Confidentiality agreements are signed quickly and read rarely. Four provisions carry most of the consequence.
Definition of confidential information. Whether marking is required — a requirement that is almost never honoured in practice and that can gut the agreement. Better to define by category and provide that oral disclosures are covered without a written follow-up requirement.
Duration. A fixed term for general information is normal; trade secrets should be protected for as long as they remain secrets, which requires an express carve-out because a flat three-year term otherwise terminates trade secret protection by contract.
Permitted disclosure. Representatives who need to know, bound by confidentiality, with the disclosing party responsible for their breaches. Required-by-law disclosure with notice where lawful and cooperation in seeking protective treatment.
Residuals. A clause permitting use of information retained in the unaided memory of personnel. Common in technology transactions, and effectively a licence to use what people remember. A disclosing party should resist it or narrow it to exclude trade secrets.
Non-solicitation and standstill provisions frequently ride along in deal NDAs and have consequences well beyond confidentiality.
Remedies. Injunctive relief acknowledged, and a decision on whether to include a fee-shifting provision, which cuts both ways.