THIS AGREEMENT is made on the                 day of                                                 two thousand and [year]

[1] Insert the name and address of the one party.

[2] Insert the name and address of the other party.

Background:

1. The parties wish to have discussions in relation to the Project (as defined below).
2. In the course of those discussions there will be disclosure of the Confidential Information (as defined below).
3. The Confidential Information has a unique value to the Discloser (as defined below) and may be the basis of applications for patents.
4. The Discloser will be prejudiced by any unauthorised use or disclosure of the Confidential Information, may be precluded from being granted patents, and may suffer financial loss because of unauthorised disclosure or unauthorised use of the Confidential Information.

This agreement provides: 

1. Meanings

In this Agreement:

Affiliate means any corporation or non-corporate business entity which controls, is controlled by, or is under common control with a party, and for that purpose control means the ownership or direct or indirect control of at least 50% of the voting shares of another corporation, or having directly or indirectly the power to direct or cause the direction of the management and policies of another corporation or non-corporate business entity

Confidential Information means all information relating to the Project that is disclosed by one party to the other party under this Agreement and that at the time of disclosure is identified as the Discloser’s confidential information as required by this Agreement.  Confidential Information may include, without limitation, material; inventions; discoveries; facts; data; ideas; manner, method or process of manufacture; method or principle of construction; chemical composition or formulation; DNA sequences; techniques; products; prototypes; processes; names; know how; routines; specifications; drawings; trade secrets; technology methods; computer programs; works in respect to which copyright subsists; circuit board layouts; and other knowledge.

The Confidential Information may also include business information relating to the Project that is disclosed by one party to the other party under this Agreement and identified as confidential at the time of disclosure or 30 days thereafter, such as business plans, marketing plans, strategies, market analysis, feasibility plans, concept documents, expert’s reports, forecasts, projections, methodologies, financial accounts, financials statements, cash flow statements and valuations.[3]

The Confidential Information also specifically includes the types and categories of information outlined in Appendix 1.[4]

& Discloser means a party to this Agreement which discloses Confidential Information to the other party.

Project means *[5]

Purpose means *[6]

Recipient means a party to this Agreement to which Confidential Information is disclosed.

2. Disclosure

2.1       Discloser will disclose to Recipient as soon as practicable after the date of this Agreement all of Discloser’s Confidential Information that Discloser reasonably believes is sufficient for the Purpose.

2.2       If Confidential Information is disclosed in any tangible form, including documents, software or materials, it must be marked with Discloser’s name and a confidentiality legend.

2.3       If Confidential Information is disclosed orally or by demonstration or observation, it must be identified as Discloser’s Confidential Information at the time of disclosure and confirmed in writing by the Discloser within 30 days after the date of the oral such disclosure, and this Agreement will apply in relation to any such disclosure only to the extent to which it is confirmed in writing within that period.

2.4       All Confidential Information will remain the property of Discloser.

3. Confidentiality

3.1       In consideration of each disclosure of Confidential Information by Discloser to Recipient, Recipient agrees:

• To keep the Discloser’s Confidential Information secret and confidential.
• Not to disclose to or make known to any person in any manner any part of the Discloser’s Confidential Information, except as expressly permitted by this Agreement.
• To keep the Confidential Information in a secure place so as to ensure that unauthorised persons do not have access to the Confidential Information.
• To use the Discloser’s Confidential Information only for the Purpose and not to use that Confidential Information for any other purpose.

3.2       Recipient acknowledges that damages may be an inadequate remedy to Discloser in the event of any breach of this Agreement occurring, and that only an injunction might be adequate to properly protect the interests of Discloser.

3.3       Recipient acknowledges and agrees that neither this Agreement nor the disclosure of any Confidential Information grants or implies any license to Recipient or any other person under any patent, breeders right, copyright or other intellectual property right owned by Discloser.

4. Release from obligations

4.1       As an exception to the obligations in Section 3.1, Discloser may consent to Recipient disclosing all or part of the Discloser’s Confidential Information to a person. Such a consent must be in writing and may be conditioned on Recipient obtaining from such person a signed, written Confidentiality Agreement with Discloser.  If such written Confidentiality Agreement is required, it will be delivered to Discloser prior to any disclosure of Confidential Information to such person.

4.2       The Recipient may disclose the Discloser’s Confidential Information to a director, officer or employee who has a need to know for the Purpose and who is bound by obligations of confidentiality to the Recipient of the same scope as that imposed upon the Recipient by this Agreement.

4.3       Recipient may not disclose any of Discloser’s Confidential Information to any of Recipient’s Affiliates, consultants or advisers without compliance with Section 4.1. 

4.4       If Recipient is required by law to make a disclosure of any part of Discloser’s Confidential Information, Recipient must immediately notify Discloser of that requirement and provide full particulars relating to the requirement to disclose.  Unless Discloser can secure some relief to Recipient from the legal obligation to disclose Discloser’s Confidential Information, Recipient is relieved from its obligations in this Agreement, but only to the extent of the legal obligation to disclose.

5. Duration of confidentiality

Option[7]

5.1       The duration of the obligations upon Recipient in this Agreement is ___[8] years from the date of this Agreement.

Or

5.1       The obligations of this Agreement continue indefinitely and cease only as to any part of Discloser’s Confidential Information becomes subject to Section 6.

6. Ending of confidentiality

6.1       Recipient will be relieved from its obligations of confidentiality in this Agreement in respect to any part of the Discloser’s Confidential Information that Recipient can show:

• was in the possession of Recipient on the date of the disclosure; or
• is or becomes part of the public domain otherwise than by a breach of this Agreement; or
• was received in good faith from a person entitled to provide it to Recipient without an obligation of confidentiality; or
• was independently developed by Recipient’s employees who did not have access to the Confidential Information.

7. Return of confidential information

7.1       Discloser may at any time by written notice to Recipient require the return of Discloser’s Confidential Information.

7.2       Within 7 days of receipt of such a notice Recipient must deliver to Discloser all Discloser’s Confidential Information in its possession together with all copies.

7.3       Any part of Discloser’s Confidential Information which cannot conveniently be returned by Recipient to Discloser will be completely destroyed in such manner and at such time as directed by Discloser, including by deletion from all computer records and electronic or magnetic storage devices.

7.4       Notwithstanding Sections 7.2 and 7.3, Recipient may retain one copy of Discloser’s Confidential Information for the Recipient’s archival record keeping and evidentiary purposes.

8. Other provisions

8.1       This Agreement is made and entered into in [state and/or country][9]. The parties agree to submit themselves to the non-exclusive jurisdiction of the courts in that place.

8.1       This Agreement may not be transferred or assigned by either party without the prior written consent of the other party.

Signatures of parties

[1] Insert the name and address of the one party.

[2] Insert the name and address of the other party.

[3] Delete this paragraph if business or financial information will not be disclosed.

[4] Consider referring to types or categories of Confidential Information proposed to be disclosed. The more accurately Confidential is identified, the greater the protection afforded to the Confidential Information. If you do not intend to specify particular Confidential Information, delete this paragraph.

[5] Insert a description of the Project with which the Confidential Information is concerned. This is a critical term to define well since the use of “Project” in the first line of the definition of “Confidential Information” will result in how you define the scope or extent of “Confidential Information” for the purposes of this Agreement.

[6] Insert a description of the purpose or uses to which the Recipient is allowed to put the Confidential Information. All other uses are prohibited, so this needs to be accurately completed to ensure that the Recipient can use the Confidential Information for the purposes intended, and not any further.

[7] There are two versions of this clause to select from. Select one and delete the other. Refer to the Guidelines in relation to making this choice.

[8] Insert a period of time to be the duration of the obligations in the Agreement. Refer to the Guidelines in relation to this.

[9] Insert the jurisdiction that you want to govern this Agreement. Refer to the Guidelines on the choice to be made here.