Office of Sponsored Projects NDA FAQs

1. May I sign a Non-Disclosure Agreement (NDA) on behalf of the University?
2. Is a Confidentiality Agreement the same type of agreement as a Non-Disclosure Agreement?
3. Can a Non-Disclosure Agreement have more than two parties to it?
4. When a Non-Disclosure Agreement has been signed for my project, should I obtain signatures from all personnel working on the project that indicate they agree to the terms of the Non-Disclosure Agreement?
5. I am disclosing confidential information to a third party. Does the University have any Non-Disclosure Agreement templates I can use?
6. Can NDAs be executed by fax or scanned and emailed, instead of the typical exchange of two original fully signed copies by US Mail or overnight courier?
7. How long does it take to negotiate an NDA?
8. 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 a Non-Disclosure Agreement before any information will be provided to me. What should I do?
9. I have to exchange confidential, export controlled information with a third party. Do I need to do anything special?
10. Do we need the address, phone, email for the duly authorized representatives who is to execute this Non-Disclosure Agreement?
11. If a Party requires more than one person have primary responsibility for receipt/delivery of Confidential Information for an NDA (usually associated with separate locations within the company), where should that person's name be listed?
12. Can we later add additional UT personnel to the list of persons having access to the Confidential Information?
13. Is the Export Control language in Section 10 of UT's Universal NDA really necessary in an NDA?
14. Do we have to provide the Export Control Classification Number (ECCN) or the U.S. Munitions List (USML) category(s) for each disclosure of Confidential Information during the term of the NDA? This requirement seems to place an undue administrative burden on our technical staff.

 

1. May I sign a Non-Disclosure Agreement (NDA) on behalf of the University?
No, if you do not have a letter from the President of the University, or his designate, delegating you with signature authority you cannot sign NDAs on behalf of the University. University personnel may sign Non-Disclosure Agreements acknowledging their obligations under the NDA, but for the agreement to be legally binding, the agreement must be signed by university personnel with signature authority. The Director, Associate Director and Assistant Director at OSP have university authorization to sign NDAs. Please forward your NDA to OSP for review and signature.

2. Is a Confidentiality Agreement the same type of agreement as a Non-Disclosure Agreement?
Yes, Non-Disclosure Agreements have many different names – Confidentiality Agreement, Proprietary Information Agreement, etc. The purpose of these agreements is the same – to guard against disclosure of confidential or proprietary information of one or both of the parties to the agreement.

3. Can a Non-Disclosure Agreement have more than two parties to it?
Yes, a Non-Disclosure Agreement can have several parties. Please note that a Non-Disclosure Agreement with several parties may take more time to negotiate because each party may have concerns or requirements for protecting confidential information. In addition, the signature process for each party differs and the amount of time needed to obtain signatures may delay the exchange of information.

4. When a Non-Disclosure Agreement has been negotiated for my project, should I obtain signatures from all personnel working on the project that indicate they have read the Non-Disclosure Agreement and understand their obligations under the Agreement?
Yes, all university staff, faculty, and students with whom you intend to share the confidential information should be given a copy of the Non-Disclosure Agreement and should sign the NDA acknowledging they have read and understand their obligations under the NDA.

If you intend to share the confidential information with non-university individuals or entities¹ then those individuals or entities should a) have an separate NDA in place with UT which extends to the subject confidential information, or b) be named as a party to the same NDA covering the subject confidential information.

5. I am disclosing confidential information to a third party. Does the University have any Non-Disclosure Agreement templates I can use?
Yes, the University has a Universal NDA template which is applicable for multiple scenarios. You can click on the links below or go to our Forms section to obtain the templates. UT Universal NDA (Word) (PDF).

If you forward the UT Universal NDA template to a third party, please send a copy of Key Elements of Terms and Conditions of Non-Disclosure Agreement along with the NDA. The process of negotiating a NDA can be facilitated if the third party considers the Key Elements document prior to responding to UT’s NDA.

If the third party requires hard copies, ask them to sign at least two copies of the NDA so that both parties can retain one fully signed original copy.

6. Can NDAs be executed by fax or scanned and emailed, instead of the typical exchange of two original fully signed copies by US Mail or overnight courier?
Yes, the University will accept faxed signatures or scanned signatures on NDAs from the authorized signatories of the other party(ies). The University will return a fully executed copy to the party via the same format (fax or scanned/emailed).

7. How long does it take to negotiate an NDA?
Typically, it should not take long to negotiate a NDA; most agreements can signed by the University in less than a week. However, if the NDA contains terms and conditions that are not acceptable, negotiation must occur. Clauses that may require negotiation and potentially create a delay in signature include:

• governing law (if not Texas)
• indemnification (if the Constitution and the laws of the State of Texas are not referenced)
• intellectual property (should not be in an NDA since the purpose of the agreement is to protect confidential information of a party)
• overly broad definition of confidential information
• requirement to label confidential information not included, especially if exchanged verbally or visually

8. 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 a Non-Disclosure Agreement before any information will be provided to me. What should I do?
If the parties to the NDA include the University, you should send the NDA to OSP immediately for review. You can either fax it or email it. The OSP fax number is 512-471-6564; our office email address is osp@austin.utexas.edu . Please call OSP at 512-471-6424 to let the office know you are sending a NDA agreement for emergency review. Please leave a phone number where we can reach you. OSP will give the agreement top priority and will sign it as soon as possible if the terms are acceptable.

In the alternative, you may download the UT Universal NDA (Word) (PDF) and present it to the party, or parties, for signature. If a signed copy of the UT Universal NDA is submitted to OSP without edits, the NDA can be signed by OSP immediately.

9. I have to exchange confidential, export controlled information with a third party. Do I need to do anything special?
Yes, both University-owned and third-party owned export controlled technology require additional steps:

University-owned export controlled technology: If you are exchanging University-owned, confidential, export controlled information or technology with a third party, you should provide a description of the information or technology (see Section 4 of the UT Universal NDA). OSP's Export Control Officer, Kay Ellis at 512.472.793 or kay.ellis@austin.utexas.edu will help you determine which export regulation controls the information/technology. OSP will then reference the export control information in the NDA and ask the other party to review the proposed export controls for acceptance.

Third Party-owned export controlled technology: If a third party wants to share their export controlled information with you, the party should provide a description of the information or technology (see Section 4 of the UT Universal NDA). You will most likely be able to receive the information from the third party if you are a US citizen or permanent resident. However, if you are not a US citizen or permanent resident and/or you intend to share the confidential information with foreign persons, such as foreign graduate students, you should provide the following information to OSP’s Export Control Officer, Kay Ellis at 512.742.7963 or kay.ellis@austin.utexas.edu about the foreign person(s) who will have access to the export controlled technology:

• Name
• Birth date
• Place of birth
• Country of citizenship
• Country of origin

OSP may be required to submit a deemed export license application to the U.S. Department of Commerce or to the U.S. Department of State to be able to provide access to the export controlled technology to the foreign person(s). The need for a license will be dependent on the export control status of the technology and the country of citizenship of the foreign person requiring access to the information. Please note it can take months to obtain licenses for deemed exports to foreign persons.

10. Do we need the address, phone, email for the duly authorized representatives who is to execute this Non-Disclosure Agreement?
The necessary contact information for a Party’s duly authorized representative should be provided as shown in Section 1 (note that the individual’s email/phone is useful, but not required).

11. If a Party requires more than one person have primary responsibility for receipt/delivery of Confidential Information for an NDA (usually associated with separate locations within the company), where should that person’s name be listed?

Section 2 of the UT Universal NDA. It is contemplated that each party will have only one Contact Person with primary responsibility for receipt/delivery of Confidential Information, and that person's name will be provided in Section 2. However, if a party desires to designate more than one individual with that responsibility then Section 2 will be the place.

Exhibit B of the NDA also identifies any additional UT employees who will have access to the Confidential Information, and provides that the individual read and sign the NDA along with the PI.  The NDA does not require UT's exchange partner(s) to have their contact person(s) and employees sign the NDA.  However, there have been a few companies that have implemented this after seeing our form.

NOTE: In addition to the names of the Parties and Contact Persons, Section 4 should be completed prior to submission to the Office of Sponsored Projects (OSP) for signature. If you need assistance in completing the Export Control information you can contact Kay Ellis, Associate Director, Export Controls Officer in OSP (475-7963 or kay.ellis@austin.utexas.edu).

12. Can we later add additional UT personnel to the list of persons having access to the Confidential Information?
Yes, with approval of OSP depending on whether the Confidential Information is export controlled.

Additional persons must sign the signature page of the NDA acknowledging they have read and understand their obligations under the NDA. Section 5 of the NDA allows signatures in separate counterparts so any additional executed signature page(s) should be forwarded to OSP to be included as part of the original NDA (and allow OSP to provide our exchange partner with the executed counterpart(s)).

If the Confidential Information is export controlled, and the additional personnel are not US citizens or permanent US residents, you will need to confer with OSP’s Export Control Officer prior to them signing the NDA or being allowed access to Confidential Information. If the additional personnel are US citizens or permanent US residents, they may sign the signature page of the NDA acknowledging they have read and understand their obligations under the NDA. Any additional executed signature page(s) should be forwarded to OSP to be included as part of the original NDA (and allow OSP to provide our exchange partner with the executed counterpart(s)).

13. Is the Export Control language in Section 10 of UT’s Universal NDA really necessary in an NDA?
Yes.  By its very nature a non-disclosure agreement does not allow for the release of confidential information; i.e., the information is not in the public domain. Thus, the fundamental research exclusion is not applicable to the information.  If it is determined that the proprietary information/data/technology is "controlled" (found on the Commerce Control List or the U.S. Munitions List), then it is possible an export license may be needed before the controlled  information may be disclosed to a foreign national. If it turns out the information to be exchanged is controlled, but will not be disclosed to a foreign national, a Technology Control Plan (TCP) may be needed to articulate the procedures that will be followed to protect the information from access by foreign nationals.

Compliance with export control regulations is a priority at UT Austin due to the breadth of research conducted in our many research facilities.  UT Austin has recently added an Exhibit B to the NDA in which UT faculty acknowledge their obligations under the NDA, including compliance with export control regulations. UT Austin now requires that Exhibit B, or its functional equivalent, be incorporated into every NDA to which UT Austin is a party.

If you need assistance in completing the Export Control information you can contact Kay Ellis, Associate Director, Export Control Officer in OSP (475-7963 or kay.ellis@austin.utexas.edu).

 14. Do we have to provide the Export Control Classification Number (ECCN) or the US Munitions List (USML) category(s) for each disclosure of Confidential Information during the term of the NDA? This requirement seems to place an undue administrative burden on our technical staff.
The intent of the ITAR/EAR classification language is to provide a mechanism to alert the Parties to potential export control issues, and allow the parties to address these issues in advance.  If the information/data/technology is identified by an ECCN on the Commerce Control List or listed under a category in the ITAR USML, then it is possible an export license may be needed before disclosure to a foreign national. The determination whether or not an export control license is necessary needs to be completed prior to any disclosure under the NDA.

For example if the parties initially identify the Confidential Information as Export Controlled (in Section 4) and can confirm that only U.S. citizens or permanent residents will have access to the Information, then Section 10 might be modified with language such as the following:

“The Parties agree that where Confidential Information is subject to ITAR or EAR, or if there is a Determination Pending as to applicability (as shown in Section 4 of the NDA), said Confidential Information shall be disclosed only to individuals who are U.S. citizens or who have. permanent resident status.”

Contact Kay Ellis, Associate Director, Export Control Officer in OSP (475-7963 or kay.ellis@austin.utexas.edu) for assistance in export control matters and whether modification to the export control language in Section 10 of the NDA is appropriate.

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[1] If the confidential information is export controlled and/or the persons or entities who will have access to it are foreign, please see 9. of this FAQ.

 

See Other Resource: Forms (Non Disclosure Agreement Form)