| Status |
Optional (see Notes section below) |
|---|---|
| Source |
Commonwealth Contract Terms clause C.C.22.C |
| Legislation / Policy |
Confidentiality Test available at: https://www.finance.gov.au/government/procurement/buying-australian-government/confidentiality-throughout-procurement-cycle |
| Legislation / Policy contact |
This clause should be included to ensure the parties are aware of their obligations in relation to use and disclosure of Confidential Information under the Contract.
The clause prevents the Supplier from disclosing Confidential Information in relation to the Contract to any third party unless it obtains prior written approval from the Customer. The clause includes a number of exceptions, for example where the Supplier is required by law or by a stock exchange to disclose the Confidential Information to a third party.
The clause gives the Customer the discretion to require the Supplier to arrange for its officers, employees, agents or Subcontractors to provide a written undertaking of non-disclosure and also gives the Customer the right to require the Supplier to return or destroy Confidential Information in certain circumstances.
Before a Supplier’s information will be treated as confidential by the Customer, it must meet all four (4) criteria of the Confidentiality Test published on the Department of Finance website. This clause includes provisions dealing with the Customer’s disclosure of Supplier Confidential Information and lists a number of exceptions which allow the Customer to disclose Supplier Confidential Information.
If there is a separate clause dealing with the Protective Security Policy Framework in a Contract, this clause may need to be tailored (for more, see the Guidance below).
This clause provides a general confidentiality obligation on a Supplier and on the Commonwealth. If more specific limitations are required (for example disclosure of certain information needs to be limited to identified personnel of the Supplier or stored in a particular way (for example in locked down locations on the supplier’s IT systems), more specific drafting may be required along with an information management plan. In that case, it may be that a standalone confidentiality agreement rather than just a clause in the contract could be useful. Any individual undertakings required in this situation would need to be tailored to the circumstances and make clear who the individual is permitted to disclose information to within their organisation.
Care should also be taken in describing the purpose for which the Commonwealth or the Supplier can use any Confidential Information of the other party. The Commonwealth may often have broader use requirements than simply management of an individual contract.
X.1 For the purposes of this clause, ‘Confidential Information’ means all forms of information that:
- is designated either specifically or generally in [insert Schedule/Item/Clause] of the Contract; or
- is designated by its owner as confidential or which the other party knows, or ought to know is confidential (provided that, if it is the Supplier’s information, it meets all four (4) criteria of the Confidentiality Test published on the Department of Finance website and the Customer agrees in writing to treat the information as confidential).
X.2 The Supplier agrees not to disclose any Confidential Information, without prior written approval from the Customer. This obligation will not be breached where the relevant information:
- is publicly available (other than through breach of a confidentiality or non-disclosure obligation); or
- is required to be disclosed by law or a stock exchange, but in the case of disclosure by the Supplier, any such request must be reported in writing to the Customer without delay and the text of the disclosure provided in writing to the Customer as soon as practicable.
X.3 In giving its approval to allow the Supplier to disclose any Confidential Information, the Customer may impose conditions on that consent and may require the Supplier to execute a written undertaking.
X.4 The Supplier must ensure that its officers, employees, agents and Subcontractors are aware of, and comply with, the obligations in this clause X. The Supplier agrees, on request by the Customer, to arrange for its officers, employees, agents or Subcontractors to give a written undertaking relating to nondisclosure of the Customer’s Confidential Information in a form acceptable to the Customer.
X.5 The Supplier will, on request by the Customer or when the information is no longer required for performing the Contract, destroy or return to the Customer all information in its possession, power or control which contain or relate to any Customer Confidential Information (and in the case of a request to destroy the information, provide the Customer with written certification that the information has been destroyed).
X.6 If the Customer makes a request for the Supplier to destroy or return information to the Customer under this clause X, and the Supplier has placed or is aware that information is beyond its possession or control, the Supplier will provide full particulars of the location of the information, and the identity of the person in whose custody or control they lie.
X.7 The Customer may, without the prior written authorisation of the Supplier, disclose any Confidential Information of the Supplier:
- to its personnel, advisers and contractors in connection with this Contract or related activities;
- within the Customer’s organisation, or with another Commonwealth entity, where this serves the Commonwealth’s legitimate interests;
- to a Minister or in response to a request by a House or a Committee of the Parliament of the Commonwealth of Australia;
- when it is authorised or required by law to be disclosed; or
- which is in the public domain otherwise than due to a breach of this clause X.
X.8 Except in clauses X.7(a)-(e), the Customer will not, without the prior written authorisation of the Supplier, disclose any Confidential Information of the Supplier to a third party.
X.9 Where the Customer discloses Confidential Information to another person pursuant to clauses X.7(a) to (c), the Customer will use reasonable endeavours to ensure that the receiving person is aware that the information is confidential.
X.10 The obligations in this clause X survive the expiry or termination of this Contract.
While use of this clause is optional, it is common for contracts to include a clause of this type.
Standardisation of contractual text results in efficiencies for both Parties to a contract. Before deciding whether a particular clause is appropriate, procurement officials should carefully consider the context of their procurement.
Clause wording would generally need to be changed:
- where the Customer or Supplier would like to specifically identify information which is covered by this clause
- to align with related clauses in a Contract such as clauses dealing with record keeping and management, dealing with copies, security requirements, Protective Security Policy Framework (PSPF), contract material, intellectual property and audit and access.
Non-disclosure of Official Information is also dealt with separately in the PSPF clause of this ClauseBank. Official Information under that clause is likely to include Confidential Information of the Customer as defined in this clause.
Where a PSPF clause is included in a Contract, careful consideration should be given to both clauses to avoid any overlap. An option in this situation is to delete the parts of this clause that deal with the Supplier keeping Customer Confidential Information and for this issue to be addressed in the PSPF clause.
Otherwise, where this clause is included, the clause wording should be used without change.
Terms that are capitalised may need to be changed to align with the Contract terminology. For example, you may need to review the definition of ‘Personnel’ that is used in the Contract. If it does not cover agents, management personnel and other third parties such as advisers who may be involved in the administering or advising on the contract, then you may need to amend the definition of Personnel or amend this clause to allow for disclosure in these circumstances.
