Unpacking Non-Disclosure Agreements
There’s nothing secret about the increasing prevalence of non-disclosure agreements (NDAs) on many, if not most, of today’s most elaborate watershaping projects. More and more, designers and builders are being asked, if not forced, to sign these documents that in many cases prohibit sharing any type of information about the project.
By Paolo Benedetti
When it comes to non-disclosure agreements, most of us willingly sign on the proverbial dotted line because we’re interested in being part of the project, given that’s how we earn a living. The problem is that as NDAs become more and more common, our best work, in effect, falls into a black hole of secrecy where it will never see the light of day.
NDAs have become very common across all types of construction, and many other business settings. Researchers estimate that a full one in three U.S. workers or more are subject to some form of NDA restrictions.
There are numerous reasons for seeking NDA protection, everything from guarding trade secrets and proprietary information, to protecting privacy. The latter is the motivation in the vast majority of NDAs we’re signing in the watershaping business, many of which prohibit disclosure of any type of information or images related to the client and the property.
Such sweeping prohibitions can have a chilling effect on our ability to promote our work to prospective clients, the public at large, and within the industry. Taken to an extreme, we are left with nothing to show for our best efforts, aside from getting paid.
In a field like watershaping, where swimming pools are a “sell the sizzle” type of product, promotion is extremely important. Design awards are often a primary means of promotion, and in the era of websites and social media in which we are all expected to have examples of our work instantly accessible.
In this era of constant communication, the surge of NDAs becomes a growing nuisance.
BETTER SAFE
In many ways, it’s entirely understandable why homeowners would want NDA protection. With advent of smart phones, everyone on a jobsite has a camera in their pocket, with access to websites and social media pages. With so much possible exposure, homeowners are prudent in wanting to control the dissemination of images and information about their properties.
In that sense, NDAs serve a crucial role in safeguarding sensitive information shared during projects. Clients in high-profile or sensitive environments often have security concerns beyond the technical aspects of a construction project. They rightfully don’t want information about their property’s security systems or access, and certainly their exact location made publicly available. This is especially true of high-profile or celebrity clients.
For many affluent clients, the restrictions will vary: workers may be prohibited only from revealing specific construction methods, or they might be entirely prevented from mentioning that they are working for this client on any level.
COMING TO TERMS
While NDAs may seem impenetrable, truth is, like most things, they are often negotiable. There are situations in which I will negotiate a fee for agreeing to the terms of an NDA, given that I’m forgoing the ability to promote my work. And, likewise, I have also offered a discount for clients who forgo an NDA.
Here’s a hypothetical example: Let’s assume you’re working on a project for a luxury resort or a private estate, where the client includes a clause in the NDA prohibiting:
- Posting of Photos or Videos: Contractors or subcontractors might want to post pictures of the construction process or the final product to showcase their skills. However, clients concerned with privacy or competition may prevent any media related to the project from being shared online.
- Discussions about the Project’s Progress: Although this may sound a bit extreme, there are some projects you’re not allowed to discuss at all. A construction team could be excited about a particularly innovative design they are working on, such as a custom-shaped swimming pool with unique lighting or heating systems. However, under the NDA, they may not be allowed to share even basic project updates on platforms like Instagram or LinkedIn until the client gives express permission.
- Names and Address: Far more commonly, an NDA could prohibit contractors from mentioning the name of the client or the nature of the project on social media. For example, if the pool is being built for a famous celebrity, the client may require anonymity until a formal announcement or project unveiling.
That all seems pretty airtight. One way to address the issue of restrictive NDAs is to negotiate a timeframe after which the restrictions expire. For example, the contractor could negotiate the right to share photos of the finished pool six months after the project completion. This allows the client time to launch their project or maintain privacy for a period but still enables the contractor to showcase their work eventually.
Another compromise is to allow for social media posts or marketing content that is reviewed and approved by the client. The client may allow certain images to be posted after completion, but with restrictions such as cropping out sensitive areas, not including location tags, or blurring certain features to protect privacy.
Contractors could request the ability to include the project in their portfolio without sharing sensitive details. Instead of mentioning the client’s name or the exact location, they can refer to the pool as a “custom luxury pool” or use vague terms like “a private residence” or “a hospitality client.”
If a contractor wishes to submit the project for industry awards or competitions, a clause can be added allowing the pool to be showcased under specific conditions, such as through private presentations or industry-only publications.
In some situations, I’ve been able to soften NDA restrictions by asking for some form of compensation in exchange for agreeing to the non-disclosure terms, pointing out that I am losing the value of being able to promote my work. Conversely, I’ve also offered discounts to clients who forgo NDAs.
Of course, some clients are completely inflexible, while others are far more amenable, but you never know until you ask.
WITHIN REASON
Consider a scenario where a high-end resort is building a spectacular rooftop vanishing-edge pool with breathtaking views, custom lighting features, and advanced eco-friendly technology. The resort wants to keep the design under wraps until their grand opening event.
The contractor, in this case, understands the importance of confidentiality but wants to be able to use this project as a portfolio piece. To mitigate stricter NDA terms, the contractor negotiates that:
- They can post pictures of the pool six months after the grand opening (approved by the client).
- They are allowed to submit the project for industry awards with client permission.
- They can describe the project in vague terms (e.g., “rooftop infinity pool for a luxury hotel”) without mentioning the client’s name or location.
The net result is the client still enjoys the protection of the NDA, while the contractor has access to images and the ability use the project in promoting his or her work.
The fact is NDAs are clearly here to stay and it is something watershapers who are proud of their work will need to manage, because ultimately none of us can afford to be completely deprived of the ability to share and promote our work.
That need must be balanced with the fact that construction NDAs are essential for protecting client security and proprietary designs, especially in projects involving sensitive information or high-profile clients.
By understanding client security concerns, navigating social media restrictions, and negotiating reasonable terms, contractors and clients can find a balance between confidentiality and practical business needs.
Paolo Benedetti founded Aquatic Technology in 1993. He is an instructor for Watershape University and and has authored a myriad of articles on the finer points of pool construction and design. He is a pioneer in the field of aquatic design, constantly pushing the envelope, creating a number of firsts that spawned new trends in the industry.
Image by William Potter | Shutterstock.