[Sigia-l] NDA Contract Clause

[Tal Herman]

Dan Saffer asked if:

"Anyone recall[ed] the wording of a clause that you could propose as an
amendment to a non-disclosure agreement to allow the use of
corporate/proprietary materials in your personal portfolio?"

This is an issue that should never arise in the context of a pure
non-disclosure agreement.  Non-disclosure agreements, or such provisions as
a sub-part of a larger service agreement, should be kept logically separate
from all other contract provisions because the parties' obligations under
the NDA must be absolutely clear and unambiguous. Additionally, an NDA is
not a contract to produce work, it is a contract limiting information
disclosure rights of one or more parties to the agreement.  NDAs are
generally entered into initially during the course of preliminary
discussions between contracting parties so that neither party will feel
constrained about what they can mention during the meetings.  Such
agreements are also often a sub-part of a larger service agreement once
negotiations are included and a project has been initiated.

The variations on the NDA theme usually take place along a number of
different axes, such as degree of mutuality (from both restricted to only
one party restricted), duration of the confidentiality restriction (from
forever to very short time periods), methods for specifying confidential
information (from written identifications to everything assumed to be
confidential unless specified otherwise).  When I have negotatiated these
agreements in the past, I always try to make sure that they are mutual, that
is both parties are subject to the provisions, that the duration is
reasonable (no more than three years), and that all information is assumed
to be confidential unless otherwise specified.  I also like to make sure
that trade secret information is specifically covered in the agreement
(without a duration restriction).

Promotional use clauses in service agreements, however, are not unusual.  We
always start out with the following clause in our service agreements:

"Use of Work Product. ___________ is authorized, during the term of this
Agreement and thereafter, to use any work product prepared for Client
hereunder for its promotional purposes, including use on ___________ 's web
site or in press releases. Such promotional use is solely for the purpose of
___________ demonstrating its work, experience and capabilities to its
then-current or prospective clients."

Sometimes, we've had to modify or give this up with particular clients.  For
example, we did some work with one company a while back and for a number of
reasons not important here we were not permitted to say anything other than
we had done some work for them.  It's also sometimes the case that the
client wants to have approval rights before you use their name and/or any of
their brand graphics in any promotional materials, particularly if they're
really brand conscious.  And sometimes, the work itself is confidential and
can't be revealed.  We always try to get a little more money if we can't use
the work as part of our promotional material since that's one of the
benefits of doing the job.

Tal

tal herman||||||||||||||||||||||||||||||||||||
therman-at-seralat.com||http://www.seralat.com
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