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Bidding on a Project Where You’re Required to Agree to an NDA
If you find a project where the client says you’ll be required to sign an NDA if your proposal is selected, I recommend proceeding normally during the bidding process. Sure, it would be more prudent to ask in advance to see the NDA so you can see before you bid if there’s anything in there that might be a problem. But most clients will consider such a request odd—few will agree, and many will just eliminate you from contention, feeling that you are paranoid, wasting their time, or just plain weird.
If your proposal is chosen, assuming you aren’t going to pay a lawyer to review, be sure you read it through yourself. You may not be an attorney, but you should still be able to assess if what you are being asked to sign is reasonable or not. Most NDAs are actually pretty short as contracts go, and they are usually not loaded to the hilt with the typical “legalese”.
If there’s anything in the NDA you aren’t sure about, ask the client for clarification. If there are any terms you take issue with, then ask the client if they can be revised. However, be prepared for pushback: most employers are used to freelancers just signing the NDA—sometimes without even reading it—and won’t want to spend the time to start negotiating terms. (Remember that company rules may require any changes to pass through their legal department, which can slow down a project and cost money.) In the end, you may be forced to either agree to sign something you don’t really like, or cancel the project. This is a judgment call that has to be based on the particular circumstances, but the good news is that these situations don’t arise often.
I’ve noticed a recent trend where some clients are now asking for NDAs to be signed before bidding even commences. In some cases, they want you to sign an NDA even to see the project description! vWorker, a site I generally commend for its innovative features and policies, is a prime offender in this regard. They have a specific feature that makes it trivially easy for a client to specify that an NDA must be downloaded and signed before you can learn anything more about a project than its title and maybe budget. The site does warn clients that freelancers don’t like this, but I still wish they wouldn’t have implemented the feature at all.
As I said above, I understand the need for clients to protect their proprietary information, even to the point where freelancers who agree to do work sign agreements they won’t have reviewed by a legal professional. But I think asking people to sign NDAs before they even know what a project is about is pushing the balance of risk too far against contractors. Frankly, I think it’s ridiculous.
Of course, as with NDAs on accepted projects, it’s up to you to decide what you feel is acceptable. But bear in mind that you will read and bid on a lot more projects than you’ll actually do. An NDA is a legal obligation: how many of them do you want to have out there with your signature on them? Personally, if I see a project with an NDA download instead of a project description, I skip it automatically. But you can choose for yourself.
There’s another reason why I avoid these as well: it helps me filter out some of the “Zuckerberg-wannabe” clients out there. By this I mean those people who have vague ideas about some fantastic web site or other concept that is going to be the next Facebook. They are so sure that their idea is going to make them a billionaire that they cannot even consider discussing it with you unless you sign an NDA first.
Every time I have encountered a project with a client like this, not only was the idea not the “next Facebook”, it wasn’t even very good at all. In fact, sometimes the idea itself was incredibly generic: just a thought or two about a website or technology. Yet since I had signed an NDA, I now had to worry about not divulging this “trade secret” that could be so vague as to apply to a lot of different existing business processes. The same thing occurs with people hiring writers, who end up dealing with clients who have “amazing” ideas that aren’t. Yet if the writer agrees to an NDA, he or she has to worry about legal action if at any time in the future that client decides that the “secret was divulged”. After having this happen once or twice, I decided it was better to just avoid the whole mess.
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Last Site Update: February 1, 2012
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