January 28, 2021
Waypoint Turns Twostop wasting time on nondisclosure agreements
This post is part of a series, The Waypoint NDA.
Late last year, the Waypoint NDA turned two years old. Snuck right past me.
Nondisclosure agreements are my least favorite contracts. But Waypoint has become one of my most favorite projects. I can no longer guess how many hours of NDA review Waypoint has spared me. Or how many thousands of dollars it’s saved my clients. It’s totally replaced private, client-specific forms in my repertoire.
For those unfamiliar, the Waypoint NDA is a totally boring, utterly normal, two-way nondisclosure agreement. The kind of thing companies sign before discussing sales deals, joint ventures, marketing plans, that sort of thing. Perhaps the most common company-to-company agreement ever. Or, as the contract nerds I run with like to say, the cockroach of the contract kingdom.
Waypoint differs only in that it’s published free online, under a brand protected by trademark, with a cover page that certifies the terms are the same as the version published online. It’s not just unremarkable, it’s guaranteed unremarkable. No funny business.
The first time you see a Waypoint proposal, you review it. From then on, you recognize it. Like a patient at a pharmacy, you can rely on the formulation, dosage, and packaging of your prescription staying the same. As a lawyer, it’s “Sign one of these at the start of each deal, and call me in for the closing.” Clients have been happy to do just that. Some actually enjoy showing the other side the way out of pointless dickering and delays for legal review. At least until it becomes routine. Which it does.
Besides the benefits of the project itself, I’m grateful for the kinds of lawyers it has brought into my world. If you want a quick way to tell a business lawyer who likes billing for makework from one with better things to do, show them the Waypoint NDA. It’s also pretty good for sussing out which lawyers can really role-play clients. No, an NDA off the rack isn’t going to fit like Savile Row. But most of us aren’t wearing custom-sewn art right now. A few standard sizes keep the world in clothes, affordably.
Of course, it hasn’t been gravy the whole way. I picked a weird name to start, and had to change it. Version 1 included a lot of unexamined boilerplate terms that while “standard”, weren’t actually wise. Especially since the pandemic, I haven’t been able to get comments from lawyers from other common-law jurisdictions—Australia, Hong Kong, India, Israel, Nauru, New Zealand, Singapore—as I’d hoped. I’m still not sure the list of companies using the form, which I know to be woefully incomplete, was a good idea.
There’s no way I could have seen all these things, or gotten them corrected so quickly, without my colleagues, lawyers and definitely not lawyers. Waypoint wouldn’t be nearly what it is today without feedback and support from lawyers who get that. I feel less and less comfortable treating it as “my project”. It’s bigger than me now.
Fortunately, all the lessons needn’t stop with Waypoint. Slowly but surely, we’re pulling together a playbook for grass-roots, lawyers-up form standardization and publishing. One I’m very eager to apply to other common forms, from website terms of service and privacy policies to offer letters and contractor docs. And beyond, to license agreements, software as a service terms, and codevelopment agreements. Heck, I’d even sign up to more specialized NDAs, like those used ahead of acquisitions.
I studied my way into a profession that was only flirting with standardization. A few industry groups published forms we could take off the shelf, as unfinished starting points. But most of everything was custom-made, either laboriously and well, for high-flying, high-paying clients, or quickly and poorly, for the small and scantily capitalized. I hope, when I finally keel over at my desk, that I’ll leave a profession conversant in a far richer vocabulary of standardized terms.
Clients will love it, and more folks will afford to be clients in the first place. Lawyers will be happier, too. Life’s too short to spend days of wall-clock time reading slightly new ways to say the same old thing.
Your thoughts and feedback are always welcome by e-mail.
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