Charles Sturt University
Insert Name of other party
Confidentiality Agreement
THIS AGREEMENT IS A SAMPLE ONLY. PLEASE CONTACT THE
UNIVERSITY SOLICITOR FOR ADVICE IF YOU WISH TO USE THIS
AGREEMENT.
Schedule 1 – Confidentiality Agreement Details
This Agreement is made up of this Schedule and the Agreed Terms.
Item1
Parties
Organisation:
Charles Sturt University
Registered Address:
The Grange, Panorama Avenue, Bathurst NSW 2795
Telephone:
61 2 6338 4200
Facsimile:
61 2 6338 4833
Email:
Contact Person:
Position:
Organisation:
Insert details of other party
Registered Address:
Insert details
Telephone:
Insert details
Facsimile:
Insert details
Email:
Insert details
Contact Person:
Insert details
Position:
Insert details
Item 2
Date of Commencement
Insert details here
Item 3
Approved Purpose
Insert details here
Confidentiality Agreement
Executed as an Agreement.
The signatories hereby personally warrant that they have express and sufficient legal
authority to execute this Agreement (which includes the attached Agreed Terms) on behalf
of the party on whose behalf they have signed.
Signature for CSU
SIGNED for CHARLES STURT
UNIVERSITY in the presence of
)
)
)
Signature
Signature of witness
Name (print)
Name of witness (print)
Position (print)
Date signed
Date signed
Signature for Other Party
SIGNED for Insert details here
)
in the presence of
)
)
Signature
Signature of witness
Name (print)
Name of witness (print)
Position (print)
Date signed
Date signed
Confidentiality Agreement
Agreed Terms - Confidentiality Agreement Details
1
Definitions and Interpretation
1.1
Definitions
In this Agreement, unless the context otherwise requires:
Approved Purposes means the purposes set out in the Schedule.
Authorised Officer means:
(a)
in relation to a corporation, a person for the time being holding or acting in the office
of the director, chief executive officer or secretary of that body corporate, or a person
the title of whose office at the body corporate includes the word “Manager” or the
word “Director” or the like; and
(b)
in relation to CSU, any person authorised by CSU from time to time act on behalf of
CSU.
Confidential Information means:
(a)
all Information submitted or disclosed to the Recipient by the Discloser; and
(b)
all Information learned or accessed by the Recipient,
at any time in connection with the Approved Purposes (including during negotiations,
discussions and meetings) and includes without limitation:
(a)
Information which at the time of disclosure by the Discloser is identified as being
confidential;
(b)
Information which, of implied necessity, is confidential;
(c)
Information which the Recipient knows, or ought reasonably be expected to know, is
confidential;
(d)
any agreement, arrangement or understanding relating to the Approved Purposes;
(e)
Information developed by the Recipient independently of the disclosure,
communication or access from the Discloser; and
(f)
Information disclosed or communicated or accessed by the Recipient from a third
party under no obligation of confidence to the Discloser in respect of that
Information,
but does not included Non-Confidential Information.
CSU means Charles Sturt University
Discloser means a party (being either CSU or the Other Party) which discloses Confidential
Information to the other party.
Information means information, inventions and ideas, which may be oral, written, recorded
or stored by electronic, magnetic, electromagnetic, or in other form, process, media or
otherwise in a machine readable form or translated from the original form, re-compiled,
made into a compilation, partially copied, modified, updated or otherwise altered.
Non-Confidential Information means Information which:
Confidentiality Agreement
(a)
at the time of disclosure by the Discloser to the Recipient or at any time thereafter is
identified in writing by the Discloser as such;
(b)
is in the public domain otherwise than as a result of a breach of the terms of this
Agreement or any other obligations of confidentiality owed by the Recipient;
(c)
prior to disclosure by the Discloser was lawfully known to the Recipient and in respect
of which the Recipient to whom the Information was disclosed is not bound by any
other obligations of confidentiality; or
(d)
is found by final and binding court judgment to either not constitute Confidential
Information or not otherwise be subject to any obligations under this Agreement.
Personal Information has the meaning set out in the Privacy Act.
Privacy Act means the Privacy and Personal Information Protection Act 1998 (NSW).
Recipient means a party (being either CSU or the Other Party) which acquires Confidential
Information of the other party.
Recipient Personnel means officers, employees and advisers of the Recipient.
1.2
Interpretation
In this Agreement, unless the context otherwise requires:
(a)
if a party comprises two or more persons, the obligations are joint and several;
(b)
“person” includes a firm, body corporate, unincorporated association, authority or
body politic;
(c)
singular includes the plural and vice versa and words importing one gender
include all genders; and
(d)
“writing” includes any mode of representing or reproducing words in tangible and
permanently visible form.
2
Confidential Information
2.1
Obligation of confidence
The Recipient may only use the Confidential Information for the Approved Purposes and
undertakes not to:
(a)
use or permit any person to use the Confidential Information for any other
purpose;
(b)
disclose or in any way communicate to any other person any of the Confidential
Information, except as authorised by the Discloser;
(c)
permit unauthorised persons to have access to places where the Confidential
Information is displayed, reproduced or stored; or
(d)
make or assist any person to make any unauthorised use of the Confidential
Information.
Confidentiality Agreement
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2.2
Compliance with obligations
The Recipient must:
(a)
take reasonable steps to enforce the confidentiality obligations imposed by clause
2.1, including diligently prosecuting, at its own cost, any breach or threatened
breach of those obligations by a person to whom the Recipient has disclosed the
Confidential Information (including Recipient Personnel); and
(b)
3
co-operate and provide to the Discloser all reasonable assistance in any action
which it may take to protect the confidentiality of the Confidential Information.
Recipient Personnel
The Recipient may disclose the Confidential Information to only those Recipient Personnel
who have a specific need to have access to the Confidential Information for the Approved
Purposes and who have been made aware of the terms upon which the Confidential
Information has been disclosed to the Recipient.
4
Recipient Obligations
The Recipient must:
(a)
not copy the Confidential Information or any part of it other than as strictly
necessary for the Approved Purposes and must mark any such copy 'Confidential
‘[Discloser]';
(b)
not use or attempt to use the Confidential Information for its own direct or indirect
advantage or gain in any manner which may cause or to be calculated to cause
injury or loss to the Discloser;
(c)
safeguard the Confidential Information in the same way as the Recipient
safeguards its own confidential information;
(d)
implement security practices against any unauthorised copying, use, disclosure
(whether that disclosure is oral, in writing or in any other form), access and
damage or destruction;
(e)
notify the Discloser immediately if it becomes aware of a suspected or actual
breach of this Agreement and immediately take all steps to prevent or stop the
suspected or actual breach; and
(f)
5
comply with any other reasonable direction issued regarding a suspected or
actual breach.
Return Of Confidential Information (If Applicable)
If requested by the Discloser or either party notifies the other in writing that it does not wish
to proceed with the Approved Purposes, the Recipient must immediately return to the
Discloser, or destroy as the Discloser directs, all original documents containing any
Confidential Information and any copies of those documents and any documents (including
any copies) created by the Recipient or Recipient Personnel.
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6
Disclaimer
6.1
Recipient’s Acknowledgement
The Recipient acknowledges that neither the Discloser nor any employee or other
representative of the Discloser has made or makes any representation or warranty,
express or implied, as to the accuracy or completeness of its Confidential Information.
6.2
Recipient’s Release
To the extent permitted by law, the Recipient releases the Discloser from all liability for any
loss or damage (whether foreseeable or not, including consequential loss) suffered by any
person acting on any Confidential Information, whether the loss or damage arises in
connection with any negligence, default, lack of care, misrepresentation or any other cause.
7
Breach And Indemnity
7.1
Recipient to Notify Discloser
The Recipient must immediately notify the Discloser of all information which comes to its
attention regarding any actual or potential disclosure or use of Confidential Information other
than in accordance with this Agreement.
7.2
Indemnity
The Recipient indemnifies the Discloser against any cost, liability, damage or loss incurred
or suffered by the Discloser arising directly or indirectly from or in connection with any
breach by of this Agreement by the Recipient or any act, error or omission of the Recipient’s
Personnel which, if done or omitted to be done by the Recipient, would constitute a breach
of this Agreement.
7.3
Injunctive Relief
The Recipient acknowledges that damages may not be an adequate remedy for the
Discloser for any breach of this Agreement by the Recipient and that the Discloser is entitled
to seek specific performance or injunctive relief as a remedy for any such breach or
threatened breach, in addition to any other remedies available at law or in equity under this
Agreement or independently of this Agreement.
8
Term
This Agreement becomes effective on the earlier to occur of the date upon which
Confidential Information is first provided to, learned or accessed by the Recipient; and the
date the Recipient executes this Agreement (whether the Discloser has executed or not) and
continues in force until the later to occur of an agreement in writing by both parties and the
date that all of the Confidential Information is generally available in the public domain.
9
Agreement to be documented in formal and separate
agreements
(a)
The parties expressly agree that any agreement for cooperation in relation to the
Approved Purpose will be documented in a separate and formal agreement
executed by the parties in accordance with the policies and procedures of the
respective parties.
Confidentiality Agreement
Page 6
(b)
The parties expressly agree that this Agreement shall not give rise to an
obligation to enter into a formal and separate agreement at any time.
10
Miscellaneous
10.1
General
This Agreement:
10.2
(a)
does not transfer any interest in any intellectual property; and
(b)
does not oblige either party to enter into any further agreements about the
subject matter of this Agreement.
Amendment
Any amendment to this Agreement must be in writing and signed by both parties.
10.3
Waiver
A right or remedy created by this Agreement cannot be waived except in writing signed by
the party entitled to that right. Delay by a party in exercising a right or remedy does not
constitute a waiver of that right or remedy, nor does a waiver (either wholly or in part) by a
party of a right operate as a subsequent waiver of the same right or of any other right of that
party.
10.4
Governing Law
This Agreement is governed in accordance with the laws of the State of New South Wales,
Australia and the parties submit to the jurisdiction of the courts of that state and any courts of
appeal from then.
10.5
Privacy
The Other Party shall:
(a)
in the course of fulfilling its obligations under this Agreement comply with the Privacy
Act and any other applicable laws in any other relevant jurisdiction relating to the
handling of Personal Information; and
(b)
except as required by law or in order to fulfil obligations under this Agreement, not
disclose without the written permission of CSU any Personal Information obtained in
connection with this Agreement;
(c)
take all reasonable steps to prevent the misuse or loss of and unauthorised use,
modification, access and disclosure of Personal Information by it;
(d)
ensure that only employees or agents who are authorised to fulfil the obligations of the
Agreement and who need to have access to any particular Personal Information have
access to the particular Personal Information; and
(e)
in the event of an investigation of a complaint occurring as a result of a breach or
alleged breach of this Agreement, cooperate with any investigation by the Privacy
Commissioner or any complaints handling body established under the Privacy Act.
11
Notices
Any notice, demand, consent, approval or other communication (Communication) in
connection with this Agreement must be sent to the address or fax number set out in the
Schedule.
Confidentiality Agreement
Page 7