Lawpath - Confidentiality agreement (Mutual)
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Whether you're considering selling your business, developing a new product or pitching a business idea, it's tough to completely trust that your hard work won't end up in the wrong hands.
It's a smart idea to protect your valuable information with a Confidentiality Agreement and here we've explained exactly what to include in your agreement and where to find a free template that will make the process a breeze.
What is a Confidentiality Agreement?
A Confidentiality Agreement is a commercial agreement between two or more parties where they agree to protect the sensitive or proprietary information of all relevant parties during the course of their relationship. The expectation is that all parties will keep any disclosed information confidential and use it only for an agreed purpose.
When should I use a Confidentiality Agreement?
A Confidentiality Agreement should be written and signed before sharing confidential information with another business or person. Confidential information doesn't just include intellectual property, it can also be used to protect sensitive information such as marketing tactics, product details and business operations.
There are many reasons when you might decide one is necessary, with some of the most common reasons including:
- When a company is engaging a contractor or new employee who will have access to trade secrets, secret information or other valuable commercial information.
- When two parties are investigating the possibility of an investment or sale with each other.
- When a new inventor or start-up has an idea and wants to test the possibility of an investment or partnership with another party.
Confidentiality Agreement vs Non-Disclosure Agreement
Two terms that are often used interchangeably are Confidentiality Agreement and Non Disclosure Agreement making it almost impossible for a layperson to determine the difference.
To clear things up, they're essentially the same thing and serve the same subject matter - the protection of information. The only real but subtle difference is the preference over one or the other in different settings and industries.
What does a Confidentiality Agreement include?
While there are technically no limits to the obligations which can be contained in a Confidentiality Agreement, there are certain provisions that are typically included:
- The term of the agreement
- The types of information to be protected
- The obligations of the parties to the confidentiality agreement
- When the confidentiality obligations apply
- How notices are to be delivered
- How to resolve any disputes arising from a breach
How effective is a Confidentiality Agreement?
Laws do vary depending on your state but in general, a Confidentiality Agreement is legally enforceable if one of the signed parties fails to maintain their duty of confidentiality or threatens to make the information public.
The owner of the confidential information may seek legal remedies in this instance which could include:
- Damages to be paid in compensation
- A court injunction requiring the offending party to refrain from spreading the information
It's important to note that it's up to a court to decide whether or not a Confidentiality Agreement is enforceable. You should make sure that the confidential information is clearly identified within the agreement so there's no debate about whether the other party is required to keep this information secret.
Do I need a lawyer for a Confidentiality Agreement?
Lawyers are technically not required to write up a Confidentiality Agreement, but they can be useful in some circumstances. If your arrangements are complicated or you're dealing with a transaction that has substantial value, you should consider legal advice.
Get access to customisable Confidentiality Agreement templates online
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How do I write a Confidentiality Agreement?
To write a Confidentiality Agreement that all parties agree to, you should all sit down together and decide on the terms and conditions that will be included in the document. Using a legal template for the ins and outs of the document will give you an idea of what to include in your agreement.
Typically, writing up a confidentiality agreement should include the following four steps:
- Define the terms of your privacy and confidentiality agreement.
- Define the conditions where confidential information needs to be disclosed.
- Agree on how any disputes will be resolved.
- Ensure that all parties sign the document.
A Confidentiality Agreement often includes two clauses that can help to reinforce the strength of your agreement and make it easier to combat an unfairly obtained competitive advantage. These are:
- A non-solicitation clause. This restricts the other party from coaxing contractors or employees away from your business.
- A non-competition clause. A clause that restricts a party from sharing confidential information with competitors or starting a competing company.
Where to get free legal documents and templates like a Confidentiality Agreement
Confidentiality Agreements can become lengthy depending on how much information needs to be protected, which is why using a legal template can be extremely helpful. It'll make sure that any necessary legal jargon is included and nothing is left out. Here is a selection of websites that allow you to view or download a Confidentiality Agreement template for free.
- IP Australia. IP Australia is an Australian Government agency that administers intellectual property rights. Its IP Contract Generator is an online tool, designed to help you create a Confidentiality Agreement for free.
- LawDepot. LawDepot provides a wide variety of free online documents to choose from. You can fill them in online and then download the completed documents straight to your computer.
- LegalVision. While not free, LegalVision offers users unlimited use of legal document templates for a monthly membership fee of $199, including a Confidentiality Agreement template.
- Legal Zebra. You can access free PDF samples if you sign-up to Legal Zebra's marketing emails. Customisable templates can be purchased for a one-time fee. With Legal Zebra, users can download a confidentiality policy and fill in the blanks for just $27.
- Wonder.Legal. Wonder.Legal gives you access to over 140 legal document templates, all of which can be purchased for a one-time fee.
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