Before you introduce your concept or talk to any prospective clients, ensure that you get paid for the effort that you have already put into the product that you are pitching to, or negotiating with, the client. It is better to think about the issues now so that you are not “ripped off” latter.
Below are 10 helpful hints raising some of the issues that you might like to think about before it is too late:
Step 1 – Non Disclosure Agreement
A common concern when discussing projects and ideas is that the person you are talking to may take the concept and use the idea themselves – with no benefit to you. The best way of sharing ideas is to get the other side to sign a non- disclosure agreement or confidentiality letter before you tell them your ideas. Even if the other side do not like the idea of signing such an agreement, if they will not keep your secrets confidendential then there is no point in working with them in the first place. Most larger companies are happy to sign such documents – yours will not be the first they have seen!
Remember that the non disclosure agreement should be presented and signed by the people to whom you intend to impart your confidential information before you start discussions and should include obligations not to use or pass on information that has a necessary quality of confidence, i.e. that which is not already part of the public domain or rightly and legitimately in the other parties possession.
Step 2 – Meeting Checklist
Before you get to the meeting have a checklist of the points that you need to cover. This checklist might include the main commercial points. For example the issues of payment (how, when, after how much time), timescale, territory and ownership of any rights that exist today and might be produced in the future. These are issues that are often overlooked in negotiating a deal and then left to lawyers. It is much cheaper for you to nail these points early so that everyone knows what is expected of them.
A checklist helps you to ensure that you have at least thought about the issues, even if you later decide not to raise a particular issue at the meeting. This is a professional approach and gives a good impression to the other side.
Step 3 – Heads of Agreement
Once you have agreed the terms of the agreement in principal write them down and draw up heads of terms. We always advise that if you get the other side to sign the Head of Agreement that you mark the document Subject to Contract .
Step 4 – Further Meetings
Remember to agree at the initial meeting a time and place for the next
meeting. It is always a good idea to send the other side an agenda of the issues that you want to cover before the subsequent meetings.
Step 5 – Due Diligence
Another way of describing “due diligence” is to use the word “homework”. Before your meeting do your homework on the company, its people and the products it/they sell. Try to find out as much as you can about it/them. Use the internet, trade magazines and ask friends what they know about the company to whom you are pitching.
Step 6 – Information
As part of the preparations for any meeting ensure that you know what your message is. Make sure you know what you want to say and, as importantly, what you do not want to disclose. Be certain that if you are using examples of work that you have done in the past that was commissioned by other clients (third party) that you have an agreement with the third party that you can use their software for demonstration purposes. This may be also true if the software has been written for a specific platform. Many “Licensed Developer Agreements” include a prohibition against exploiting software designed for their machines without it having been agreed in a separate legal agreement. Check the agreement.
Step 7 – Agreements
Never promise something that you cannot deliver. Many developers are so eager to get a publishing deal that they agree with publishers without considering their track record, whether they are really capable of providing what is promised and the terms on which they are dealing.
Read and understand all the contracts and agreements, letters of intent and non- disclosure agreements prior to signing them. If there is something that you do not understand, ask for clarification of the point in writing or ask your lawyer to explain it to you. If the other side cannot explain to your satisfaction the meaning of a clause then ask for it to be removed.
Step 8 – Data Protection
If you are involved in collecting names, email addresses, phones numbers of people or business cards containing personal data, it is advisable that you make sure that you are entitled to do so. The Data Protection Act 1998 places requirements on you to tell third parties that you are collecting their data, why you are collecting the data and what you intend to do with it. We suggest that you have a look at this website www.dataprotection.gov.uk . Failure to do comply with this law can lead to prosecution and a fine.
Step 9 – Rights Clearances and Protection
If you use music or any graphics that you have not designed or written you may need to obtain a licence to use this as part of your software. Check out some of the rights clearance agencies for such permissions.
Also, you should ensure that the name you have chosen for your new product or company does not infringe the rights of any third party – so check that it is not registered as a trade mark (have a look at www.patent.gov.uk) . In the event that it is not and you believe that it is the kind of mark that third parties may want to copy or emulate then you should consider applying for a registration. In any event you should use the (TM) symbol on sales and promotional materials. This indicates that you are claiming trade mark rights in the sign, name or logo and puts third parties on notice that you are using it “as a badge of origin”.
Step 10 – Brand Protect
There are quite a few things to consider. Brand Protect are experts in all aspects of intellectual property and can help you to ensure that you get paid for what you deliver. Contact us to arrange a free initial consultation.