Over the years, I’ve worked with, or spoken about working with, a number of clients that have required signing a nondisclosure agreement. Some are established organizations, while others are founders within Chicago’s startup community. In the last six months, however, there seems to have been a shift in the tone of many NDAs.
Like many legal documents, the NDA is slanted to the benefit of the client. I get that; it’s always been this way. Recently, though, it feels like the benefits to the client are so one-sided as to be of no benefit to me and the studio.
So going forward I’ve decided to share the studio’s new policy on nondisclosure agreements: Your NDA will most likely not be signed.
Now I’m not naive enough to say “will never be signed”, because I know, and have been in, certain situations where it is perfectly acceptable to agree to nondisclosure terms. Most of those situations involve working with licensed properties, working in (established) competitive product markets, Clients that have proprietary technology systems, and businesses that utilize and have developed their own trade secrets.
And don’t get me wrong: I absolutely understand why you have an NDA. I do. But some simply have unacceptable terms. Including:
-Never disclosing the work done for, or displaying who a client is.
What were the first things you asked me? “Who do you work for?”, Can you tell me more about what you do?”, “Can I see some samples of your work?”. Part of the tool kit I use to generate new clients, and income, is being able to explain the work I do by displaying previous work and being able to discuss the process, issues, and revelations, that lead to the presented solution, just as I did with you when we first met. If I’m unable to do that I have nothing tangible to show that supports my presented solutions.
-Signing an NDA to protect a client’s “Idea”.
Ideas, by themselves, are worthless. Yes, even yours. (No offense.) The value of an idea only comes into fruition based on the execution of that idea. Just look at all the similar businesses that exist in the same space. For example the options for errand running services: TaskRabbit, Zaarly, Blastboard, and countless other variations. They all provide essentially the same service, but each are executed in different ways. The idea isn’t what’s novel. It’s your execution that makes the difference.
-Asking for a NDA prior to even speaking to a client/Signing an NDA as an act of “good faith”.
It may be implied as a sign of good faith, but I see it as the first sign of distrust. Client relationships must be built on trust and respect. If you don’t trust me, then how can we work together? I want you to understand that the entire professional reputation of any service provider — studio or individual — is one based on trust. If I were to go around discussing my clients and their secrets, I can guarantee that I would be out of business.
So those are stipulations I will absolutely no longer be agreeing to. In addition to those, there are a number of other reasons to not agree to an NDA. Why?
-It puts all the obligation on me and none on the client.
I have to take precaution and make sure I never share what is revealed or I’m (potentially) liable. But where’s the client’s obligation to me and the information that I provide?
-I’m not signing a legal document without a lawyer.
No fucking way. Period. NDA’s are legally binding contracts, often covering a wide number of situations, and written by a lawyer. So shouldn’t I have one read it? You disagree? Then we won’t be working together.
-The biggest value to your project I could offer is that I would talk about it.
I completely agree with Anil Dash on this one. If I’m silenced by an NDA and I meet a great investor/sponsor/partner for the project, I wouldn’t be able to tell them about it.
As a service provider I do understand that there are levels of confidentiality that go along with the job so in the name of transparency here is how gruntmonkey handles those confidential situations outside of those already listed acceptable situations.
1) Conversations with clients are held in confidence unless permission is granted to share for the sake of the project.
2) Final Deliverables produced are held in confidence until the client releases the project to the public.
3) Once the Final Deliverables have been released by the client to the public the studio retains the right to display/share/write about/discuss the work as outlined in the studio’s Terms of Agreement.
If you are at a stage where revealing an idea could be damaging to its success, then only disclose that information to those whom you know and trust. Ideas traditionally gain value from cross-pollination, and this only comes when they are talked about.
But the fundamental issue is this: if we don’t have a basic level of mutual trust and respect, then we shouldn’t be working together at all. I’m ok with that.
What about you?