Non-Disclosure Agreements (NDAs): KTH's Position and Requirements
KTH is a Swedish public authority and is therefore subject to the principle of public access to official documents (offentlighetsprincipen). This means that members of the public have the right to access official documents received or created by KTH.
Please note that the English version is a translation of the original Swedish text. If there are any differences between the Swedish and English versions, the Swedish original takes precedence.
The Swedish Public Access to Information and Secrecy Act (2009:400) (Offentlighets- och sekretesslagen, OSL) is mandatory legislation. It provides only a limited number of specific exceptions under which a public authority may maintain confidentiality in research-related matters for a limited period of time. KTH cannot contractually waive or restrict the public rights established by law, nor can KTH undertake confidentiality obligations beyond what is expressly permitted by the OSL.
Against this background, KTH should avoid entering into NDAs unless there is a specific and identifiable need. An NDA that is incompatible with the OSL may expose both KTH and its researchers to legal and operational risks.
Guidance for KTH Researchers
If you receive a proposed NDA from an external party, do not forward, comment on, or negotiate the agreement before consulting your local contracts coordinator. Never sign an NDA in your personal capacity or on behalf of KTH.
If you have questions about NDAs or would like assistance in assessing whether an NDA is necessary in your particular case, please contact your school's local contracts coordinator.
When contacting your contracts coordinator regarding an NDA-related matter, please try to answer the following questions. The more information you can provide at the outset, the more efficiently the matter can be handled.
- Which company or organisation is the counterparty, and in which country is it registered?
- What is the purpose of the NDA? How will the information exchange be used? For example:
- an initial discussion regarding a potential collaboration;
- the preparation or submission of a joint application;
- a collaboration that has been agreed in principle but not yet formally executed; or
- an ongoing collaboration where the need for an NDA has arisen subsequently.
- Who initiated the request for an NDA, KTH/you or the counterparty?
- What type of information is involved? (e.g. technical specifications, business plans, research data, research results, methodological descriptions)
- Will KTH receive information from the counterparty, disclose information to the counterparty, or will information be exchanged by both parties?
- Does the information include personal data? (e.g. patient data, survey responses, participant information)
- Does the matter involve physical materials, samples, or substances of any kind?
- Does the collaboration involve the sharing of research data? If so, a separate Data Transfer Agreement (DTA) may be required instead of, or in addition to, an NDA.
- Does the collaboration involve the processing of personal data? If so, a Data Processing Agreement (DPA) or a Joint Controller Arrangement may be required.
- Does the collaboration involve ownership of research results or intellectual property rights? If so, such matters should not be governed by an NDA but by a separate agreement.
KTH's Position on NDAs
A legitimate need to protect confidential information may arise when KTH needs access to sensitive technical or commercial information in anticipation of a potential research collaboration, commissioned research project, or service involving research infrastructure. An NDA can never constitute the sole agreement governing such collaborations.
Where an NDA is justified, KTH will always use its own NDA template. Many companies and organisations provide their own standard NDA forms. These templates are typically drafted for commercial entities, often requiring absolute confidentiality and unlimited liability. Such provisions are incompatible with KTH's legal status as a public authority and cannot be accepted.
Where an NDA is necessary, it is therefore both necessary and more efficient for all parties to use KTH's standard template, which has been developed to comply with the legal requirements applicable to public authorities:
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Requirements for Marking Confidential Information
Written information must be marked "Confidential". Oral disclosures must be identified as confidential at the time of disclosure and subsequently confirmed in writing within a short, agreed period (normally 5 to 15 calendar days).
Presumption clauses, whereby information of a particular nature is automatically deemed confidential, are sometimes included in NDAs but cannot be accepted by KTH. Such clauses are incompatible with KTH's obligation to conduct an independent confidentiality assessment under the OSL. Any commitment to treat information as confidential can never extend beyond what is permitted by law. Accepting such clauses could create a false expectation that KTH can guarantee protection of the information when, in fact, it may not be legally able to do so.
Furthermore, without clear marking requirements, KTH risks making an incorrect confidentiality assessment and either improperly withholding official documents or disclosing information that the counterparty intended to protect.
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Duration
Any confidentiality obligation should remain in force for the shortest period reasonably necessary. KTH normally seeks a confidentiality period of two to three years from the date of disclosure. The absolute maximum period of confidentiality that KTH may undertake under the OSL is ten years.
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Return and Destruction of Documents
KTH cannot agree to return or destroy all documents upon termination or expiry of an NDA. KTH must reserve the right to retain at least one copy for archival purposes in accordance with the Swedish Archives Act (1990:782). Archiving obligations are mandatory and cannot be waived by contract.
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Restrictions on Research, Teaching, or Publication
The terms of an NDA must never, in practice, impede KTH researchers in conducting research or teaching activities, nor prevent the publication of research results.
Research results must never be subject to confidentiality obligations after they have been disclosed or published in accordance with the publication provisions applicable to the collaboration. KTH and its researchers must always be able to uphold good research practice and academic integrity.
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Transfer of Intellectual Property Rights
An NDA does not regulate ownership of research results or other intellectual property rights. Such matters must be addressed in a separate agreement.
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Transfer of Personal Data or Physical Materials
Please note that an NDA governs only the exchange of information in documented form. It does not permit:
- the transfer or processing of personal data; or
- the transfer of physical materials, samples, or substances that require separate authorisation or regulatory approval.
If a collaboration involves the transfer or processing of personal data, the parties must enter into supplementary agreements to ensure compliance with the General Data Protection Regulation (GDPR) (EU 2016/679).
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Liability for Damages
Never accept unlimited liability or liability for indirect or consequential damages.
If an agreement is silent on liability, no contractual limitations apply. In such circumstances, the default position under general principles of damages law is full compensation for proven losses, which may in practice result in unlimited liability.