Need a Contractor-Friendly NDA?
Our templates include balanced terms that protect both parties.
When to Negotiate (And When to Walk Away)
Not every NDA requires negotiation, but some red flags should trigger a careful review:
Definitely Negotiate If:
- The NDA is one-sided (unilateral): You're bound by obligations but the other party isn't
- Overly broad definitions: "Confidential Information" includes everything you might learn or create
- Unlimited duration: Obligations last "in perpetuity" or have no sunset clause
- IP assignment without compensation: You're asked to assign all IP with no additional payment
- Non-compete buried in NDA: Restrictions on future work disguised as confidentiality terms
- Excessive remedies: Injunctive relief AND unlimited damages AND attorney's fees
Consider Walking Away If:
- The client refuses to make any changes to egregious terms
- The NDA would prevent you from using skills you already have
- Indemnification clauses are unlimited and one-sided
- The client's attorney is hostile to reasonable modifications
Key Negotiation Tactics
Make It Mutual
If you're sharing any information (your methods, pricing, client lists), request a mutual NDA. This puts both parties on equal footing and is usually easy to obtain.
"We request this be modified to a mutual NDA, as we will also be sharing proprietary methodologies and pricing structures during our engagement."
Narrow the Definition
Overly broad definitions of "Confidential Information" can trap general knowledge. Request specific categories or require written designation.
"Confidential Information shall mean only information that is (a) marked 'Confidential' in writing, or (b) identified as confidential at the time of oral disclosure and confirmed in writing within 10 days."
Add a Sunset Clause
Perpetual obligations are unreasonable for most contractor relationships. Request a reasonable time limit (2-5 years for general info, with trade secrets excepted).
"Contractor's confidentiality obligations shall expire three (3) years from the date of disclosure, except for information constituting trade secrets under applicable law, which shall be protected for as long as such information remains a trade secret."
Carve Out Prior Knowledge
Protect knowledge, skills, and tools you had before the engagement. This is critical for experienced contractors.
"Nothing in this Agreement shall restrict Contractor's use of general skills, knowledge, and experience, including techniques, concepts, and ideas that Contractor knew prior to this engagement or develops independently outside the scope of this Agreement."
Preserve Portfolio Rights
Creative and development contractors need the ability to show their work. Request portfolio carve-outs with appropriate limitations.
"Contractor may include non-confidential descriptions and sanitized samples of work performed under this Agreement in Contractor's professional portfolio, provided that no Confidential Information is disclosed and Client's prior written approval is obtained."
Cap Liability
Unlimited liability is dangerous. Request a cap tied to fees paid or a reasonable fixed amount.
"In no event shall Contractor's aggregate liability under this Agreement exceed the total fees paid to Contractor in the twelve (12) months preceding the claim, except for willful misconduct or gross negligence."
Before & After: Common Clause Improvements
See how small changes can significantly improve contractor protections:
| Issue | Problematic Language | Improved Language |
|---|---|---|
| Scope | "All information provided by Company" | "Information marked confidential or identified as such in writing" |
| Duration | "In perpetuity" | "3 years, except for trade secrets" |
| IP Rights | "All work product shall be owned by Company" | "Work product created specifically for this project, excluding pre-existing materials" |
| Non-compete | "Shall not work for competitors for 2 years" | "Shall not disclose confidential info to competitors" |
| Remedies | "Injunction plus all damages plus attorney fees" | "Injunctive relief; prevailing party recovers reasonable fees" |
Sample Negotiation Email
Here's a professional template for requesting NDA modifications:
Subject: NDA Review - Proposed Modifications Dear [Name], Thank you for sending over the NDA. I've reviewed it and am excited to move forward with our engagement. I have a few modifications that are standard for my contracting work: 1. Mutual Obligations: I'd like this to be mutual since I'll be sharing some of my proprietary methods. 2. Definition Clarity: I'd like "Confidential Information" to require written designation or marking, which helps both parties track what's protected. 3. Duration: I'd prefer a 3-year term rather than perpetual, with trade secrets excepted. 4. Prior Knowledge Carve-out: I need to preserve my ability to use general skills and knowledge I had before our engagement. 5. Portfolio Rights: As a [creative/developer], I'd like the ability to reference this project (without confidential details) in my portfolio. I've attached a redline showing these changes. These are industry-standard terms and shouldn't affect the protection you need. Happy to discuss if you have questions. Best regards, [Your Name]