Re: [IxDA Discuss] Non-disclosure agreements
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'
Re: [IxDA Discuss] Non-disclosure agreements
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. > Welcome to the Interaction Design Association (IxDA)! To post to this list ... disc...@ixda.org Unsubscribe http://www.ixda.org/unsubscribe List Guidelines http://www.ixda.org/guidelines List Help .. http://www.ixda.org/help
Re: [IxDA Discuss] Non-disclosure agreements
* 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" To: "Stefanie Kelly" Cc: 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 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 ... disc...@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 ... disc...@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 ... disc...@ixda.org Unsubscribe http://www.ixda.org/unsubscribe List Guidelines http://www.ixda.org/guidelines List Help .. http://www.ixda.org/help
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 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 ... disc...@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 ... disc...@ixda.org Unsubscribe http://www.ixda.org/unsubscribe List Guidelines http://www.ixda.org/guidelines List Help .. http://www.ixda.org/help
Re: [IxDA Discuss] Non-disclosure agreements
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" To: disc...@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. Welcome to the Interaction Design Association (IxDA)! To post to this list ... disc...@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 ... disc...@ixda.org Unsubscribe http://www.ixda.org/unsubscribe List Guidelines http://www.ixda.org/guidelines List Help .. http://www.ixda.org/help
[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. Welcome to the Interaction Design Association (IxDA)! To post to this list ... disc...@ixda.org Unsubscribe http://www.ixda.org/unsubscribe List Guidelines http://www.ixda.org/guidelines List Help .. http://www.ixda.org/help
