How (and When) to Negotiate NDA Terms: A Practical Guide

You received the NDA analysis. The Burn Score is higher than you expected. Red flags are scattered across three different clauses. Now what?

Most people stop at identification. They see the risks, note them mentally, and sign anyway — because they do not know how to ask for changes without offending the other party or derailing the deal.

This guide covers exactly how to negotiate NDA terms. Which clauses are movable. Which ones are not. What to say in an email. And when to walk away.

The mindset shift: negotiation is normal

The first barrier to negotiating NDAs is psychological. Most people believe the NDA is a take-it-or-leave-it document written by the other party's lawyers, and that asking for changes signals distrust or difficult behaviour.

Neither is true.

Standard NDA templates — even those from large companies — are drafted for maximum protection of the drafter. The person sending you the NDA expects nothing back. But the lawyer who drafted it knows that every clause is negotiable, because every clause was negotiated when the template was created.

Negotiating an NDA is not an adversarial act. It is a clarification of the terms under which both parties can collaborate comfortably. A reasonable counterparty will welcome your engagement. An unreasonable one reveals itself early — which is itself valuable information.

What successful negotiation looks like

A well-negotiated NDA leaves both parties with what they actually need:

• The disclosing party protects its legitimate confidential information
• The receiving party avoids obligations that interfere with its normal business
• Both parties understand exactly what is expected

What is actually negotiable

Most clauses in an NDA are negotiable. Some are easier to move than others.

Confidentiality scope

The definition of confidential information is the most important clause in the NDA and the most negotiable.

Your position: Confidential information should be limited to information that is either marked confidential in writing at the time of disclosure or would reasonably be understood as confidential given the context.

What to say: "We are happy to protect your confidential information. To make sure we can identify and handle it properly, could we limit the definition to information that is marked confidential at disclosure, plus anything that would reasonably be understood as confidential?"

Why it works: This is a reasonable request that helps both parties know exactly what is protected. The disclosing party keeps full protection for genuinely sensitive information; you avoid the risk of accidental breach over unmarked materials.

Duration of obligations

How long must you keep the information confidential after the NDA ends?

Your position: 1-3 years for standard confidential information. Perpetual protection for trade secrets only.

What to say: "For standard business information, would a three-year term work? We will of course continue protecting any trade secrets indefinitely as the law requires."

Why it works: Differentiating between trade secrets and ordinary confidential information shows sophistication. The compromise preserves perpetual protection where it matters and limits it where it does not.

IP assignment clauses

This is the most dangerous clause in an NDA and the most important to fix.

Your position: Each party retains ownership of its own intellectual property. No licence or assignment is granted except by a separate written agreement.

What to say: "We want to make sure that any pre-existing IP we each bring to the table stays with its owner. Could we add language confirming that no IP rights are transferred under this NDA unless we sign a separate agreement?"

Why it works: This is standard language that protects both parties. The disclosing party loses nothing — it still protects its confidential information through the confidentiality obligations. It only loses the ability to claim ownership of your IP through an NDA clause.

Governing law and jurisdiction

Your position: Your home jurisdiction, or a neutral venue.

What to say: "Given the scope of our discussion, would it be possible to use [your jurisdiction] for governing law? If that does not work for you, we are open to a neutral venue or arbitration."

Why it works: Jurisdiction is often one of the last clauses that companies are willing to change — their legal team has probably standardised on a specific venue. But it is always worth asking. If they push back, propose mutual jurisdiction (either party can sue in the other's home court) or a neutral venue like English law with LCIA arbitration.

Return and destruction obligations

Your position: 15-30 business days to comply, exclusion for archived electronic backups.

What to say: "We will be happy to return or destroy your materials at the end of our engagement. Could we align the timeline to 15 business days and exclude archived backups from immediate destruction? Standard practice to make sure we do not accidentally delete records we are required to keep."

Why it works: This is a practical, operational request. The disclosing party wants its materials handled properly, not destroyed in a rush.

Non-solicit clauses

Your position: If present in the NDA, either remove entirely or limit to employees directly involved in the project.

What to say: "We noticed a non-solicit clause in the NDA. Since this is a confidentiality agreement, would you be open to handling any post-employment restrictions in a separate agreement if needed? Or we could limit this to the specific team members working on the project."

Why it works: Acknowledging that non-solicits belong outside an NDA is a well-established position. Most counterparties will either remove the clause or accept a reasonable limitation.

What is usually non-negotiable

Some clauses are genuinely difficult to move. Knowing which ones saves you from wasting leverage.

The core duty of confidentiality itself

You cannot ask "we do not want to keep your information confidential" and still have an NDA. The entire purpose of the agreement is confidentiality. If you need to receive information without confidentiality obligations, you need a different type of agreement — not a negotiated NDA.

Trade secret protection

In most jurisdictions, trade secrets are protected by law regardless of what the NDA says. The NDA clarifies and extends that protection. Asking to remove trade secret protection is a non-starter.

Standard boilerplate (with rare exceptions)

Clauses like "entire agreement," "waiver," "severability," "assignment," and "notice" are standard boilerplate that rarely justifies negotiation time. They are generally fair and reciprocal. If they are not, push back — but otherwise, let them through.

Governing law (sometimes)

Large companies with global operations often have a standardised governing law and jurisdiction for all agreements. This can be non-negotiable for legal operational reasons. Ask anyway, but if they push back firmly, assess whether the jurisdiction is genuinely burdensome or just inconvenient.

Email templates for every scenario

Template 1: Asking for multiple changes

This is the most common scenario. Use when the AI analysis flags several issues in a standard NDA.

Subject: NDA review — proposed edits

Body:

"Thank you for sending the NDA. We have reviewed it and are happy to proceed with confidentiality protection. We have a few proposed edits to align the agreement with standard market practice for our type of collaboration:

1. Confidentiality definition — suggest limiting to information marked confidential at disclosure, plus anything reasonably understood as confidential
2. Term — suggest 3 years for standard confidential information, perpetual for trade secrets
3. IP clause — suggest clarifying that each party retains its own IP, with no licence granted except by separate agreement
4. Return of materials — suggest 15 business days with standard backup exclusion

We have attached a redlined version with all proposed changes. Happy to discuss any of these on a call if that is easier. Our goal is to get to an agreement that works for both sides."

Template 2: Asking for mutual instead of unilateral

Use when the other party sent a one-way NDA, but both of you will share information.

Subject: Mutual NDA for balanced protection

Body:

"Thanks for the NDA. Since our discussions will likely involve both sides sharing information, would you be open to converting this to a mutual NDA? This ensures both parties have the same protections and obligations, which seems appropriate for the kind of collaboration we are exploring.

We are happy to use your template as the starting point — just need to mirror the obligations so they apply equally."

Template 3: Narrowing the confidentiality scope

Use when the definition is overly broad but the rest of the NDA is acceptable.

Subject: Minor edit to confidentiality definition

Body:

"One quick request on the NDA — could we narrow the definition of confidential information slightly? We want to make sure we can properly identify and protect your sensitive information. Our suggestion is to add a marking requirement and a reasonableness standard, which is standard practice and helps both parties manage their obligations.

Everything else in the NDA looks good to us."

Template 4: Pushing back on IP assignment

Use when the NDA includes an IP assignment clause. This is your highest-priority fix.

Subject: IP clause clarification

Body:

"We noticed the NDA includes an IP assignment clause in Section [X]. Since this is a confidentiality agreement, we suggest clarifying that IP ownership is not transferred under this NDA.

Each party will of course protect the other's confidential information. But the IP we each bring to the table should stay with its owner unless we sign a separate development or licensing agreement.

We have proposed language that we believe achieves this without weakening the confidentiality protections. Let us know if you would like to discuss."

Template 5: Declining gracefully without burning bridges

Use when the NDA contains terms you cannot accept and the other party will not negotiate.

Subject: Next steps

Body:

"Thank you for sharing the NDA. After reviewing it, we do not think this agreement fits the scope of our current discussion. We are still very interested in exploring a potential collaboration, and we would be happy to revisit once both sides are ready to align on terms that work for the relationship.

In the meantime, we are happy to discuss at a general level without sharing confidential information."

The walk away threshold

Not every NDA can be negotiated to an acceptable point. Some counterparties will insist on terms that make the agreement too risky to sign. Here is when to walk away.

Walk away when

• The other party refuses to remove IP assignment language: If they insist on owning your improvements, derivative works, or pre-existing IP through the NDA, the agreement is not about confidentiality — it is about IP transfer without compensation
• Jurisdiction is genuinely prohibitive: If you are a Polish startup and they insist on exclusive jurisdiction in a remote court with no compromise, the NDA creates more risk than protection
• Non-compete clauses are non-negotiable: If they insist on a non-compete in the NDA and will not move it to a separate agreement, they are using the NDA for something it is not designed for
• The relationship itself is low-value: If the NDA negotiation is more expensive and time-consuming than the potential collaboration is worth, walk away. Not every discussion needs to result in a signed agreement

Do not walk away over

• A longer term than you wanted: 5 years instead of 3 is not worth killing a deal over if the other clauses are acceptable
• Their home jurisdiction: If they are in a reasonable jurisdiction (major European or US state) and the deal has real value, the inconvenience of foreign jurisdiction is manageable
• Broad confidentiality definition with reasonable carve-outs: If the definition is broad but the exclusions are solid, the practical risk is low

Using your NDAShield analysis in negotiation

Your AI analysis report is a powerful negotiation tool. Here is how to use it.

The Burn Score as a conversation starter

"I ran this through our NDA analysis tool and it came back with a Burn Score of 65. That suggests a few clauses could be clearer. Would you be open to reviewing those together?"

This frames the negotiation as a collaborative process, not an adversarial one.

Specific clause citations

"Clients 4.2 and 7.1 in the analysis both flagged IP assignment concerns. We would like to suggest some clarifying language."

Citing specific clauses shows you have done your homework. It moves the conversation from vague concerns to concrete edits.

Redline suggestions as a starting point

The analysis generates redline-ready edits. Send them along with your email. Even if the other party rejects every change, you have demonstrated that you take the agreement seriously — which often leads to better treatment on the clauses that matter most.

Post-negotiation checklist

Once you have agreed on changes, verify the final version before signing:

1. All agreed changes are reflected: Cross-check the final version against your negotiation notes
2. No new clauses appeared: Some parties return a revised NDA with new clauses added. Read the entire document, not just the changed sections
3. Signatures are in the right places: Ensure the signature block matches the party names and authorised signatories
4. Effective date is correct: Confirm that the date reflects when the NDA is actually being signed, not a backdated date
5. Final AI scan: Run the revised version through NDAShield to confirm the changes resolved the flagged issues

The golden rule of NDA negotiation

The clause you do not understand is the clause that will cost you.

If you cannot explain what a clause means in plain language, do not sign the NDA until you can. Use the AI analysis, ask the other party, or consult a lawyer. The few minutes it takes to understand one clause can save years of legal headaches.

Negotiation is not a sign of distrust. It is a sign of professionalism. The best business relationships start with clear agreements that both sides understand and can honour without surprises.

Related resources

Ready to negotiate? Upload your NDA for an AI analysis to identify the clauses worth pushing back on. Or take the NDA Burn Score quiz for a quick sense of where your risk sits before the conversation starts.