In the course of their UH work, Principal Investigators (PI) and other researchers may be asked to accept/provide confidential or restricted information, materials, software code, or technology from/to a sponsor or third party (a company or a government agency, for example). When this happens a Non-Disclosure Agreement (NDA), sometimes also called a Confidential Disclosure Agreement (CDA), a Proprietary Information Agreement (PIA), Secrecy Agreement or Confidentiality Agreement, may be needed. The CDA is designed to cover the exchange of information, written, verbal and visual, that may include documents, information conveyed verbally and information shown in slides, charts, models and other displays.
The chart below outlines the steps, the responsible office or person, and the time it generally takes to complete the request for submitting a Confidentiality Agreement.
|Steps||Responsible Office or Person||Timing|
Email the agreement to email@example.com and include other party contact person information
|PI or Dept. Business Administrator (DBA)|
|Log the agreement for tracking purposes and route to the appropriate contracting officer for review and comments||OCG||5 business days|
|Review to determine if the confidential information is part of a disclosure submitted to OTTI||Office of Technology Transfer and Innovation (OTTI)||1-2 business days|
|Work with the PI and the other party to negotiate acceptable terms and conditions and route the agreement for authorized signatures||OCG Contracting Officer||7-12 business days for standard NDA. Non-standard NDAs may take longer to negotiate|
Counter sign the agreement when returned, send a fully executed agreement back to the other party (copy to the PI), and retains a copy and closes the file
|OCG||Within 2 business days of receipt of signed agreement|
|When using the other party’s agreement, UH executes first, returns the partially executed agreement to the other party, follow-ups for executed agreement, sends it to the PI and retains a copy and close the file||OCG||Within 2 business days of receipt of signed agreement|
Types of Confidentiality Agreements
- Unilateral – These agreements are designed for situations when one party will be disclosing information to the other party. It is important to note that only the disclosing party enjoys any protection of its confidential information. UH does not favor these agreements as a general rule since they are very restrictive to one of the parties and prevent the free flow of information that may be necessary for both parties to gain the most from the discussion.
- Bilateral – These agreements may also be called “mutual” since they provide protection for both parties as to the information they disclose. The standard UH agreement is bilateral for that reason.
Key Elements of a CDA
As a general rule, a CDA will include all or most of the following areas, but this is not an exclusive listing:
- Identification of the parties: All CDAs name the University of Houston as a party. The PI will be asked to sign the document but only to acknowledge that they have read and understand and agree to the terms of the agreement and their obligation as university personnel. The PI does not have the authority to sign on behalf of UH as an authorized signatory.
- Duration of the agreement: Every CDA must have a stated term for the beginning and ending date concerning the exchange of confidential information. UH recommend no more than five (5) years at a time.
- Definition: of what is deemed to be confidential. This is an important area of the agreement and must be carefully drafted to include the relevant information for each situation.
- Exceptions: Most CDAs make clear certain information is not considered confidential such as information that is in the public domain, already known, received from another party and or independently developed without the use of the information received.
- Purpose: The CDA must state the reason the parties are exchanging the information. It should be fairly narrow in scope and detailed enough to clearly cover the area of research to be discussed.
- Confidentiality Term Obligation: There is customarily a defined time that the information must be maintained as confidential. UH prefers a 2 or 3-year term for this obligation.
- Governing Law: Most agreements include a governing law provision. UH cannot contractually agree to be bound by the laws of another state or country. The agreement must specify Texas law or remain silent.
There are a variety of other provisions that may be included and they are evaluated on a case by case basis.
It is compliance with the federal laws regarding export controls. These statutes are designed to control the export of technical information to foreign countries. Note that the disclosure of this information is still subject to the export control laws even if the disclosure is made in the U.S., penalties for violation of the law include fines and imprisonment, for violation of these laws. Any such disclosure may require an export control license. You should contact the Office of Contracts and Grants if you have any questions and for guidance in this area.