About These Case Studies
These are hypothetical scenarios created for educational purposes. They represent common patterns seen in NDA reviews but are not based on any specific real client situations. Names, companies, and circumstances are entirely fictional.
The Situation
Sarah, a senior software engineer, received an offer from a promising Series B startup. Along with the offer letter, she received a 12-page "Confidentiality and Intellectual Property Agreement" to sign before her start date. The NDA seemed standard at first glance.
The Issues Identified
- Hidden non-compete: Section 8 contained a 2-year restriction on working for "any company that develops software in the same industry"
- Overly broad IP assignment: Claimed ownership of all inventions "conceived during employment" including personal projects
- No prior inventions exhibit: No way to carve out her existing side projects and open-source contributions
- Perpetual confidentiality: Obligations lasted "in perpetuity" for all information, not just trade secrets
The Negotiation
Sarah raised her concerns professionally, focusing on the most critical issues:
"Employee shall not, during employment and for two (2) years thereafter, directly or indirectly engage in, or have any interest in, any business that develops software products or services competitive with those of the Company."
Section deleted entirely. The company agreed that California law made this unenforceable anyway, and it wasn't worth the legal risk of including it.
For the IP assignment, Sarah negotiated an exhibit listing her prior projects and added language limiting the assignment to work "directly related to Company business and created using Company resources."
Key Takeaway
Always read the full document, even if it's called an "NDA." Employment agreements often bundle multiple provisions together. Non-competes disguised as confidentiality terms are a common tactic - and often unenforceable.
The Situation
TechCorp was evaluating a new CRM platform. Before the vendor would provide a demo with sample data, they required TechCorp to sign their "Mutual NDA." The procurement team almost signed without review since it was labeled "mutual."
The Issues Identified
- Not actually mutual: While labeled "mutual," data rights were one-way - vendor could use TechCorp's data, but not vice versa
- Broad data usage rights: Vendor could use "aggregated and anonymized" evaluation data for "product improvement and marketing"
- Feedback ownership: Any suggestions or feedback became vendor's IP to use freely
- 5-year term for 30-day evaluation: Wildly disproportionate duration
The Negotiation
TechCorp's legal team pushed back with specific concerns:
"Vendor may collect, aggregate, and anonymize data provided by Customer during the evaluation period and use such data for product development, benchmarking, and marketing purposes."
"Any Customer data provided during the evaluation period shall be used solely for purposes of the evaluation. Upon conclusion of the evaluation, Vendor shall delete all Customer data within thirty (30) days and certify such deletion in writing."
The term was reduced to 1 year, and the feedback clause was modified to require explicit written consent before any feedback could be used.
Key Takeaway
Your evaluation data is valuable - even "anonymized" data can reveal competitive intelligence. As a potential customer, you have leverage. Vendors want your business and will negotiate reasonable terms.
The Situation
FinStart, a promising fintech startup, was approached by a strategic investor interested in leading their Series A. The investor sent their "standard NDA" before initial discussions. The founders, eager to move forward, almost signed immediately.
The Issues Identified
- 90-day exclusivity: Buried in the "Purpose" section was language preventing FinStart from "engaging with other potential investors" for 90 days
- Standstill provision: FinStart couldn't acquire shares of the investor's portfolio companies - problematic given competitive dynamics
- No carve-out for advisors: Couldn't discuss the opportunity with existing investors or board members without written consent
- Perpetual term: Obligations lasted forever, even if no deal closed
The Attempted Negotiation
FinStart's counsel requested removal of the exclusivity provision since it was inappropriate at the NDA stage:
"During the term of this Agreement and for ninety (90) days thereafter, Company shall not directly or indirectly solicit, engage, or enter into discussions with any third party regarding equity financing."
The investor refused to remove the exclusivity, stating it was "non-negotiable" and necessary to justify their diligence time investment.
The Decision
After consulting with their board and existing investors, FinStart decided to walk away. The reasoning:
- Exclusivity in an NDA (before any term sheet) is a red flag about the investor's negotiating style
- 90 days of exclusivity would eliminate the ability to run a competitive process
- The refusal to negotiate signaled potential future difficulties
FinStart eventually raised their Series A from a different investor with standard, fair NDA terms.
Key Takeaway
Exclusivity provisions do not belong in an NDA - they belong in a term sheet or LOI after initial discussions show mutual interest. An investor who demands exclusivity before even meeting is likely to be difficult throughout the relationship.
The Situation
EnterpriseCo was exploring a strategic partnership with a larger software company, BigTech. BigTech's proposed mutual NDA seemed reasonable until the CTO noticed an unusual clause during their second read-through.
The Issues Identified
- Residuals clause: Either party could freely use any ideas "retained in the unaided memory" of personnel who accessed confidential information
- Vague purpose limitation: "For purposes of evaluating a potential business relationship" could mean almost anything
- Asymmetric team sizes: BigTech would have dozens of people review EnterpriseCo's technology; EnterpriseCo would see less of BigTech's
The Risk Analysis
EnterpriseCo's leadership realized the asymmetry: BigTech could have 50 engineers review their proprietary algorithms, and anything those engineers "remembered" could be freely used. This would effectively strip all meaningful protection from their core IP.
"Notwithstanding any other provision of this Agreement, either party may use Residual Information for any purpose. 'Residual Information' means any information in intangible form that is retained in the unaided memory of the Receiving Party's personnel who have had access to the Confidential Information."
Clause deleted entirely. BigTech initially pushed back but agreed when EnterpriseCo pointed out they could simply avoid signing rather than give away their IP through a "memory loophole."
Additional Protections Negotiated
- Limited access list: Both parties agreed to name specific individuals who would access confidential information
- Specific purpose: Changed to "evaluating a potential integration partnership for [specific product]"
- Defined scope: Added exhibit listing categories of information each party would share
Key Takeaway
Residuals clauses are particularly dangerous when there's an asymmetry in what each party shares or in team sizes. Once your trade secrets are in someone's memory, a residuals clause legitimizes using them. Delete these clauses - they fundamentally undermine the purpose of an NDA.
The Situation
Michael received a VP-level offer from a Fortune 500 company on Friday afternoon. HR said they needed the signed NDA by Monday morning for him to attend an executive strategy meeting. The pressure was on.
The Quick Review
Despite the time pressure, Michael ran through the key sections:
- Duration: 2 years post-employment - reasonable
- Definition: Specific categories, not "all information" - reasonable
- No non-compete: Only confidentiality obligations - good
- IP assignment: Standard work-for-hire clause - acceptable but needed one change
- Standard exceptions: Public info, prior knowledge included - good
The Response
Michael sent a focused email Saturday morning:
"Thanks for the NDA. I've reviewed it and am happy to sign with one small addition: I'd like to include Exhibit A listing my existing patents and side projects as excluded from the IP assignment. This is standard practice and protects both of us by establishing clear boundaries. I've attached the exhibit - please confirm this works and I'll sign immediately."
HR responded within 2 hours approving the change. Michael signed Sunday and attended Monday's meeting.
Key Takeaway
Time pressure doesn't mean you can't negotiate. Focus on the most critical issues, be specific about what you need, and propose solutions rather than just objections. Most reasonable companies will accommodate quick, focused requests.
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