Export Controls: Confidentiality Agreements

Introduction

This topic presents a guide to understanding Stanford policies, procedures, and resources for non-disclosure and confidentiality agreements.

The Basics

In the course of their Stanford work, Principal Investigators and other researchers may be asked to accept confidential or restricted information, materials, software code, or technology from a sponsor or third party. The sponsor or third party (a company or a government agency, for example) will require that the researcher sign a Non-Disclosure Agreement (NDA), sometimes also called a Confidential Disclosure Agreement (CDA), a Proprietary Information Agreement (PIA) or Confidentiality Agreement.  Acceptance of disclosure-restricted technical information - namely technical data, technology or software source code - subjects the recipient to export control compliance requirements.  These requirements may include the need for an export license when transmitting the data outside the U.S. or sharing the data with a foreign national.

Importantly, disclosure-restricted non-technical information such as confidential financial information, business information, clinical trial/human subjects data or demographic information are NOT treated as export controlled technology.  However, disclosure-restricted non-technical information will generally require an export license to countries under comprehensive US embargo (Iran, Cuba, Syria, North Korea and the Crimean Region of the Ukraine).

Institutional Agreements

In some cases, non-disclosure requests are embedded in the content of several kinds of institutional agreements between the University and the sponsor or third party. Examples of such institutional agreements include equipment or software purchases or loans, technology licensing, data sharing agreements, and material transfer agreements. In these kinds of institutional agreements, a Stanford office, usually the Office of Sponsored Research or the Industrial Contracts Office, will be involved and will negotiate terms consistent with University policies. These offices will also have the exclusive authority to bind Stanford to the negotiated terms of institutional agreements, and also have the exclusive authority to sign on behalf of the University.

Sponsor or Third Party Agreements

In other cases, a sponsor or third party may ask an individual at Stanford to sign such an agreement as part of an ongoing or proposed activity in which there is mutual interest, such as a clinical trial or potential collaborative research project. In these cases, the NDA is between the sponsor or third party and the individual. The researcher cannot sign on behalf of Stanford University and must sign as an individual. Because sponsor or third-party NDAs frequently contain terms that violate Stanford research policy, individual researchers intending to sign on their own behalf should contact the Office of the Dean of Research, the Office of Sponsored Research, the Industrial Contracts Office, or the Research Management Group as applicable for guidance.

Consulting Work and Class Projects

Work done as part of a consulting arrangement falls outside of the individual's Stanford responsibilities. The guidance on this page does not apply to consulting arrangements. Because of the significant risk involved, in no way should an individual who has accepted the receipt of export controlled information under a consulting agreement either bring such export controlled information onto campus or use it in any "incidental" way with Stanford property.

NDAs are generally NOT permitted for class projects at Stanford. Students should not be asked to sign an NDA in order to participate in a class project, and companies should not provide any information to project-based classes if they are not willing to permit the information to be made public.

For additional information, including specific actions that must be taken by Stanford faculty when entering into commercial consulting or non-disclosure agreements, please see the University Provost's Statement on Outside Consulting Activities by Members of the Academic Council.

Tips for Reviewing Agreements

The acceptance of third party disclosure-restricted technical information exposes the recipient to "deemed export" compliance risk. Deemed exports occur when one shares export control-listed proprietary or disclosure-restricted hardware, information, or technology with foreign persons, including international students and researchers. Deemed export violations can occur even if items or data being shared are not labeled as export controlled and may result in civil and criminal penalties. This occurred recently at the University of Tennessee. See Stanford's Export Control Policy for additional information on the acceptance of third-party information.

The principle of openness in research (that is, freedom of access by all interested persons to the underlying data, to the processes, and to the final results of research) is of overriding importance at Stanford. See Stanford's Openness in Research policy for discussion of acceptable and unacceptable agreements.

It is the responsibility of the sponsor or third party to identify and define precisely the confidential, proprietary, or restricted information being shared. This cannot be left to the judgment of the individual accepting the material. It is the responsibility of the individual accepting the information to protect it appropriately.

Any assertion by the sponsor or third party of limits on publication of results, or restrictions on sharing based on nationality or citizenship, should be immediately questioned with the appropriate Stanford office. The offices listed at the bottom of this page can advise.

Standard Templates

A standard template for a Non-Disclosure Agreement is available from Stanford's Industrial Contracts Office.

If the sponsor or third party will agree to use this agreement, you may sign it with no further review. Be sure to keep a copy in your files.

If the sponsor or third party presents their own agreement for your signature, review its terms against those in the Stanford template. If the terms are substantively the same, you can feel comfortable signing it.

Other Considerations

Intellectual Property Clauses

These agreements should not contain any clauses governing intellectual property ownership. Contact the Industrial Contracts Office to review any agreement including such terms.

ITAR or EAR References

If an agreement refers to export controls (references to ITAR or EAR), contact Stanford's Export Control Office. Should you accept export-controlled information, you will need to complete this Stanford certification.

Signing Agreements

The researcher is responsible for the acceptance and protection of the information, materials, or technology being shared, and is the appropriate signer of the agreement. If the sponsor or third party insists on an institutional signature, contact either the Office of Sponsored Research for federally-sponsored research, the Industrial Contracts Office for industry-sponsored research, or the Research Management Group for Clinical Trial NDAs.

Note: University staff may not sign or co-sign on Stanford’s behalf for any NDA that includes export control terms, and thus presumes the potential sharing of export controlled technology, without the issue being brought to the Dean of Research for review. The appropriate contact in those instances is Stanford's Export Control Office.

Additional Review

Other than the guidance provided here, Stanford University does not review or provide guidance related to these agreements. If you have further questions about an agreement between a sponsor or third party and yourself, you may want to contact your own legal advisor.