptions, including a requirement to label confidential information, whether exchanged in writing, or otherwise, such as verbally or visually).

  • Export Control (no mention, or incorrect assumption of liability). Compliance with export control regulations is a priority at UT Arlington. The party providing export controlled information is in the better position to decide and mark the materials before sending as part of cooperative compliance effort.  If export controlled materials, data, or technology are involved, there may be additional internal requirements to be met before the NDA can be finalized, such as development of a Technology Control Plan.


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Q 12. Can I help speed up the NDA process?

A. Yes.  Please provide requested background information.  During negotiation, we may ask you to reach out to your technical counterpart for assistance.  Together, we can get the NDA finished so you can start discussions.

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Q 13. The company already has an NDA with UT Arlington. Can I work off of this agreement?

A. No. You may only work off of an existing NDA for the project discussion or information described in the NDA. At UT Arlington, NDAs are specific to the purpose and subject matter of a particular exchange, and the company. Many sponsors and companies have this policy as well.

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Q 14. Can I sign an NDA?

A. No. UT Arlington has a limited number of university signing officials. Most faculty and staff are not authorized to commit the university in writing to an agreement. You are only a UT Arlington authorized signatory if you have a written delegation of signature authority from the President of UT Arlington.

We do ask faculty to approve project specific contents of our usual NDA, such as the description of the disclosure, purpose for the disclosure, the number of years for the confidentiality term, and the people involved, before our authorized official signs. Sometimes, outside parties ask that UT Arlington personnel sign NDAs acknowledging their obligations under the NDA.

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Q 15. Can an NDA have more than two parties to it?

A. Yes. An NDA can have several parties.

Note, though, that an NDA with several parties often will take more time to negotiate, in part because each party may have different concerns or requirements for protecting confidential information. In addition, the signature process for each party tends to differ, so the more signatures you need to get, the more time needed, which will delay the exchange of information.

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Q 16. My NDA has expired. Can I have it amended to cover my project?

A. No. You may not amend an expired NDA.  Once an agreement expires, you need a new agreement. Once you know your discussions will extend past the original expiration date, please contact us to prepare an amendment to extend the NDA. If the agreement has expired, we can help to put a new NDA into place.

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Q 17. When an NDA has been negotiated for my project, should I obtain signatures from all personnel working on the project?

A. Three things.

First, ALL UT Arlington employees agreed to be bound by the confidentiality requirements in any agreement or as otherwise agreed to by the University as a Texas public agency, as per University Procedure 13-34, found here . UT Arlington employees are bound whether they sign or not.

Next, sometimes under specific circumstances, such as the exchange of confidential and export controlled information, all participants will sign a separate UT Arlington form for that purpose. Ask Research Administration.

Lastly, all university employees (whether staff, faculty, or graduate students) with whom you intend to share the confidential information should be told about the NDA and the fact that confidential information is disclosed.

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Q 18. Can NDAs be signed and then scanned and emailed, instead of duplicate original fully signed pen-and-ink copies by US Mail or overnight courier?

A. Yes. To expedite the Agreement, UT Arlington prefers scanned (electronic) signatures on NDAs by email from the authorized signatories of the other party. Of course, UT Arlington will exchange pen-and-ink originals if asked.

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Q 19. Good news! My NDA is signed by everyone. Now what do I do?

A. Once an NDA has been finalized and fully executed, you need to abide by its terms.

You are responsible to:

  • Receive or disclose the information, as the case may be. If you are the officially designated contact, you are responsible for providing UT Arlington confidential information to the other party, or receiving theirs from them, depending on the circumstances, and depending on the project, disseminating to and from other UT Arlington employees.

  • Please make sure that any UTA confidential information that you provide to the other party is marked as confidential!  This may be done by adding a header or footer in the document stating “confidential” on each page; by obtaining a stamp that says “confidential” and stamping each page of the information; or adding a “confidential” watermark on a document.  And, if you orally disclose any confidential information to the other party, make sure you create a document, marked “confidential” on each page, containing the confidential information that you orally disclosed and provide that document to the third party shortly after the disclosure.  These are requirements of our standard NDAs.

  • Respect use limits. Only use the confidential information for the purpose that is specified in the NDA, and not for any other purpose.

  • Keep the information confidential. Do not disclose the information to anyone unless specifically permitted in the NDA.

  • Take appropriate measures to protect the information and keep it secure. Use common sense. This might mean storing the confidential information in a password protected computer, or in a locked filing cabinet, or in a room with limited access such as one with a lock for which a limited number of authorized people have the key. Or when you discuss the information with an allowed person, move out of the hallway and close the door. And if you discover that the information has been accessed by an unauthorized person, you must immediately notify the UT Arlington authorized official who signed the NDA, and the other party.


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Q 20. Who should I talk to if I have more questions about an NDA?

A. You can contact UT Arlington by email at: vincenzo@uta.edu or by telephone at (817)-272-2330.


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NDA UNIQUE CIRCUMSTANCES AND SPECIAL TERMS

 

Q 21. Help! I am attending a meeting off campus and, when I got here, I found out that one of the requirements of the meeting is to sign an NDA before any information will be provided to me! What should I do?

A. Easy fix: download the UT Arlington model NDA found on the Agreement Management home page and present it to the party, or parties, to fill in the blanks and for signature. They sign, and you approve the contents. If a signed copy of the UT Arlington model NDA is sent to us without edits, we can sign immediately.

If the parties have their own NDA format and do not want to use our form, email vincenzo@uta.edu an editable version of their NDA to us for review. Please call 817-272-2330 or 817-272-2105 to let us know you are sending a NDA agreement for emergency review, just in case someone is away from their desk or working on someone else’s already submitted or urgent project. Please leave a phone number where we can reach you. We will give the agreement top priority and will sign it as soon as possible if the terms are acceptable, or will let you know how to fix their form to be legally acceptable.

Note that while we often have successfully negotiated NDAs in tight time frames (such as needed “right now”, today, or tomorrow), we cannot always do so. Companies (as well as UT Arlington) routinely require an NDA prior to entering into discussions involving confidential information, so ask them. As soon as you become aware of the need for an NDA, please contact us.


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Q 22. Is Export Control language really necessary in an NDA?

A. Yes. Two things.

First, if the proprietary information or data or technology is "controlled" under applicable law, then UT Arlington needs to know that, so we can set up a Technology Control Plan (TCP) to set out the procedures that will be followed to protect the University and its faculty and staff from liability, and the information from illegal access or disclosure.  Certain types of controlled materials/technology may even require a license from the Department of State or Department of Commerce, which would require preparation and coordination through Research Administration.

Second, compliance with export control regulations is a priority at UT Arlington due to the breadth of research conducted in our many research facilities.  The consequences of violating these regulations can be quite severe, ranging from loss of research contracts to monetary penalties to jail time. The providing party is in the better position for categorizing and marking the materials before sending as part of cooperative compliance effort.

If you need assistance in handling Export Control information, contact Regulatory Services at regulatoryservices@uta.edu, 817-272-3723, or at the Regulatory Services website.


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Q 23. Is there a difference between the period of exchange and the period of confidentiality?

A. Yes, typically.  The period of exchange (also called the Term of the NDA) describes how long the NDA itself lasts. It is the length of time that the parties may disclose information.  The period of confidentiality is how long after the NDA ends, whereby you are required to protect the information that was disclosed to you.


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Q 24. Is there a standard period of confidentiality protection for UT Arlington?

A. Yes, we have a preference. UT Arlington typically limits a confidentiality term for incoming information to 1 or 2 years each (term and protection) if possible, although we can discuss a longer term or protection if the project needs justify. More than 5 years in total or on either side (term or protection) requires additional internal review and discussion. We also ask faculty for input on non-conforming time periods.


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Q 25. The sponsor wants to have me hold trade secrets in confidence indefinitely. Can I do that?

A.  UT Arlington strongly prefers not to hold trade secrets in confidence indefinitely, but it can be done if required and the situation warrants. Universities avoid NDAs in which shared information must be maintained as confidential in perpetuity, because of efforts and costs associated with ongoing monitoring and compliance or a lack of mechanisms to do so, and because they have no ability to control students after graduation or employees who leave the University.  However, by definition, confidentiality of trade secrets must be maintained indefinitely in order for the information to qualify as a trade secret.  The preferred response is that UTA does not want to receive trade secret information from a third party.

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Q 26. The sponsor wants me to keep their identity, and that we are talking to each other, secret, under an NDA. Can I?

A. UT Arlington is a public university and Texas state agency, and as such, conducts its business in public. While this includes certain routine facts, such as that UT Arlington contracts with a named sponsor, who its PIs are, how much it may receive in grant money or sponsored research, and the like, specific non-public details of projects are kept confidential under applicable law.

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