nda-clause-taxonomy

• SKILL.mdcore · 11,634 bytes

# NDA clause taxonomy

A working reference for someone reviewing a commercial NDA. Every NDA reuses the same handful of clauses; the wording varies. Use this to recognise which provision is which when the section headings don't match the clause function.

## M&A NDA vs. ordinary-evaluation NDA

Before applying any review rule, identify which kind of NDA you're looking at, because conventions differ:

- **M&A / transactional NDA** (executed in connection with diligence on a possible acquisition or business combination). Standstills are *standard* — Eastland's 2018 EDGAR survey of 143 transactional NDAs found standstills in 80%, modal duration 12 months. Definition of CI typically pulls in "the existence of negotiations" (which is itself something the acquirer side often pushes back on, because it restricts the acquirer's ordinary-course communications). Survival caps tend to be longer (3-5 years) than ordinary NDAs. Residuals carve-outs are typically refused by the disclosing target, especially in pharma and biotech (Farrer & Co.).
- **Ordinary business-evaluation NDA** (vendor evaluation, partnership discussion, technical exchange). Standstills are unusual and a red flag. Term and survival are shorter (1-2 years term, 2-3 years survival). Residuals carve-outs more frequent on the recipient side (especially tech).

Apply rules in their proper context — a "must_be_absent" rule for standstills is appropriate for ordinary NDAs but not for M&A NDAs.

## Reading order