| name | confidentiality-nda |
| language | en |
| 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:
- Parties — legal names, entity types, addresses; clarify subsidiary/parent relationships
- Transaction type — acquisition, JV, licensing, partnership, or exploratory
- Direction — mutual (both disclose) or unilateral (one-way)
- Sensitivity — determines care standard, duration, standstill/non-solicit need
- 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
