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Download the Confidentiality Agreement (Non Disclosure) Checklist
Download the Confidentiality Agreement (Non Disclosure) Sample
This Confidentiality Agreement protects your confidential business information revealed during discussions or negotiations with another party.
Different rules apply depending on whether the owner is a company or a human being.
Protects against:
* copying or keeping your confidential information.
* against disclosure to third parties of information not already in the public domain.
* not having a remedy. If there are any breaches then the agreement gives you a greater chance in court.
This hint is provided by Law Central Legal.
Employees are to some extent in a special position as far as confidential information is concerned. During their period of service any use or disclosure of information, confidential or not, which harms their employer's interests breaches their implied duty of fidelity or loyalty. That includes any deliberate effort to remove or memorise information for later use.
Once your employee leaves watch out. In theory your ex-employee remains bound not to use confidential information acquired during the course of employment. However, courts are reluctant to restrain workers from using information which has become an inseparable part of their stock of knowledge or `know-how', even where the information is clearly confidential to the former employer.
As a result, employers are advised to protect their trade secrets by getting all their employees to sign confidentiality agreements. This seeks to prevent employees from putting themselves in positions where they can engage in competitive activities. Provided the scope of such a covenant is no wider than is reasonably necessary to protect the employer's legitimate interests, it won’t invalidate by the doctrine of restraint of trade.
For example a broad requirement to stop an engineer from working in the diamond mining industry may fail. That is too broad and stops the employee from exploiting his trade.
This hint is provided by Law Central Legal.
That is fine:
1. Select Individual if the trustee is human,
The name of the trust should be inserted as follows:
First Name: Fred
Second Name:
Surname: Bloggs as trustee of the Bloggs Family Trust
1. Select Corporate if a Company is the trustee.
The name of the company should be inserted as follows:
Full Name of Company: Smith Pty Ltd as trustee of the Smith Unit Trust
In other words put in the full name of the trust.
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That is fine.
1. Select the Partnership option.
2. Insert the name of the Partnership.
3. Insert the number of partners in the Partnership.
4. Insert all names and addresses of all partners in the partnership, whether the partners are individuals or corporate.
This hint is provided by Law Central Legal.
Our confidentiality agreement continues forever unless:
1. the confidential information finds its way into the public arena. This is obviously without the knowledge or aid of the parties who signed the agreement; or
2. the confidential information stops being confidential. (e.g. Copyright, Patents and Designs have a limited life under the acts in each country - interestingly, unregistered secrets like the ingredients of Coca-Cola and Kentucky Fried Chicken can stay confidential forever); or
3. the parties agree to end the confidentiality agreement.
People often think that if the secret information has no financial benefit then it stops being confidential. This is a fallacy. The information or secret may be confidential to protect a reputation or a lady's honour.
This hint is provided by Law Central Legal.
Our confidentiality agreement works throughout the world provided there are no local laws that prohibit its operation. You don't need any special witnesses. You don't need a Notary.
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On the last question you told me that the Owner of the information was a company.
If the owner is a human being (not a company) then go back on your browser and correctly answer the question.
This hint is provided by Law Central Legal.
"ACN" stands for Australian Company Number. Many companies have similar names. Each company is given a unique ACN.
If you don't know your ACN of your own company (most strange) then don't worry. WizardDocs will leave a blank for you to write it in later.
This hint is provided by Law Central Legal.
A “Trade Secret” is any formula, pattern, device, or compilation of information that is used in your business. The trade secret should also give you an opportunity to derive an advantage over others who do not know or use it: Bacchus Marsh Concentrated Milk Co Ltd v Joseph Nathan & Co Ltd (1919) 26 CLR 410. The secret ingredients in Kentucky Fried Chicken are a trade secret.
Trade secrets are a form of property and may be sold. Therefore they can be protected. This is why you get employees and others to sign Confidentiality Agreements. While you can’t stop your engineer employee from plying his trade you can stop him from exploiting your trade secrets. Bacchus Marsh Concentrated Milk Co Ltd v Joseph Nathan & Co Ltd. Sadly, “general skill and knowledge” that a person of ability necessarily acquires in your business is NOT a trade secret. It isn’t knowledge that can be regarded as property: Bacchus Marsh Concentrated Milk Co Ltd v Joseph Nathan & Co Ltd. Therefore “general skill and knowledge” that the person or employee gains from you isn't protected in a Confidentiality Agreement.
The term “trade secret” doesn’t have a technical legal meaning. Therefore you look to its ordinary term in the English language. Whether information amounts to a ‘trade secret’ is a question of fact. This means that you have to look at the facts of each case: Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 11; 108 ALR 163.
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A duty owed by a recipient of confidential information not to misuse information obtained by virtue of the recipient’s relationship with you of the information. The recipient also refrains from using the information for the recipient’s own benefit or to your detriment: Seager v Copydex Ltd [1967] 1 WLR 923.
An obligation not to misuse confidential information may arise even if there is no contractual relationship between you as the owner and the user of the information: Talbot v General Television Corporation Pty Ltd [1980] VR 224.
Such a duty of confidentiality can be inferred in some situations – employer-employee and doctor-patient and company directors. However, it is best to prepare this confidentiality agreement to strengthen your position.
What is the stuff that makes it “confidential”?
Facts or knowledge that are not in the public domain: Coco v AN Clark (Engineers) Ltd (1969) 86 RPC 41.
SUMMARY
The obligation to keep your secrets and not use them can arise in many ways. To strengthen your position prepare this confidentiality agreement.
This hint is provided by Law Central Legal.
A company is an “artificial” person. It has a Pty Ltd, Ltd or NL after its name.
An individual is a human being.
You should have a confidentiality agreement with both the company and each officer or employee of the company that is going to be privy to your secrets.
This hint is provided by Law Central Legal.
Find out the exact identity of the person or firm you are dealing.
Ask the person to give evidence as to their status. For example, it may be prudent for you to inspect their certificate of incorporation if it is a company or a certificate of registration of a business name if it is a partnership. If you are dealing with a partnership then each partner signs their own confidentiality agreement. Each person needs their own confidentiality agreement.
A guy can wander off the street and claim to be authorised by Woodside to sign this agreement. If he wasn’t then he may not be personally bound by the agreement. Similarly, Woodside may not be bound by this agreement.
Check and then double check who you are allegedly dealing with.
You need a confidentiality agreement for a company and each of its employees who see your secrets.
This hint is provided by Law Central Legal.
It is important to ascertain the exact identity of the person or firm with which you are dealing.
Ask whoever it is with whom you are dealing to give you evidence as to their status. For example, it may be prudent for you to inspect their certificate of incorporation if it is a company or a certificate of registration of a business name if it is a partnership. If you are dealing with a partnership then all partners should sign as individuals. Each person needs their own confidentiality agreement.
A guy can wander off the street and claim to be authorised by Woodside to sign this agreement. If he wasn’t then he may not be personally bound by the agreement. Similarly Woodside may not be bound by this agreement.
Check and then double check who you are allegedly dealing with.
This hint is provided by Law Central Legal.
"ACN" stands for "Australian Company Number". Many companies have similar names. The only way to be certain which company is which is to write in the unique ACN.
If you don’t have the ACN then leave this blank. We will leave space for you to write the ACN in later. However, get the ACN and write it in BEFORE you show the company any of your secrets.
This hint is provided by Law Central Legal.
QUESTION: Does it have to be a director on behalf of the confidant that signs the agreement? Can it be an employee? And if an employee can sign it does it weaken the strength of the agreement?
ANSWER: Where ever possible it is best to the get the director of the company to sign. However, with say big companies or overseas companies that is impossible. The rule is the higher ranked the person the better.
However, if the company "allows" a person to "act on its behalf" then that person is more than capable of binding the company to the confidential agreement. That person can be an employee or even an agent, like an accountant or lawyer. (However, if I was the lawyer acting for the company I wouldn't be sticking my neck on the line because I don't control the company.)
It would be very difficult for the company to come back and say that it is not bound by the confidentiality agreement because the employee was acting beyond his power.
This hint is provided by Law Central Legal.
It is important to ascertain the exact identity of the person or firm with which you are dealing.
Ask whoever it is with whom you are dealing to give you evidence as to their status. For example, it may be prudent for you to inspect their certificate of incorporation if it is a company or a certificate of registration of a business name if it is a partnership. If you are dealing with a partnership then all partners should sign as individuals. Each person needs their own confidentiality agreement.
A guy can wander off the street and claim to be authorised by Woodside to sign this agreement. If he wasn’t then he may not be personally bound by the agreement. Similarly Woodside may not be bound by this agreement.
Check and then double check who you are allegedly dealing with.
This hint is provided by Law Central Legal.
Do not write a whole sentence.
Only use the words that describe the Nature of Business. e.g. mining, accountants, financial planning etc. It would also be better to limit it to one or two words.
Do not write anything extra as the words are built into the document in the sentence 'The owner is engaged in the business of ....... [Description of Nature of Business]'
This hint is provided by Law Central Legal.
It would be better to limit the explanation to one or two words that generally describes the 'Nature of Business'.
Only use the words that describe the Business. e.g. mining, accountants, financial planning etc.
Do not write anything extra as the words are built into the document in the sentence ...'The owner is engaged in the business [Description of Nature of Business]'
This hint is provided by Law Central Legal.
Do you have sensitive information that might be discussed in a meeting? For example, you may want to meet with a potential business partner and tell him of your motivations and interests in a particular investment? Want to talk about the specialised knowledge you have? Want to keep everything you said confidential?
If this is the case you still need to write in the area or subject that you may discuss at the meeting. For example, if you are going to discuss a business investment then you would put in "business investment".
This hint is provided by Law Central Legal.
That is fine. Just put in the nature of the Owner's business. This can be "financial planning", "accountant", "horse racing", "chemistry" or whatever it is.
This hint is provided by Law Central Legal.
Yes you can leave it blank.
We are already going to put into the Confidential Agreement many forms of protection and seek to protect things like:
* all information passing from you to the Confidant relating to the Business
* your trade secrets, know-how and techniques
* your business and marketing plans
* customer information
* your intellectual property rights
* your financial position and reputation
* your internal management and structure
This hint is provided by Law Central Legal.
a business investment in commercial property in New South Wales
a private discussion with the Confidant relating to what we can offer the Confidant if the Confidant comes and works with us
a dog catching mechanism
a better way to serve clients in a restaurant
a system to build faster widgets
an improved nail gun with flairs
(DON'T put in a full stop)
This hint is provided by Law Central Legal.
That doesn’t matter. Yes it does sound a bit flash if you just want a general discussion with someone. However, it is necessary to use these types of words. You need to be able to prove that this information is confidential, private and has value.
Even if you are discussing a start up business you should get the Confidant to sign a Confidentiality Agreement to protect your idea.
This hint is provided by Law Central Legal.
I WANT TO KEEP SECRET THAT I AM BUYING
Often it may not be some secret invention you are seeking to protect. You may just want to keep secret that you are in the market to buy something or buy a business. Make sure you are the 'Owner of the Information" and the potential seller is the 'Confidant'
Therefore, type in something like this:
"the fact that ........... (your name), or a lawful agent, is considering the potential purchase of the business named Smith and Weston car detailing business"
I WANT TO KEEP SECRET THAT I AM SELLING
Alternatively, you may want to keep secret that you are seeking to sell a business in which case make sure that you are the 'Owner of the Information' and the potential purchaser is the 'Confident'.
Therefore, type in something like this:
"the fact that ........... (your name), or a lawful agent, is considering the potential sale of the business named Smith and Weston car detailing business"
I WANT TO KEEP SECRET THAT I AM THINKING OF TAKING UP EMPLOYMENT WITH THE CONFIDENT
You may be being headhunted. That is a fairly private matter. You don't want the world to know about you looking for another job. Therefore you, as the potential new "employee" are the "Owner of Information". The potential employer is the "Confidant". You would therefore put in something like:
"the fact that .......... (your name) may be considering seeking employment"
(You don't need to put in who you are seeking to take up employment with. Keep it open. The fact that you may be looking for work is in itself confidential.)
This hint is provided by Law Central Legal.
I WANT TO KEEP SECRET THAT I AM SELLING
Alternatively, you may want to keep secret that you are seeking to sell a business in which case make sure that you are the 'Owner of the Information' and the potential purchaser is the 'Confident'.
Therefore, type in something like this:
"the fact that ........... (your name), or a lawful agent, is considering the potential sale of the business named Smith and Weston car detailing business"
This hint is provided by Law Central Legal.
I WANT TO KEEP SECRET THAT I AM THINKING OF TAKING UP EMPLOYMENT WITH THE CONFIDENT
You may be being headhunted. That is a fairly private matter. You don't want the world to know about you looking for another job. Therefore you, as the potential new "employee" are the "Owner of Information". The potential employer is the "Confidant". You would therefore put in something like:
"the fact that .......... (your name) may be considering seeking employment"
(You don't need to put in who you are seeking to take up employment with. Keep it open. The fact that you may be looking for work is in itself confidential.)
This hint is provided by Law Central Legal.
This document has been prepared by the law practice Law Central Legal
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