When should it be used?
- When a collaborator (for example, an industry partner) and a university wish to exchange confidential information, for example for preliminary discussions about a future project; and
- The parties are Australian entities
The agreement is also suitable when one of the parties is a Commonwealth Entity.
When should it not be used?
- For longer term project activities or where proprietary material needs to be exchanged. In these circumstances, the parties should use a further agreement such as a research agreement or material transfer agreement
- When only one party is disclosing confidential information unless this is made clear in the schedule
Key considerations when completing the template
The following table is provided as a guide to help the parties appreciate the key considerations that each party will have when negotiating a Mutual Confidentiality Agreement using the template.
The template is provided in the Accelerated track and it is expected that parties can use the template with minimal negotiation. Nevertheless, discussing and understanding each party’s needs and concerns up-front will help you reach an agreement more quickly. A Mutual Confidentiality Agreement may take a few days to a few weeks to negotiate and sign depending on the complexity of the proposed discussions and the information being exchanged.
For organisations, particularly SMEs, that have not previously been asked to enter this type of agreement, this table will help you understand what the key provisions are and what you need to discuss and agree in order to finalise the agreement from the template.
Additional plain English guidance on the meaning of key clauses is provided in a separate annotated version of the template.
This table sets out the key points each party needs to consider when entering a Mutual Confidentiality Agreement. Understanding your own key considerations, as well as those of the other party, will help you to negotiate a fair and reasonable agreement that works for both parties.
| Key points |
Mutual Confidentiality Agreement Provision |
University |
Collaborator |
| Details of the Confidential Information being exchanged |
- A clear description of the scope of the confidential information that each party will exchange
- The template agreement defines confidential information as the specific information that is listed as well as information where a party knows or ought to know it is confidential
|
- Ensure all of your confidential information that will be disclosed is included and properly described
- Descriptions should be in sufficient detail such that it is clear what the information relates to
- Ensure it is clear what information you will be receiving from the other party that will need to be kept confidential
- It is generally not appropriate to restrict the definition of confidential information to just the listed information/documents unless you are clear that only this information will be disclosed
|
- Ensure all of your confidential information that will be disclosed is included and properly described
- Descriptions should be in sufficient detail such that it is clear what the information relates to
- Check that the information that you will be receiving will not restrict your wider activities in related research fields where you are already developing your own IP in these areas
- It is generally not appropriate to restrict the definition of confidential information to just the listed information/documents unless you are clear that only this information will be disclosed
|
| Period of confidentiality |
- How long each party must keep the information confidential
- Often this will be 5-7 years, although longer periods may be appropriate in some circumstances
- A perpetual term is sometimes appropriate, subject to the receiving party being confident they can manage this long-term obligation
- In most cases the term will be the same for both parties
- Whilst the template allows flexibility in having different periods of confidentiality for each item of Confidential Information, the period of confidentiality should normally be the same for all Confidential Information
|
- Ensure your confidential information is kept confidential long enough so as not to impact on your research and commercialisation activities. For example, so that others cannot use this information before the University has published it or filed patent applications
- If you are asked to accept a perpetual term, ensure you have the systems and processes to manage these obligations into the future
|
- Ensure your confidential information is kept confidential long enough so as not to impact on your commercial activities. For example, so that competitors do not benefit from your confidential information whilst it still provides a competitive advantage
- If you are asked to accept a perpetual term, ensure you have the systems and processes to manage these obligations into the future
|
| Permitted Purpose |
- A clear description of the purpose that the exchanged confidential information will be used for; for example, “to enable the parties to discuss a potential collaboration project relating to x”
- This should not include carrying out actual research activities using the information
- The template does not permit disclosure to affiliates i.e., other companies within a group
|
- Ensure your confidential information is only used for the specific project being discussed and it cannot be used more widely by the Collaborator
- Understand the restrictions on the University on how it can use the Collaborator’s confidential information
|
- Ensure your confidential information is only used for the specific project being discussed and cannot be used more widely by the University
- Understand the restrictions on how you can use the University’s confidential information
- If you need to be able to disclose information to your affiliates as part of the discussions then this will need to be agreed and the template amended, or the affiliate will need to enter their own agreement with the University using the template
|
| Agreement term |
- The agreement has a start date and no defined end date
- Unless the engagement under the Agreement is ended by either party requiring the return (or destruction) of the Confidential Information, all subsequent Confidential Information exchanged will continue to be subject to the agreement and its obligations
|
- It is good practice to end the engagement when you are confident that no further information will be exchanged or when the MCA has been superseded by another arrangement, for example by a research agreement
- On ending the engagement, decide if you want the other party to return or destroy the confidential information you have shared or if you are happy for them not to do this
- Remember your confidentiality obligations will continue for the agreed period even after the engagement under the Agreement is ended
|
- It is good practice to end the engagement when you are confident that no further information will be exchanged or when the MCA has been superseded by another arrangement, for example by a research agreement
- On ending the engagement, decide if you want the other party to return or destroy the confidential information you have shared or if you are happy for them not to do this
- Remember your confidentiality obligations will continue for the agreed period even after the engagement under the Agreement is ended
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