Nondisclosure Agreements

Nondisclosure Agreements (NDAs) need to be submitted to SPS Contracting in the new PERA system. The questions that were previously on the NDA Info Sheet are now incorporated into PERA, so the NDA Info Sheet pdf no longer needs to be provided as long as the NDA request is being submitted through PERA. Additional resources on how to submit an NDA request can be found at the link below:

https://pera.research.purdue.edu/training/negotiate-award/non-disclosure-agreement/

The most efficient and effective way to process an NDA is for the faculty/staff to offer the partner a Purdue NDA template by following the five-step process below:

1. Initiation: Purdue University personnel submit the NDA request in PERA.
2. Analyst Assignment: SPS Contracting reviews the submission and assigns a Contract Analyst in accordance with the processing timelines in SPS Contracting’s Service-Level Agreement (https://www.purdue.edu/business/sps/contractmgmt/index.html).
3. Purdue Template Generation: Purdue Contract Analyst provides to Purdue University personnel the adequate Purdue NDA template based on information provided in the PERA NDA submission.
4. Negotiations: Purdue University personnel in coordination with the Contract Analyst sends the Purdue template to partner and begins negotiations.
5. Execution: If no changes are needed from the partner, the NDA can be signed as is. If changes are needed, the Purdue Contract Analyst will evaluate requested changes and edit the agreement. Once both Purdue and partner agree, the NDA is signed.

In cases where the partner insists on using their NDA template and has already provided an NDA for Purdue’s review, please attach it to the NDA submission in PERA. Evaluation of agreements that are not based on Purdue templates may take longer since each company has a different legal document.

Details for Each Step

Step 1 – Initiation: Submit the NDA request in PERA and Request NDA Template

Start the process by submitting the NDA request in PERA.  The NDA SmartForms in PERA will provide the critical information that is often required by SPS Contracting or Office of Research in the processing of an NDA.

Step 2 – Analyst Assignment

SPS Contracting will assign a Contract Analyst in accordance with the processing timelines in SPS Contracting’s service-level agreement (https://www.purdue.edu/business/sps/contractmgmt/index.html) and the PERA system will email a notice to the faculty/staff when the NDA is assigned an owner (Contract Analyst).  When the NDA is submitted in PERA, it will create an Agreement record.  The faculty/staff can check the status of the NDA at any time by logging into PERA.  Additional support on utilizing PERA can be found here: https://pera.research.purdue.edu/training/

Step 3 – Purdue NDA Template Generation

The Purdue Contract Analyst will identify the correct NDA template and prepare it for distribution to the other party. The Contract Analyst will send the NDA template to the Purdue University personnel, or directly to the external party.

Step 4 – Negotiations

Purdue University personnel or the Purdue Contract Analyst sends the Purdue NDA template to the external party for their review and to begin negotiations. Several items are non-negotiable or more critical to the University (please reference common provisions and language required by Purdue in NDAs section below).  The status of the NDA negotiation can be checked at any time by logging into PERA or by reaching out to the assigned Contract Analyst.

Step 5 – NDA Execution

If no changes are needed from the partner, the NDA can be signed as is. If changes are needed, the Purdue Contract Analyst will evaluate the requested changes and edit the agreement as needed. Once both Purdue and partner agree, the NDA is signed. A fully executed copy of the agreement needs to return to the SPS Contracting office by providing to the assigned Contract Analyst or by emailing to spscontr@purdue.edu. 

Background & FAQs

The acronym “NDA” is an umbrella term used to refer to nondisclosure agreements, confidentiality agreements, and proprietary information agreements. These type of agreements are most often requested when parties wish to have initial discussions for the purposes of determining if there is a potential for a future relationship, and at least one of the parties intends to receive and/or provide confidential information. This webpage explains basic considerations in regards to handling confidential information. Please consult with SPS Contracting for further details if you have any questions. Also, the Executive Vice President for Research and Partnerships (EVPRP) Protecting External Confidential Information webpage contains additional helpful information in regards to the proper handling of confidential information (https://www.purdue.edu/research/regulatory-affairs/export-controls-and-research-information-assurance/external-confidential-information.php).

What if a sponsor provided me an NDA?

Purdue prefers to use our template NDA as it will greatly help to expedite the execution of the agreement; however, depending on the terms in the other party’s NDA, SPS Contracting can often work with the other party’s NDA template as well. Starting from another party’s NDA will very likely require some negotiation in order to make the NDA compliant with University policies (see common provisions section below for more detail).  If there is an urgent need for an NDA to be executed (less than one week), we should be reaching out to the other party to see if Purdue’s template will be acceptable to use in order to ensure that the deadline is met. 

University as Recipient of Confidential Information.

Prior to entering into a research agreement, University researchers may be asked to receive confidential or proprietary information, materials, or technology from a sponsor or third party. In these situations, a sponsor typically will require a nondisclosure agreement before sharing the information.

University as Provider of Confidential Information.

When University personnel are sharing new processes, unpublished data, or other non-public technical information with a sponsor, a nondisclosure agreement should be in place prior to disclosure. University personnel should carefully consider whether the discussion will actually require them to share confidential information or whether the discussion could be narrowed to information that is already public, e.g., through published manuscripts.

How do I know if I need an NDA?

Sometimes NDAs can be over-used and give a false sense of comfort. Please recall that an NDA creates a legal obligation for the University, usually for several years, and requires the PI/Primary Recipient to manage information continually throughout the term of the agreement. If the goals can be achieved without the need for disclosing confidential information, the PI/Primary Recipient should consider relying only on public information. When in doubt, please consult a Contract Analyst in Sponsored Program Services or the Research Information Assurance Office.

Common provisions and language required by Purdue in NDAs.

• Purpose. The purpose defines the scope of the nondisclosure requirement and should be narrowly drawn. We cannot accept blanket terms allowing multiple unspecified disclosures to different groups across the University for unspecified and unrelated purposes because in the university context, these situations are rarely manageable. Frequently, industrial sponsors will request a nondisclosure agreement to protect the company’s trade secret or proprietary information, which can protect patentability.
• Term. Similarly, the agreement must carry a duration as long as is necessary to protect the information. This may vary depending on the type of information, e.g., preliminary business discussions call for shorter terms than discussions about potentially patentable concepts.  In addition to the term of the NDA, the term on the obligations of confidentiality must also be clearly stated.  After the term of an NDA expires, it is common for the NDA to require that each party protect the confidential information for a set timeframe after expiration (typically 3-5 years).
• Parties. Most NDAs contain terms limiting who at the organization can receive the information. Consider whether Purdue affiliates such as the Purdue Research Foundation, Purdue Applied Research Institute, Purdue for Life Foundation or Purdue International Incorporated will be included, or whether the information will be provided to an external party outside the university such as a consultant or an unpaid student.
• Marking Requirements. Purdue requires that NDAs contain terms requiring confidential information to be marked as such, and when confidential information is provided orally or in another non-written manner, to be reduced to writing within a certain timeframe (often 10-30 days) and again identified as confidential. The person providing the information is responsible for marking it appropriately, not the person receiving it.
• Trade Secrets.  Purdue is a large, public university with 10,000+ faculty and graduates students and open labs and facilities that primarily focus on research and dissemination of results.  In the normal course of business, Purdue would not expect to receive trade secrets from our partners, so Purdue typically removes trade secret language from NDAs unless it is critical that we receive such information.  In those cases, Purdue can accept trade secrets; however, if the obligation is to keep the trade secrets confidential until the information is no longer considered a trade secret, then the trade secrets must be labelled as such.  The terms of the NDA will require the parties to label trade secrets as “Trade Secrets” as opposed to just “Confidential Information,” in order to ensure that the parties handle and protect the trade secrets and confidential information appropriately.  As long as the trade secrets are identified separately from confidential information, Purdue can agree to protect the trade secrets beyond the term for the continued obligations of confidentiality after expiration.
• Protecting the information. It is the responsibility of the person receiving the information to protect it appropriately. The agreement may describe the applicable standard of care, such as nothing less than reasonable care or the same level of care the person would give to her own confidential information. Usually, the agreement will have a provision for the materials to be returned or destroyed no later than the conclusion of the agreement.
• Intellectual Property. These agreements should not contain any terms governing ownership of new intellectual property. If the development of intellectual property is contemplated, then an NDA is not the proper agreement.  Please consult with SPS Contracting on the appropriate contracting mechanism.  If you are discussing licensing existing Purdue intellectual property and need a confidentiality agreement, you should to talk to the Office of Technology Commercialization. If you are discussing procuring intellectual property for your work other than a proposal, you will need to talk with Procurement.
• Funded Work. Funded work cannot be performed under the scope of a nondisclosure agreement. Such work needs to be handled under a research agreement, which frequently contains confidentiality terms.
• Export control. Accepting disclosure-restricted technical information will be subject to export control compliance requirements, and possibly the need for an export license when transmitting data outside the United States or when sharing data with a foreign national on campus. Non-technical information such as confidential financial information, business information, and marketing information typically are not export controlled except when disclosed to countries under U.S. embargo or nationals of such countries.  Purdue requires that export-controlled information be specifically labelled as such.  If another party rejects export control labelling language in an NDA, the NDA will need to be reviewed by our Export Control office before we’ll be able to sign.
• Acknowledgment. University PIs cannot bind the University to a nondisclosure agreement; however, Primary Recipients (University PIs) are routinely required to sign the agreement to signify their understanding of the obligations therein.
• Remedies.  As a public, non-profit educational institution and an instrumentality of the State of Indiana, Purdue cannot agree to an unlimited financial risk in accepting confidential information from other parties.  Purdue prefers the exclusive remedy of equitable relief such as specific performance and/or injunctive relief, whether preliminary or permanent, and without the necessity of posting bond.  Direct, consequential, special, incidental and indirect damages are considered inadequate remedies and are expressly excluded.  
• Liability.  Purdue understands the value of certain confidential information provided to Purdue by companies and can also enter into NDAs that include an appropriate limit to liability.  NDA’s that request unlimited liability cannot be accepted, in most cases, by the University.  The liability limit should not be construed to place a certain value on any confidential information exchanged, only to limit the maximum monetary liability for either party’s breach of the confidentiality obligations.  A liability limit would not apply to a claim based on an intentional or grossly negligent disclosure or willful misconduct; however, to recover beyond the liability limit, a party must prevail upon the claim of intentional and/or grossly negligent disclosure or willful misconduct in a court of law.

How are NDAs handled for Student Class Projects

When a sponsor desires confidentiality for a student class project (i.e. a class taken for credit by a student and without remuneration), the confidentiality is handled in an agreement between the sponsor and the student, and Purdue is not a party to the agreement. The Office of Legal Counsel can assist with these situations (https://www.purdue.edu/business/sps/contractmgmt/Office_of_Legal_Counsel.html)

Is SPS Contracting the right place to get an NDA?

Most often, SPS Contracting is the right place, and we can help coordinate or redirect requests as needed. These are a few situations when we would redirect:

Purdue Research Foundation’s Office of Technology Commercialization. If the only purpose of the NDA is to explore licensing opportunities for existing intellectual property, the agreement should be handled by OTC, which manages Purdue’s intellectual property.

Procurement. If the only purpose of the NDA is procurement-related, the agreement will be handled by Procurement.

Where can I go for help?

Sponsored Program Services Contracting finalizes the terms of the NDA, but it takes collaboration from the Research Information Assurance Office of the Office of the Executive Vice President for Research and Partnerships to help manage confidentiality obligations.

For questions on how to get a nondisclosure agreement into place, please contact spscontr@purdue.edu or (765) 494-3863.  You will be connected with a Contract Analyst that can assist.

For questions on how to manage the confidential information that was sent to you, please contact the Research Information Assurance Office: https://www.purdue.edu/research/regulatory-affairs/export-controls-and-research-information-assurance/external-confidential-information.php

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