Archive for the ‘Confidentiality’ Category

Dear Danielle: Why Would I Need a Confidentiality Agreement?

Dear Danielle:

I recently purchased your entire startup package for Administrative Consultants and I’m finding it so useful. Thank you. I do have a quick question regarding one of the forms: It’s the customizable confidentiality agreement. I can understand why a prospective client would expect me to sign a confidentiality agreement, but how do I explain to them that I need one as well? I read the contract, but I still don’t understand exactly what it is I’m asking them to hold in confidence. Can you break it down for me in clear, easy to understand language? This would go a long way in helping me to help my clients understand what I’m asking of them. —CA

If you’re new, you might not want or need to use it right now. You might not have developed your processes and programs to the extent that they become valuable intellectual capital. But eventually you will if you’re in business for any length of time.

Intellectual capital can be your unique processes, systems, tools,diagnostics… all kinds of things that you develop yourself, that make your service unique. Many businesses find it important to protect that intellectual property. When that’s the case, you want to make sure clients understand that any of the proprietary information, processes, tools, etc., that they become privy to through your work together are intellectual property that they may not share with others or coopt or adapt for their own use. And that’s because you have a right to keep those things private for use just with your own clients and not make them public information, and you have the right to earn money from those things however you see fit.

Here’s one example… let’s say you come up with your own signature database system that you use with clients. And say you allow clients the use of this while they are a client. Since this proprietary and original database is part of your intellectual property and proprietary systems, and are a part of what differentiates your service from others and adds to your unique value, you obviously do not want everyone to have access to it. The client also does not have the right to sell your system or make use of it for their own personal gain. They also don’t get to use it if they no longer are a client, if that’s what you deem. You, as the owner of the system, are the only one with the right to say who gets to use it, how, when, etc. It’s proprietary intellectual property that you alone own and control however you see fit.

This is why you would have them sign that kind of confidentiality/NDA agreement. It’s for the same reasons that they might ask you to sign one as well. You are both businesses with intellectual property and proprietary information. ;)

For more information on this topic, check out the Confidentiality topic category of my blog.

Dear Danielle: Should I Sign a Client’s Confidentiality Agreement?

Dear Danielle:

I finally have a new client (who has signed the retainer agreement I ordered from you and customized for my business–thank you!). However, the client emailed me wanting me to sign a confidentiality/non-disclosure agreement which the owner forgot to give me at our meeting. Would that be necessary to do? –ST

Having a client ask you to sign a confidentiality agreement is a normal, reasonable request. And here’s why:

When working with clients, especially in our line of work, we are often privy and have access to their intellectual property and other proprietary knowledge, processes and information. Naturally, they wouldn’t want you to be taking their intellectual capital and proprietary information and using it for your own benefit, making derivative use of it in your own business, or in any way sharing or disclosing it to others. So the idea behind a confidentiality/non-disclosure agreement is that you’re basically making a legal promise that you won’t do that and if you breach that promise, they can seek injunctive relief and damages against you.

The reverse can also be true. You might have intellectual property and proprietary processes and information that clients become privy to that you wouldn’t want them sharing with others or repurposing for their own benefit. If you have any intellectual capital or proprietary information you want to protect, you might have clients sign your own confidentiality/non-disclosure agreement before working together.

But, as with any kind of legally binding contract, you want to be sure you know what you are signing and not signing away any reasonable right or recourse or be held to any unreasonable standard or liability. One thing in particular you want to look out for is any language that talks about you not working for anyone else doing the work you do. This is usually associated with terms like “non-competition.” (You’ll see this kind of language especially if they are using a generic agreement like you get at OfficeDepot or the freebies you find on the Internet—very, very bad idea as those things are fraught with terrible legal languaging and loopholes that expose both sides to liability.) If that kind of language is in there, you want to ask them to take it out before you sign anything. You’re a business and no one has the right to expect you to not work with other clients doing the very thing you are in business to do.

Another thing I want to mention that I see all the time in our industry is this silliness about automatically providing clients with a confidentiality agreement. This is not your responsibility. That would be like a tenant providing the lease agreement to the landlord. Or a policyholder providing the insurance policy to the insurance company. The party with the confidential information at stake is the one who writes the instrument protecting and explaining the relationship, not the other way around.  So, if a client has IP they want to protect, it’s up to them to hire their own attorney and provide you with their own agreement. It’s not your job to do that for them and you could be creating more liability for yourself than is necessary.

And as the saying goes, I am not an attorney. This is not to be construed with legal advice, just my knowledge based on 14 years in business. I hope it helps, but when it comes to legal matters, you should always, always seek the advice and guidance of an attorney.

Dear Danielle: Client Wants Me to Provide a Non-Compete Agreement

Dear Danielle:

I have a new client who wants me to sign a non-compete agreement. Do you know where I can find one that will work? –SC

HALT!!! Sweetie, don’t do another thing until you read this post!

You NEVER, ever want to sign a non-compete agreement. You are a business owner and you are in business to work with more than one client. Signing a non-compete agreement, especially those poorly written generic ones that far too many people buy at their local office supply store (or worse, the freebies found on the Internet), could effectively and potentially put you out of business.

You ALWAYS want to consult with an attorney in legal matters like this, and never sign any agreement of this nature before you do (which, personally, I recommend you never do; it has no place between two independent business operators), and especially in cases where you don’t realize the legal ramifications and rights you may be signing away.

Now, your client may be talking about some kind of confidentiality/non-disclosure agreement (just using the wrong terminology), something to protect his or her proprietary business information and intellectual property that you may have access and become privy to while working together. That, of course, is perfectly reasonable. In fact, you may have your own proprietary information and trade secrets you want to protect and want to have clients sign your NDA as well.

However, it is not your role to provide legal documents of that nature to clients on their behalf. That is something every business owner must do themselves, consulting with their own attorneys. When they want to protect something in their business, they provide the documents to you. And vice versa.

In the case of subcontracting for colleagues, there are reasonable expectations that you are expected not to market to nor steal their clients. But there is specific language for that that an attorney can and should look over or provide so that you aren’t signing some kind of blanket non-compete that asks you not to do business in certain areas or do the work you do for a certain period of time. That’s what you do not want to be signing away or agreeing to as, again, you are a business.

This is an area of business law you need to bone up on if you are going to be a smart, responsible, knowledgeable business owner. And it’s an example of an area you may often need to educate clients in as well (when they ask you to do things that just aren’t your responsibility to do).

Hope that helps :)

Confidentiality Agreements Are Not Your Responsibility

Every so often I will get an email from a newer Administrative Consultant asking if I would add to our Success Store a confidentiality agreement intended to protect a client’s business interests.

I don’t have any plans to add this form to our store. The reason? Because it’s not any Administrative Consultant’s responsibility to provide legal services and agreements on the client’s behalf. You are only resonsible for taking care of your own business, just as clients are responsible for taking care of theirs.

If a client has business interests they want to protect through some form of non-disclosure or confidentiality agreement, it is their position, and their responsibility only, to seek out their own legal counsel and have any necessary documents drafted up to be presented to you or any other service provider.

I see a few reasons for this misguided thinking. For one, I see many new Virtual Assistants being given wrong advice by those who don’t have much legal understanding themselves. Really, you will do yourself a great service if you stick to seeking your legal counsel from attorneys–not other Administrative Consultants.

For another, I think many are simply confused. What they’re really trying to do is provide clients with what I call “comfort” terms to help instill trust and rapport. All you need in order to do that is a simple, authentically stated policy or values statement on your website (and maybe also a printable version) about your interests in maintaining client confidentiality and how you go about doing that in your practice.

Beyond that, you really don’t need to be taking on other business owners’ responsibilities nor signing more legally binding documents than you have to. If a client needs something more, let them present you with their agreement; not the other way around. It’s simply not your role to do so.