It's been over a dozen years since anyone has requested that I sign an NDA. My previous clients have never requested one. I understand a company asking a writer to sign one but I am concerned about several of the passages. I am wondering if these are common clauses or something I need to be concerned about. The first section relates to what is classified as "proprietary information" and is follows... I removed the name of the industry for this post. The pieces in red are the things I am concerned about. How broadly can "website concepts" be defined? Does anyone know what is meant by "hedging policies"? Sounds like an investing term. The site I will be writing for has nothing to do with investing. If I work with other clients in the same industry, it stands to reason that I come to the table with a certain degree of "trade secrets and know-how". What's to keep the client from claiming that they told me something when I already knew it from my work in the field? It also asks me to agree that I will "implement and maintain appropriate safeguards for all customer information received by the Disclosing Party, as required by the Gramm-Leach-Bliley Act." The GLB Act, according to Wikipedia relates to business conducted between financial institutions. (http://en.wikipedia.org/wiki/Gramm-Leach-Bliley_Act) My client is not a financial institution and I do not see how this possibly relates. I realize that this is not a legal forum but I am trying to find out if this is a somewhat standard/boilerplate NDA or if it was specifically written for or by my client. I would like to work with these folks and this will be a larger project but it is not worth limiting my own endeavors or risking my ability to work with other clients in the same industry. I do plan on talking to them about my concerns but I also am hoping to determine if I am simply picking things apart too much and whether or not these are standard clauses in a modern NDA before I approach them.
I've not seen an NDA with this type of wording even IN the financial industry. As for the hedging- any strategy you have in place to protect against a downside risk would be considered a hedge. In this case, I would say that maybe they have certain policies that go into effect when they begin to have slower sales or fewer clients and those policies would be considered their hedging strategy. They may feel these policies are proprietary...actually, they obviously feel that way
Interesting. I had hoped you would be one of the folks to comment on this because of your finance expertise. Based on what I already know of their business and what you have said, the hedge inclusion makes even less sense.
The trade secret part is fairly normal. Unless the post above covered the hedging part I agree with you and am clueless. Website concepts as it applies to their particular needs would be fair but it is rather undefined in this statement.
That is too weird. Maybe they stole it from a financial firm? Here is some more info on GLB from: http://www.ftc.gov/privacy/privacyinitiatives/glbact.html It's a little broader than I thought, but still pretty financially related. If they take customer credit card info through their site, that may explain it: "The GLB Act gives authority to eight federal agencies and the states to administer and enforce the Financial Privacy Rule and the Safeguards Rule. These two regulations apply to "financial institutions," which include not only banks, securities firms, and insurance companies, but also companies providing many other types of financial products and services to consumers. Among these services are lending, brokering or servicing any type of consumer loan, transferring or safeguarding money, preparing individual tax returns, providing financial advice or credit counseling, providing residential real estate settlement services, collecting consumer debts and an array of other activities. Such non-traditional "financial institutions" are regulated by the FTC."
Hmm, based on the passage you quoted it might impact them after all. I doubt that I would ever need to come in contact with their client information and it would seem irrelevant to what I would be doing. Part of what makes me bristle a bit about this is that we never discussed it until after they purchased a sample piece and upon receipt and acceptance of that piece brought up signing an NDA.
Is this a two-way NDA or one-way? I would pick out specifics like you have already done and discuss this matter with the client. It's clear that some of what's considered to be proprietary information is not relevant to what you and your client will be sharing. Also, with regards to trade secrets, I would pay careful attention to the governing law, which is specific at the state level (if in the U.S.). Pay careful attention to State of Georgia (Georgia Trade Secrets Act). Found an article which might help at high-level... http://www.bizjournals.com/atlanta/stories/2004/11/29/smallb2.html ** Please note that I'm not a lawyer **
It would seem to be primarily one-way. The only responsibility that I can find for them is that they agree if anything they provide has not been lawfully obtained that they will be responsible for any damages awarded to a third party owner of that material. Would you happen to know if Kentucky has any similar laws to Georgia's? Kentucky would be the governing law in this case.
Do they have a terms on not disclose that you have signed the NDA too. it's seem they try to cover everything.
NDA's typically state the specifics and the catch all is the 'including, but not limited to A, B, C, etc..." language.
I would assume that they will try to define the terms as broadly as possible if the relationship breaks down and they are suing you and go from there. If you're worried about something, it's probably best to get it worked out in writing in the agreement, although depending on your relationship that's not always possible.