If you are building an NDA from scratch—or configuring your own NDA contract playbook — you need to know which clauses actually matter. In 2026, an NDA is no longer just a "standard form."
With the rise of AI data scraping and complex global privacy laws, the "fine print" has never been more important.
Here are the 5 most negotiated clauses you must include in every Non-Disclosure Agreement, along with the "pro" tips for your NDA checklist.
1. Definition of Confidential Information
This is the "Heart" of the agreement. It defines exactly what is being protected.
- The Struggle: Disclosers want this as broad as possible ("Everything I tell you"). Recipients want it narrow ("Only what is marked 'Confidential' in writing").
- 2026 Pro-Tip: Ensure your definition includes "Oral Disclosures." If you share a secret in a Zoom meeting, it should be protected even if you didn't send a follow-up PDF marked "Confidential."
2. The "Use" Clause (Permitted Purpose)
Most people focus on secrecy, but the Use Clause is actually more important. It defines why the other party has the information.
- Standard Rule: Information should only be used for the "Permitted Purpose" (e.g., evaluating a potential partnership).
- The Trap: Avoid "Purpose Creep." If the language is too vague, a counterparty might use your data to develop a competing product while technically keeping the data "secret."
3. Exclusions from Confidential Information (The "Carve-outs")
Every NDA must have "Outs." These are categories of information that the recipient is not responsible for keeping secret.
- Standard Exclusions: * Information already in the public domain.
- Information the recipient already knew.
- Information developed independently without using your data.
- The "Legal Requirement" Clause: This allows a party to disclose info if they get a subpoena or court order (provided they notify you first).
4. Term vs. Survival (The Timeline)
How long does the secret stay a secret? There are two different "clocks" to watch:
- The Term: How long the parties are actively sharing information (e.g., 1 year).
- The Survival: how long the confidentiality obligation lasts after the partnership ends (e.g., 3 years or 5 years).
- Pro Position: For highly sensitive trade secrets or source code, you should push for "Indefinite" protection.
5. Return or Destruction of Data
What happens when the deal is done? You don't want your data sitting in a former partner’s "Downloads" folder forever.
- The Standard: Upon request, the recipient must return or destroy all confidential info.
- The 2026 Reality: Most IT departments cannot "wipe" a single file from an automated cloud backup. Your playbook should allow for a "back-up exception" provided the data remains encrypted and untouched.
- Non-Solicitation: Prevents the other party from "poaching" your employees while they have access to your internal team.
- Injunctive Relief: A critical clause that says money isn't enough—if you leak my secrets, I can get a court order to stop you immediately.
- No-AI Training: A newer 2026 essential that explicitly forbids the recipient from using your data to "train" their internal LLMs or AI models.
Knowing which common NDA clauses to include is only half the battle.
The real magic happens when you standardize these into a rubric that your team can follow without asking Legal for help every time.
By using an NDA contract playbook generator, you can ensure that these 5 battleground clauses are handled consistently across every deal your company signs.