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1. presents:

2. © 2015 Fredrikson & Byron, P.A.

3. Any time you are sharing proprietary or
non-public information with a person who is
not an employee and is not already subject
to a non-disclosure agreement. Examples:
Sharing details of business plan or capitalization
Sharing details regarding R&D, IP, or other
proprietary information
Plant tours, sharing a prototype or other
observable and useful information
2015 Fredrikson & Byron, P.A.

4. A non-disclosure agreement should:
Apply to (a) trade secrets, and (b) other non-
public information. A “trade secret” is
information that is valuable because it is not
publicly available and subject to reasonable
efforts to protect its secrecy
Prohibit reproduction or disclosure of non-public
information except in limited circumstances
Prohibit unauthorized uses of non-public
information
2015 Fredrikson & Byron, P.A.

5. Mutual?
Duration?
Permitted Uses?
Return/destruction?
Disclosures required by applicable law?
Independent discovery?
2015 Fredrikson & Byron, P.A.

6. Aconsulting agreement isused whenever one
party isproviding servicesto another party, for
compensation, other than asan employee.
Examplesinclude software development,
management consulting, graphic design and
artwork, etc.
Salesrepresentative agreementsare a
particular kind of consulting agreement that
raise additional, unique issues.
2015 Fredrikson & Byron, P.A.

7. A consulting agreement should cover:
Compensation
Term
Services performed and applicable performance
standards
IP ownership
Risk allocation (indemnification)
2015 Fredrikson & Byron, P.A.

8. Auto-renewal or expires at term?
Can either party terminate, and under what
circumstances?
How is compensation determined, and what are
the payment terms?
How to describe the services and deliverables?
Under what circumstances, if any, can consultant
use/re-use IP included in deliverables?
Under what circumstances can consultant be
required to re-perform work, refund amounts paid,
or defend client from third party claims?
2015 Fredrikson & Byron, P.A.

9. “Indemnification” is a contractual obligation to reimburse
another party for a liability. “Indemnification” also frequently
includes an obligation to defend another party from a lawsuit
brought by a 3rd party. Example – Agreement provides that
Client is entitled to indemnification from Consultant if
Consultant violates applicable laws. Government sues Client
because use of Consultant deliverable violates the law.
Consultant is obligated to defend and/or reimburse Client for
this lawsuit.
Indemnification is different than a lawsuit between the parties.
Issues – What claims? For how long? Any limitation on
amount? What is the process for making and defending a
claim?
2015 Fredrikson & Byron, P.A.

10. Intellectual property language istechnical and not
widely understood. Failure to appropriately
obtain/maintain protect IPrightswill negatively impact
businessvaluation.
Asclient, you want to make sure that you own all IP
that you paid for an have the right to use all
deliverableswithout permission from or payment to
anyone.
Asconsultant/provider, you want to make sure that
client doesnot obtain rightsto IPthat isoutside the
scope of the project.
2015 Fredrikson & Byron, P.A.

11. It depends, of course
Areputable law firm should be able to provide you with
an appropriate template for a NDAor Consulting
Agreement at amodest cost. However . . .
The content of the document will change based on
the nature of the relationship. The template can be
recycled, but only for comparable relationships.
The costsassociated with the document may
increase dramatically if the document isnegotiated
or multiple iterationsare required.
2015 Fredrikson & Byron, P.A.

12. 2015 Fredrikson & Byron, P.A.
Please feel free to contact Ryan Miest ((612) 492-
7393 or rmiest@fredlaw.com) or anyone in the
SURGEgroup if you have any questions.
www.fredlaw.com