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Confidentiality agreements

20 Nov 2023

Confidentiality agreements, also called Non-Disclosure Agreements (NDAs), are used to protect confidential information. They can be one-way (where only one side is giving out information) or mutual (where both are).

Alice Hunter


Guidance on confidentiality agreements

  • A confidentiality agreement shouldn’t mean you trust someone you otherwise wouldn’t
  • Confidentiality agreements can be difficult to enforce
  • You should still consider labelling information as confidential and/or using technical measures to prevent unauthorised use or copying
  • Disclosure of confidential information can be limited or staggered depending on how close the relationship is
  • The best way to protect confidential information is not to disclose at all in the first place
  • The definition should be broad enough to cover all relevant types of information
  • Is there any specific information (or intellectual property) that you wish to protect?
  • Consider what isn’t included (public information for example)
  • Describes what the information may be used for
  • Must be accurate and unambiguous
  • Doesn’t need to include all the details of the intended relationship
  • Use of the confidential information should be restricted to the permitted purpose
  • Specific security obligations may be required depending on:
  • How sensitive the information being disclosed is
  • How much information is disclosed
  • What format it’s in
  • What the permitted purpose is
  • What are you actually looking to protect? Would other restrictions be more appropriate?
  • Non-solicitation of employees
  • Non-circumvention clauses to stop dealings with your suppliers or clients
  • Provisions in relation to ownership and protection of IP
  • Depends on how time-sensitive the information is
  • Many agreements will have indefinite obligations

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