When do I need a Confidentiality Agreement?

Confidentiality Agreements, Non-Disclosure Agreements or Confidential Disclosure Agreements - are all the same document trying to protect a business's confidential information So when you you actually need one?

If you work in a space where you have awesome or innovative ideas, technologies or processes, chances are you need a confidentiality agreement. If you are undergoing a new venture, maybe with big business, a univeristy or a tech company and don't have one signed before you enter into discussions, then you could be at risk of your information not being protected and entering into the public domain.

Guy Provan has written a great article on Confidentiality Agreements in the September 2015 issue of Australian Corporate Lawyer. Check it out at http://acla.acc.com/documents/item/1476 on page 26-27.

Points to note:

  • where both parties are receiving and disclosing confidential information, an agreement rather than a deed is always best
  • be specific about what the confidential information is - if its a product, define it as so. It should also identify the deocuments or categories of documents which describe the product. Catch-all provisions may still be required in order to afford the greatest protection of the confidential information under the agreement.
  • also be specific about the purpose - if its to discuss investment in a company, or participation in a project its best to be specific about it. Otherwise if its too generic there may be some misunderstanding about how long the confidentiality agreement runs for (and what purpose the confidential information was being used for). 
  • the agreement should not go beyond the protection of the confidential information, i.e. you can't create constraints over information that is in the public domain or that a party becomes aware of other than by a breach of the agreement.
  • if there are contractors or specific employees working on the confidential information it may be pruduent to get them to sign individual deeds of confidentiality. This ensures that you get the best legal protection possible.
  • Where IP will be created, the party to whom the confidential information belongs to would want to own such IP. Express provisions in relation to IP ownership should be drafted into the confidentiality agreement.
  • think beyond use and disclosure - a good confidentiality agreement should contain provisions relating to the return and destruction of the confidential information after the purpose has been fulfilled.