Do I need to send a non-disclosure agreement to my client?

Many grant applications deal with sensitive information for your client, including trade secrets and intellectual property. In this case, your client may require an NDA, or you may be in the habit of agreeing to an NDA on each and every project.

While you are welcome to send an additional NDA to your client, know that the OpenGrants Terms of Service—which every single user agrees to when creating their OpenGrants account—includes a section for disclosure. The full legal text is available here, but the section related to this topic reads as follows:

11. Your Other Obligations

(a) You agree not to disclose confidential information about us or any other User. All non-public information relating to Company or any other User provided to or accessed by you (the disclosing individual or entity, the “Disclosing Entity” and such information, “Confidential Information”) should be treated confidentially. Confidential Information includes, but is not limited to: (i) non-public information about or belonging to the Disclosing Entity and its management, employees, contractors, suppliers and any other individual or entity with which the Disclosing Entity has a business relationship; (ii) non-public information about or belonging to the Disclosing Entity’s clients and their employees, personnel, directors, customers and any other individual or entity with which such clients have business relationships; (iii) proprietary information belonging to or licensed by the Disclosing Entity, including, without limitation, trade secrets, protectable under intellectual property laws of any jurisdiction; and (iv) technology, knowledge, designs, concepts, ideas, information, formulas, patterns, compilations, programs, devices, methods, techniques or processes of the Disclosing Entity.

As such, you hereby agree: (i) not to disclose the Confidential Information of the any Disclosing Entity to any third party without the prior written consent of the applicable Disclosing Entity; and (ii) to use Confidential Information only as reasonably necessary to perform your obligations under the Agreements or as otherwise instructed by the applicable Disclosing Entity, including any separate agreement between you and another User. Further, you will use at least the same degree of care, but in no event less than reasonable care, to protect Confidential Information from unauthorized disclosure or access that you use to protect your own Confidential Information. You must immediately notify Company and, if applicable, the relevant Client(s) of any actual or suspected loss or unauthorized use, disclosure of or access to Confidential Information of which you become aware, and take all steps reasonably requested by Company and/or the relevant Client(s) to limit, stop and prevent further unauthorized use, disclosure or access. In the event that you are required to disclose Confidential Information in order to comply with a subpoena, judicial or governmental requirement or order (an “Order”), you must give the applicable Disclosing Entity sufficient prior notice of such Order, to permit the applicable Disclosing Entity a reasonable opportunity to object to the Order and to seek a protective order or other appropriate remedy.

The obligations of this Section 11(a) will not apply to any information that you can demonstrate was previously rightfully known by you free of any obligation to keep it confidential, is or becomes publicly known through no wrongful act on your part, or is independently developed by you without reference to the Confidential Information of the Disclosing Entity.