Confidentiality Nda

---
name: confidentiality-nda
description: Drafts enforceable confidentiality and non-disclosure agreements for corporate transactions, M&A, partnerships, and due diligence. Covers mutual and unilateral structures, defined-term confidential information, permitted disclosures, non-solicitation, standstill, return/destruction obligations, and equitable remedies. Use when drafting an NDA, confidentiality agreement, or mutual confidentiality agreement for business transactions.
---

# Confidentiality Agreement (NDA)

Drafts professional-grade NDAs for corporate transactions, M&A, partnerships, and sensitive business discussions. Supports mutual and unilateral structures.

## Quick Start

Gather before drafting:

1. **Parties** — legal names, entity types, addresses; clarify subsidiary/parent relationships
2. **Transaction type** — acquisition, JV, licensing, partnership, or exploratory
3. **Direction** — mutual (both disclose) or unilateral (one-way)
4. **Sensitivity** — determines care standard, duration, standstill/non-solicit need
5. **Governing law** — jurisdiction for choice of law and venue

## Core Workflow

### 1. Header & Recitals

- Title reflects mutual vs. unilateral; reference transaction if applicable
- Effective date: typically date of execution
- State specific transaction type and permitted scope of use
- Include: "No obligation to proceed with any transaction"

### 2. Definition of Confidential Information

**Include:** financial data, business plans, customer/supplier lists, technical IP, personnel info, trade secrets, and the existence of discussions themselves.

**Standard exclusions:**
- Public domain at time of disclosure or becomes public without breach
- Already in receiving party's possession (written evidence required)
- Independently developed (contemporaneous written records required)
- Received from non-obligated third party

All information qualifies regardless of marking. Best practice: mark written materials, confirm oral disclosures in writing within a reasonable period.

### 3. Obligations & Permitted Disclosures

**Core obligations:**
- Use solely for evaluating the stated transaction — no competitive use
- Care standard: same as own confidential info, no less than reasonable care
- No third-party disclosure without prior written consent

**Permitted representatives** (need-to-know only): officers, directors, involved employees, attorneys, accountants, financial advisors, consultants. Representatives must be informed of obligations and bound by terms at least as restrictive. Receiving party is liable for representative breaches.

**Compelled disclosure:** prompt written notice to disclosing party, cooperate to limit scope, disclose minimum required, seek confidential treatment.

### 4. Protective Provisions

**Non-solicitation** (when appropriate): covers employees contacted or learned about during evaluation. Typically 1–3 years. Includes direct and indirect solicitation.

**Standstill** (acquisitions, especially public targets): prohibits acquiring securities, proposing mergers, proxy solicitation, forming shareholder groups. Typically 6 months–2 years. Exceptions: board consent, unsolicited proposals, third-party acquisition announcements.

**No obligation to transact:** binding commitments arise only from definitive written agreements. LOIs and term sheets non-binding except provisions expressly designated.

### 5. Term & Return/Destruction

- Confidentiality duration: 2–5 years (3 typical); trade secrets indefinite
- On written request or termination: return or destroy all materials, copies, excerpts, analyses, and derivatives
- Reasonable steps to delete electronic copies; backups remain subject to obligations
- Written certification by authorized officer confirming compliance

### 6. IP, Remedies & Boilerplate

**IP disclaimers:** no license or rights granted by disclosure; no representations on accuracy/completeness.

**Remedies:** breach causes irreparable harm; equitable relief (TRO, injunction) available without bond, in addition to damages. Consider prevailing-party fees and liquidated damages.

**Governing law:** specified state, without conflicts-of-law principles. Exclusive jurisdiction in chosen venue. Consider jury waiver or arbitration.

**Standard boilerplate:** entire agreement, written amendments only, no waiver by conduct, severability with reformation, no assignment without consent.

### 7. Execution

Signature blocks: signature, printed name, title, date per party. Verify signatory authority.

## Pitfalls & Checks

- **Mutual symmetry** — if mutual, all obligations must apply symmetrically to both parties
- **Public companies** — address Regulation FD, insider trading, MNPI restrictions; coordinate standstill with securities counsel
- **Cross-border** — address GDPR (EU parties), export controls, cross-border enforcement
- **Electronic execution** — ensure E-SIGN Act / UETA compliance [VERIFY]
- **Scope calibration** — exploratory partnerships need narrower terms than full M&A due diligence
- **Do not** override legal compulsion to disclose (unenforceable)
- **Do not** add standstill for private companies unless specifically requested