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## NDA Triage Report
**Classification**: 🔴 **RED. Do not sign, and do not share the roadmap or pricing yet.**
**Parties**: Brightwater Channel Partners LLC (Discloser) and Calloway Software, Inc. (Recipient, i.e., us)
**Type**: Unilateral, with us as the *receiving* party
**Term**: Obligations last 3 years from each disclosure
**Governing Law**: New York
**Review Basis**: Default market-standard criteria (no NDA playbook configured)
### The main problem
This NDA protects the wrong party. Only Calloway, as Recipient, has any confidentiality obligations. Brightwater has none. If you share your product roadmap and pricing model under this document, **Brightwater could share or use them freely.** Meanwhile, we would be bound to protect anything they send us, with very broad obligations.
### Screening Results
| Criterion | Status | Notes |
|---|---|---|
| Mutual obligations | **FAIL** | Unilateral, in the wrong direction for our planned disclosure |
| Definition scope | **FAIL** | "All information of any kind… whether or not marked" is overbroad and has no purpose limitation |
| Standard carveouts | **FAIL** | Only "publicly available" is present. Missing prior possession, independent development, third-party receipt, and legal compulsion |
| Permitted disclosures | **FLAG** | Employees only. No contractors, advisors, affiliates, or legally required disclosures |
Show the rest (38 more lines)
| Term | **FLAG** | 3 years from each disclosure is within range, but there is no overall agreement term, and there is no longer protection for trade secrets (relevant to pricing and roadmap) |
| Use restriction / standard of care | **FLAG** | Neither is stated. This is a gap if we are the discloser |
| Return/destruction | **FLAG** | Absent |
| Remedies | **FLAG** | Absent (no injunctive relief acknowledgment, which would matter to us as discloser) |
| Problematic provisions | **PASS** | No non-solicit, non-compete, exclusivity, residuals, IP license, or audit rights |
| Governing law | **PASS/FLAG** | New York is acceptable, but there is no venue or jurisdiction clause |
### Issues Found
**1. Wrong direction (RED)**
- **Risk**: Our roadmap and pricing are unprotected, and Brightwater could disclose them to competitors or customers.
- **Fix**: Replace with a *mutual* NDA, ideally our standard form. Alternatively, have Brightwater revise the parties' roles so both are "Disclosing" and "Receiving" parties.
**2. Overbroad definition (RED)**
- **Risk**: Everything Brightwater says or sends us, marked or not, becomes confidential, including things we already know or that are trivial.
- **Fix**: Limit to non-public information disclosed for a defined purpose (e.g., evaluating a reseller relationship) that is marked or that a reasonable person would understand to be confidential. Allow written confirmation within 30 days for oral disclosures.
**3. Missing carveouts (RED)**
- **Risk**: Without independent development, we could face claims that our own products or features derive from their information. Without legal compulsion, we would be in breach if we complied with a subpoena.
- **Fix**: Add all four missing carveouts: prior possession, independent development, third-party receipt, and legal compulsion (with notice where permitted).
**4. Narrow permitted disclosures (YELLOW)**
- **Risk**: We could not involve outside counsel, accountants, contractors, or affiliates.
- **Fix**: Extend to employees, affiliates, contractors, and professional advisors with a need to know who are bound by similar obligations.
**5. Missing structural terms (YELLOW)**
- Add a defined purpose and use restriction, a standard of care, return/destruction with a retention exception, an injunctive relief clause (mutual), venue/jurisdiction, and a longer protection period for trade secrets.
### Recommendation
Do not sign as drafted. Send Brightwater **our standard mutual NDA** as a counterproposal. If they insist on their paper, ask for the revisions above, particularly mutuality, the narrowed definition, and the full carveout set. Because this is RED, route it to counsel for full review.
### Next Steps
1. **Hold the roadmap and pricing materials** until a signed NDA is in place. Don't share them informally in the meantime.
2. Send our standard mutual NDA to Brightwater, or send counsel's redlines to theirs.
3. Escalate to legal/counsel (3-5 business days typical). Give them this summary and flag that the roadmap and pricing share is the business driver.
4. Once signed, consider marking shared materials "Confidential" as good practice.
*This is a screening aid, not legal advice. Qualified counsel should review before you rely on it or sign anything. If you have an NDA playbook or standard form, share it and I can re-run the triage against your criteria.*