Drafting and Negotiating a Confidentiality Agreement: A Practitioner's Guide to Scope, Term, and Residuals
By Casey Scott McKay ·
This guide takes a confidentiality agreement from the decision to send one through negotiation, execution, administration, and enforcement. It starts with the four questions that determine which form to use, then works through the drafting clause by clause: the definition and whether to require marking, the permitted purpose, the exclusions, permitted recipients and flow-down, the standard of care, compelled disclosure, term and survival with the trade secret carve-out, return and destruction drafted so it can actually be performed, and the immunity notice. It then covers negotiating the counterparty's form, the six provisions to check first, and what to do when the form cannot be changed. Later stages cover setting-specific terms for diligence, joint development, vendors, and employees, plus administration at scale and enforcement. Each stage gives the deliverable and the failure mode.
IP and Technology > Trade Secrets | Guide | Published 28 March 2025 - Updated 19 December 2025 | Casey Scott McKay - marksy.us
Summary. This guide takes a confidentiality agreement from the decision to send one through negotiation, execution, administration, and enforcement. It starts with the four questions that determine which form to use, then works through the drafting clause by clause: the definition and whether to require marking, the permitted purpose, the exclusions, permitted recipients and flow-down, the standard of care, compelled disclosure, term and survival with the trade secret carve-out, return and destruction drafted so it can actually be performed, and the immunity notice. It then covers negotiating the counterparty's form, the six provisions to check first, and what to do when the form cannot be changed. Later stages cover setting-specific terms for diligence, joint development, vendors, and employees, plus administration at scale and enforcement. Each stage gives the deliverable and the failure mode.
Keywords: confidentiality agreement drafting, mutual versus one-way, definition of confidential information, marking discipline, standard exclusions, residuals negotiation, permitted purpose, permitted recipients, flow-down obligations, standard of care, compelled disclosure, term and survival, trade secret carve-out, return and destruction, no license clause, feedback assignment, injunctive relief acknowledgment, DTSA immunity notice, governing law, agreement administration
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