If no NDA playbook is configured:

• Proceed with reasonable market-standard defaults
• Note clearly that defaults are being used
• Defaults applied:
  • Mutual obligations required (unless the organization is only disclosing)
  • Term: 2-3 years standard, up to 5 years for trade secrets
  • Standard carveouts required: independently developed, publicly available, rightfully received from third party, required by law
  • No non-solicitation or non-compete provisions
  • No residuals clause (or narrowly scoped if present)
  • Governing law in a reasonable commercial jurisdiction

Step 3: Quick Screen

Evaluate the NDA against each screening criterion systematically.

1. Agreement Structure

• Type identified: Mutual NDA, Unilateral (disclosing party), or Unilateral (receiving party)
• Appropriate for context: Is the NDA type appropriate for the business relationship? (e.g., mutual for exploratory discussions, unilateral for one-way disclosures)
• Standalone agreement: Confirm the NDA is a standalone agreement, not a confidentiality section embedded in a larger commercial agreement

2. Definition of Confidential Information

• Reasonable scope: Not overbroad (avoid "all information of any kind whether or not marked as confidential")
• Marking requirements: If marking is required, is it workable? (Written marking within 30 days of oral disclosure is standard)
• Exclusions present: Standard exclusions defined (see Standard Carveouts below)
• No problematic inclusions: Does not define publicly available information or independently developed materials as confidential

3. Obligations of Receiving Party

• Standard of care: Reasonable care or at least the same care as for own confidential information
• Use restriction: Limited to the stated purpose
• Disclosure restriction: Limited to those with need to know who are bound by similar obligations
• No onerous obligations: No requirements that are impractical (e.g., encrypting all communications, maintaining physical logs)

4. Standard Carveouts

All of the following carveouts should be present:

• Public knowledge: Information that is or becomes publicly available through no fault of the receiving party
• Prior possession: Information already known to the receiving party before disclosure
• Independent development: Information independently developed without use of or reference to confidential information
• Third-party receipt: Information rightfully received from a third party without restriction
• Legal compulsion: Right to disclose when required by law, regulation, or legal process (with notice to the disclosing party where legally permitted)

5. Permitted Disclosures

• Employees: Can share with employees who need to know

…

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