Their Problematic Clause
Your Counter-Proposal
Balanced Alternative Language
Explanation for Negotiation
Counter-Proposal Library
Browse our library of common problematic clauses and their balanced alternatives. Click any card to expand.
Term / Duration Issues
Their Version
"The obligations of confidentiality shall survive in perpetuity and shall remain in full force and effect indefinitely."
Counter-Proposal
"The obligations of confidentiality shall survive for a period of three (3) years from the date of disclosure; provided, however, that obligations regarding trade secrets shall continue for so long as such information remains a trade secret under applicable law."
Why This Works
This provides reasonable protection (3 years is industry standard) while acknowledging that true trade secrets deserve longer protection. It's fair because you're still committed to confidentiality, just with a defined endpoint that makes compliance manageable.
Their Version
"The confidentiality obligations set forth herein shall remain in effect for a period of ten (10) years from the Effective Date."
Counter-Proposal
"The confidentiality obligations set forth herein shall remain in effect for a period of three (3) years from the date of each disclosure of Confidential Information."
Why This Works
Ten years is excessive for most business information. Three years provides adequate protection while being realistic. Note the "from date of disclosure" language - this starts the clock when information is actually shared, not from the agreement date.
Definition Issues
Their Version
"'Confidential Information' means any and all information, data, materials, documents, specifications, techniques, ideas, concepts, know-how, trade secrets, and any other information disclosed by or on behalf of the Disclosing Party."
Counter-Proposal
"'Confidential Information' means information that is (a) disclosed by or on behalf of the Disclosing Party, (b) designated as confidential at the time of disclosure (or, if disclosed orally, identified as confidential within ten (10) business days), and (c) not otherwise excluded under Section [X] of this Agreement."
Why This Works
The original definition covers literally everything. The counter-proposal requires actual designation and references standard exceptions. This makes it operationally feasible to comply while still protecting genuinely sensitive information.
Third-Party Disclosure
Their Version
"The Receiving Party may disclose Confidential Information to its affiliates, subsidiaries, partners, contractors, consultants, advisors, and any other third parties who have a need to know such information."
Counter-Proposal
"The Receiving Party may disclose Confidential Information only to its employees and contractors who (a) have a need to know such information for the Purpose, and (b) are bound by written confidentiality obligations no less protective than those contained herein. The Receiving Party shall be responsible for any breach by such persons."
Why This Works
The original allows unlimited sharing with anyone. The counter limits disclosure to necessary personnel, requires written confidentiality agreements, and holds the receiving party responsible. This is standard practice for protecting sensitive information.
Remedies & Liability
Their Version
"The Receiving Party shall indemnify, defend, and hold harmless the Disclosing Party from and against any and all claims, damages, losses, costs, and expenses arising from the Receiving Party's breach of this Agreement."
Counter-Proposal
"Each party shall indemnify and hold harmless the other party from and against any direct damages arising from a material breach of this Agreement by the indemnifying party, provided that the indemnifying party is given prompt notice and sole control of the defense."
Why This Works
The original creates one-sided liability. The counter makes it mutual, limits to direct damages from material breaches, and adds standard procedural protections (notice and control). This is fair because both parties bear equal responsibility.
Ready-to-Send Email Template
Use this template when sending your counter-proposal. Adjust the bracketed sections for your situation.
Subject: Re: NDA - Proposed Revisions
Hi [Name], Thank you for sending over the NDA. I've reviewed it carefully and have a few proposed revisions that I believe will make the agreement more balanced for both parties. I've attached a redlined version with my proposed changes. The key revisions are: 1. [CLAUSE TYPE]: I've proposed [BRIEF DESCRIPTION OF CHANGE]. This is standard industry practice and provides reasonable protection while being operationally feasible. 2. [CLAUSE TYPE]: The current language [BRIEF DESCRIPTION OF ISSUE]. I've proposed alternative language that [BRIEF DESCRIPTION OF BENEFIT]. [ADD MORE AS NEEDED] These are relatively minor adjustments that shouldn't affect the core protections you're seeking. I'm happy to discuss any of these on a call if that would be helpful. Please let me know if you have any questions or would like to discuss. Best regards, [Your Name]
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