Software and Website Development Agreement: How do I draft the Confidentiality and Non-Solicit clause?

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Table of Contents

• Confidentiality Clause
• Privacy Clause
• Non-Solicit Clause
• Conclusion

If you are contracting a service provider to design and build a particular piece of software and website, the service provider will have access to your original business ideas and concepts. It is important to have (i) a strong confidentiality clause, and (ii) a detailed non-solicit clause in your Software and Website Development Agreement to ensure that your business ideas and concepts are well-protected.

Confidentiality Clause

The definition of confidential information needs to be clearly set out in your agreement, and it is often quite a broad definition. It encompasses any information that is provided by you to your service provider that relates to your idea or concept, including, for example, all present and future know-how, business processes, ideas, concepts, techniques, methodologies and technical information. Information which is already in the public domain, or information which the service provider was already aware of, cannot be considered confidential information.

Once confidential information is defined, the clause then needs to detail the purposes for which the confidential information can be used. Generally this will only be for the purpose that it was provided, that is, the service provider can only use it for the purposes of providing the services. The confidential information should also be well-protected, and the agreement should make it clear that the service provider is responsible for any leakage of confidential information, including liability for its employees and contractors. However, you should be aware that although the service provider is under an obligation to keep your information confidential, it has the right to disclose confidential information if it is requested to do so under the law.

Privacy Clause

As the service provider may have access to you and your client’s personal information, you should also ensure that they have a privacy policy in place for dealing with your personal information. If not, then at the very least, your Software and Website Development Agreement should include a clause that states than in performing the services, the supplier must agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act.

Non-Solicit Clause

The service provider, in providing the services to you, may be working closely with your business, your staff and possibly your customers. To protect your business, the Software and Website Development Agreement should include a clause which states that the service provider must not solicit, market to or entice away, any person or organisation that is, or was, working with you as an employee, a client or a potential client.

Conclusion

Business ideas and concepts are very valuable intangible assets and it is important that they are well-protected. Having a professionally drafted Software and Website Development Agreement will ensure that necessary clauses are included to ensure that your confidential information, privacy, employees and client base are protected.

If you would like us to draft your Software and Website Development Agreement or if you would like to learn more about confidential information, the online solicitors at LegalVision have extensive experience in these areas. So if you’re in need of legal advice, contact us on 1300 544 755 and speak with one of our experienced online solicitors today.