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: [email protected] p: +1 978 327 5561
http://uie.com Blog: http://uie.com/brainsparks Twitter: @jmspool
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