What is included in the definition of confidential information?
The definition of confidential information - that information which is protected by the agreement - may be too wide and may include some of our information.  This is not usually appropriate and you should ask for this part of the definition to be deleted as amended.

What is the purpose for which we can use the information?
Does the purpose in the agreement match the purposes for which we require the information?  Most agreements will spell out the purpose for which we can use the information and in some cases restrict the way in which we can use their information.  In some cases we may be prevented from making copies, summaries or extracts of the confidential information in any form without the disclosing party's prior written consent.  This should be amended to ensure we can make copies without consent provided it is for the purpose for which we are given the information.

Are we obliged to take steps to protect information we disclose?
Some agreements will require us to take steps to protect any confidential information we disclose to others in a manner or to an extent that may involve significant effort or costs on our part.  For example, some agreements will require us to assist the disclosing party in litigation to which they may be a part or even for us to commence litigation independently against a third party who gains access to the confidential information.  We should only do this at the disclosing party's cost - otherwise we may have to pay the cost of preventing a breach of confidentiality.  So, we can agree to take reasonable steps to assist the disclosing party to protect and enforce the confidentiality of their information at their cost.

Employee undertakings
Some agreements require individual employees on the engagement team to sign an undertaking or a separate confidentiality agreement before they can have access to the agreement.  We usually ask for this clause to be deleted as it is unnecessary and inappropriate for UNSW's employees to enter into direct obligations with the disclosing party.  This is because UNSW's employees all owe binding obligations of confidentiality to UNSW which UNSW would enforce, if necessary, for the benefit of the disclosing party. 

If the requirement for individual undertakings is deleted, we can offer a warranty along these lines (ie, "UNSW's employees all owe binding obligations of confidentiality to UNSW which UNSW would enforce, if necessary, for the benefit of the disclosing party. We could provide a warranty of that nature, and request that the requirement that our personnel provide individual undertakings be removed."

The kind of warranty UNSW would normally give is: "UNSW warrants that each of its personnel who will be involved in the provision of the Services has given UNSW binding confidentiality consents and waivers which UNSW agrees to enforce if necessary to ensure the client's quiet enjoyment and unhindered use of the Services."

The manager of the project should then ensure all University staff working on the project aware of the restrictions the agreement places on them and how they may use the information. Send an email to relevant staff setting out the obligations under the Agreement along the following lines: "In relation to the services we are providing to [insert name of company] the University has given a warranty that each of UNSW's personnel involved in the provision of the services has binding confidentiality obligations to UNSW which UNSW will enforce if necessary."

Where appropriate, you may need to keep the information or material secure by for example password protecting documents and locking your office.

Warranties
Some agreements will state that the disclosing party makes no warranty regarding the accuracy or completeness of information.  In many cases, this clause needs to be deleted as we need to be able to rely on the accuracy and completeness of the information which is provided to us in undertaking our research or other work.  If the disclosing party will not delete this clause then you should state in your research paper or report a qualification to the effect that the disclosing party has disclaimed the accuracy at completion of the information you were given for the research report.

Indemnities
Most agreements will require UNSW to indemnify the party who is providing it with the information from a breach of the Agreement.  This is acceptable provided the indemnity is only in favour of the party providing the information and no one else and only relates to a breach of the terms of this Agreement.  Some agreements will try and impose an indemnity which is wider than this.

Governing law
The governing law of the agreement is the law which applies in the event of a dispute about the agreement.  This should be the state or territory in which you are based; eg. "this Agreement is governed by the laws of New South Wales."  Ideally you should not accept a governing law clause which nominates a state or country outside Australia as it will be the courts of this country or state in which the agreement will be enforced.

Confidentiality Agreements and NDA's - Other legal issues
Always make sure UNSW has sufficient rights to disclose information for our own purposes (eg for teaching or research).  We need a right to disclose information where we are required to do so by law and in some cases we might want to specify other circumstances where disclosure is allowed.

Ensure that any action that the party requesting the agreement requires us to take to protect the information is at their cost – otherwise we may bear the cost of having to restrain a breach of confidentiality by another party.

Keep a copy of the signed agreement and ensure it is kept on a registered file.

Where there is not already an exception for disclosures required by law respond with: "UNSW requires the ability to disclose information where required to do so by law, rule regulation or judicial or administrative direction."

Where the clause requires us to take any action necessary against any party to protect the other party's confidential information respond with: "UNSW is prepared to use all reasonable endeavours – at your cost – to assist you protect and enforce the confidentiality of client’s information."