NDA unenforceable, want to protect business

<p>So I originally posted about this couple in 2014. In summary, they are the kind of clients that cause you to rewrite all of your contracts. Then they try to send their "lawyer" father on you. We finally said your previous agreement released us of any further obligation to you, you acknowledged we fulfilled our agreement, goodbye. Months passed, nothing happened, we thought we had put everything behind us.</p>

<p>Then I get a new email - apparently their DVD of the images is "corrupted" and their back ups are gone too. We just decided to ignore their messages. Then the onslaught of phone calls to every number they could find for us and emails 3x a day and bogus wedding inquiries began. So we responded listing all the harassment we endured and said it'd be $10/photo (The total would be $10k - we didn't expect them to agree but figured this might get them to leave us alone or negotiate something else)</p>

<p>This was in February and they just sent us an email yesterday with our address in the header and these two sentences: "We appreciate your offer." and "Our preference is certainly to complete our business and avoid litigation." They want 70 photos for $500. We don't mind doing this if it'll get them off our case forever, but NDAs are not enforceable in my state and I'm not sure what will happen if they have the photos.<br>

<br>

Anyone have any ideas of what to do or language to include in an agreement? Apparently I have a few more business days to respond. Thanks in advance.</p>

<p>"Anyone have any ideas of what to do or language to include in an agreement?"<br>

Shouldn't you be asking this question of a lawyer?</p>

Have you thought about this language "After

delivery and acceptance of the contracted

service/product we do not maintain archival copies

of the product. We are do not provide archival

services. Sorry for any inconvenience this may

cause."

It may be too late for that since your attempt at "go

away pricing" appears to have indicated that you

have the images. Too bad that scheme failed but

they sound shrewd enough to have anticipated

such response. What means NDA in your

vocabulary?

I am not a lawyer, but on behalf of my company (a large financial services company), I have negotiated and

signed dozens of NDAs and at no time did my company's lawyers ever tell me that an NDA is not

enforceable in a specific state. First, an "NDA" is a "Non Disclosure Agreement" whereby both parties agree

not to disclose specific confidential and/or proprietary information for a period of time and may restrict disclosing information

relating to a business agreement. I don't think you need an NDA for this arrangement since there really isn't any additional confidential information to can be disclosed about this matter. From your last post,

your agreement with these customers appear to have a general release provision which should have

finalized your involvement with them. What I think you want now is a non disparagement agreement, which

would prohibit each party from saying nasty things about each other. Unfortunately, you would also need all

of the couples relatives to sign that to get what you want and frankly, that is not likely to happen. Also while

a non disparagement agreement may discourage nasty comments on Facebook, enforcing such agreement

would require litigation, which again would not likely be cost effective for you.

 

As suggested above, you should probably contact a real lawyer for advice.

<p>"They want 70 photos for $500. We don't mind doing this if it'll get them off our case forever"<br /><br />Agree to these terms only if there is also included an executed release of liability from all claims of any kind arising from the shoot and imagery. Tell them this is because they raised the spectre of litigation. If they don't agree. Tell them that you're obligations were discharged long ago and good day to you sir.</p>

<p>Don't do business with untrustworthy people. Ever. I would send them a backup of their images for free.</p>

<p>It's just too costly to involve lawyers and make something "bulletproof" when we are talking about $500. How much is your time and peace of mind worth?</p>

<p> </p>

<p>Uhm, what would they sue you for if you gave them those photos? I am not sure I understand. </p>

<p>No archive copies kept? Are you serious? Maintain goodwill and give them a once-off new dvd and call it quits after that. Its at very little cost to you.</p>

<p>The more of these types of things I read, the more I start to think I am one of the few photographers out there who offer archival storage and file replacement. Is it really that difficult to just keep a copy in the cloud? It's good customer service and it costs you nothing to just let them download them from the cloud (in my case, Zenfolio, where you can "expire" a gallery to private if you really want to put a time limit on them, but they are still stored).<br>

<br /> That said, in the case of these types of people, I would stand absolutely firm with them. You have a contract, do what is in your contract. Period. That is what a contract is for. If your contract does not address this issue, take it to an attorney in your area who specializes in this type of thing and have them construct appropriate language.<br>

<br /> For future peace of mind, I do recommend offering file replacement. It really costs very little and is an easy way to provide great customer service. With regard to the present situation, what can you do to take this customer service challenge and turn it into a customer service opportunity?</p>

<p>If they DO lawyer up, you should cut off all communication with them that does not come from their attorney. Let THEM pay for all of that, and then get to the court, show the documents stating they received everything and signed off on it, and let them lose the case.</p>

<p>If they threaten to leave you a bad review, there's not a lot you can do about that. Since they seem to be law-happy, you could suggest they look up the term "tortious interference" while they are planning their case.</p>

<p>I forgot to say that down here (Australia) we are using a clause in the contract that says:<br>

"We reserve the right to change our terms and conditions without notice".<br>

Insert it towards the end of the Ts and Cs. Banks use this all the time, specially in loan documents.</p>

<blockquote>

<p>I forgot to say that down here (Australia) we are using a clause in the contract that says:<br /> "We reserve the right to change our terms and conditions without notice".<br /> Insert it towards the end of the Ts and Cs. Banks use this all the time, specially in loan documents.</p>

</blockquote>

<p>But you can't change them after you have entered into a contract.</p>