Confidentiality

Topic: Confidentiality — definition, term, exclusions, restrictive covenants. Contract type: All commercial agreements; standalone NDAs use the matter's NDA playbook for approved redline text. Jurisdiction: US commercial market; verify against the matter's jurisdiction pack (restrictive-covenant enforceability is highly jurisdiction-dependent). Positions are firm-configurable defaults overridable via .dochaus/profile.md. This file is for judging clauses, not redlining them.

Preferred

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.

Off-market variants to watch. Receiving-party-favorable: marking-only definition (nothing protected unless stamped, oral disclosures confirmed in writing within days); a residuals clause permitting free use of anything in unaided memory; compelled-disclosure permission with no notice or minimization; term under two years. Disclosing-party-favorable: perpetual confidentiality over all information, not just trade secrets; no exclusions, or exclusions conditioned on impossible proof standards; restrictive covenants (no-hire, non-compete, exclusivity) smuggled into the NDA.

Fallbacks (ordered)

1. Offer when the counterparty requires marking: marking-based definition accepted only with a reasonable-person catch-all preserved for unmarked and oral disclosures.
2. Offer when the counterparty rejects an open-ended trade-secret tail: a single fixed term of five years.
3. Offer when the counterparty insists on a residuals clause: accept it 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.

Walk-away floor

Marking-only protection with no reasonable-person catch-all, or a broad residuals clause that functions as a license to absorb the disclosure.

Escalation trigger

At or below the floor, do not concede. Route to the supervising lawyer for the matter (or the .dochaus/profile.md Escalation Rules contact) before accepting a definition or residuals term that leaves the disclosure unprotected.

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.