Commercial Considerations

Parties - Confirm the signatories to the confidentiality agreement. Consider whether the signatories are exchanging confidential information or whether disclosure is only one way.

Consideration - A confidentiality agreement is to be treated like any other contract and therefore sufficient consideration is required.

Authorised Persons - Confirm which third parties will have access to the confidential information. Consider whether it should be required that third parties (advisors, consultants, agents, etc.) be approved by the disclosing party in writing and whether a schedule of approved third parties should be included in the confidentiality agreement. Consider enforcement mechanisms with respect to the third party. Options include: a requirement that the authorised person enter into an agreement directly with the disclosing party; a requirement that the recipient enter into an agreement on substantially the same terms and agree to enforce the agreement; and/or the disclosing party guarantee and be liable for any breach of confidence by the authorised persons.