20050113

Confidentiality Agreements at Ryerson

… or “if I tell you, I’ll have to kill you!”

Heather Gallant, ORS

20050113CDA

Outline

• What is a CDA?

• Why do a CDA?

• Elements of a CDA

• What to do if you’re asked to sign a CDA

• What does ORS do with the CDA?

• Information sources

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What is a Confidentiality Agreement?

• A confidentiality agreement

or non-disclosure agreement:

• provides for the exchange of confidential information between consenting parties

• protects confidential information from unauthorized use or further disclosure

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Why would I be asked to enter into a CDA?

• evaluate/develop collaborative research opportunities and funding applications

• participate in consortia activities

• third party evaluation of technology for commercial or business opportunity

• participate in research contract

• etc

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General rule for CDAs

• As the importance of the confidential information increases, so does the relative complexity of the Agreement

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Important Aspects of a CDA

• Definition of Confidential Information • Purpose for Disclosure • Disclosure Provisions• No (further) Disclosure • No Use • Limits on Information Deemed Confidential• Term• Other provisions

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Definition of Confidential Information

• The most important part of the confidentiality agreement

• Scope of information covered

• Must define the information to be exchanged without revealing the confidential details

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Disclosure

• In return for agreeing to keep the information confidential, the Recipient has the right to receive the information

• This puts a duty on the Discloser to disclose its confidential information

• The Discloser should carefully consider the scope of this obligation

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No Disclosure

• The Recipient must agree not to disclose the information to third parties

• The extent of this provision generally controls the "strength" of the Agreement

• Typical disclosure provision issues include standards for protecting the confidential info: – limit access of Recipient employees to a "need to

know" basis– "best efforts" clause or– protect the confidential information in a manner

similar to the way the Recipient protects its own confidential information

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No Use

• The Discloser wants to make sure the Recipient does not use the information for any purpose other than that set forth in the agreement

• Generally limit use to “evaluation of confidential info for the purpose of <<X>>” – Where <<X>> is:

• <<entering into a “business, commercialization, collaborative research or other” opportunity>>

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Limits on Information Deemed Confidential

• Provides exclusions of types of information that will be deemed confidential

• The Discloser may require a certain level of proof before such information is considered non-confidential– if the Recipient already knew the information before it was

revealed by the Discloser– if the information was revealed to the Recipient by a third

party– information that becomes publicly known– information that is requested by order of a government

agency– information that is independently developed.

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Term

• The term provision of a confidentiality agreement can be extremely important

• Must be long enough to protect the interests of the Disclosing party.

• Should not unduly burden the Recipient.• Generally: one to five years for both

information exchange period and period to keep info in confidence

• May be indefinite, if required

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Other Provisions

• Sometimes seen: • Severability/survival: allowing certain provisions to stay

in effect even if a portion of the agreement is found to be unenforceable or in the case of termination

• binding the agreement on heirs and assigns • calling for a return of confidential materials after use by

Recipient• stating that the Discloser has the right to receive an

injunction from a court if the agreement is breached • specifying that the Discloser owns all confidential

information• dispute resolution/arbitration clause• provisions governing the controlling law for the contract.

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What should I do if I’m asked to sign a CDA?

• If the work/information exchange is related to your work as a Ryerson staff/faculty member:

RYERSON must sign and monitor the agreement

Notify ORS & send CDAs to Heather

• Why?– Liability and insurance issues. Ryerson must obligate

itself to defend you if there is a problem with the Agreement or interaction

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What does ORS do with the CDA?

• Works with investigator to determine need/requirements

• Review clauses, definitions to ensure relevant standards are met

• Ensure obligations can be fulfilled• Renegotiate terms as required• Get appropriate signatures• Centralize and monitor agreements• Provide advice

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Where to get information

• CDA procedures:– Heather or Bob

hgallant@ryerson.ca or ext 7521

dirstein@ryerson.ca or ext 7609

• Grant/Contract Authorization form:– http://www.ryerson.ca/ORS/