When we tell partners we sign mutual NDAs before sharing any specifics, almost everyone says yes. Then they send us their NDA, and roughly two thirds of them are unusable.
Not because they're badly written — most are well-formatted, well-numbered, and lawyered. They're unusable because they were drafted to protect a client engagement, not an agency-to-agency partnership. The threat models are different. The information types are different. The remedies are different.
This isn't legal advice. It's an operational walkthrough of what's actually in the NDAs we sign with partners — and why each clause is there. Bring it to your lawyer; let them argue the language.
The seven clauses that matter
1. True mutual definition of confidential information
Most NDAs define "confidential information" as a one-way list of things the disclosing party considers protected. In an agency-to-agency context, both sides are disclosing constantly. Your prospect lists, your pricing structure, your client roster, and your operational playbooks are just as sensitive as anything we share back.
The clause needs to define confidential information broadly and reciprocally — including, explicitly: prospect identities, pricing models, retainer structures, internal SOPs, communication templates, and case study data even when sanitized.
2. Exclusion clauses (the part that matters more than the inclusions)
Standard exclusions: information that's already public, independently developed, or rightfully obtained from a third party. These are non-negotiable.
Watch out for one specific exclusion that brokers like to slip in: "information disclosed in the ordinary course of business operations." That's a backdoor wide enough to drive a truck through. Strike it.
3. Term length and survival
Three years minimum from the date of last disclosure. Some industries push for five. Anything less than three is the partner signaling they don't intend to honor it long enough for it to matter.
Survival is critical. The NDA must explicitly state that confidentiality obligations survive termination of any underlying engagement (MSA, SOW, retainer agreement). If the NDA dies when the engagement dies, you've protected nothing.
4. Use restriction
Confidential information can only be used for the purpose of evaluating and operating the partnership. Not for general business development, training internal teams, building case studies, or "informing strategic direction." Be specific about the purpose.
"...solely for the purpose of evaluating and performing under a potential or active partnership engagement, and for no other purpose without prior written consent."
5. Non-solicitation, in writing, in the NDA itself
Don't wait for the MSA. Bake non-solicitation into the NDA so it's protected the moment specifics are shared. The standard:
- 24 months from last disclosure
- Applies to identified clients and prospects of the disclosing party
- Applies to employees and key contractors of the disclosing party
- Carve-outs for general advertising and inbound inquiries (so it's defensible)
6. Return or destruction of materials
Within 30 days of written request, all confidential information must be returned or destroyed, with a written certification that destruction has occurred. This includes derivative materials — notes, summaries, screenshots, internal slack messages. Anything that would let someone reconstruct the original confidential information.
7. Remedies clause
Standard NDAs give you the right to pursue injunctive relief. Most agency owners don't realize this means almost nothing without specific language about liquidated damages for the most predictable breach types — typically client poaching.
Reasonable liquidated damages for a poached client: 12 months of the average retainer fee that client paid. This is enforceable in most US jurisdictions if the number is reasonable, which 12 months typically is.
The three clauses NOT to include
Don't sign exclusivity disguised as confidentiality
"Receiving party agrees not to engage with any other agency operating in the disclosing party's geographic market for the term of this agreement." That's a non-compete, and it doesn't belong in an NDA. If you want a non-compete, negotiate it separately and price it explicitly.
Don't sign one-way IP assignment
Some templates sneak in language assigning all "ideas, concepts, and strategies disclosed during the discussion" to the disclosing party. In an agency context, that means the strategic recommendations a white-label partner shares during evaluation become the partner agency's IP — even if you don't engage. Strike it.
Don't sign perpetual confidentiality
"Receiving party will hold confidential information in confidence in perpetuity." Sounds protective; in practice it's unenforceable in most jurisdictions, signals legal sloppiness, and makes the rest of the document harder to enforce. Five years max.
"A good NDA is short, mutual, specific about purpose, and survives the engagement. Most templates are long, one-way, vague, and die when the contract dies."
One more thing
How fast a partner returns your NDA tells you how seriously they take the relationship. We sign a mutual NDA on the same day a partner sends one over, with red-line comments back if there's anything we want to discuss. If the partner you're vetting takes more than a week to return the document, that's the answer to whether they're operationally ready to partner with you.
Want to see our standard NDA?
We'll share our template before any specifics get exchanged. 30-minute partner call.