What are Confidentiality Agreements? – UK

A confidentiality agreement is a legal agreement that binds one or more parties to non-disclosure of confidential or proprietary information. It’s often used in situations where sensitive corporate information is not to be made available to the public or competitors. A non-disclosure agreement (NDA) is a particular type of confidentiality agreement.

The non-disclosure agreement is a legally binding contract that establishes a confidential relationship. The party or parties signing the agreement, agree that sensitive information they may obtain will not be made available to any others.

Non-disclosure agreements are common for businesses entering into negotiations with other businesses. They allow the parties to share sensitive information without fear that it will end up in the hands of competitors. In this case, it may be called a mutual non-disclosure agreement.

A range of commercial transactions and relationships involve either the disclosure of confidential information by one party to the other or a reciprocal exchange of information. In both cases, the parties should have a confidentiality agreement in place.

Typically, we help companies of all shapes and sizes to produce either one-way or two- way confidentiality agreements for:

• Design and processes – Design and process is a way of creating products or processes that work by solving problems or achieving goals;
• Formulas;
• Software – Intellectual property for software is computer code or software protected by law under either a copyright, trademark, trade secret, or software patent;
• Trade secrets – A type of intellectual property that includes confidential information that has economic value and is not known or readily ascertainable by others; and
• Business plans and data, like sales, marketing, or customer information.

Confidential Information Protection:

Protection of confidential information is a vital business priority. Confidential information is any information that is not publicly available and has value for the company or its competitors. To protect confidential information, we use confidentiality agreements, passwords, encryption, data rooms, and other security measures. We can enforce your rights in the case of NDA breach, unlawful disclosure, or theft of confidential information.

Occasionally fast and decisive action is required to ensure your business and its competitive edge is maintained. We can help you prevent and track cases of theft, additionally we can help you successfully secure effective remedies.

Our confidentiality agreements lawyers have years of experience in acting for businesses to prevent the theft of sensitive and valuable information and data by competitors and employees alike.

What are the limitations of a confidentiality agreement?

Confidentiality agreements are helpful to prevent unauthorized disclosures of information, however they have inherent limitations and risks, particularly when recipients have little intention of complying with them. These limitations include the following:

• Once information is wrongfully disclosed and becomes part of the public domain, it cannot later be “undisclosed”;
• Proving a breach of a confidentiality agreement can be very difficult
• Damages for breach of contract (or an accounting of profits, where the recipient has made commercial use of the information) may be the only legal remedy available once the information is disclosed. However, damages may not be adequate or may be difficult to ascertain, especially when the confidential information has potential future value as opposed to present value; and
• Even where a recipient complies with all the confidentiality agreement’s requirements, it may indirectly use the disclosed confidential information to its commercial advantage.

Why are NDAs important?

• The purpose of a NDA is to protect sensitive information, such as trade secrets, confidential business information, and intellectual property.
• Acknowledge a confidential relationship between two or more parties and protect the information they share from disclosure to others.
• Place an obligation on the recipient(s) of the confidential information to keep the information a secret.
• Prevent confidential information from falling into the wrong hands.
• Protect confidential information related to clients or patients, such as consulting or legal services, and in any situation where confidential data is being shared, such as client lists, financial information, research and development data, or intellectual property.

*NDAs are regularly drafted between businesses and clients, between business and contractors, between businesses and employees, or between businesses and other businesses.

Summary:

• Allowing a company to share its intellectual property with others whose input it needs without unduly jeopardizing that information.
• Preventing confidential information from being publicly disclosed or used by any parties you share information with.
• They can help make sure proprietary information such as intellectual property or trade secrets don’t reach the industry competitors.
• Detailing how a company’s confidential information and intellectual property is to be handled.
• Protecting information that your business considers confidential, including intellectual property, from exposure to third parties.
• NDAs are a legally binding document, or a confidentiality agreement designed to protect your intellectual property.

If you need any further information in this regard, please do feel free to get in touch with us via info@briffa.com.

Written by Senior Associate Tom Synott and Work Experience Student Zahir Ladha