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Non-Disclosure Agreement Australia

What is an NDA?

A non-disclosure agreement (NDA), also known as a confidentiality agreement, is a contract between two parties that restricts both the parties (disclosing and receiving parties) from sharing confidential information and trade secrets with anyone. An NDA doesn’t require registration and may or may not have an expiration date. 

Besides protecting confidential information, enforcing an NDA ensures that in case of a breach fo the NDA, the recieving party faces the threat of being sued and could be required to pay damages and related costs. 

Businesses offer NDAs to their employees, partners and contractors to prevent them from sharing sensitive information. Many types of confidential infomration require an NDA, like:

  • Proprietary Information
  • Trade Secrets
  • Business licences
  • Sensitive Information About A Business/Individual/ Nation
  • Product/ Service Information
  • Invention Information
  • Financial/ Medical Information
  • Intellectual Property, Code-base, Data
  • Inventions that are not yet open to public inspection

Do you really need a Non-Disclosure Agreement?

NDAs are an important legal framework for startups and established businesses alike who want to protect their IP, goods, and sensitive information from being stolen. Therefore, it’s always advisable to enter into an NDA before releasing information. You can decide on a case-to-case basis on each individual you plan to disclose the confidential information. 

Want to protect your “billion-dollar” idea from disclosure? We are here to help you.

NDA Lawyers

When dealing with confidential information, relying on goodwill is not a wise decision. No matter how trusting you are, it’s not worth the risk -- especially when you are dealing with company data, trade secrets, security information, invention ideas, etc. Therefore, you must have bulletproof NDAs in place. NDA helps formalise the relationship and offers legal remedies if the information is released without authority.

EAGLEGATE Lawyers is a leading, multi-award-winning, firm offering expert legal advice on commercial law. With over a decade of experience, our lawyers are well-versed in creating non-disclosure agreements. Our team takes the time to understand their clients' business and needs. We can tailor the NDAs in line with your interests, stating the rights and obligations of both the parties and what would happen in the event of a breach. We provide legal advice throughout the process to ensure you have the legal protection you need.  

Contact Our NDA Specialists Today

No matter which industry you belong to, before entering into negotiations for an NDA, you must consult with an NDA lawyer. This way, you can protect your IP and enter into the right NDA for you. 

Entering into a new business deal? Starting a new project? Sign off an NDA before disclosing any confidential information to a third party. 

Our team of qualified lawyers are just a call away. We have in-depth knowledge about all types of NDAs and every clause that an NDA covers. Moreover, we can add additional clauses based on your business needs. Whether you need us to draft a business plan NDA, business sale NDA, or real estate NDA, all you have to do is ask. 

An NDA should also address ownership of any IP created from the disclosure of the information. 

Discuss your requirements with us today. We are only a phone call away.  

Parts Of An NDA

Key elements of a non-disclosure agreement include:

  • A precise definition of what is considered confidential.
  • Part of the agreement that is not considered confidential.
  • Identification of the disclosing and receiving party. 
  • The reason why the information is confidential.
  • The term of the NDA.
  • Permitted releases of the information.
  • Waiver.
  • Legal actions to be taken in case the contract is violated.
  • Circumstances in which the receiving party can disclose information.

Types Of An Non Disclosure Agreements

Each NDA is unique since the information it covers, proprietary data, and the requirements of the disclosing party are unique. However, in general, there are three types of non-disclosure agreements. 

Unilateral NDA - In this type of NDA, only the disclosing party reveals sensitive information to the receiving party and expects them to keep it a secret until advised otherwise. The majority of NDAs fall under this category. Some examples are between the company and an employee/ vendor/ contractor, between private/ Government institutions and researchers, etc.

Bilateral NDA - In this type of NDA, both the disclosing and receiving parties share confidential information with each other and ensure protection from third parties. Some examples of bilateral NDAs are company mergers, collaborations, takeovers etc.

Multilateral NDA - In this type of NDA, three or more parties share proprietary information and are required to protect it from disclosure. A confidential agreement between a business and multiple investors is an example of a multilateral NDA.

Precautions To Take When Signing A Non DisclosureAgreement

When signing an NDA for your business, there are few things you must keep in mind:

  • Ensure that all information is clear and precise so that there is no confusion amongst the parties. The agreement should clearly define the exclusions to the agreement.
  • The agreement must have an expiry date, and if it is applicable for an indefinite period of time, this statement must be included.
  • Weigh the proportionality of the punishment to the breach mentioned in the agreement. If the punishment seems unjust or too harsh, refrain from signing.
  • Look for important additional clauses in the agreement like jurisdiction, mutual nondisclosure and non-solicitation. Every NDA is different, if you are not happy with the clauses included, you should ask a qualified lawyer to draft a new agreement. You must never be afraid to ask to modify the terms if you think something is unfair or suspicious. Money spent on asking a professional to review the contract may save you from unwanted consequences later on.

NDA FAQs

What signing a Non-Disclosure Agreement means

Signing an NDA means that the revealing party cannot disclose any confidential information included in the agreement to any third party -- be it an invention, business idea, design or other forms of Intellectual Property, it also sends the message that any party infringing the agreement would have to compensate for the damages done or a lawsuit will be filed against them. An NDA saves an organization as a whole.

How long does an NDA last?

The term of an NDA depends on multiple factors -- how long do the disclosing parties want to keep the information a secret, what is drafted in the agreement and when the party breaks an NDA. Generally, NDAs are drafted for an indefinite period of time until the disclosing party decides otherwise. This means that the revealing party will be obligated to protect the information as long as it remains confidential.

Is an NDA enforceable in Court?

NDAs are only enforceable in court if they are drafted properly, are clear, concise and signed by all the parties. The agreement cannot be too detailed or too short. It should clearly outline what rights of the disclosing party are protected, why and until when. If any of the required information is not present, the court can deem the agreement unclear and not applicable. Therefore, it is always wise to hire an NDA lawyer to draft and review NDAs.

Once the court confirms that your NDA is valid, you must present all evidence that amounts to a breach. It can be difficult to prove a breach if the disclosure of confidential information occurred verbally. The court requires hard evidence. Even if you can prove to the court that the opposition party threatened to disclose confidential information to a third party, it would be considered an anticipatory breach.

What happens if you break an NDA? (or if your NDA is breached)

If it is discovered that any confidential information covered under a clause of the NDA is being shared publicly, the disclosing party can face consequences. They may have to present themselves in front of the court where an order may be released so that they stop making further disclosures or they can be asked to pay compensation for the damages done.

Do you think your business partner violated a clause from the NDA? Give us a call so that we can inspect the matter and take a just legal action against them.