--- name: nda-review-issue-log source: https://app.decimal.ai/s/nda-review-issue-log@1/SKILL.md source_sha256: a3b91af14058 --- # NDA Review Issue Log (Recipient vs. Discloser) Review a non-disclosure agreement **from one side**. The same clause is favorable or dangerous depending on which party you represent, so the first move is always to fix the side, then walk the clauses. For each issue produce **two** positions, never one: - **Preferred** — the redline you open with (the strongest defensible ask for your side). - **Fallback** — the position you settle for if the counterparty resists, still protecting your side's core interest. Output an **issue log**: one entry per clause, each naming the issue, your Preferred redline, and your Fallback. A single-position answer ("make the definition clearer") is a miss — the value is the directional ask plus a pre-negotiated retreat. ## Who wants what The two sides pull in opposite directions on every issue: - **Receiving party (Recipient)** — will mostly *take in* information. Wants **narrow, short, escapable** obligations: a tight definition, a short survival period, room to use general know-how, no covenants smuggled in, no waiver of the other side's burden of proof. - **Disclosing party (Discloser)** — will mostly *hand over* information. Wants **broad, long, airtight** protection: everything covered, obligations that outlast the deal, no residuals loophole, strong remedies, prompt return of everything. Mutual NDAs blend both; when both sides will genuinely share, a Recipient of a one-way NDA should ask to make it mutual so the same protections cut both ways. ## The six issues ### 1. Scope / definition of Confidential Information - **Recipient — Preferred:** limit protected information to what is **marked or identified** as confidential (and, for oral disclosures, confirmed in writing within a set window). Keep the standard carve-outs: already public, already known to the recipient, independently developed without use of the disclosed information, or rightfully obtained from a third party. - **Recipient — Fallback:** accept a "reasonably understood to be confidential" catch-all **only if** the standard carve-outs survive intact and marking is still required where practical. - **Discloser — Preferred:** cover **all information disclosed in any form**, whether or not marked or designated; no marking obligation, since designation is easy to forget. - **Discloser — Fallback:** accept a marking requirement only with a catch-all covering anything a reasonable person would treat as confidential given the context. ### 2. Term / survival Distinguish the **term of the agreement** (how long you can still disclose under it) from the **survival of confidentiality obligations** (how long the duty to protect lasts after disclosure). - **Recipient — Preferred:** short term (1–2 years) and obligations that expire on a fixed clock — e.g. 2–3 years after each disclosure. Avoid perpetual survival. - **Recipient — Fallback:** perpetual protection **only for trade secrets**, with a fixed period (3–5 years) for all other confidential information. - **Discloser — Preferred:** obligations survive **indefinitely**, or perpetually for trade secrets with a long fixed tail for everything else. - **Discloser — Fallback:** a fixed survival of at least 5 years. **Recipient red flag:** perpetual survival applied to *all* confidential information (not just trade secrets) is an open-ended liability — push it onto a clock. ### 3. Residuals A residuals clause lets people use general knowledge, ideas, and know-how **retained in unaided memory**, without breaching the NDA. It is a large loophole — good for the Recipient, dangerous for the Discloser. - **Recipient — Preferred:** **include** a residuals clause covering information retained in unaided memory, with no duty to track or segregate what was learned. - **Recipient — Fallback:** residuals limited to unaided memory and excluding anything deliberately memorized to get around the NDA. - **Discloser — Preferred:** **no residuals clause at all.** - **Discloser — Fallback:** if forced, confine residuals to unaided memory, exclude deliberate memorization, and state expressly that it grants **no license** to patents or copyrights. ### 4. Non-solicitation creep An NDA is the wrong home for a non-solicit or no-hire covenant. When one appears, treat it as smuggled scope, not boilerplate. - **Recipient — Preferred:** **strike** the non-solicit entirely — it belongs in a separate negotiated agreement, not a confidentiality document. - **Recipient — Fallback:** if it must stay, narrow it to **targeted solicitation** of specific employees met in connection with the deal, cap it at 6–12 months, and carve out general job postings, recruiter-sourced candidates, and employees who apply on their own. - **Discloser — Preferred:** broad no-hire / no-solicit covering the workforce for 12+ months. - **Discloser — Fallback:** 12-month **targeted** solicitation restriction with the general-advertising carve-out. **Recipient red flag:** any non-solicitation or no-hire language inside an NDA — flag it as out of place before negotiating its terms. ### 5. Injunctive relief / remedies Discloser clauses often **stipulate** that any breach causes irreparable harm and that injunctive relief issues automatically, without proof of damages and without posting a bond. - **Recipient — Preferred:** acknowledge injunctive relief **may be sought**, but do **not** stipulate irreparable harm, do **not** waive the bond, and preserve the other side's burden to prove its entitlement. - **Recipient — Fallback:** acknowledge injunctive relief as an available remedy but keep the bond requirement (or leave it to the court's discretion). - **Discloser — Preferred:** full stipulation — irreparable harm conceded, injunctive relief without proof of damages, **no bond**, in addition to all other remedies. - **Discloser — Fallback:** acknowledgment of irreparable harm with the bond left to the court's discretion. ### 6. Return / destroy - **Recipient — Preferred:** option to **destroy** rather than hunt down and return every copy, and a carve-out to **retain** one archival copy for legal/compliance plus automatic system backups, each kept subject to continuing confidentiality. - **Recipient — Fallback:** destroy with written certification only when the Discloser asks, keeping the backup/archival carve-out. - **Discloser — Preferred:** **return or destroy at the Discloser's election**, with prompt written certification and **no** copies retained. - **Discloser — Fallback:** allow a single archival copy under legal-hold only, subject to the ongoing confidentiality duty. ## Method 1. **Fix the side.** Decide whether you represent the Recipient or the Discloser. If unstated but the facts show who mostly receives vs. discloses, infer it and say which side you took. 2. **Walk the six issues** in order; for each, give **Preferred** then **Fallback** for that side. 3. **Flag the red flags** for a Recipient: perpetual survival of all information, and any non-solicit / no-hire covenant living inside the NDA. 4. **One-way → mutual.** If it is one-way and both sides will share, note that making it mutual is the cleaner fix. A secondary catalog of less common clauses (assignment, no-warranty, no-license, marking mechanics, governing law/venue, term of permitted use) lives in `references/issue-catalog.md` — consult it only when a review reaches beyond the six core issues.