NDA Negotiation Playbook

Q: How do I push back on an NDA without damaging the relationship?

Frame your concerns professionally, explain the business rationale, and offer alternatives. Saying 'Our legal team requires mutual obligations for any agreement where we share information' is more effective than simply refusing terms.

Q: What NDA terms are non-negotiable?

There are no universally non-negotiable terms, but most parties will insist on: some form of confidentiality obligation, standard exceptions (public information, prior knowledge), and the right to make legally required disclosures.

Q: When should I walk away from an NDA negotiation?

Walk away if: the other party refuses mutual obligations when you're both sharing sensitive information, terms include unreasonable restrictions on your business, or the negotiation reveals bad faith or fundamental incompatibility.

Overview

NDA negotiations don't have to be confrontational. Most disputes arise from different risk tolerances and legal traditions, not bad faith. This playbook provides a systematic approach to negotiating fair terms while maintaining positive business relationships.

Whether you're reviewing an NDA sent to you or responding to pushback on your own template, these strategies help you reach agreement efficiently.

💡 Negotiation Principle

Always explain the "why" behind your position. Generic objections ("Our legal won't approve this") are less effective than substantive concerns ("This clause would prevent us from serving existing customers in the same industry").

Step-by-Step Negotiation Process

Initial Review (Before Responding)

Before raising any objections, thoroughly analyze the NDA:

Identify the 3-5 most important issues to address
Determine which terms are acceptable as-is
Prioritize: What's truly critical vs. merely preferred?
Research the counterparty's likely concerns
Prepare alternative language for problematic clauses

Initial Response

Send a professional response that:

Acknowledges receipt and thanks them for the draft
Confirms general alignment on confidentiality goals
Lists your specific concerns with brief explanations
Offers to discuss or provides redlined draft
Suggests timeline for resolution

Negotiate Substance

During substantive negotiations:

Address issues in order of importance to you
Be willing to concede on low-priority items
Propose specific alternative language, not just objections
Explain the business rationale for your positions
Look for creative solutions that address both parties' concerns

Close and Execute

Once agreement is reached:

Confirm all agreed changes are in the final draft
Verify signature authority for both parties
Exchange signed copies (original signatures or valid e-signatures)
File executed copy in accessible location
Brief relevant team members on key obligations

Email Templates

Initial Response - Minor Changes Needed

Use when the NDA is mostly acceptable with a few adjustments

Hi [Name],

Thank you for sending over the NDA. We're looking forward to moving discussions forward and appreciate you initiating the confidentiality framework.

I've reviewed the draft with our team and we're aligned on the general approach. I have a few proposed modifications to ensure the agreement works for both parties:

1. Mutual Obligations (Section X): Since we'll both be sharing sensitive information, we'd like to make the confidentiality obligations mutual rather than one-way.

2. Term Duration (Section X): We'd suggest a 3-year survival period rather than 5 years, which is more aligned with industry standards for this type of discussion.

I've attached a redlined version with these changes. Happy to discuss if you have any questions or would like to schedule a call.

Best,
[Your Name]

Initial Response - Significant Concerns

Use when the NDA has multiple problematic provisions

Hi [Name],

Thank you for the NDA draft. We're eager to move forward with our discussions but have identified several provisions that we'll need to address before signing.

Our key concerns are:

1. Non-Compete Provision: The NDA includes restrictions on our ability to work with competitors, which goes beyond standard confidentiality. We'd need to remove this section entirely.

2. Residuals Clause: The current language would allow unrestricted use of information retained in memory. For our trade secrets, we need this limited or removed.

3. Indefinite Term: We'd need to define a reasonable disclosure period and survival term.

Given the number of changes, it may be more efficient to use our standard mutual NDA as a starting point. I've attached it for your review. Alternatively, happy to schedule a call to discuss these points directly.

Please let me know which approach works better for you.

Best,
[Your Name]

Proposing Your Template Instead

Use when you want to start fresh with your own NDA

Hi [Name],

Thanks for sending your NDA draft. Before we dive into detailed review, I wanted to share our standard mutual NDA as an alternative starting point.

We use this template for most of our business discussions and have found it to be well-balanced for both parties. It includes:

- Mutual confidentiality obligations
- Standard exceptions (public information, independent development, etc.)
- 2-year disclosure term with 3-year survival
- Reasonable return/destroy provisions

If your team is comfortable proceeding with our template, we can likely execute quickly. Of course, we're happy to review any proposed changes your team may have.

Let me know your preference and we'll move forward accordingly.

Best,
[Your Name]

Responding to Pushback

Use when the other party rejects your proposed changes

Hi [Name],

I appreciate you taking the time to review our proposed changes and understand your position on several points.

Let me address your concerns:

On the mutual obligation requirement: This is standard practice for us when we're both sharing proprietary information. We've maintained this policy across [X] similar agreements this year. If [Company Name] isn't sharing any confidential information, we can certainly use a one-way agreement - but based on our discussions, I believe you'll be sharing [technical specs/pricing/methodology], which would warrant mutual protection.

On the survival period: We can accept 4 years as a compromise between our proposed 3 years and your 5 years.

I'd like to propose a brief call to work through the remaining items. Are you available [date/time options]?

Best,
[Your Name]

Common Pushback Scenarios

🔴 "This is our standard template - we don't negotiate NDAs"

Your Response:

"I understand you have a standard process. However, [specific provision] presents a significant issue for our business because [concrete reason]. We're not asking for wholesale changes - just modifications to address this specific concern. Can we discuss this one item?"

🔴 "Our legal team won't approve mutual obligations"

Your Response:

"I'd be happy to speak directly with your legal team if that would help. From our perspective, since you'll be sharing [technical information/pricing/methodology], a one-way agreement actually increases your risk because we'd have no contractual obligations. A mutual agreement protects you too."

🔴 "We need the 5-year survival period for our trade secrets"

Your Response:

"We understand the importance of protecting trade secrets. What if we specify that trade secrets remain protected for as long as they qualify as trade secrets under applicable law, while other confidential information has a 3-year survival? This gives you indefinite protection for what matters most."

🔴 "The residuals clause is standard - everyone accepts it"

Your Response:

"We appreciate that residuals clauses are common in some industries. For our situation, we'll be sharing [specific type of information] that could be easily memorized and reproduced. We can accept a limited residuals clause that excludes information designated as a trade secret or that includes customer-specific data. Would that work?"

🔴 "We need the non-solicitation provision to protect our team"

Your Response:

"Non-solicitation is really a separate agreement from confidentiality - it goes beyond protecting information to restricting our business activities. If employee protection is important, we can discuss that as a separate provision with appropriate mutual obligations and time limits, but we'd need to remove it from this NDA."

When to Compromise

Issue	Acceptable Compromise	Don't Accept
Survival Period	4 years instead of 3	Indefinite for non-trade secrets
Definition Scope	Broader if marking required	"All information shared" without limits
Permitted Recipients	Named categories with confidentiality	Unlimited "affiliates" sharing
Governing Law	Neutral jurisdiction	Distant, unfavorable jurisdiction
Injunctive Relief	Standard injunction language	Waiving bond requirement
Return Obligations	Carve-out for backup systems	Immediate purge with no exceptions

✓ Strategic Tip

Identify 2-3 items you're willing to concede before negotiations begin. Offering a concession ("We can accept your 4-year term") while making a request ("if you'll agree to mutual obligations") often breaks deadlocks.

When to Walk Away

Some NDA terms are warning signs that the business relationship may be problematic. Consider walking away if:

🔴
Refusal to Make Mutual: If the other party insists on one-way obligations when both sides are clearly sharing information, they may not act in good faith on other agreements.
🔴
Hidden Business Restrictions: Non-competes, non-solicitation, or exclusivity provisions buried in an NDA suggest they're trying to lock you in before you realize it.
🔴
Unlimited Liability: No cap on damages or indemnification obligations that could exceed the value of the potential deal.
🔴
Unreasonable Time Pressure: "Sign today or the deal is off" for an NDA suggests poor faith or desperation you should avoid.
🔴
IP Assignment Language: Any suggestion that they would own intellectual property from your discussions is a major red flag.

⚠ Walking Away Email

If you decide not to proceed, be professional: "After careful review, we've determined that we're unable to accept the NDA terms as currently structured. We remain interested in exploring opportunities together if circumstances change. Thank you for your time and consideration."

Building Negotiation Leverage

Before Negotiations

Research their standard terms: If they've done public deals, you may find their typical NDA language in SEC filings or court documents
Know your BATNA: Understand your alternatives if this deal doesn't work out
Identify their motivation: Are they eager to close? That increases your leverage
Prepare your template: Having your own well-drafted NDA ready shows professionalism

During Negotiations

Let them go first: If possible, have them send the first draft to understand their position
Focus on interests, not positions: "What are you trying to protect?" often leads to creative solutions
Use objective standards: Reference industry practice, precedent, or legal requirements
Create urgency appropriately: "We have a board meeting in two weeks and need this resolved"
Escalate when stuck: Sometimes a principal-to-principal conversation breaks logjams

Special Negotiation Situations

Large Company vs. Small Company

Large companies often have rigid legal processes. Focus on:

Identifying which terms are truly non-negotiable vs. just boilerplate
Requesting exceptions rather than wholesale changes
Getting a direct line to the attorney, not just the business contact
Being patient - their legal review may simply take longer

International Counterparties

Cross-border NDAs require additional attention to:

Governing law and jurisdiction (choose neutral or your home country)
Data transfer restrictions (GDPR, etc.)
Translation requirements (official language clause)
Currency for any damages provisions

Fast-Moving Deals

When time is critical:

Propose a very short, simple NDA focused only on the essentials
Agree to "reasonable efforts" standards rather than detailed procedures
Include a clause allowing replacement with a more detailed agreement later
Use e-signature platforms for immediate execution

Next Steps

Generate your template: Create your standard NDA to use as a starting point
Review their draft: Use our analyzer to identify issues quickly
Prioritize issues: Identify your top 3 must-haves before negotiating
Prepare alternatives: Have specific language ready for each concern
Execute efficiently: Use e-signature to close quickly once agreed

📝 Related Resources

Business Deal NDA Hub - Overview and key clauses
Breach Response Guide - What to do if confidentiality is violated

Disclaimer: This playbook provides general guidance on NDA negotiations. Every situation is unique, and this content should not be relied upon as legal advice. Consult with a qualified attorney for guidance specific to your circumstances.