# Contract Confidentiality



## Lawn Lad (Feb 4, 2002)

Does anyone put a notice of confidentiality on their contracts? Not that you can't keep someone from sharing it with others, but in essence you're sharing proprietary information with a prospective customer by giving them your contract. I would think that a confidentiality statement would at least put customers on notice that their may be consequences if they do hand out copies of your contracts to other contractors when shopping you around. 

I haven't had this happen to me, and I know it would be tough to stop... but what do you think of the idea?


----------



## Mike Nelson (May 18, 2001)

Doug,

That is a great idea. Haven't thought about that till I read this and you are sooo right. 

Thanks


----------



## wyldman (Jan 18, 2001)

It would be a good idea,but hard to enforce.It may make a few think twice though.You've got nothing to lose by doing it.

I will usually ask for to see their previous contract or bid specs when quoting to point out all the mistake or liabilities.They usually don't have problem producing it.


----------



## Lawn Lad (Feb 4, 2002)

That's just it... I ask to see the previous contract and get as much information as I can. I know how invaluable this is to me. I'm just trying to prevent my contract from getting out there. Kinda hypocritical in some ways... but business is business. The worst is that they say no to seeing their past contract and then show yours around.


----------



## wyldman (Jan 18, 2001)

Your right,it is hypocritical.I have never had a problem with anyone showing others our bids or proposals,but it would be nice if we could keep the actual contracts private.


----------



## JD PLOWER (May 18, 2001)

LL its strange that you posted this. I had a sub of mine call me last year saying he was contacted by a property that he plowed for me :angry: . He told me "They showed me your contract, in fact they gave me a copy :realmad: . He's a stand up guy and said he'wouldn't even consider bidding it (the non compete may have had something to do with that) but he just thought I should know. So now I realize my contract went out to most of the contractors in my area. Them knowing my prices doesn't really bother me, its the details of things like a liability clause that has taken me years to put together that bothers me! I talked to a lawyer about this and he said unless its copyrighted material you really can't prevent that. He did mention something along the lines of what your talking about, intimidating the owner into thinking he'll have consequences in divulging your material. If anyone has any ideas I'm all ears  .

Edit: I just realize the proposal I dropped off this morning might be going to the next guy they call


----------



## Lawn Lad (Feb 4, 2002)

I guess I'm not alone in what I'm thinking. And I guess we all realize that it's tough to enforce.

I'm wondering what kind of wording I'd use.

Confidentiality Agreement:
"By accepting this contract, the Owner or the Agent on behalf of the Owner accepts the following Confidentiality Agreement. The contents of this Agreement (Terms & Conditions) are considered confidential and is considered the sole property of XX Company. This Agreement is considered proprietary information and is intended only for the purpose of extending an offer for services to be performed on the Owner's behalf. At no time prior to, during or after the term of the contract has expired, may the Owner, employees, subcontractors, agents, or customers of the Company, copy, print, distribute, or disseminate any of the contents contained in this Agreement to any individual not employed by the Company and specifcially engaged in the administration of this Agreement on the Company's behalf, no matter if the contract is signed and accepted or rejected by the Owner or Agent of the Owner." 

An additional thought could be added if you didn't want to protect pricing, since that's why Owners share contracts - 

"Schedule A (Pricing) is not covered under the Confidentiality Agreement, and may, at the discretion of the Owner, be used in any manner they see fit."

How about another way of saying it without so many words? Anyone else have sample phrases/terms they've used for this scenario?


----------



## wyldman (Jan 18, 2001)

That is a great way to word it.I also agree it would be nice to break it into two parts,so they can show others your bids and pricing.I still don't think it would hold up though,who's going to know if they showed it to someone else.


----------



## JD PLOWER (May 18, 2001)

LL that is a well thought out paragraph but one thing I've learned is you need to have a clear penalty that the owner agrees to pay, should they violate the agreement. Then you get into what Wyldman posted about how do you enforce this? I just happened to get lucky when I heard about my problem.


----------



## Lawn Lad (Feb 4, 2002)

The problem is that by defining a penalty to the customer - you're really going to set them back. I agree that there is little to no enforcement here. All you've really done is state your expectations.

If you did put in a penalty clause what customer would want to accept your contract for fear of being tagged with that down the road if some employee inadvertently violates it? Is the customer with a $100 per occurence price going to be discouraged by reading it? What about the customer who you're signing a $100,000 contract with? Perhaps the confidentiality agreement would be best suited for larger contracts. Although, regardless of the size of the contract, the contract will be the same or very similar and is just as worth protecting when writing a $100 contract or a $100,000 contract. 

How does one copyright? Someone told me that all you need to do is put the copyright symbol on your text with the year. Is this accurate? I know registering or getting a trademark is different. But a copyright I think is something that you can place on your text?


----------



## Mick (May 19, 2001)

> _Originally posted by Lawn Lad _
> * Someone told me that all you need to do is put the copyright symbol on your text with the year. Is this accurate? *


Not quite - http://www.copyright.gov/title17/


----------



## Lawn Lad (Feb 4, 2002)

Ooof, thanks Mick. I guess I'll have some reading to do. Thanks for the link.


----------



## Ohiosnow (Sep 20, 2001)

*Lawn Lad*



> Does anyone put a notice of confidentiality on their contracts?


I've had it in my contracts for almost 15 yrs.  I had my attorney add it in after I had my contracts handed out to some other guys :realmad:

I spent my hard earned money on attorney fees & then they copied my contract word for word  plus then they undercut my pricing.



> The problem is that by defining a penalty to the customer -


I leave $$$$$$$$$$$$$$$ up to the courts to handle, most don't want to go to court.  I've only had it happen 1 time since then & the owner sign a 10 yr. contract at his request so as not to go to court.

BTW: I still have the contract with him But now it's just a 5 yrs. at a time.

Almost all the guys in my area all know each others pricing so now it's just about the how& when, how long, how much salt ect.


----------



## micah79 (Aug 31, 2003)

About the copyright. Getting a copyright is a complicated process that involves $$$. It is not so easy, and is probably not worth doing for a plowing contract.


----------



## Lawn Lad (Feb 4, 2002)

I haven't read through the copyright stuff that Mick was kind enough to post.

I'm assuming copyrighting material is different for different things. For instance, periodicals such as magazines and newspapers are copyrighted. So are photographs by professional photographers. These are things you can't copy at Kinkos. Websites all have copyright written at the bottom of the pages. 

Since it's not practical to assume that daily newspapers, magazines, photographs, etc. go through a complicated or expensive copyright process, what makes it so difficult to copyright a snow plow contract? 

I guess I'll have to research it some more since I can't believe it's that complicated.


----------



## micah79 (Aug 31, 2003)

Its not that difficult if you are willing to pay the money to have it filed for you. Its just that from experience, that I kinow that the US copyright office is not a pleasure to do business with. Long waits, red tape.... Newpspapers and magazines have an umbrella type copyright setup. Their way of doing it is way different then it would be for one of us to just go and get something copyrighted.


----------



## Lawn Lad (Feb 4, 2002)

What about websites? My website person put copyright on ours and I didn't file any paperwork. I own the site and the design, even though they did the work. I see every other site with copyright marks on it. 

I understand what you're saying about the umbrella type, which makes sense. I wonder if websites operate similarly.


----------



## micah79 (Aug 31, 2003)

My website hosting company, charges a fee if I want my site copyrighted. I was assuming that they would handle the red tape since they are charging a fee. I'll do some research, on the web stuff, because I want to get my site www.brightonservices.com copyrighted I designed it and maintain it myself, but I do nothave redundant high speed servers with high bandwidth to do a professional hosting job. I run personal site for fun off of my server at home through my cable modem, but it is not reliable enough for a business site. I oay $13/month for the hosting, so I am happy.

p.s. trademarks are also a hassle. I am in the process of getting my logo trademarked and it isn't very fun.. I've been waiting a while and have already sent in over $200 and I'm not done yet.


----------



## murphy4trees (Sep 22, 2003)

In order for a contract to be valid there has to be "consideration"... that is usually $$$$... So the contract is valid for services because the consideration is spelled out... However, what is the consideration for keeping the contents confidential... Unless that is specified I doubt confidentiality would hold up in court... Though that may be less important than actually making it clear to the potential client that you expect confidentiality.
AS far as copyrights go.... If you wrote it, you own it... Years ago it was necessary to put a liitle "c 2003 Daniel Murphy" on the writing, but that is no longer needed..... However, there is a big difference between OWNING a copyright and REGISTERING a copyright.... I believ the copyright is not enforceable until it is registerred... And registration is no big deal.... Go to the library and get a book on copyright... Whereas trademarks are much more complicated to register...


----------



## micah79 (Aug 31, 2003)

You don't have to have seperate consideration for confidentiality. The confidentiality clause is part of the contract. If the contract has consideration, then its contents are also binding, providing they do not break the law. Are you saying that you would need seperate consideration for a limitation of liability clause as well....Or what about a payment schedule. All contents of the contract are considered part of the contract if it is properly written. No need for additional consideration. You need a copyright in order to bring suit if your document is reproduced without your permission. If you don't hold the copyright, then you can't legally prevent someone else from using it, or bring suit for damages.


----------



## Rooster (Dec 13, 1999)

If you buy public domain bid sheets (for example) then you fill out your prices conditions etc. then you have copy right. Kinda of like a photographer, has copy right to his pictures not kodak if he uses kodak paper.

Rick


----------



## micah79 (Aug 31, 2003)

I was reading some stuff on the us copyright office's web site and it appears that business contracts do not fall in the same category as a photographer, or school teacher. They list documents that are automatically considered to be copyrighted by the creator, and business copyrights weren't on the list. I'm not saying that the form maker would hold the copyright. Just that nobody would hold a copyright.


----------



## Rooster (Dec 13, 1999)

hmm.... Okay, I thought different.

Thanks for the update!

Rick


----------



## micah79 (Aug 31, 2003)

I'm not an expert though. I just got done taking a business law class and I have been doing some reading. I will let you know if I am wrong. I'm going to check into this copyright thing further tomorrow. I am starting to get really curious.


----------



## SnowProGRES (Sep 7, 2003)

I dont know how the commercial business operates out where all you kind gentlemen are but in my experience any customer out here who spends more than 10k annually on snow plowing will make you sign their contract. That renderes the argument purely academic, for me anyway.

I have also have spent a good deal of time drafting contracts that contain various clasues designed to protect me from liability and whatnot but when it comes down to the big money, the customer names the game and usually its a "Hold Harmless" clause....:crying:


----------



## micah79 (Aug 31, 2003)




----------



## micah79 (Aug 31, 2003)

Are you talking about making good money or losing good money. Remember that if they pickle you in a bad contract and you lose a big suit, then 10k will be the least of your worries. I'm talking 100,000k to1,000,000 lawsuits. So before you rip on our contracts and talk like you are big time, just consider that playing it safe with a contract does not mean that we don't know how to do business. Maybe I'm taking you the wrong way. In this case I am sorry. I just thought we were having an intelligent conversation about this, and I didn't take kindly to your post.


----------



## SnowProGRES (Sep 7, 2003)

hey micah i understand your reply, mine was not meant to offend simply a realistic observation of the situation here. everything that i have under 10k is a very thoughly written contract that is designed to protect me. Its just that the walmarts of the world arent interested in protecting us.


----------



## JustUsDe (Aug 14, 2003)

The only reason a large account can make a Snow Management Company sign their contract is because they found unprofessional suckers who are willing to sign their no harm clause in the past. If everyone acted like a professional and refused to sign their life away they no longer would have the harness. I will not sign a contract for any amount if i'm not comfortable with it. People who do are the ones that make it rough for the rest and will be the first to cry when the take a big lose. Just my 2cents

Ray


----------



## micah79 (Aug 31, 2003)

I agree Ray, The only contract that gets signed when I do business is mine. To tell you the truth, I might lose out on some of the big stuff. But, I want to be able to sleep at night....not worrying about how I am gonna get sued the next day.


----------



## SnowProGRES (Sep 7, 2003)

well like i said, it may be determined by the business climate in your respective areas. I have done alot o customer shopping around here and all the big developors use a hold harmless. I would wager a fair amount that SMG uses a hold harmless as well. (i dont know for sure but now youve got me wanting to look into it)


----------



## JustUsDe (Aug 14, 2003)

> _Originally posted by SnowProGRES _
> *well like i said, it may be determined by the business climate in your respective areas. I have done alot o customer shopping around here and all the big developors use a hold harmless. I would wager a fair amount that SMG uses a hold harmless as well. (i dont know for sure but now youve got me wanting to look into it) *


It doesn't't matter what area you are from if all the plowers in that area refuse to sign such a contract they would be forced to rethink their contract or shovel the snow their selves. Thats how standards of practice are set.

Ray


----------



## Lawn Lad (Feb 4, 2002)

The other thing you can do is hand write in your own addition or change in the contract and send it back. If they accept, great. If they turn it down because you removed their hold harmless clause or added "only if found negligible" or something similar, than oh well, you didn't get the job. 

Everyone has an attorney who's job is to protect their client from risk as much as possible. Hopefully you can negotiate a hold harmless clause that says the contractor is liable if found negligible. If they are reasonable, they should accept the change since it is unreasonable to assume that the contractor will accept any and all claims to be their responsibility no matter where they arrise from. 

It is critical when you're talking about negligence that the "Scope of Services" be defined explicitly for the project. 

One job I just bid, on their specs they said "No salt will be required at any location at any time". I still gave them a price for salting, in case I get a call from them looking for salt after an ice storm, or the like. But, I took their statement and included it in the Scope of Services to read "Owner has specified that ice control applications are not required. Applications will only be made if requested in writing by John Doe (President) sent by either email or fax. If ice control service is requested, Owner understands that service may be delayed until Contractor has availability."

Now, if the quesiton ever arrises that we, the Contractor, were negligent in our actions for not maintaining a safe winter environment, we have mitigated our liability because it was specifically the Owners request to not have salting service. 

It's very important to define the scope of services in detail so that you reduce the amount of grey area that allows the legal system to pick you apart.


----------



## IA snoman (Aug 31, 2003)

Hey JD plower, have you or anybody had a sub or sub-contractor violate a no complete clause. What was done to settle the occurance?


----------



## Plow Babe (Feb 4, 2003)

Well here's a little different slant on the situation, one that we never saw coming (live and learn). 

We were contacted to give a bid for a new residential area around a golf course. There are quite a few "Private Road, No Town Maintenance" short little roads, that will have several houses with driveways coming off this shared private road. It is a new area, with only about 30 homes actually built so far. The Director of Golf Course Maintenance is who requested the bid, but he had no specifications, not much of a map, etc., for us to work with. We spent A LOT of time driving the area, mapping out where the private roads were, trying to figure out how many home sites would share each of those roads, etc., and coming up with a price. He wanted something that they could include in the homeowners' monthly dues that would cover all the plowing. It was a royal pain to come up with, but the potential for a nice chunk of work was there, with future growth as more homes are built, eventually over 100. Well, after all was said and done, he called us back and said that the Homeowner's Board had decided not to do anything, and just let each homeowner deal with it on their own. So I prepared a direct mailing and sent it out to the people who had homes already built. Then, the other day, I am in the area dropping off a bid. The people were not home and had asked me to just leave it in the door. So I am doing this, and find a flier already in the door, advertising snow removal especially for this area, with prices just under what our bid had been, and guess who this flier was from? THE DIRECTOR OF GOLF COURSE MAINTENANCE :realmad: 

The second situation was similar. We were contacted by a local landscaping company (not a snow contractor) to submit a bid to them as a subcontractor on a large commercial property they were bidding on. It was going out to bid to a few different national vendors, and had to be a package bid including all outside maintenance. So this landscape company was collecting bids for sweeping, striping, and snow removal, to submit along with their landscaping bid in one package. Well, the saga went on all summer, and the customer finally awarded the contract to a different national vendor. At that time, we were successful in securing the sweeping contract, and have been jumping through their hoops for the past month in submitting a snow removal bid. Then, I found out yesterday that the snow removal contract was awarded to the landscape company, who up until now has not done snow removal, and who just happened to have all our pricing information, and underbid us. :realmad: 

I guess when it is a direct competitor, we are not surprised at bid shopping and undercutting, but now we have to wonder about the person requesting the bid, and if they are going to suddenly decide to go into the business themselves, using all the information we so readily supplied!


----------



## chtucker (Sep 6, 2002)

That sucks Karen. I have had it here in small town to. I bid on the hospital, who had been doing it internally up until now. Only after I have been pushing for this for almost a year does the Physical plant guy decide to "Get other bids (friends of his)" I was lucky that no one wanted to even bid on the job... (leadville laziness I guess).

It hopefully will be a very profitable account, but the contracted season is from 10/15 till 5/15 and I am "on call" for flight for life operations. Plowing starts at 1" too.

If a national company gets the job, are they then going to look for sub contractors? I don't believe they would set up shop for just one or two accounts?

Howard


----------



## Plow Babe (Feb 4, 2003)

Without naming names, the customer is a corporate chain, and the national vendor got the contract on all their stores nationwide first, and then had to actually hire the various subcontractors for each location. This is actually another whole topic which has been discussed here. So far with the sweeping our experience with the national vendor has been good, although the whole bidding process was a little frenzied and confusing. The contact person I have been dealing with has been great, but I am reserving final judgment on them until I have a check in hand.


----------



## chtucker (Sep 6, 2002)

Karen... I opened my mouth too soon...

:realmad:

This the email I got last week about confirming snowplowing for the hospital.... Now the Physical plant guy is saying "there might be some others interested"

Howard,

I met with Ric this morning and we are ready to sign an agreement for snowplowing. Ric should be in contact with you soon.

Thanks,
Larry E. Leaming, FACHE [email protected] 
Chief Executive Officer

UUUUGGGGHHH
 :realmad:


----------

