I've signed NDAs before job interviews, before freelance calls, before coffee meetings that went absolutely nowhere. Most of them were fine. A few made me stop and email back: "Hey, a couple of things in here I want to flag." The thing about NDAs is they look harmless. Two pages, maybe three. No money involved. Just "don't share our secrets." Why would you push back on that? Because tucked into those two pages are clauses that aren't about secrecy at all. They're about restricting what you can do for years after the conversation is over. Here's what actually matters.
1. Confidential Information Defined as "all Information Shared"
A fair NDA defines confidential information specifically — technical data, customer lists, financials — and ideally limits it to information that's marked or identified as confidential at the time it's shared. A bad one says "all information, whether oral or written, regardless of form or marking." That sounds like a minor distinction. It's not. If the definition covers everything, then even publicly known facts could technically be a breach if you mention them. A client's name that's listed on their own website. Their industry, which is obvious from five seconds of Googling. The NDA treats everything as secret, which means the other party can claim a breach anytime they feel like it. Push for a definition that ties confidentiality to marking, or at minimum, to information a reasonable person would treat as confidential. "All information" is a blank check.
2. No Carve-outs for Public, Prior, or Independently Developed Information
Every well-drafted NDA has four standard exclusions. Information that: - Becomes public through no fault of yours - You already knew before signing - You independently developed without using the disclosed information - You received from a third party who had no obligation of confidentiality If any of these are missing, it's a problem. Without the public-domain exclusion, you could violate the NDA by discussing something that was reported in the Wall Street Journal. Without the prior-knowledge exclusion, the other side could claim you're bound by an NDA for information you knew years before signing it. Missing carve-outs aren't drafting oversights — they're traps.
3. Indefinite or 10+ Year Duration
Typical NDA terms are 3 to 5 years. Information loses value over time. Markets change. Technology moves on. A 3-year NDA covers the useful life of most business secrets. A 10-year or indefinite NDA is something else. It's a permanent restriction on what you can discuss, about a company you might have interacted with for a single meeting. I once saw an NDA with a "perpetual" term from a startup that had existed for about 18 months. Their secrets were not that valuable. They were just using the NDA as a blanket. Trade secrets — actual trade secrets — can survive indefinitely. But those should be identified as trade secrets in the NDA, not treated as the default for every piece of information shared.
4. Hidden Non-solicit or Non-compete Language
An NDA governs information. That's it. If you see language about not soliciting employees, not hiring contractors, or not competing with the other party — that's not confidentiality. That's a restraint of trade, hiding inside a document it doesn't belong in. These clauses often look like: "Receiving party shall not directly or indirectly solicit, hire, or engage any employee, customer, or contractor of Disclosing Party for a period of X years." This is unrelated to secrecy. It's about limiting your business activity, and it should be negotiated separately or struck entirely.
5. Liquidated Damages or One-way Attorney Fee Shifting
Some NDAs say that if you breach the agreement, you owe a fixed amount — say $50,000 — regardless of actual harm. This is called liquidated damages, and in the context of a casual NDA, it's absurd. Equally problematic: a clause saying that in any dispute, you pay the other side's legal fees, but they don't pay yours even if you win. This discourages you from ever pushing back on a claim, because the cost of defending yourself might exceed whatever you'd lose by just settling.
6. Distant Choice of Law or Venue
If you're in Chicago and the NDA says disputes are governed by Delaware law and must be litigated in Delaware courts, your cost to defend yourself just tripled before any arguments are even heard. The other side is betting you won't travel across the country, hire local counsel, and fight it. Negotiate for your home state's law and venue, or at minimum, a neutral forum. If you live in California and they're in New York, Delaware might actually be neutral. But if they're based in Delaware and chose Delaware, that's not neutral — it's home-field advantage.
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Decode My LeaseFrequently asked questions
Can I just sign it and not worry about it?
For a one-off meeting about a project that never goes anywhere, probably nothing happens. But NDAs can surface years later — you start a company, you hire someone, and suddenly an old NDA with a non-solicit clause is relevant. Negotiate it now when it costs you nothing.
Do big companies actually negotiate NDAs?
Yes. They expect redlines. The first draft is never the final draft.