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Confidentiality Agreement (Deed)

The Cleardocs Deed of Confidentiality sets out how parties will maintain the confidentiality of information and when that information may be disclosed. It is similar to a Confidentiality Agreement but with some important differences.

    $104.50
    Per order
    • Cleardocs fee incl GST $104.50
    $313.50
    For 12 months use of the Package
    • Cleardocs fee incl GST $313.50
Product Benefits
  • Legal certainty of a Deed of Confidentiality
  • The document package complies with the Privacy Act
  • Flexibility - the document package covers a wide range of purposes of disclosure of confidential information
  • Extensive online help and local phone support
  • Easy to use question interface
Product Information

What documents are included in the Cleardocs Deed of Confidentiality?

The package includes:

  • the tailored Deed of Confidentiality (this is not a Confidentiality Agreement but rather a deed - see our FALQ "Deed of Confidentiality or Confidentiality Agreement" for information on the difference between the 2 document types);
  • a Compliance Statement in which the person or entity receiving confidential information confirms they have complied with their obligations under the Deed of Confidentiality; and
  • an Establishment Kit explaining what to do next.

What information do you need to order a Confidentiality Agreement (Deed) through Cleardocs?

Our checklist outlines all the information you need to order a Deed of Confidentiality.

What purposes are covered?

There are a number of purposes for which parties enter into a Deed of Confidentiality. Commonly, a Deed of Confidentiality is required when parties are in negotiations under a sale of business arrangement and wish to perform due diligence.

The Cleardocs Deed of Confidentiality is tailored to suit the circumstances of the parties. Through the question interface, you choose one of the following purposes of disclosure of the confidential information:

  • to enable a party to perform the necessary due diligence in relation to a proposed purchase of the business conducted by the other party;
  • to enable a party to consider purchasing assets from the other party;
  • to enable a party to perform the necessary due diligence in relation to a proposed purchase of some or all of the issued capital in the other party (whether shares, units or other securities);
  • to enable a party to consider entering into a partnership with the other party;
  • to enable a party to consider entering into a joint venture with the other party;
  • to enable a party to consider becoming a franchisee of the other party (or any of its related entities) and, or alternatively, to conduct due diligence in relation to franchises which the other party offers;
  • to enable a party to consider extending any form of financial accommodation to the other party (or any of its related entities);
  • to enable a party to consider investing equity in the other party (or any of its related entities);
  • to enable a party to assist the other party to develop a new product or invention; or
  • to enable a party to disclose confidential information to the other party in the course of their employment relationship, contractual or consultancy dealings.

Alternatively, you can specify a different purpose. As the purpose for entering into a Deed of Confidentiality is varied, you should seek your own independent legal, accounting and financial advice about whether this document is suitable for your particular situation.

Who can be a discloser of confidential information?

The Cleardocs Deed of Confidentiality document package allows for a discloser to be:

  • an individual;
  • a company; or
  • the trustee of a trust.

Is the Deed of Confidentiality package suitable for when there are multiple disclosers?

Yes, but only where the two parties are making disclosures (mutual disclosure).

The Cleardocs Deed of Confidentiality can only be used for two parties. It is suitable for when either one party (one way disclosure) or both parties (mutual disclosure) to the Deed of Confidentiality are disclosers. You can nominate on the question interface which situation applies to you and we will tailor the Deed of Confidentiality to your circumstances.

The Cleardocs Deed of Confidentiality is not suitable where there are two (or more) disclosers who disclose confidential information to a third party confidant. In this situation, Maddocks recommends that you create a separate deed for each discloser.

Who can receive the confidential information? (or who can be a confidant?)

The Cleardocs Deed of Confidentiality document package allows for a confidant to be:

  • an individual;
  • a company; or
  • the trustee of a trust.

Is the Deed of Confidentiality package suitable for when there are multiple confidants?

Yes, but only where the two parties are receiving disclosures (mutual disclosure).

The Cleardocs Deed of Confidentiality can only be used for two parties. It is suitable for one way or mutual disclosures of information, that is, where both parties disclose and receive confidential information.

The Cleardocs Deed of Confidentiality is not suitable where there are two (or more) confidants who are receiving confidential information from a third party discloser. In this situation, Maddocks recommends that you create a separate Deed of Confidentiality to bind each confidant.

One reason for this is, the commencement of the Confidentiality Period for each confidant may differ as the confidential information may be disclosed to some confidants before others. There may also be variations in the purpose for which the confidential information is disclosed.

Seek legal advice

The Deed of Confidentiality information here should be considered general in nature, and in no way interpreted as legal advice. You must always seek your own independent legal, accounting and financial advice about your particular situation. The summary on this page is for information purposes only.

Frequently Asked Legal Questions

Cleardocs is not a law firm. So as with all the legal material on this site, the answers to these "frequently asked legal questions" are provided by the law firm Maddocks. Cleardocs does not endorse those answers.

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When do the Confidant's confidentiality obligations commence?

The Confidant's confidentiality obligations commence on the earlier of:

  • the date on which the Confidant signs the Deed of Confidentiality; and
  • the date on which the Confidant received any confidential information.

When do the Confidant's confidentiality obligations end?

The Confidant's obligations continue up until the later of:

  • 20 years from the date of the Deed; or
  • the duration of the purpose for which the information is disclosed to the Confidant.

The confidentiality period in the Deed is set by 'cascading' periods of 20 years and less. The 'cascading' periods are 20 years, 10 years, 5 years and 3 years. These time periods are intended to preserve the enforceability of the clause by allowing for less restrictive periods of confidentiality, if a court finds that one of the longer periods is unenforceable.

Can the Confidant disclose the confidential information to its employees or personnel?

Yes, the Confidant may permit its directors, officers, employees, agents, nominees, contractors, consultants or advisors (Personnel) to access the confidential information the subject of the Deed of Confidentiality (or any part of it). However it may only do so to the extent that such disclosure is necessary for the purpose for which the Deed is entered into.

Also, if the Discloser requests, the Confidant must procure that its Personnel execute a deed in favour of the Discloser on the same terms and conditions as the Deed of Confidentiality.

Can the Confidant make copies of the confidential information?

The Confidant may only copy the confidential information if it is strictly necessary for the purpose for which the information was disclosed.

At the conclusion of the purpose, or within 7 days after the Discloser requests, the Confidant must:

  • deliver to the Discloser any copies of documents in its possession containing the confidential information; and
  • destroy all electronic copies of the documents or any confidential information on its system.

What happens if the Confidant breaches its obligations under the Deed of Confidentiality and passes that confidential information on to another person?

If the Confidant breaches its obligations under the Deed of Confidentiality (for example, by passing that confidential information on to another person), then the Confidant is liable to the Discloser, and indemnifies the Discloser, for any damage or loss which the Discloser incurs directly or indirectly because of the breach.

Can the Discloser or the Confidant be a trustee of a trust?

Yes, both the Confidant and Discloser may enter into the Deed of Confidentiality in their capacity as trustee of a trust. They may do so only on the basis that they have the right to be fully indemnified out of the trust assets in respect of all the obligations and liabilities they incur under the Deed of Confidentiality.

Under what circumstances can the Confidant disclose any of the confidential information without breaching its obligations under the Deed of Confidentiality?

The Confidant may make disclosures which are required by any applicable law or legally binding order of any:

  • court;
  • government authority;
  • commission; or
  • tribunal acting within its powers.

When the Confidant discloses confidential information in one of the above circumstances, it must seek to limit the degree of disclosure which it provides and notify the Discloser.

Does the Confidant provide any comfort to the Discloser that it has complied with the Deed?

If the Discloser makes a written request of the Confidant, then the Confidant must, within 7 days of receiving such request, provide a written statement to the Discloser which is either:

  • in the form set out in the schedule to the Cleardocs Deed of Confidentiality (Compliance Statement). By providing the Compliance Statement the Confidant:
    • confirms that it has complied with its obligations under the Deed, including the delivery and destruction of documents;
    • undertakes to, in relation to any breach of which the Confidant later becomes aware:
      • notify the Discloser as soon as possible but in any event within 2 days; and
      • take all necessary actions, at its own expense, to ensure its breach is rectified to the extent possible; and
    • acknowledges that the Deed continues to bind it even after it returns or destroys all documents as required by the Deed; or
  • in some other form approved by the Discloser.

Is the Confidentiality Agreement (Deed) package suitable for when there are multiple Disclosers?

Yes, but only where the two parties to the Deed are making disclosures (mutual disclosure).

The Cleardocs Confidentiality Agreement (Deed) can only be used for two parties. It is suitable for when either one party (one way disclosure) or both parties (mutual disclosure) to the Deed are disclosers. You can nominate on the question interface which situation applies to you and we will tailor the Deed to your circumstances.

The Cleardocs Confidentiality Agreement (Deed) is not suitable where there are two (or more) disclosers who disclose confidential information to a third party confidant. In this situation, Maddocks recommends that you create a separate deed for each discloser.

Is the Confidentiality Agreement (Deed) package suitable for when there are multiple Confidants?

Yes, but only where the two parties to the Deed are receiving disclosures (mutual disclosure).

The Cleardocs Confidentiality Agreement (Deed) can only be used for two parties. It is suitable for one way or mutual disclosures of information, that is, where both parties disclose and receive confidential information.

The Cleardocs Confidentiality Agreement (Deed) is not suitable where there are two (or more) confidants who are receiving confidential information from a third party discloser. In this situation, Maddocks recommends that you create a separate Deed to bind each confidant.

One reason for this is, the commencement of the Confidentiality Period for each confidant may differ as the confidential information may be disclosed to some confidants before others. There may also be variations in the purpose for which the confidential information is disclosed.

Deed of Confidentiality or Confidentiality Agreement?

Parties commonly protect disclosures of confidential information through a Deed of Confidentiality. Other legal contracts such as a Confidentiality Agreement or Non-disclosure Agreement may also be suitable.

The terms of a Deed of Confidentiality and Confidentiality Agreement are generally the same although there are differences at law between a deed and an agreement. For example, unlike an agreement, a deed binds each party even if it does not require a party to pay money to the other party. If you are unsure which document to use, you should seek legal advice.


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