Confidentiality Agreement - Template, Sample Form Pro · AU-law
✓ Valid in Australia · drafted to comply with local law
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CONFIDENTIALITY AGREEMENT
(Non-Disclosure Agreement)
THIS AGREEMENT is made on ________
BETWEEN:
________ (ACN: ________)
of the following address:
________
(the "Disclosing Party")
AND
________ (ACN: ________)
of the following address:
________
(the "Receiving Party")
(together "the Parties" and each a "Party")
RECITALS:
A. The Disclosing Party is proposing to sell its interest in the Business.
B. The Receiving Party has expressed an interest in purchasing part or all of the Business.
C. The Receiving Party has requested Confidential Information from the Disclosing Party in relation to the Business and for the Purpose.
D. The Disclosing Party has agreed to provide the Receiving Party with the Confidential Information for the Purpose on the terms contained in this Agreement.
OPERATIVE PROVISIONS:
In consideration of the Disclosing Party disclosing Confidential Information to the Receiving Party at its request, and the mutual promises and covenants set out in this Agreement (the receipt and sufficiency of which valuable consideration the Parties acknowledge), it is agreed as follows:
1. Definitions and Interpretation
1.1 Definitions
Agreement means this Confidentiality Agreement, including any recitals and schedules.
Business means the following business:
________
Business Day means a day that is not a Saturday, Sunday or public holiday in ________.
Effective Date means the date upon which this Agreement is executed by the last of the Parties to do so.
Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth).
Purpose means allowing the Receiving Party to evaluate, determine the suitability and desirability of, and negotiate the terms of, a possible acquisition of or investment in the Business.
1.2 Interpretation
In this Agreement, unless the context otherwise requires:
(a) words referring to one gender include every other gender;
(b) words in the singular include the plural and vice versa;
(c) a reference to a person includes an individual, a firm, a body corporate, an unincorporated association, an organisation, a partnership, a trust and a government authority, and vice versa;
(d) the meaning of terms is not limited by specific examples introduced by the expressions "including", "for example", "such as" or similar expressions;
(e) a reference to a statute or statutory provision includes that statute or provision as amended, re-enacted or replaced from time to time, and any regulations or instruments made under it;
(f) headings and titles are for convenience only and do not affect interpretation;
(g) each Party must, at its own expense, take all reasonable steps and do all that is reasonably necessary to give full effect to this Agreement and the events contemplated by it;
(h) any obligation on a Party not to do something includes an obligation not to permit or allow that thing to be done; and
(i) no rule of construction applies to the disadvantage of a Party because that Party was responsible for the preparation of this Agreement.
2. Value and Ownership of Confidential Information
The Receiving Party acknowledges that the Confidential Information to be provided under this Agreement is the property of the Disclosing Party and is unique and commercially valuable to that Party. Nothing in this Agreement, or in the act of disclosing the Confidential Information, shall be construed as granting any right, title or interest in the Confidential Information to the Receiving Party.
3. No Obligation to Disclose or Enter Transaction
3.1 Nothing in this Agreement obligates either Party to disclose any Confidential Information, and any such disclosure shall be entirely at the option of the Disclosing Party.
3.2 Nothing in this Agreement obligates the Parties to enter into any transaction or relationship in connection with this Agreement.
4. Obligations of the Receiving Party
4.1 Subject to any exceptions set out in this Agreement, the Receiving Party must keep the Confidential Information confidential.
4.2 The Receiving Party must not disclose the Confidential Information to any third party except as permitted under this Agreement.
4.3 The Receiving Party must only allow an agent, professional adviser, consultant, employee or other affiliated person or organisation to have access to Confidential Information if:
(a) such access is necessary for the attainment of the Purpose;
(b) such access is limited to only that Confidential Information which must be disclosed in order to attain the Purpose;
(c) such access is not granted to any more persons or organisations than is necessary in order to attain the Purpose;
(d) the Receiving Party first ensures that any person or organisation receiving access to Confidential Information is legally bound to keep the Confidential Information confidential on terms at least as onerous as those contained in this Agreement; and
(e) if required by the Disclosing Party, before such disclosure the Receiving Party procures from each such person or organisation a signed confidentiality agreement on terms at least as onerous as those contained in this Agreement.
4.4 The Receiving Party may not profit from the use of Confidential Information, except for profits attained in respect of the Purpose.
4.5 The Receiving Party must not create copies of the Confidential Information (whether in physical or digital form, and whether summaries, excerpts, reproductions or other information or documents derived in any way from the Confidential Information) unless the Disclosing Party has consented in writing.
4.6 The Receiving Party must not use Confidential Information in any way which a reasonable person might consider could be harmful to the interests of the Disclosing Party.
4.7 To the extent that any Confidential Information includes Personal Information, the Receiving Party must comply with the Privacy Act 1988 (Cth), including the Australian Privacy Principles, and must only collect, use, hold and disclose that Personal Information as necessary for the Purpose.
4.8 Where the Receiving Party proposes to disclose Confidential Information in accordance with a legal requirement or government regulation, or anticipates being required by law or government regulation to disclose Confidential Information, the Receiving Party must:
(a) advise the Disclosing Party as soon as reasonably practicable about the proposed or anticipated disclosure;
(b) take such reasonable steps as the Disclosing Party shall require to oppose or contest the necessity of such disclosure; and
(c) take such reasonable and lawful steps as the Disclosing Party shall require in order to minimise the impact upon the Disclosing Party or the Disclosing Party's business of such disclosure.
4.9 When requested by the Disclosing Party, the Receiving Party shall:
(a) deliver to the Disclosing Party any Confidential Information in the Receiving Party's possession or control;
(b) permanently delete all Confidential Information held electronically in any medium in the Receiving Party's possession or control (subject only to retention required by law or bona fide internal backup procedures); and
(c) destroy any documents which were prepared in connection with the Purpose and based, wholly or in part, upon the Confidential Information disclosed by the Disclosing Party.
5. Use of Confidential Information
The Receiving Party agrees that all Confidential Information disclosed in connection with this Agreement shall only be used for the Purpose and for the sole benefit of the Disclosing Party.
6. Term and Termination
6.1 This Agreement commences on the Effective Date and continues in force until:
(a) the Parties mutually release each other, in writing, from their respective obligations under this Agreement; or
(b) all of the information disclosed in connection with the Purpose no longer meets the definition of Confidential Information under this Agreement.
6.2 Subject to the terms of this Agreement, including the "Survival of Obligations" clause, the obligations set out in this Agreement with regard to the Confidential Information survive and continue after termination or expiration of this Agreement.
7. Exceptions to Obligation Not to Disclose Confidential Information
7.1 The restrictions in this Agreement on the use and disclosure of Confidential Information do not apply to the extent that the:
(a) Confidential Information is disclosed to a person where the Receiving Party has received approval in writing from the Disclosing Party for that disclosure;
(b) Confidential Information is disclosed to an agent, professional adviser, consultant, employee or other person engaged by the Receiving Party where the disclosure is necessary for the attainment of the Purpose, provided that the person receiving the information is legally bound to keep it confidential on terms at least as onerous as those contained in this Agreement;
(c) information becomes publicly known, other than by acts in breach of this Agreement attributable to the Receiving Party, and other than through any breach of any other confidentiality obligations;
(d) information was in the Receiving Party's possession prior to disclosure to it by the Disclosing Party and was held without any restriction on its disclosure;
(e) information subsequently becomes available to the Receiving Party from a third party source that has rightfully and lawfully obtained such information and provides it without any restriction as to its use and disclosure; or
(f) disclosure is required by law or government regulation, provided that the Receiving Party complies with clause 4.8.
7.2 The Party seeking to avail itself of an exception under this clause bears the burden of proving that the disclosure falls within one of the exceptions contained in this clause.
8. Standard of Care
The Receiving Party must exercise the same standard of care in protecting the Confidential Information as it would use with its own confidential information of like importance (and in any event no less than reasonable care).
9. Notification of Unauthorised Disclosures
The Receiving Party must immediately notify the Disclosing Party upon discovering any unauthorised disclosure, loss or misuse of Confidential Information.
10. Remedies
10.1 The Receiving Party acknowledges and agrees that the Confidential Information is of a special, unique and extraordinary character, and that any unauthorised use or disclosure of the Confidential Information may cause irreparable harm to the Disclosing Party for which an award of damages would not be an adequate remedy.
10.2 Accordingly, the Receiving Party agrees that the Disclosing Party shall, in addition to any other rights and remedies available to it at law or in equity, be entitled to seek injunctive relief or an order for specific performance to prevent or restrain any breach or threatened breach of this Agreement by the Receiving Party, without the necessity of proving actual damages.
10.3 The rights and remedies provided under this Agreement are cumulative and not exclusive of any rights or remedies provided by law, and the exercise of any one right or remedy shall not preclude the exercise of any other right or remedy.
11. Indemnity
12. Representations and Warranties
12.1 Authority: Each Party represents and warrants to the other Party that it has the power and authority to enter into this Agreement and perform its obligations, and that the execution of this Agreement is duly authorised.
12.2 No Violation: The Disclosing Party represents and warrants that the disclosure of any Confidential Information will not violate the rights of any third party, and that it has the right to disclose the Confidential Information it discloses to the Receiving Party under this Agreement.
12.3 Accuracy and Completeness: Neither Party makes any representation or warranty that the Confidential Information disclosed in connection with this Agreement is accurate or complete.
13. Non-Waiver
The failure to exercise or any delay in exercising any right, remedy or power under this Agreement does not constitute a waiver of that right, remedy or power. No waiver of any term or provision of this Agreement constitutes a waiver of any other term or provision or of the same provision on a future date. No partial exercise of any right, remedy or power prevents a further exercise of that right, remedy or power. A waiver of any term of this Agreement is only effective if in writing and signed by the Party granting the waiver.
14. No Rights or Licence
Nothing in this Agreement, or in the disclosure of Confidential Information, shall be construed as granting any right or licence to the other Party.
15. Amendments
No amendment to this Agreement is valid unless it is in writing and validly executed by the Parties.
16. Assignment
This Agreement is binding upon the Parties' respective successors and permitted assigns. A Party may only assign or transfer its rights or obligations under this Agreement with the prior written consent of the other Party.
17. Severability
If any provision of this Agreement is declared illegal, invalid or unenforceable, that provision shall be read down or severed to the extent of the illegality, invalidity or unenforceability, without affecting the remaining provisions of this Agreement.
18. Counterparts
This Agreement may be executed in any number of counterparts, including electronic counterparts. Each counterpart constitutes an original and all counterparts together constitute one and the same instrument. The Parties consent to the use of electronic signatures and electronic execution in accordance with the Electronic Transactions Act 1999 (Cth) and any corresponding State or Territory legislation.
19. No Agency, Joint Venture or Partnership
Nothing in this Agreement constitutes or creates any agency, partnership, joint venture or similar relationship between the Parties.
20. Notices
All notices under this Agreement must be in writing and sent to the other Party by registered post, by personal delivery, or by email to the address or email address set out below (or as otherwise notified in writing):
DISCLOSING PARTY:
Postal/delivery address:
________
Email: ________
Attention: ________
RECEIVING PARTY:
Postal/delivery address:
________
Email: ________
Attention: ________
A notice is taken to be received: (a) if delivered personally, on delivery; (b) if sent by registered post, on the third Business Day after posting; and (c) if sent by email, when the sender's system records that the email has been sent, unless the sender receives an automated message that the email has not been delivered.
21. Governing Law and Jurisdiction
This Agreement is governed by and construed in accordance with the laws of ________ and the Commonwealth of Australia. The Parties submit to the non-exclusive jurisdiction of the courts of ________ and the courts competent to hear appeals from those courts.
22. Survival of Obligations
On the termination or expiration of this Agreement, any provisions which by their nature would be expected to survive termination or expiration remain in full force and effect, including but not limited to provisions relating to ownership of Confidential Information, use of Confidential Information, standard of care, obligations, notification of unauthorised disclosures, remedies, indemnities, rights or licences, and warranties.
23. Entire Agreement
This Agreement constitutes the entire understanding between the Parties relating to its subject matter and supersedes all previous discussions, agreements or understandings between the Parties relating to that subject matter.
EXECUTED AS AN AGREEMENT
Executed by ________ (ACN: ________) in accordance with section 127 of the Corporations Act 2001 (Cth) by:
______________________________________
Signature of director
______________________________________
Name of director (please print): ________
______________________________________
Signature of director/secretary
______________________________________
Name of director/secretary (please print): ________
Date: ________
Executed by ________ (ACN: ________) in accordance with section 127 of the Corporations Act 2001 (Cth) by:
______________________________________
Signature of director
______________________________________
Name of director (please print): ________
______________________________________
Signature of director/secretary
______________________________________
Name of director/secretary (please print): ________
Date: ________
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