[qeorge]

Respectfully, I disagree. I'm in the same business as the author (web design / development consulting) and this rings true. Clients have tried to get us to sign all manner of ridiculous NDAs, and are constantly trying to buffalo us with threats of taking their business elsewhere, but I've yet to lose a sale because of refusing to sign an NDA.

We've been successful here though because we're very clear about what we are willing to sign NDAs about, and why. I will not sign an NDA to hear your cool idea because that could limit my opportunities going forward, but I will sign one that says I won't disclose your client roster or sensitive client data to an outsider.

VC's (for instance) won't sign NDAs because they don't want to be sued by spurned startups over something they "never" do (stealing ideas from pitches --- note: this is something several of them do). VC's get to not sign NDAs, because no VC will sign them, and they have all the money.

There's another facet at work here too: VCs won't sign an NDA to hear your pitch because you're providing absolutely no value to them, in exchange for something of great value (their ability to fund similar projects later). That's exactly the reason I won't sign an NDA just to have a meeting either.

Your point about the VC having all the leverage holds here as well. We like to say the VC is "the hot chick" in the situation. I think you'd find that in the design/development business there's a lot more "hot chicks" than you might think.

My advice is simple: get your lawyer to draft a generic NDA that you are comfortable signing, and offer that instead. Otherwise, if any contract makes you uncomfortable at all, don't sign it. You can jeopardize the entire future of your business, just to make that one sale.

[tptacek]

There's nothing wrong with offering up your own NDA. You'll usually lose if you're negotiating with a company with in-house legal, but for small gigs, that's a fine way to handle the problem.

There's also nothing wrong with refusing to sign an NDA in the early stages of a pitch, and I should have been clearer about that in my rant above.

As soon as you're offered access to a client's network, source code, or data, though, it's irresponsible for them not to have you NDA'd.

For what it's worth, it's true that there are landmined NDA's that are really IP agreements in sheep's clothing, and yeah you shouldn't sign those --- but for the most part, a standard NDA isn't going to limit what you can work on in the future; it's just going to keep you from disclosing anything sensitive and client-specific you learn at the client.

[qeorge]

For what it's worth, it's true that there are landmined NDA's that are really IP agreements in sheep's clothing, and yeah you shouldn't sign those --- but for the most part, a standard NDA isn't going to limit what you can work on in the future; it's just going to keep you from disclosing anything sensitive and client-specific you learn at the client.

That's what I was trying to say, but you put it much more succinctly. The main friction points we encounter involve what exactly is "client specific", as everyone likes to think their ideas are unique, which is rarely the case.

[tptacek]

I just looked at 4 NDAs we recently handled from megacorps, and all of them were very clear that the NDA covered:

* valuable or sensitive information

* that was disclosed by the client to the vendor

* that hadn't been publicly disclosed by anyone

* and hadn't been known to the vendor prior to the NDA

* and hadn't been disclosed to the vendor by someone else sans-NDA

That seems to me like extraordinary care not to be overbroad. These were megacorp boilerplate MNDA's, not something we had to negotiate.

Three of these NDA's, from totally different megacorps, used literally identical language to define "Confidential Information".

[qeorge]

That's a great list, and very similar to the language in our standard NDA. I have no problem signing an NDA with those terms.

We've never worked with a megacorp, so its nice to know they're handling this in a more professional manner than some of the folks I've encountered. An NDA is certainly a stupid thing to derail a business deal.

[Barnabas]

Great idea. But short of paying a lawyer $X thousands to make my own generic NDA, where can I get an NDA that I can counter-offer with as you suggest? Any suggestions for good off-the-shelf documents such as this that protect both parties? I'd be willing to pay a couple of hundred bucks for a set of good documents like this. I'm an independent web developer like many here and have signed my fair share of NDAs.

[qeorge]

It might not cost as much as you think to have a lawyer generate an NDA for you. We've had our lawyer generate 10 or so general contracts that we can modify to use in most situations, which I would recommend to any business owner.

Most lawyers have these already, and although they'll certainly charge you for the domain knowledge, you shouldn't have to pay hourly. You should be able to get a good, generic NDA for <= $500. NDAs are really simple, and usually pretty short.

I've never tried docstoc et. all, because part of the value for me is having a domain expert say "yes, this will cover your specific business needs."

One other thing: I've seen a number of companies providing their NDA on the contact / quote request page. I've been considering the same, as it might be a good way to head these uncomfortable conversations off at the pass.

Edit: this is a great place to barter as well. What you want from the lawyer is their expertise, not their time, and lawyers know the ROI a good website can bring them. I'm sure you know some lawyers, ask one of them if they'd be willing to barter a website in return for a set of documents. If you happen to be an SEO (I know, dirty word around here), offer that instead - one of my clients is an attorney, and the #2 Google ranking we helped him achieve yields thousands of dollars each month.

[mark_l_watson]

I have been an independent consultant for 12 years. I have a master services agreement/NDA that has slowly evolved over time, often adding something to get a gig.

Feel free to use mine (http://markwatson.com/consulting/nda.htm) but if you improve it, please share your changes back with me.

After just re-reading my own doc, it is probably too long. It used to be about half this length.

[tptacek]

You can get a boilerplate NDA from docstoc. LinkedIn lawyers (and maybe @grellas) will advise you to consult a lawyer, but, for what it's worth, the major concerns of articles about how "boilerplate NDA's aren't enough" seem to be issues for the client, not the vendor (ie, clients may want non-use in addition to non-disclosure, so you can't profit from their information privately).

[Angostura]

To be honest (and I'm in a similar IT consulting business as you) I agree that once you're working closely with the client, signing a NDA is standard. You want them to feel free to divulge the secret sauce of their business so that you can offer the best service.

HOWEVER, I frequently delete or amend small portions of the NDA before signing and explain to the client why I have done so. I've never had a problem so far.

[mark_l_watson]

You make a very good point: definitely cross out and initial parts of a customer's agreement that you are uncomfortable with.

Once I had the president of a company (new client) tell me how much he appreciated me haggling a bit. This guy was a lawyer and told me he was surprised by how often people just sign stuff. Anyway, his telling me this after the fact made me feel much better about haggling in the future.