A Non-Disclosure Agreement (NDA), also known as a confidentiality agreement, is a legally enforceable contract that should be used when sensitive information is being shared between two or more parties. Its purpose is to ensure that the party gaining access to sensitive information keeps confidentiality and does not disclose anything to a third party. Situations that may give rise to an NDA include the induction of a new employee or contractor into your organisation or perhaps interacting with external marketing firms or investors.
So, what’s included in an NDA?
There are five key components every NDA should include:
One
Firstly, identification of the parties to the agreement, this is essential in understanding who is entitled to know any restricted information.
Two
Next, a definition of the confidential information. As a good NDA will always explain the context and reason behind the confidential information, without exposing the confidential information itself. For example, the NDA may state its purpose is to evaluate ingredients in a cake recipe, without revealing the recipe itself.
Three
Thirdly, the scope of the confidentiality obligation. Usually, the scope of an NDA will require the receiver of confidential information, to keep a secret and not use the information for themselves. This is vital because the last thing you want is someone stealing your brilliant idea (or cake recipe) and using it to make millions of dollars (or cakes).
Four & Five
The final two key components are exclusions and terms to the NDA. Exclusions are used to address situations where it would be unfair for the recipient to keep the information confidential.
Terms of the agreement are unique to each one and can provide a variation of different clauses that parties are expected to adhere to, for example, how long the NDA will last or in what jurisdiction disputes will take place in the event one arises.
What if a party breaches the agreement?
A Non-Disclosure Agreement is legally enforceable contract. Therefore, if a party breaches the agreement, you can make a claim against them due to breach of contract. It is possible that NDA breaches can proceed to litigation However, in most cases, when an NDA is breached, it can be resolved outside of the courtroom.
If you believe a party has breached their NDA obligations, it may be time to make an appointment with us to obtain independent legal advice. Our solicitors will consider the extent of the matter and determine your best possible cause of action to provide you with un-biased advice and ensure a cost-effective result for you.
Want to know more?
If you believe you require an NDA, you should seek independent legal advice to draft an agreement specific to your circumstances. CPC Lawyers are here to help! We want to assure you that our office is a safe and confidential environment. Our Commercial Law team are committed to familiarising themselves with your situation to provide informed legal advice on the best way forward.
Contact us:
Call: (08) 7325 0219
E-mail: info@cpclawyers.com.au