Non-disclosure agreements

2 Sep 2009 - 9:44am
5 years ago
6 replies
1452 reads
Stefanie Kelly
2009

I have a new client who wants me to sign an NDA. The issue is, what I
would be working on has to do with consumer experience. There is a
line in the NDA she sent me that says "all information or material
that has or could have commercial value or other utility in the
business in which Disclosing Party is engaged." That to me seems way
too broad and could negate my ability to work on other projects
related to user experience. Obviously, I am in no way willing to do
that. It does seem like a pretty good project though, so I wanted to
take some time to adjust the NDA she sent me to something I actually
would be willing to sign. I was hoping maybe some of you on here have
an NDA template that is less vague and more protective of designer's
rights. In lieu of any examples, any suggestions as to wording that
would not write myself out of future opportunities, yet promise not
to reveal details of the client's specific idea, would be greatly
appreciated.

Comments

2 Sep 2009 - 2:02pm
Brian Mclaughlin
2008

First off - I am no lawyer. If you really want to know the answer you would need consult a lawyer.

******* AND *******

These documents (and their enforcement) differ according to what state the company you are working for is in. State regs play a part in this. So any answers you get on this forum may work for the person's state that they are in but not yours.

As an overall intent with NDAs and Non-competes is that what you came in with is yours (stuff/knowledge/experience/whatever). Anything that you created/did/exposed that is not fundamentally in the public domain while doing work for a company (that you have signed an agreement with) is theirs. It is in the proof of what is in the public domain where things could get sticky. However, there are certainly more things in the public domain than are not.

Keep in mind that sometimes 'vague' in these documents is not bad.

Again - I am not a lawyer.

----- Original Message -----
From: "Stefanie Kelly" <stefanie at conceptfarm.ca>
To: discuss at ixda.org
Sent: Wednesday, September 2, 2009 3:44:31 AM GMT -05:00 US/Canada Eastern
Subject: [IxDA Discuss] Non-disclosure agreements

I have a new client who wants me to sign an NDA. The issue is, what I
would be working on has to do with consumer experience. There is a
line in the NDA she sent me that says "all information or material
that has or could have commercial value or other utility in the
business in which Disclosing Party is engaged." That to me seems way
too broad and could negate my ability to work on other projects
related to user experience. Obviously, I am in no way willing to do
that. It does seem like a pretty good project though, so I wanted to
take some time to adjust the NDA she sent me to something I actually
would be willing to sign. I was hoping maybe some of you on here have
an NDA template that is less vague and more protective of designer's
rights. In lieu of any examples, any suggestions as to wording that
would not write myself out of future opportunities, yet promise not
to reveal details of the client's specific idea, would be greatly
appreciated.
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2 Sep 2009 - 4:25pm
Chauncey Wilson
2007

You need to see a lawyer about this and it should be someone who is an
intellectual property attorney (my wife is one so I get good advice).

State laws do vary and while a non-compete can have a non-disclosure
statement, an NDA related to the specific project is not the same.

Companies will often negotiate terms of non-competes and NDAs if you
bring things to their attention though some are also very resistant to
changes.

See an IP attorney to be safe.

Chauncey

On Wed, Sep 2, 2009 at 3:44 AM, Stefanie Kelly<stefanie at conceptfarm.ca> wrote:
> I have a new client who wants me to sign an NDA. The issue is, what I
> would be working on has to do with consumer experience. There is a
> line in the NDA she sent me that says "all information or material
> that has or could have commercial value or other utility in the
> business in which Disclosing Party is engaged." That to me seems way
> too broad and could negate my ability to work on other projects
> related to user experience. Obviously, I am in no way willing to do
> that. It does seem like a pretty good project though, so I wanted to
> take some time to adjust the NDA she sent me to something I actually
> would be willing to sign. I was hoping maybe some of you on here have
> an NDA template that is less vague and more protective of designer's
> rights. In lieu of any examples, any suggestions as to wording that
> would not write myself out of future opportunities, yet promise not
> to reveal details of the client's specific idea, would be greatly
> appreciated.
> ________________________________________________________________
> Welcome to the Interaction Design Association (IxDA)!
> To post to this list ....... discuss at ixda.org
> Unsubscribe ................ http://www.ixda.org/unsubscribe
> List Guidelines ............ http://www.ixda.org/guidelines
> List Help .................. http://www.ixda.org/help
>

2 Sep 2009 - 5:33pm
John Vaughan - ...
2004

* Does anybody else remember the much-publicized squabble between Apple &
Msoft back in late 80's/early 90's, I believe, over who "owned" The Trash
Can as the Delete symbol? LOL

NDA's are ultimately relevant only to "what's enforceable". UxP is usually
"building a better mousetrap". To my understanding, nobody actually owns
the concept of a mousetrap - tho I'm sure that there are protectable patents
on some of the different unique methods.

Net/Net: No court is going to prevent you from making a living.

Most large corps put in expansive language - thanks to their Legal
Department - but aren't really interested in preventing you from using your
UxP skills, much as their over-priced lawyers might want it.

Anyhow, most big corps aren't interested in doing that. If their lawyer
scum DOES try to intimidate you, you might ask them if they really want to
be the Goliath/BigCorporateBully figure in a "restraint of trade" suit.

In my experience small entrepreneurs far likelier to be actively neurotic
about their genius killer app. But that's another story...

And - obviously - I'm not a lawyer.

John

Generally, I ask if the client can identify what they want to protect. It's
usually a) data, b) confidential clients or c) some obscure code that you
aren't going to touch anyhow.

* If they make a convincing argument that the UI is really the only
competitive edge they want to protect, then you might want to ask them if
they'd like to make you a partner...

----- Original Message -----
From: "Chauncey Wilson" <chauncey.wilson at gmail.com>
To: "Stefanie Kelly" <stefanie at conceptfarm.ca>
Cc: <discuss at ixda.org>
Sent: Wednesday, September 02, 2009 5:25 PM
Subject: Re: [IxDA Discuss] Non-disclosure agreements

> You need to see a lawyer about this and it should be someone who is an
> intellectual property attorney (my wife is one so I get good advice).
>
> State laws do vary and while a non-compete can have a non-disclosure
> statement, an NDA related to the specific project is not the same.
>
> Companies will often negotiate terms of non-competes and NDAs if you
> bring things to their attention though some are also very resistant to
> changes.
>
> See an IP attorney to be safe.
>
> Chauncey
>
> On Wed, Sep 2, 2009 at 3:44 AM, Stefanie Kelly<stefanie at conceptfarm.ca>
> wrote:
>> I have a new client who wants me to sign an NDA. The issue is, what I
>> would be working on has to do with consumer experience. There is a
>> line in the NDA she sent me that says "all information or material
>> that has or could have commercial value or other utility in the
>> business in which Disclosing Party is engaged." That to me seems way
>> too broad and could negate my ability to work on other projects
>> related to user experience. Obviously, I am in no way willing to do
>> that. It does seem like a pretty good project though, so I wanted to
>> take some time to adjust the NDA she sent me to something I actually
>> would be willing to sign. I was hoping maybe some of you on here have
>> an NDA template that is less vague and more protective of designer's
>> rights. In lieu of any examples, any suggestions as to wording that
>> would not write myself out of future opportunities, yet promise not
>> to reveal details of the client's specific idea, would be greatly
>> appreciated.
>> ________________________________________________________________
>> Welcome to the Interaction Design Association (IxDA)!
>> To post to this list ....... discuss at ixda.org
>> Unsubscribe ................ http://www.ixda.org/unsubscribe
>> List Guidelines ............ http://www.ixda.org/guidelines
>> List Help .................. http://www.ixda.org/help
>>
> ________________________________________________________________
> Welcome to the Interaction Design Association (IxDA)!
> To post to this list ....... discuss at ixda.org
> Unsubscribe ................ http://www.ixda.org/unsubscribe
> List Guidelines ............ http://www.ixda.org/guidelines
> List Help .................. http://www.ixda.org/help

3 Sep 2009 - 6:03am
Chauncey Wilson
2007

While it is rare, a non-compete (in states where they are legal) can
prevent you from working for a specific company or even a specific
technical area for a designated period of time. While this might be
rare in the UX area, a court could definitely restrict work activities
in a particular area or set of companies. This is most often true
with senior management where a person jumps to a competitor, but if a
UX person works on a new and/or highly valued technology that is at
the core of a company's product portfolio/profit, that person could be
restricted from working for direct competitors. Non-competes have
been held up in court so yes, a court can prevent you from working in
a specific area and it is up to you to read non-competes carefully,
ask a lawyer to review them, and then negotiate with the employer
where you believe that things are too restrictive.

Chauncey

>
> Net/Net:  No court is going to prevent you from making a living.
>

3 Sep 2009 - 10:56am
Jared M. Spool
2003

On Sep 2, 2009, at 8:44 AM, Stefanie Kelly wrote:

> I have a new client who wants me to sign an NDA. The issue is, what I
> would be working on has to do with consumer experience. There is a
> line in the NDA she sent me that says "all information or material
> that has or could have commercial value or other utility in the
> business in which Disclosing Party is engaged." That to me seems way
> too broad and could negate my ability to work on other projects
> related to user experience

Stefanie,

You're getting a lot of misinformation here. Let me try to clear it
up. In an average year, I sign about 200 NDAs (no exaggeration), so
I've gotten really good at reading them.

An Non-Disclosure Agreement (NDA) is NOT a Non-Compete Agreement. They
are completely different agreements. It's unusual for a client to ask
a consultant or contractor to sign a Non-Compete.

An NDA is what you are and are not allowed to tell anyone who isn't
one of the parties of the agreement. Some NDAs are one-sided (they are
only discussing what you can & can't disclose) and some are mutual
(the other party must follow the same rules about your information).

There really aren't any state regulations that change the
interpretation of NDAs. It's incorrect to say that you need to know
the state regulations involved. (The only state regulations that may
kick in involve conflict resolution -- what happens if either party
discloses protected information. Most NDAs use standard arbitration
language which covers most states.)

Also, an NDA doesn't protect any intellectual property rights
(copyright, trademarks, patents, or trade secrets). So it has nothing
to do with what you create during the project. It has nothing to do
with ownership of any work products. It only protects what you're
allowed to tell people about the project and the information the
client shares with you.

All well-written NDAs have a period (usually 3 or 5 years in high-
tech). If yours doesn't, ask for one.

I would never mention "restraint of trade" in conjunction with an NDA.
All it will do is demonstrate that you don't know anything about the
law. (Threatening a restraint of trade suit before you've signed an
agreement would not be a good project negotiating strategy.)

If it's a well written NDA, there's a section in the agreement that
lists what information is not protected by the agreement. It usually
has four clauses: (Here's the clause from one I signed just this past
week. It reads like almost every one I've signed this year.)

"Confidential Information will not include information that:

"(i) is now or thereafter becomes generally known or available to the
public, through no act or omission on the part of the receiving party;

"(ii) was known by the receiving party prior to receiving such
information from the disclosing party and without restriction as to
use or disclosure;

"(iii) is rightfully acquired by the receiving party from a third
party who has the right to disclose it and who provides it without
restriction as to use or disclosure; or

"(iv) is independently developed by the receiving party without access
to any Confidential Information of the disclosing party."

So, what an NDA protects is any information that your client gives you
or that you learn during the project that you COULD NOT learn without
the client giving you that information or doing the project FOR THAT
CLIENT. If they tell you X, you can't divulge X to anyone else for the
duration of the agreement. If you learn Y because of things they let
you have access to, that you couldn't get access to any other way, you
can't divulge that either.

For example, information we learn while usability testing a public
site (such as Amazon.com) wouldn't be covered by an agreement with the
site's owner because we could have learned the same information by
testing the same site on a different project for a different client.

However, information we learn while usability testing a corporate
intranet site would be covered by the agreement because we wouldn't
get access to that intranet without the client giving us a user ID and
password.

If you're creating a design and the design is made publicly available
once released, then it's no longer protected by the NDA. However, any
of the rationale, previous iterations, or information you learned
during the project would be protected. Possibly, the company may want
to protect the fact that you worked on it (meaning you can't use it as
a reference or put it in your portfolio). (That can be negotiated
separately in the Master Consulting Agreement.)

An NDA does not preventing you from working in the same industry. An
NDA only asks you to agree to not share any information you've
learned. It's to protect their competitive advantage. After all, they
are paying you a lot of money (or should be!) and they want to gain
advantage from their investment.

It's not unusual to clarify an NDA, though, these days, most don't
require it.

For example, if we're working with a client in conjunction with an
ongoing research project (such as studying how breadcrumbs work across
many sites), we'll add a fifth clause to the section above that
explicitly states our goals. It might read something like:

"(v) is learned in the process of conducting usability evaluations of
publicly available web site pages."

Some client's counsel will say that this additional clause is
redundant and we agree. But we ask to include it so that everyone
understands the purpose of the agreement. Usually they keep it in.

If you're not sure about the agreement, pass it by a lawyer. But, from
what you said, if it's a standard NDA, you shouldn't have any issues.
I wouldn't be concerned by the language you mentioned. It's pretty
standard.

You shouldn't be scared of an NDA. It's just a fancy way of saying,
"Can you keep a secret?"

Hope this helps clear up the confusion,

Jared

Jared M. Spool
User Interface Engineering
510 Turnpike St., Suite 102, North Andover, MA 01845
e: jspool at uie.com p: +1 978 327 5561
http://uie.com Blog: http://uie.com/brainsparks Twitter: @jmspool

3 Sep 2009 - 1:26pm
Stefanie Kelly
2009

Thanks everyone for taking the time to reply. I did end up finding a pretty good template for a mutual NDA from the Samsung website of all places http://semicon-partner.samsung.de/downloads/agreement.pdf, which I tailored to be specific to my project and sent off to the client to see what they say. It contains an almost identical section to what Jared described, that lists what information is not protected by the agreement. My concern was mainly that what the client had sent me was very one sided on their behalf. I found this version much more fair. I will see if they agree - they tend to be extremely slow to respond to anything - surprisingly so as they are a lone entrepreneur.

I really do appreciate everyone taking the time to consider my question so thoroughly. I am new to the community and it was a great introduction.

Best,
Stefanie

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