# [DRAFT — for attorney review · not legal advice]

## NDA Triage: Common Paper Mutual NDA (sample counterparty)

**YELLOW — flag for in-house commercial counsel before signature**

Side applied: **purchasing-side** (we are the customer / receiving party in this evaluation).
Playbook source: `~/.claude/plugins/config/claude-for-legal/commercial-legal/CLAUDE.md` → `## Playbook → Purchasing-side`.

### Executive Summary

- Strike the unilateral 30-day notice in the destruction clause (Section 6) — add backup/archival carveout.
- Add an explicit "compelled by law" carveout into Section 3, rather than relying only on Section 4's notice/cooperate framing.
- Confirm the MNDA Term (Cover Page) is **two (2) years**, not "perpetual" or "until terminated".
- Decide whether to insert a "no residuals" position — playbook is silent today, so this NDA leaves the question open.
- Confirm governing law on the Cover Page is on our accept-list (Delaware / California / New York).

### Flagged items

**1. Carveouts — "compelled by law" is in §4, not in §3 carveouts** — Section 3 / Section 4
   What: Section 3's four carveouts list public / already-known / third-party / independently-developed, but the "legally compelled disclosure" exception is only in §4 with a notice-and-cooperate covenant, not as a true carveout.
   Why flagged: Playbook (`## NDA triage positions → Carveouts`) requires all 5 standard carveouts explicit, including legally compelled disclosure. The §4 framing is acceptable to most reviewers but is not how our playbook phrases it.
   **Legal risk:** 🟡 | **Business friction:** 🟢 Invisible
   Likely resolution: accept §4 framing with a one-line clarification in the cover memo; do not push paper back over this alone.

**2. Residuals — playbook silent, contract silent** — (no explicit clause)
   What: Neither the standard terms nor the Cover Page address whether residuals (information in unaided memory) are usable post-term.
   Why flagged: Our playbook is silent on residuals. Many vendors quietly assume residuals are out; some quietly assume in. Leaving it unstated is the most common point of post-term dispute.
   **Legal risk:** 🟡 | **Business friction:** 🟢 Invisible
   Likely resolution: ask GC if we want an affirmative "no residuals" or a narrow "unaided memory only" position; record decision in playbook so future reviews are consistent.

**3. Destruction / return clause has no backup carveout** — Section 6
   What: "Upon expiration or request, Receiving Party must cease use, destroy or return information, and confirm compliance if requested." No exception for routine backup / archival systems or for legal-hold retention.
   Why flagged: Playbook (`## NDA triage positions → Backup and archival carveout`) requires an explicit carveout: backups deleted in the ordinary course are not a breach, and items under legal hold may be retained per retention schedule.
   **Legal risk:** 🟠 | **Business friction:** 🟡 Confuses customers (engineering team cannot truthfully certify destruction without it)
   Likely resolution: push back with a single-sentence insertion (see redline §6).

**4. Assignment in M&A — silent or permissive** — Section 11 (General Provisions)
   What: Standard Terms allow assignment in a change of control without consent.
   Why flagged: Playbook accepts this for most counterparties but requires notice to the non-assigning party. Common Paper silent on notice.
   **Legal risk:** 🟡 | **Business friction:** 🟢 Invisible
   Likely resolution: accept; optionally add "with prompt written notice" — low priority.

**5. Governing law — pending Cover Page** — Cover Page (state to be filled)
   What: Standard Terms defer governing law and jurisdiction to the Cover Page.
   Why flagged: Until the Cover Page is filled, triage cannot confirm GREEN. Our accept-list: Delaware, California, New York; non-US law is an automatic YELLOW.
   **Legal risk:** 🟡 | **Business friction:** 🟠 Slows deals
   Likely resolution: counter to Delaware if Cover Page proposes anything outside the accept-list.

### Everything else

| Check | Status | Playbook reference |
|---|---|---|
| Mutuality | pass | `## NDA triage positions → Mutuality` (mutual required) |
| Term — initial period | pass (assuming 2 yr on Cover Page) | `## NDA triage positions → Term and survival` |
| Term — survival of confidentiality | pass (Common Paper "Term of Confidentiality" honored post-termination) | `## NDA triage positions → Term and survival` |
| Definition of CI — marked vs everything-disclosed | pass | `## NDA triage positions → Definition of Confidential Information` |
| Restrictive covenants (non-solicit / non-compete / exclusivity) | pass — none present | `## NDA triage positions → Restrictive covenants` |
| Fee-shifting | pass — silent, acceptable | `## NDA triage positions → Attorneys' fees` |
| IP ownership | pass — Section 7 retains IP, no license | `## NDA triage positions → IP` |
| Equitable relief | pass — Section 10 includes injunctive | `## NDA triage positions → Equitable relief` |
| Scope check — hidden non-NDA obligations (standstill / non-solicit / ROFR / MFN / broad arbitration) | pass — pure confidentiality contract | NDA-review SKILL.md `## Scope check` |
| Warranty disclaimer | pass — Section 8 as-is | `## NDA triage positions → Disclaimer` |

### Citation note

Where the analysis cites legal rules (e.g. enforceability of restrictive covenants), this triage applies the positions recorded in your practice profile. No external research tool is connected on this run, so any case-law reference is marked `[verify]` and should be checked against a current database (e.g. CourtListener) before relying on it for negotiation.

**Next step:** Send this triage + the redline (`./out/redline.md`) to commercial counsel for the §3 / §6 / Cover Page items, then route to signature if approved.