Nondisclosure Agreement / Confidential Disclosure Agreement
What is an NDA/CDA?
A NDA (or CDA, the terms are used interchangeably and almost always have very similar terms) is a binding, legal agreement between two or more parties (e.g. ODU and a third party) that defines confidential information, allows the parties to exchange confidential information, defines what each party can and cannot do with the other party's confidential information (e.g. not share confidential information with others that are not party to the agreement), defines the purpose of the proposed sharing of information between the parties, and sets the timeframe for maintaining the information provided in confidence.
There are two primary types of NDAs:
1
One-Way (unilateral) NDA
- Only one party is receiving the confidential information.
- The receiving party agrees to keep the disclosing party's information confidential and use the information only for the intended purpose.
- The receiving party must careful that only their non-confidential information is being disclosed, as the disclosing party is not obligated to keep such information confidential.
2
Two-Way (mutual or bilateral) NDA
- Both parties are receiving confidential information.
- Both parties agree to keep the other party's information confidential and to use the information only for the intended purpose.
- Used when ODU's confidential intellectual property is being shared.
When Would You Need an NDA/CDA?
The purpose of the NDA is to protect discussions prior to a planned follow-on action by the parties, such as a research collaboration or license. Industry sponsors will often ask ODU to sign an NDA as a precursor to a sponsor-initiated clinical trial or sponsored research project. On a broader level, NDAs enable researchers and ODU to maintain control over the researcher's own information, ideas or unpublished results. NDAs allow ODU researchers to discuss interesting new technology, data and findings without compromising future publications and/or patents of inventions arising from the research.
The ODU researcher should commence with a non-confidential discussion between both parties to better understand the proposed collaboration and to ascertain whether there is a sincere interest to engage in a later more in-depth discussion with confidential information. Anytime that the ODU researcher knows or suspects that he or she will be discussing unpublished data or confidential information with a third party for any reason, an NDA is recommended to be put in place prior to that in-depth discussion.
How Do You Initiate an NDA/CDA?
If you are a researcher at ODU, submit an Unfunded Agreement Request Form, along with an attachment of any draft agreement provided by the other party. If the other party has not provided a draft agreement, the Office of Research has a template of an ODU-approved NDA that can be used to initiate discussions with the other party.
What Are Selected Principles and Practices for NDAs/CDAs at ODU?
Purpose
The NDA/CDA must adequately define the purpose of the collaboration by describing the project. However, the methodology or conduct of the research study should not be disclosed in the NDA, since that could potentially restrict the University's and researcher's ability to later publish or otherwise disseminate the results of the research.
Timeframe
Old Dominion University is an academic research institution operating on the principle of an open and free exchange of information to promote the progress of science and technology. ODU does not agree to long-term or perpetual terms of confidentiality, which are unrealistic in an academic setting. Consequently, ODU's term of confidentiality rarely exceeds three years.
Publications
Research results are expected to be published or otherwise distributed by ODU researchers within a reasonable time without burdensome restrictions. ODU recognizes legitimate proprietary needs of industry sponsors. If appropriate, publication may be deferred for a very limited time period for other party to check and notify ODU if confidential information is being disclosed in the proposed publication. Any publications based on work performed in the NDA will acknowledge authorship according to standard scientific procedures for such publications. For a joint publication, the parties shall determine in good faith the order of precedence and functions of the respective authors, in accordance with the customary standards in the scientific community.
Pre-negotiation of business terms
Given that the NDA/CDA is typically entered into at the earliest stage of a possible collaboration between two parties, Old Dominion University will not pre-negotiate Intellectual Property, license rights, or other business terms in the NDA. These business terms can be addressed in later agreements between the two parties, such as licensing agreements, sponsored research agreements, or subcontract agreements.
Virginia Freedom of Information Act (VFOIA)
The Virginia Freedom of Information Act (VFOIA) provides citizens of the Commonwealth of Virginia and representatives of the media access to public records held by public bodies, public officials, and public employees, subject to withholdings or redactions under specific, statutory exemptions. Old Dominion University is a public institution and is subject to VFOIA. ODU will submit any VFOIA request to the Office of the Attorney General and ODU shall only make such disclosures required by law as determined by an Assistant Attorney General.
Jurisdiction
Given that Old Dominion University is an agency of the Commonwealth of Virginia, all litigation or other legal proceedings need to be brought in the state courts of Virginia and the United States District Courts located therein. The laws of the Commonwealth of Virginia excluding its conflict of law rules need to govern the validity, interpretation and performance of the NDA. On an exception basis, an NDA will be permitted by ODU to be "silent" on the issue of jurisdiction.
Arbitration
Old Dominion University is not permitted to go through arbitration to resolve disputes under Virginia state law.
Indemnification
Old Dominion University is not permitted to indemnify or reimburse another party for lost profits under Virginia state law.
Attorney’s Fees
Old Dominion University is not permitted to pay attorney's fees to another party under Virginia state law.
Signing Authority
Only the Vice President of Research (or his/her designee in the Office of Research) is authorized to sign an NDA to obligate Old Dominion University.
Frequently Asked Questions (FAQs) about NDAs/CDAs
Should an investigator just sign his/her own NDA as the sole ODU signature?
No. An investigator is not authorized to solely sign an NDA on behalf of Old Dominion University. If an investigator were to be the sole signer, he or she could be potentially held personally (and solely) responsible for any legal or business issues related to the agreement. If the NDA is formatted by the other party to depict only an investigator as the party with only the investigator's signature, the Office of Research will alter the draft agreement to include an institutional signature.
Does the Office of Research sign NDAs for confidential information an investigator will receive in connection with outside employment or as an independent consultant with direct compensation from a third party?
No. The University can only sign NDAs for University research purposes for an investigator who is acting in his/her role as a University employee.
If an investigator receives confidential information under an NDA, can he or she share that information with other ODU employees?
Possibly, depending on the terms of the NDA. Read the specific terms of the NDA. Some agreements strictly limit disclosures to the point of contact referenced in the agreement (e.g. primary investigator). In that case, post-doctoral fellows, students, or internal faculty collaborators would not be permitted to see the confidential information. Other agreements allow sharing with ODU staff and students under the direct supervision of the ODU recipient scientist with a need to know who have agreed in writing to the terms and conditions of the agreement. Do not allow anyone to access the confidential information unless necessary and it is explicitly permitted under the terms of the agreement.
Should the NDA cover licensing rights, patent filing rights, and ownership rights?
No, typically these business terms should not be addressed in an NDA that is at the unfunded stage of a collaboration, in order to avoid prematurely obligating ODU. The NDA allows for use of provided confidential information for primarily evaluation purposes before a collaboration is finalized with another later agreement. The actual conduct of the project should be covered in a separate contract, such as a sponsored research agreement or licensing agreement. Accepting these kinds of clauses in an NDA at the unfunded stage can restrict the investigator or ODU from freely pursuing research and results.
What is considered confidential by NDAs?
Each NDA defines the scope of confidential information. Confidential information typically covers samples, materials, data, drawings, sketches of a secret or proprietary nature concerning a particular project or collaboration. The key is that that confidential information must be marked "Confidential" by the discloser at the time of transmission. Furthermore, any oral communication of a confidential nature must subsequently within a defined limited period of time be summarized in a tangible form and marked "Confidential" by the discloser.
What can’t an ODU researcher do with confidential information received?
Do not disclose (subject to limited exceptions documented in the NDA), copyright, publish, present at a conference or seminar, and do not use for any purpose other than stated in the NDA.
Should the NDA be two-way or one-way?
Use a two-way (bilateral or mutual) NDA when both ODU and the other party to the agreement exchange confidential information that should not be disclosed to third parties. Use a one-way (unilateral) NDA when only one party is disclosing confidential information and the other party is receiving that information.
A company has approached me and invited me to speak with its scientists about some of my unpublished work. Do I need to notify anyone at ODU?
Contact the Agreement Compliance Manager in ODU's Office of Research to discuss your intended presentation/discussions and the confidential nature of the information to be shared. The Office of Research will likely put an NDA in place with the company prior to any discussions or presentations in order to protect future publications and/or patents. Notify the Office of Research as far in advance as possible in order to allow ODU's Office of Research and the company to negotiate and execute the NDA.