I got an e-mail from a prospective client yesterday. Our exchanges have gone smoothly so far expect for the fact that he wants me to sign an NDA/NCA. I perfectly understand the need for an NDA, but not the NCA. I am a freelancer so I'm worried that signing an NCA would prevent me from working with similar clients in the future. I am a freelance copywriter after all and I work with different clients. Can anyone help me around here? I'm not really sure what I should do. Thanks in advance!
Most often, the non-competes are just security blankets and are very hard to prove- unless you open up a shop using the exact same product/ service as your client. Read the agreement and make sure it doesn't exclude freelancing for similar clients. It is not unheard of to ask for an editable copy. You could then modify it to allow for freelancing. Make sure they sign your modified version- there are no gentlemen's agreements when it comes to this Having worked with Holland and Knight as well as several law firms in PA on these types of agreements (I had them designed for a financial firm I worked with), I'd be more than happy to take a look and suggest some edits.
Agreed - definitely try to get an edited version that doesn't interfere with your freelancing. Depending where you are, also make sure that agreement is actually legal. In the US for example, a client working with independent contractors can't legally do certain things that would limit your ability to work for other clients (in other words, they can't legally treat you more like an employee than an actual contractor). If you're worried the agreement crosses the line, definitely have a lawyer look it over before signing, or don't sign it at all (personally, I do sign NDAs fairly frequently, but a non-compete would have to be extremely specific for me to even consider signing it - at the moment, I can't even think of a situation that would convince me to sign one).
Thanks for the inputs. YL: Thanks. I will have a look at it first. If everything's fine then we'll move forward, but the client might be alright with edits. And thanks in advance for whatever suggestions you can give me. Jenn: I'm actually confused about how it will work since we live in different countries. And while I'm perfectly fine with NDAs since I know where business owners are coming from, NCAs are a different matter. They're much harder to define as I see it.
I second the above. Just make sure the "wording" does not hold you back as far as future projects are concerned.
For your protection, if you sign an NCA it should be very clearly written. I am not sure why someone even expects an NCA from a freelancer unless it is in a very very narrow niche (such as hotels in Barcelona). I have included a clause in contracts that requires the writer to agree not to write another article on the exact same topic. I don't think it is unreasonable, if someone pays you to write an article on "What to See at the Tower of London," that he does not expect you to write a slightly different version for a competitor a week later. On the other hand, it is very unreasonable for him to ask you not to write other articles on London tourism.
I'm with Jenn on this one, I personally wouldn't sign an NCA unless it was very specific, right down to the keywords and subject matter. Of course I don't operate a website that competes with my clients either. I work in a tight niche already, for example Barcelona Hotels, but my clients have to understand that I'm a freelancer, I give each client 100%, but the next client is very likely in the same niche. My writing style varies from project to project in accordance with the client objectives, and every article I write is unique so the unnecessary requirement for an NCA would seem harsh and restrictive. If you're in the same position, remind your client that you write unique copyscape passed articles for them, and that is the end of your involvement. It is up to them to promote their pages and out rank their competition, and if their competition choose to fight back by employing a freelancer to write articles with the same keywords, well that's what the free market is all about.
I wouldn't even consider signing one if it were a specific and narrow niche - no specialist in their right mind would. When you specialize, you already work with narrow subject matter, and signing NCAs regarding specific article topics would eventually put them out of business. Some article topics are naturally more in demand in a niche than others, because they monetize well or draw a lot of traffic. Eliminating those topics directly impedes their ability to run their business. A professional writer will have no problem covering the same topic in two very different ways, and they should never put themselves in a position where they're hurting their own growth - if clients come to a freelancer knowing they're a specialist, then they better do so being well aware of the fact that they will probably write very similar content for other people - even if specializing in something like hotels in Barcelona.
This is a question of money, in my opinion. If somebody is able to pay enough then there is no problem to sign NCA. The more money the longer time may be covered by the NCA.
Money should have no effect whatsoever. A major part of the freelancing life is the freedom it affords - you shouldn't give up your ability to target clients within your specialty area unless someone's willing to pay you a full-time salary (as in taking on all responsibilities of an employer). When you're ready to give up freelancing for FT employment, an NCA is more commonplace. In the meantime, when you work as a freelancer, your clients are paying for your time - who you choose to work with during the rest of your time is up to you. Agreeing not to share their trade secrets or other confidential information with other clients is one thing. Limiting your ability to run your business is something entirely unnecessary.
I completely agree with you and in my 40+ years as a professional writer, I have never encountered a non-competition clause in any contract that I was asked to sign by a client. I would have refused and x'd it out of any contract if I had been presented with one and my feeling is that the NCA in question here presents a red stop-flag that needs further investigation before proceeding any further. Trade secrets and proprietary information, if known, can and should be protected in a contract with a writer. But I believe NCA's are irrelevant, immaterial, inappropriate, and should be inapplicable in the writing profession.
I'm wondering if this is a new thing coming through because of general financial unrest and uncertaintly; that is, someone thought adding non-competition would be a good idea as a future safeguard without any specific intent at present. Not to say this this makes it any better, but wondering if we might be seeing more of it? Really not sure on this, but just thinking aloud this might be a development of a cautious market ?
I doubt it. Sounds more like a simple case of a paranoid buyer. They've existed forever, and they'll pop up here and there no matter what the economy is like.
Keep your rights! Once you explain your position, very few companies will try to prevent you from running your business. If they insist on limiting your ability to run your business, walk, and take your typewriter with you.
Thanks homeworkin. But lugging around a typewriter's bad for my back so I prefer to use a laptop nowadays. Anyhoo, the deal didn't work out which is all good.