Confidentiality

US commercial-market reference points; verify against the matter's jurisdiction pack. For firm-approved NDA replacement text, use the matter's NDA playbook — this file is for judging clauses, not redlining them.

Balanced position

Mutual obligations covering non-public information disclosed in any form, whether or not marked, with a reasonable-person catch-all. Term of three to five years from disclosure, with trade secrets protected for as long as they remain trade secrets. The four standard exclusions: publicly available, known without restriction before disclosure, independently developed without use of the information, and lawfully received from a third party. Compelled disclosure permitted with prompt notice (where lawful), minimization, and cooperation. Return or destruction on request, with a narrow legal-hold and backup carve-out that keeps retained copies under obligation.

"Confidential Information" means all non-public information disclosed by one
party to the other, in any form and whether or not marked as confidential,
that a reasonable person would understand to be confidential given its nature
and the circumstances of disclosure. The Receiving Party's obligations
survive for three (3) years from each disclosure, except that trade secrets
remain protected for as long as they qualify as trade secrets under
applicable law.

Common one-sided variants

Tilted toward the receiving party:

• Marking-only definition: nothing is protected unless stamped confidential (and oral disclosures confirmed in writing within days).
• A residuals clause permitting free use of anything retained in unaided memory — a license to absorb the disclosure.
• Compelled-disclosure permission with no notice or minimization obligation; term under two years.

Tilted toward the disclosing party:

• Perpetual confidentiality over all information, not just trade secrets — administratively unworkable and a compliance trap.
• No exclusions, or exclusions conditioned on proof standards no recipient can meet.
• Restrictive covenants smuggled into the NDA: no-hire provisions, non-competes, or exclusivity — enforceability is highly jurisdiction-dependent; qualify against the matter's pack.

Fallback ladder

1. Mutual, unmarked-information definition with reasonable-person catch-all; 3-year term plus trade-secret tail; four standard exclusions (preferred).
2. Marking-based definition accepted only with a reasonable-person catch-all preserved for unmarked and oral disclosures.
3. Single fixed term of five years accepted where the counterparty rejects an open-ended trade-secret tail.
4. Residuals clause accepted only if limited to generalized know-how, with an express carve-out that it grants no license to IP and no right to use identifiable confidential information.

Below rung 4 — marking-only protection with no catch-all, or a broad residuals clause — escalate.

Rationale: The definition and the residuals clause determine whether the NDA protects anything at all; the term and exclusions are usually genuine but secondary negotiations.