Business & Commercial
Confidentiality & Non-Disclosure Agreements (NDA)
If you are engaging in business that contains sensitive information, it may suit you to take out a confidentiality or non-disclosure agreement (NDA). Under Australian law, it is difficult to rely on legislation alone to protect confidential information. Therefore, a confidentiality agreement is often the best method to safeguard sensitive information from being revealed to the wrong individuals.
Confidentiality and NDA agreements are documents that create contractual obligations between two parties by outlining the terms in which sensitive information must remain privileged and private. It is a pre-emptive protection of information agreement that holds the other party legally responsible if they reveal confidential, private information to unauthorized third parties.
At Burgess Thomson, we can ensure any confidential business information you have remains protected. Our team can assist by drafting and reviewing confidentiality agreements and NDAs, defining confidentiality details, and reviewing your commercial contract to give tailored legal advice.
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Frequently asked questions
What information can a confidentiality Agreement protect?
Not all information can be protected under a confidentiality or Non-disclosure Agreement. For example, information that is already public knowledge will not be able to be protected by a confidentiality agreement. The private information must be confidential in character, and there must be some basis for its secrecy.
When is a Confidentiality Agreement most useful?
It is common for companies to use confidentiality agreements to protect certain material such as trade secrets. Other common instances where confidentiality agreements are used include:
- During negotiations for a sale of business – this often occurs when the vendor lets the prospective buyer conduct due diligence on the business. The buyer will examine the business’ financial accounts and other sensitive data as part of investigating the business they may potentially purchase. In this instance, if you are selling a business you may wish to have a confidentiality agreement to ensure your business information remains protected from competitors.
- During a joint venture – by entering a joint venture agreement with another business, you usually reveal confidential details about each other’s business. This is carried out to gain an understanding of each party’s financial viability when establishing to join forces. A confidentiality agreement is often undertaken to ensure that neither party can exploit the sensitive business information of the other to their own advantage.
- Protecting a new concept or idea – often when you have a new idea for a business or product, you may need to approach someone for technical assistance, financial backing or a partnership opportunity. In these instances, you want a guarantee they will not steal your idea. A confidentiality agreement can be useful here.
- Employment Agreements – in some circumstances you may wish to protect trade secrets or confidential information your employees may encounter through their role. A confidentiality or NDA clause within an employment contract can be beneficial to ensure employees do not reveal this information during the course of their employment or after their employment has ended. This can be particularly useful in instances where employees have access to privileged intellectual property that you would like to remain confidential.
What information is included in a Confidentiality Agreement?
Usually, a confidentiality or non-disclosure agreement will include clauses which specify:
- The parties’ names;
- Information that will remain confidential;
- The purpose of disclosing the confidential information;
- The recipient’s obligation to ensure secrecy of the information is maintained;
- The period of time that the information will remain confidential;
- A clause that states if a recipient uses the confidential information for personal gain or in a detrimental manner, they will be breaching the contract; and
- The signatures of both parties involved.