How to Write a Non-Disclosure Agreement (NDA) in the United States

A non-disclosure agreement (NDA) is a contract in which one or both parties agree to keep shared information confidential. In the United States, NDAs are governed by state contract law and, for trade secrets, by the Defend Trade Secrets Act (DTSA) and each state's version of the Uniform Trade Secrets Act.

This guide walks through the decisions that shape an enforceable NDA — the direction of disclosure, what counts as confidential, how long the duty lasts, and the clauses that courts expect to see — so you can produce a document that actually protects you.

Mutual or one-way?

A one-way (unilateral) NDA protects a single disclosing party — typical when you pitch an idea to an investor or hand specifications to a vendor. A mutual NDA protects both sides and is standard when two companies explore a partnership and each will share sensitive information.

Pick the direction that matches reality. A one-way NDA signed by a party that will also disclose information leaves that party unprotected.

Define confidential information carefully

The definition is the heart of the NDA. Too narrow and real secrets leak through; too broad and a court may refuse to enforce it. Standard practice is to cover information disclosed in any form that is marked confidential or that a reasonable person would understand to be confidential given the circumstances.

Always pair the definition with exclusions: information that is already public, already known to the recipient, independently developed, or lawfully obtained from a third party cannot be locked up.

Set the term — and protect trade secrets separately

Most commercial NDAs run one to five years. But a fixed term can accidentally weaken protection: trade secrets stay protected under the DTSA and state law for as long as they remain secret. A well-drafted NDA carves trade secrets out of the fixed term so their protection is not contractually shortened.

Add the clauses courts expect

Beyond the core promise of confidentiality, an enforceable NDA usually includes a return-or-destruction obligation, a required-disclosure clause (so a subpoena does not become a breach), a remedies clause acknowledging that money damages may be inadequate and injunctive relief is available, and a governing-law and dispute-resolution clause.

1.Choose mutual or one-way based on who actually discloses.
2.Draft a clear definition of Confidential Information with standard exclusions.
3.Set a term (1–5 years) and carve out trade secrets from that term.
4.Add return/destruction, required-disclosure, and remedies clauses.
5.Pick a governing state and a forum (courts or arbitration).
6.Have both parties sign and date; keep an executed copy.

Watch the state-law traps

Non-solicitation add-ons are scrutinized in some states — California (Business & Professions Code §16600) is especially hostile to restraints on employment. If your NDA includes non-solicitation and California law applies, that clause may be void even though the confidentiality terms hold.

Key takeaways

✓ Match the NDA direction (mutual vs one-way) to who really discloses.
✓ The definition of Confidential Information plus its exclusions decide enforceability.
✓ Carve trade secrets out of any fixed term so their protection is not shortened.
✓ Include return/destruction, required-disclosure, and remedies clauses.
✓ Non-solicitation clauses can be void in states like California.

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