Information for Research Discussions involving Confidential Information: Confidential Disclosure Agreements (CDA’s) and Nondisclosure Agreements (NDA’s)

Information for Research Discussions involving Confidential Information: Confidential Disclosure Agreements (CDA’s) and Nondisclosure Agreements (NDA’s)

Florida State University encourages its researchers (faculty, staff, and students) to partner with outside companies to exchange research results and ideas that result in collaborations. If a researcher wishes to engage into discussions that involve proprietary information then we require a confidential disclosure agreement (CDA) to be in place prior to those discussions. CDA’s are sometimes called nondisclosure agreements (NDA) or proprietary information agreements (PIA). Since FSU is a state institution, therefore subject to University policy and State of Florida Law, we prefer to use our own standard CDA which you can find here.

Because of Florida State University’s status as a state institution, typical outside confidentiality agreements and non-disclosure agreements contain terms that the University cannot accept. For that reason we prefer to use our own CDA. If a company insists on using their own proposed CDA the terms will need to be carefully reviewed and negotiated by the FSU Office of Research before the conversations can take place.

Some areas of concern are:

Receiving Proprietary Information
To comply with University policy and state and/or federal law anything we receive that is deemed to be proprietary or confidential information (including documentation) must be stamped or otherwise marked “Confidential”. We normally do not agree to limit the disclosure of proprietary information to full-time, regular employees because we don’t want to limit our ability to work with students.

Term of Confidentiality
CDAs/NDAs/PIAs are usually for a period of one year, with a continuing obligation to keep information confidential for an additional period of three (3) to five (5) years.

Damages:
We cannot agree to injunctive relief as a result of irreparable.

Binding Arbitration:
FSU cannot agree to a binding arbitration requirement.

Dispute Resolution:
FSU can agree to resolve disputes via informal processes, including mediation or non-binding arbitration, or through legal process in Florida’s courts.

Applicable governing laws
As a Florida state institution we cannot agree to be governed by another’s state. We can however, agree to be silent as to governing law.

Export control and ITAR and EAR clauses

Definitions:

International Traffic in Arms Regulations (ITAR) is a set of US Government regulations that control the export and import of defense-related articles and services on the United States Munitions List.

Export Administration Regulations (EAR) is a commerce control list administered by the US Department of Commerce that regulates the import and export of “dual use” technology and some defense technology.

Any material deemed to be Export Controlled needs to be clearly marked EXPORT CONTROLLED. FSU reserves the right to refuse export controlled information. FSU is a public state university and desires to do work that is fully publishable and considered fundamental research. As a research university FSU qualifies for the fundamental research exclusion which is applicable both to export control laws and the ITAR.

FSU will not accept any contract that says it "may" be subject to such laws. FSU needs to know from the contractor whether the technology/information/data, or the use of the data is controlled. If it is export controlled the University will need to decide whether to accept the work or not because such restrictions are contrary to university policy regarding fundamental research.

Accepting export controlled work means that FSU must insure that no foreign nationals work and/or access any information and must prove a security process that ensures compliance. Alternatively, the export controlled work may need to involve foreign nationals, in which case the University will seek to obtain appropriate review and approval from the federal agency involved prior to initiating the work activities.

As a research University we do not desire to restrict foreign national access to technology, data, or information.

Notices and Recipients of Proprietary Information
The Vice President for Research should be the designated party for receipt of administrative notices relating to the CDA. The faculty member(s) that will be receiving the proprietary information should be identified as the contact for information exchanges.

Liability
Florida State University cannot accept liability for any inadvertent disclosure of proprietary information.

For more information about please contact: Eric C. McNair, Phone: (850) 644-3328, Fax: (850) 644-3675, Email: emcnair@fsu.edu