In-confidence information is distinguished from classified information by different laws and regulations relating to its disclosure and use and it should therefore be addressed separately in the agreement.

The level of protection to be maintained for Electronic Data Interchange messages of an in confidence nature is intended to reflect the level adhered to in the paper environment. At least the same level of protection of such messages should be maintained wherever such message is subject to consequential transmission or re-transmission. The contract covering the underlying transaction may provide for marking requirements (e.g. in respect of technical data). Any protective measures applied to such messages must be compatible with these requirements. The user manual may elaborate on the further technical procedures required to implement the necessary protection.

The information to be protected by this clause is sensitive information of a commercial nature. Accurate protection of this kind of information is mandatory. However, the restrictions required under this clause on the receiving party should not be applicable if the information is rightfully available for unrestricted use.

• In addition to the provisions governing security the Parties shall ensure that Electronic Data Interchange Messages containing information specified by the sender or agreed mutually between the Parties to be of an inconfidence nature are maintained in confidence and are not disclosed or transmitted to any unauthorised person nor used for any purposes other than those intended by the Parties. When authorised, further transmission of inconfidence information shall be protected to at least the same degree as the originally transmitted Electronic Data Interchange Message. Data requiring protection shall be marked by the sender in accordance with the contract covering the underlying transaction and as defined in the User Manual.

• Electronic Data Interchange Messages shall not be regarded as containing in-confidence information to the extent that it can be demonstrated such information:
  • is in the public domain other than by breach of this Agreement by the receiver and is available for unrestricted use; or
  • is in or comes rightfully into the possession of the receiver without restrictions; or
  • is received by the receiver from a third Party who himself has the right to disclose the information without restrictions; or
  • is or was independently developed by the receiver; or
  • is approved by the owner of the information for unrestricted release by the receiver.