Risk Memo: Non-Disclosure Agreement
Prepared review for a licensed attorney. Not legal advice.
Review-ready, not send-ready. A licensed attorney makes the final call.
Red findings
RedMutuality — Recitals, Section 1, Section 3
What it says. The recitals contemplate an exchange of information "by each party," but Section 1 defines Confidential Information as Merrivale's information only, and Section 3 states the obligations are "undertaken by Recipient alone," with none imposed on Merrivale.
Position violated. P1 (high): when both sides share sensitive information, the obligations must run both ways; push back on one-way obligations where the deal itself has both parties disclosing.
Edit. Flagged for redraft. Making this mutual is a structural change across the definition and the operative clauses, not a surgical edit, so no tracked change was made. Recommended: convert to a mutual NDA (Confidential Information of either party; obligations running both ways). If the parties truly intend a one-way disclosure, revise Recital 3 so the paper matches the deal.
RedNon-solicitation — Section 9
What it says. For twenty-four (24) months after the agreement ends, Bluepine may not solicit, induce, or encourage any Merrivale employee or contractor to leave.
Position violated. P5 (high): an NDA protects information, it does not hire-freeze a company; strike non-solicits, non-competes, and similar covenants living inside an NDA.
P5 · applied. Deleted the non-solicit sentence: In order to preserve the integrity of the Evaluation ... Recipient shall not, directly or indirectly, solicit, induce, or encourage any employee or contractor of Discloser to terminate his or her engagement with Discloser. The designated-representative coordination language in the same section was left intact.
Yellow findings
YellowDefinition of Confidential Information — Section 1
What it says. Confidential Information includes anything disclosed whether or not marked, and oral or visual disclosures are confidential regardless of whether they are ever put in writing.
Position violated. P2 (medium): information should be marked or identified as confidential; oral disclosures should be confirmed in writing within ten (10) business days.
P2 · applied (two edits).
1. Marking: and whether or not marked, designated, or otherwise identified as confidential and that is marked or identified as confidential at the time of disclosure
2. Oral/visual: regardless of whether it is subsequently reduced to writing, summarized, or identified as confidential only if it is identified as confidential at the time of disclosure and reduced to a writing designated as confidential and delivered to Recipient within ten (10) business days after disclosure
YellowTerm and survival — Section 6
What it says. Confidentiality survives seven (7) years, and in perpetuity for anything Merrivale deems a trade secret.
Position violated. P3 (medium): three (3) years is the firm standard; longer protection only for information that is a trade secret under law, for as long as it remains one; push back on perpetual or "deemed" trade secrets.
P3 · applied (two edits).
1. Term: seven (7) years three (3) years
2. Trade secret: and in perpetuity with respect to any information deemed by Discloser to constitute a trade secret and, solely with respect to any information that constitutes a trade secret under applicable law, for so long as such information remains a trade secret under applicable law
YellowReturn and destruction — Section 7
What it says. On request, Bluepine must return or destroy all Confidential Information within five (5) business days and certify destruction, with no exception for routine backups.
Position violated. P4 (medium): return or destroy with written certification, but with a carve-out for routine backup and archival systems and one compliance copy, and no window shorter than ten (10) business days.
P4 · applied (two edits).
1. Window: within five (5) business days within ten (10) business days
2. Carve-out inserted after the certification sentence: Notwithstanding the foregoing, Recipient may retain (a) copies of Confidential Information contained in routine backup or archival systems made in the ordinary course of business, and (b) one (1) copy for legal or regulatory compliance purposes, in each case subject to the confidentiality obligations of this Agreement for so long as such copies are retained.
YellowInjunctive relief — Section 10
What it says. Any breach is deemed to cause irreparable harm, and Merrivale may obtain injunctive relief without posting a bond.
Position violated. P6 (medium): courts decide remedies; push back on presumed irreparable harm and on bond waivers.
P6 · applied (two edits).
1. Presumption: shall be deemed to cause irreparable harm to Discloser for which monetary damages would be an inadequate remedy may cause irreparable harm to Discloser for which monetary damages may be an inadequate remedy
2. Bond waiver deleted: without the necessity of posting any bond or other security,
YellowAssignment — Section 12 (playbook is silent)
What it says. Bluepine may not assign without consent, while Merrivale may freely assign, including to any successor to all or substantially all of its business or assets.
Position violated. None. The playbook is silent on assignment; raised because a lawyer should look. The asymmetry means Bluepine could be bound to whoever acquires Merrivale, potentially a competitor. This ties to the mutuality point above.
Flag only. No edit made. If desired, make assignment consent mutual, or add a carve-out letting Bluepine object to assignment to a competitor.
Needs your input
Reviewed and acceptable
| Clause | Result |
|---|
| Section 5 — Exclusions | P7 satisfied. All five standard exclusions present: public, prior rightful possession, independent development, third-party receipt, and compelled by law with prior notice. |
| Section 11 — Governing Law; Venue | P8 satisfied. Ohio law is a party's home-state law; venue is non-exclusive; no jury-trial waiver. |
| Section 4 — Standard of Care | Acceptable. No position addresses it; reasonable-care standard is standard boilerplate. |
| Section 2 — Permitted Purpose | Acceptable. Standard purpose limitation; no position addresses it. Scope depends on Exhibit A (see input items). |
| Section 12 — Notices, Entire Agreement, Severability, Counterparts | Acceptable. Standard boilerplate; no position addresses it. (Assignment is flagged above.) |