Microsoft's Partner Network Agreement

Contract Teardown

Microsoft’s Partner Network Agreement applies to any way one wants to work with Microsoft. Which is precisely the reason why the confidentiality section looks problematic. We take a deep dive into these intricacies with Michael Bloom, a law professor turned online educator who walks us through the broadly applicable principles in this agreement. He tears down parts of the confidentiality section suggesting ways to tightly knit these agreements using 3 principles: precision, pragmatics, and prudence.

Questions in this Episode

  1. Is it beneficial to opt for a broad approach when drafting confidentiality clauses?
  2. What are the two core obligations in a confidentiality clause?
  3. Where do we draw a line in the residual clause?
  4. How do we optimize clauses to ensure the right flow in a contract?
  5. Does a user-friendly approach make any difference?

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Broad Approach with the Confidentiality Clause: Is it a Good Idea?

It appears that the Microsoft partner network agreement covers everything under the sun, which is every possible way to collaborate with Microsoft, including manufacturing, software development, sales, and marketing. This context makes the confidentiality section interesting because you’re getting access to all kinds of information.

“One interesting aspect of this agreement is it's trying to cover a lot of bases” - Michael Bloom

There’s tension between wanting a simple all-purpose agreement but also hoping it’s clear and applicable to every situation. This agreement takes a broad approach to defining confidential information, which leaves the door open for disagreement and potential litigation because provisions might be interpreted differently by different people.

The trade-off is having flexible language that acts more like a guideline. It will work across different scenarios versus a rules-based approach which is specific and tailored to the situation. Rules-based language requires different agreements for each relationship.

Make the Information Disclosure Mechanism Easier

A confidentiality agreement includes two core obligations:

1) What you are and are not permitted to do with the confidential information. This has two restrictions: non-disclosure and non-use. However, the non-use restriction, which limits what the other party can do with your information, is missing.

2) The approach to how long before you’re allowed to disclose that information. Five years is reasonable depending on the industry but in the market that might feel long. The mechanism of “from the date of initial disclosure” is certainly a clunkier approach than saying from “the effective date of this agreement” or some other set date. 

“The first thing that struck me is what's not said here – normally in a confidentiality agreement or a section there are two core obligations after we establish what counts as confidential information.” - Michael Bloom

Theoretically, you’d have to keep track of every initial disclosure of every piece of information, which is challenging. To trigger each five-year term, how do you define and draw the boundaries around this bit of information and that bit of information? Who’s keeping track of that?

If you try to follow this to the letter, it becomes administratively complicated. It’s not right or wrong, but for an agreement that’s supposed to be flexible and simple, creating parallel terms for how long you have to keep this information confidential is a surprisingly complicated approach.

Obligations vs Punishment by State 

If the government shows up, you’ll be caught between a rock and a hard place: your contractual obligations and your desire to avoid going to jail. This clause specifically states that you can cooperate with the state and will not be held in breach of the contract, but there is a condition attached. They’ve stated that they expect the other party to receive confidential treatment from the judicial or administrative bodies and that they will do so to the greatest extent possible. However, the relationship between the obligations in (2) and the explicit exception in (3) is irritating because you may theoretically breach two while cooperating with the third.


(3) Confidentiality
If either party is required by a court order or laws to disclose the other party’s Confidential Information, prior to disclosure, the disclosing party must seek the highest level of protection available and must give the other party reasonable prior notice when possible to allow it to seek a protective order.

If reasonable people find themselves in that circumstance, it may appear that if you’re operating under three, you can’t possibly be breaching two, but we frequently see people using the word “accept” instead of “permitted” in three. When writing paragraph two, it’s helpful to state that “you must not disclose for five years except as permitted in paragraph three.” With this one tweak, all of the elements of this document would work well together, and there would be no literal conflict at its core.

Publicizing the Relationship

We were discussing confidentiality and the typical provisions you might expect to see in a confidentiality section, but (c) addresses the concept of publicity rights. It discusses either party’s right to announce to the world that they are working together through press releases, logos on their website, customer lists, or other means.

“It's critical to publicize the relationship correctly when required and this could be flipped in the case that parties agree that neither party may publicize unless they agree otherwise at a later point.” - Michael Bloom

This can be drafted either way, depending on the nature of the transaction, which elements must be made public, and what the parties have agreed to.


c. Publicity Rights
Except as otherwise required by laws or as otherwise expressly authorized under the Agreement, neither party will issue any press release, publicity, or other disclosure in any form that relates to the terms of the Agreement or to a party’s relationship with the other party, including in client presentations or client lists, without the other party’s prior written approval.

Exploring the Residual clause: Where to Draw the Line?

Residual or anti-lobotomy clauses refer to the idea that as a result of your engagement or cooperation with Microsoft, you will generally get smarter and your employees’ general knowledge will benefit. You can’t expect to cut off a portion of people’s brains or not use that increased skill set or general knowledge in other similar situations in the future.

Microsoft’s partner network agreement creates a strange inference of not limiting future work assignments. This might be harmful even though it’s trying to be helpful. —Micheal Bloom #ContractTeardown Click To Tweet

As a result, they are attempting to ensure that affiliated partners are not compelled to limit work assignments. But there’s a problem: Are you telling people that they have permission they already had? That seems unusual.


(4) Confidentiality and Publicity
Neither party is required to restrict the work assignments of employees who have had access to Confidential Information. Neither party can control the incoming information the other will disclose in the course of working together, or what its employees will remember, even without notes or other aids. Neither party will bring a claim under trade secret law, or for breach of this Agreement, to the extent arising out of use of Confidential Information in such employees’ unaided memories in the development or deployment of each party’s respective Products.

This is a tough rub since, while it is permissible to use general knowledge, it is also prohibited to utilize the information. How do you draw the line between the two? The concept of unaided memory is the distinction between information that is protected and specific and knowledge that is more generic and can be used indefinitely.

The line “neither party can control the incoming information” serves no purpose, and is dangerous because it can subsequently be argued as a covenant reached because you did control the incoming information. Things might simply be construed as the parties’ acceptance that “employees might get smarter by virtue of being on this project, and we all understand that since it’s the nature of it, and we’re not going to cry foul later.”

“Unaided memory might be a fair way to draw the line with the type of information that’s at stake but it’s not a silver bullet solution. It depends on how realistic it is that someone could memorize it and how valuable it is if they were able to walk away with that in their unaided memories.” - Michael Bloom

Ensure the Right Flow in the Document 

The most effective approach to carving out the type of information indicated in section (2) is to exclude it from the scope of protected information in the first place. 


(2) Confidentiality and Publicity
Each party must not disclose any Confidential Information of the other for 5 years following the date of initial disclosure. However, there is no time limit regarding the disclosure of Confidential Information that contains Personal Data. The receiving party will not be liable for disclosure of information which: (i) it already knew without an obligation to maintain the information as confidential; (ii) it received from a third party without breach of an obligation of confidentiality owed to the other party; (iii) it independently developed; or (iv) becomes publicly known through no wrongful act of the receiving party.

In this example, it would be moving this section up to number one where we’re defining what confidential information is. Confidential information is not information that you already knew or something that’s already publicly available. These types of exceptions are rather common, but we’re not just trying to say you’re not liable for these bits; we’re saying it’s not covered in the first place. Every time we talk about Confidential Information, we’re not talking about something you already know or have independently developed, and that way the agreement flows through nicely.

Adopt a User-friendly Approach

It’s a great idea to focus on the user’s goals and condense the agreements you’re drafting for easy comprehension. It’s more difficult because it needs you to eliminate friction and consider ways to design the document more efficiently. That is just as crucial, if not more so, than dropping the legalese and communicating in plain English.

With a technical document like a contract, you also don’t want to leave out a handful of extra words that explain in detail how all the elements operate together.

Taking out bloat is figuring out how to efficiently use and create a logical structure in an agreement. -Michael Bloom #ContractTeardown Click To Tweet

Imagining what your worst enemy’s future arguments might be isn’t the reason to simply dump a bunch of paragraphs in to defend yourself. Instead, nimbly try to make the document logical, tidy, and clear on how all the components work together. The structural aspect is more difficult to work with and is often overlooked.

Finally, attempting to be all things to all people and all situations is a big problem. It could be useful in Microsoft’s setting given their large number of employees and risk profile, but it all boils down to a cost-benefit analysis.

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Show Notes

THE CONTRACT: Microsoft’s Partner Network Agreement

THE GUEST: Michael Bloom has been curating spaces for students and professionals to make mistakes and learn from them since 2009. He founded Praktio (www.praktio.com), a provider of interactive, online learning games and exercises for developing practical contracts skills. He has co-authored two books on contracts: Contracts and Commercial Transactions; and Contracts: A Transactional Approach.

THE HOST: Mike Whelan is the author of Lawyer Forward: Finding Your Place in the Future of Law and host of the Lawyer Forward community. Learn more about his work for attorneys at www.lawyerforward.com.

If you are interested in being a guest on Contract Teardown, please email us at community@lawinsider.com.

Transcript

Michael Bloom [00:00:00] But one interesting aspect of this agreement is it’s trying is trying to cover a lot of bases. 

Intro Voice [00:00:05] Welcome to the Contract Teardown show from Law Insider, where legal experts tear down contracts from some of the most well-known companies and high profile executives around the world. 

Mike Whelan [00:00:18] In this episode, law professor turned to online educator Michael Bloom walks through the confidentiality section of Microsoft’s Partner Network Agreement. He balances a contract drafters desire to use broadly applicable principles with the need for precise language. So let’s tear it down. 

Mike Whelan [00:00:37] Hey, everybody. Welcome back to the contract teardown show from Law Insider. I’m Mike Whelen. The purpose of this show is exactly what it sounds like. We take contracts, we beat them up. We are often mean to them occasionally. Nice, but not really. I’m hanging out with my buddy, Michael Bloom. Michael, how are you today, sir? 

Michael Bloom [00:00:55] Doing well. How are you, Mike? 

Mike Whelan [00:00:56] I am pretty good. The weather is cooling down. My plants are dying. I had a mid-life crisis in the middle of COVID and I did what all white guys did and started a garden and a podcast. And so it’s all going well as the weather cools. But today we are digging into speaking of midlife crisis, a document we can talk about my earlier my quarter life crisis that took me to law school and current podcast. Right, exactly. This is a different show, but yeah, we’re talking about this document. I’m going to show it to him real quick here, Michael. And this is the Microsoft Partner Network agreement, which is a fascinating document. So tell me, Michael, why are we talking about this? What is this document? When are we going to see something like this? Why are we talking about it? 

Michael Bloom [00:01:43] Yes, it looks like the Microsoft Partner Network. Is this everything under the Sun potential way to work with Microsoft’s covering things from manufacturing to software development to sales and marketing, et cetera. And so one interesting aspect of this agreement is it’s trying to cover a lot of bases and we’ll we’ll dig into that today when we focus on the confidentiality piece of it and see how they attempt to make that section work across all of those different scenarios. 

Mike Whelan [00:02:11] That’s right, we will focus on the confidentiality section. But before we do. Tell us about you. What’s your background? What are what are you doing in business now? Why are we talking to you about this kind of document? What’s your background? 

Michael Bloom [00:02:23] Yeah. So I was a clinical professor at Michigan Law School. Before that, I taught at Chicago Law School. Before that, I practiced at Sidley in Chicago, doing M&A and technology transactions. And while I was most recently teaching at Michigan, teaching a transactional clinic, I wanted a way to get my students up to speed on the language of contracts more efficiently so they could get going in the work that I was supervising them in in the clinic. And so I wanted a Rosetta Stone I Code Academy Team Tree House pick your favorite language learning application, but for learning how to read and write contracts just to use in my class, and this was about seven years ago. Couldn’t find it, so I started to build it with whatever I could find. And now, fast forward, you know, major law firms are using our online training tools for training up their incoming associates, their laterals, their mid-level mid-levels, their summers, sometimes their paralegals, et cetera. And you know, it’s a good time to be in the remote learning game. So we’re taking on new, new forms of every month here. 

Mike Whelan [00:03:26] That’s very cool side story. Somebody from Michigan admissions called me when I applied to different law schools. I was living in Austin at the time and they said, Hey, we want to give you a spot to go to Michigan, but you live in Austin, are you? You know, we don’t want to burn the spot if you’re just going to go to, but are you going to do it? And I said, Well, let me ask you this, what’s the temperature outside right now? And she was so it’s 12 degrees. I’m like, I am going to Texas, so that’s what I did. So good for you pushing through the weather. Well, so this document, as you mentioned, covers a lot. You know this this Microsoft Partner Network is basically every way that you want to work with Microsoft. You want to be an affiliate, you want to be a developer. You know, other tools, Apple or Amazon, they’ve got separate, you know, spaces for each of these. Microsoft is just like, you want to work with us, here’s where you have to go. So that’s this context to this document, which makes this confidentiality section interesting because you’re potentially getting access to all kinds of information. So let’s start with that. The confidentiality and publicity section, if we scroll down a got some background stuff, be starts digging into what holds what is confidential information and if we go to one B, it says given the nature of the disclosure circumstances surrounding the disclosure, the receiving party should treat as confidential, meaning I take this is like, here’s a background rule don’t be an idiot. What do you think about this kind of language? 

Michael Bloom [00:04:51] Yes. And this is the first and this is a place where we’re seeing this tension between wanting to have a simple all purpose agreement and also hoping, hoping hopefully it’s clear and applicable to each situation. So here they’re taking with b a pretty broad approach to defining confidential information. Sort of you know it when you see it, if it’s the kind of thing that ought to be treated as confidential, then it is confidential. Hopefully that’s, you know, firing off light bulbs or folks, you know, that’s something we might argue about. Seems like it’s confidential to me, but not to you. There’s certainly room here for disagreement and potentially dispute if if it gets to that point. But the tradeoff is having language that’s flexible, more of a guideline that is more or less going to work across different scenarios versus a more rules based approach that’s specific and tailored to the situation, but would require, you know, them having different agreements or editing the template for each different relationship. 

Mike Whelan [00:05:51] Hey, everybody, I’m Mike Whelen. I hope you’re enjoying this episode of the contract teardown show. Real quick, I want to ask you to do me slash you really a quick favor. Look down below. You’ll see a discount code to join the Law Insider Premium subscription. When you do that, you get access to more content like this. You’ll see webinars daily tips on contract drafting. Not to mention access to the world’s largest database of sample contracts and clauses. It will help you write better contracts faster if you want to do it. Right now, there’s a code below, so get there. Also, if you’re part of a larger team, if you’re in-house or in a law firm, just email us where at sales@LawInsider.com. We’ll make sure you get a deal as well. Come join us in the community. The code is below. Let’s get back to the show. 

Mike Whelan [00:06:37] Yeah, and I should point out we talked about this a bit in preparation for this conversation. Microsoft has fairly famously worked really hard in principle to try to narrow language of of documents to keep them simpler, to even keep them visual. I’ve got some friends who were at Microsoft actually who are who are doing this, and they’re they’re hiring for really interesting roles in contract management and contract creation. And so in the background, you’ve got this effort to, hey, let’s talk principals, you know, instead of spelling out every little thing. But I think to your point in the background, there’s going to be this did we do it right? Like, did did this general principle of don’t be an idiot? Does this serve the purpose? Go into two under B, it says each party must not disclose any confidential information of the other for five years following the date of the initial disclosure. However, there is no time limit regarding the disclosure of confidential information that contains personal data. What do you think of this section? 

Michael Bloom [00:07:35] Yes, a few things here. One, the first thing that struck me is what’s not said here. Normally in a confidentiality agreement or a section on confidentiality, there’s two core obligation. So after we establish what counts as confidential information, that’s what we just went over and won. Then it’s well, what can and can you not do with that information? We normally normally expect to see a non-disclosure restriction, which is what we do see here and a non use restriction that limits what the other party may do with your information. So I’m pretty surprised to not see that nonuse piece here. That’s the first thing I would call out. The next thing here is their approach to how long you have to not disclose that information. Five years fine. That’s, you know, depending on the industry in the market, that that might feel a bit long. But the mechanism of from the date of initial disclosure is certainly something you see it as a clunkier approach. Then saying from the effective date of this agreement or some other fixed point in time, because theoretically, here you have to track every initial disclosure of every bit of information. And that’s also challenging. How do you define, you know, how do you draw the boundaries around this bit of information and that bit of information to trigger each five year term? And then who’s keeping track of that? And obviously, nobody. So it’s administratively complicated if you were to attempt to actually follow this to the letter realistically, but no one’s going to, you know, it’s not right or wrong, but for an agreement that’s trying to be flexible and easy. This is a bit of a surprisingly complicated approach to creating a bunch of these parallel terms for how long you have to maintain the confidentiality of this information. Yeah. 

Mike Whelan [00:09:30] And in the next sentence, I mean, we’ll we’ll give you guys the full block. I won’t read it all. But in this effort to sort of talk like people, it might be creating some confusion. It says the receiving party will not be liable for disclosure of information that and then it gives a list like it already knew it or it came from a breach that it wasn’t your fault or, you know, you developed it independently or it’s just not your fault. What do you think of this kind of sentence? This will not be liable for section. 

Michael Bloom [00:09:58] Yeah, you see it this way. Sometimes I think the more effective approach to carving out these types of information is to exclude it from the scope of protected information in the first place. So in this example, it would be moving this up to number one, where we’re defining where confidential information is. Let’s also talk about what it’s not. So it’s not information that you already knew or that’s already publicly available. These types of exceptions are relatively standard and find they work, but it’s not. Usually, we’re not just trying to say, Hey, you’re not liable for these bits, we’re saying it’s just not covered in the first place. So every time we talk about capital, I capital C capital, I confidential information. We’re not talking about these things that you already knew or that you independently developed. And then that we had just flows through nicely the rest of the agreement, wherever that term is used. So maybe it’s OK here, but I would, you know, when I see this approach, then you have to comb for every place where confidential information is used and make sure that it’s OK in those instances that it is applying to, you know, information you did independently develop or these other carve outs. It’s it’s not using the mechanics of the document as effectively as you could be. 

Mike Whelan [00:11:15] Yeah. And I mean, my totally ignorant question here is like, what’s the? Using that term liable is almost like creating a legal definition inside of a document that you might litigate later. Why? Why create that right? Like just create the carve out that says this language? But at the same time, that may be what the reading party actually cares about. They might actually say, You know, I want to know what I’m liable for. I don’t care about your legal definitions. Tell me what it is. So, you know, to your point, I think I could see writing this either way and having an argument for either way. 

Michael Bloom [00:11:46] Yeah, it’s a bit of a blunt instrument, right? It’s like, Oh, by the way, you’re not liable for all these things. I don’t care about anything else, says I. Typically, I would rather work through the structure of the agreement. So you’re only taking on responsibility here. You’re only taking on legal obligations and liability for information that we’re defining as confidential information and then imposing restrictions on. Right. So this is sort of, hey, who cares about that out of this? But before we move on, let’s just be clear not liable for any of these things. It might get you there. I’m not saying it’s it’s a terrible approach. It’s just not working through the structure of the agreement as as tidily as you might want to see. 

Mike Whelan [00:12:25] Well, in structurally in the in three, they go to this next point where they say, you know, but what if you have to write, what if? What if a court says that you have to release this information? And again? They seem to focus on principles, they say you give the other party notice. But it says the disclosing party must seek the highest level of protection available. They don’t define what that level of protection is. But there’s this principle they’re trying to just, you know, keep driving home these principles and sort of awkwardly tying to the other sections. What do you think of three 

Michael Bloom [00:12:58] to three by itself? I mean, we could quibble, I’m sure, with with language in here, but I think it’s fine, right? This idea also very common. And it’s what you’d expect to see this idea that if the government comes knocking, you’re stuck between the rock and a hard place of your obligations under this contract and your, you know, your desire to not go to jail or be punished by the state. OK, fine. You can cooperate with with the state. We’re not going to hold you in breach of this contract and then goes on to say, but hey, here’s the things we expect you to do. However, if you can get some kind of confidential treatment from the judicial body or the administrative body or whoever is coming and knocking, then do that as much as possible, try seek to obtain it. So I’m OK with that. And the part here that I don’t love the relation and reasonable people reading this casually probably don’t pick up on this, but we want the relationship between our obligations and to. And this essentially exception in three to be made explicit so that because right now, theoretically, you could breach to while you’re cooperating with three now again reasonable people. We ended up in that situation. We’d say, OK, we know what they meant. It must be that if you’re operating under three, then you can’t be breaching to the better. And what you do often see is in the true saying, except as permitted in three. That way, just on the parts of this document are just playing nicely with each other. We don’t have a literal conflict on its face where, hey, I’m just cooperating with the court order and three you said I could. And now you have this gotcha in paragraph two where I disclose and I said, I wouldn’t. And so I would just want a couple of words in there making clear I’d probably put it in paragraph two where we’re saying, Hey, you, you must not disclose for five years, except as permitted in paragraph three 

Mike Whelan [00:14:52] and then four, you know, sort of awkward. It it it has the feeling of something that was created because something happened. But you know, you’re not quite sure that this is always going to happen. It says neither party is required to restrict the work assignments of employees who have had access to confidential information, and it goes on talking about how employees will will use things. Neither party will bring the claim under trade secret law, etc.. What do you think about for? 

Michael Bloom [00:15:18] I agree with you. There’s there’s a story that ends in this paragraph is awkward as as presented. So I presume what they’re trying to get at here is sometimes called A.. Lobotomy clauses or residuals clause. This idea that through this relationship, you’re generally going to get smarter. Your general, how of your employees will benefit from this relationship. And we’re not expecting you to, you know, cut off part of their brain or somehow, you know, how could you even not use that improve skill set or improve general know how in other similar things in the future? So I presume that they’re trying to get at that by saying, you know, these this language so you’re not required to restrict the work assignments. I mean, the prior to my question there is OK, I never thought I was. Are you telling me that I that I have this permission that I already had, that that feels strange and begs that question why and what do you have to tell me everything else that I already thought I could do? So it creates a strange inference that might actually be harmful, even though this is trying to be helpful. So there’s a there’s a tension there in the contract, and this is a tough rub because, you know, on the one hand, you want to say yes or general knowledge, go ahead and use it, but don’t use my information. And how do you draw that line between what is this permitted more, you know, nebulous knowledge that you’ve gained versus specific information protected by this agreement? And then that’s that second sentence. Neither party can control the incoming information. I just don’t know what that sentence is doing in in the what I mean by that is I don’t know the work of that sentence, the purpose of that sentence in this contract. Is it a statement of facts that the both parties are just agreeing as the case that you can’t later argue that you have this control or that the parties are relying on that they don’t have this control? Is it an obligation such that if you went on to somehow control that, then you’ve breached the card? I honestly don’t know. And I. Not being cute, I don’t know what that sentence is doing, and that is dangerous, because then later on, someone could say, don’t you to this, that maybe it starts off as this acknowledgment of information that was the intent. But it could be argued later to be a covenant that you breached because you went ahead and did control the incoming information. I assume it’s an acknowledgment that the parties are saying, Hey, we we understand we’re not expecting that either of you will control what information is coming in and back to this idea so that, you know, employees might just get smarter by virtue of being on this project or being engaged in this relationship. And we all understand that that’s just the nature of it and we’re not going to follow later. 

Mike Whelan [00:18:20] Yeah, it reminds me of arguments with my wife where theoretically, the less I say, the less likely I am to say the dumb thing that’s going to be that’s going to extend the argument. Now, that doesn’t mean that I recognize that when I’m in an argument because I went to law school and think I can argue really well, but it does not matter in an argument with my wife. So before we move to that general principle, tell me about, see, you know, the section was called confidentiality and publicity. What’s what’s he doing real quick? 

Michael Bloom [00:18:47] Yeah, actually, before we do that, there’s the last sentence in for two. I want to touch on it as well. You do see this idea. One way they try. Sometimes the parties try to draw that line between information that’s protected and specific, which is information that’s more general and you can continue to use it. And one way that you often do see this line attempted to be drawn is this idea of unaided memories that might be OK in this context from the disclosing party’s perspective. I don’t know. That’s a solution for all cases. So, for example, the textbook example of the Coca-Cola recipe protected behind how many layers of vaults and worth so much money if you get access to that, which presumably that kind of information is not being disclosed here. But if you did and you memorized it. Am I cool with now you using it and no claim for trade secret misappropriation? Of course not. As if I’m representing Coca-Cola there. So unaided memory might be a fair way to draw the line with the type of information that might be at stake. But it’s not a it’s not a silver bullet solution in all circumstances, and I think it turns on how realistic is it that someone could memorize the thing and how valuable is it if they were able to walk away with that in their unaided memories? Hmm. 

Mike Whelan [00:20:05] And see, 

Michael Bloom [00:20:07] yeah. So see is getting it that second part of the title, right? So up until now, we’re talking about confidentiality working through, you know, more or less classic site types of provisions you might expect to see in a confidentiality section C is getting at least this idea of publicity, right? So usually talking about either party’s right to make known to the world that they’re working with the other press releases, logos on websites, customer lists, that sort of thing. And this could be drafted either ways, depending on what the deal is. Sometimes that part of the deal is, it’s really critical to be able to publicize their relationship and understood this to be flipped that way. In this case, they’re agreeing that neither party may publicize unless they go on to agree otherwise. And I don’t have I don’t see any big issues there, except the stray business integrity principles added at the end there that I’m sure is intended to be part of the next section. 

Mike Whelan [00:21:05] Just put that in there. Look, I want to ask you a big picture question and and I want to get to it by making a terrible analogy. When I practiced my partner and I, we had a we had a bundled service that was a certain price. Let’s say it was $5000 and we wanted to serve the justice gap. And so we were trying to decrease the price to like $3000. That was our target, right? So whatever that is, 40 percent less or something and the work that we had to go through to take out that 40 percent was, I mean, just backbreaking. But then we found that people who don’t have $5000 don’t have $3000, right? And I sort of feel like with documents like this, I love the noble effort of let’s take a 50 page document and turn it into a whatever this is, 13 page document or something. But I’m not quite sure that a person who’s not going to read a 50 page document is going to read a 13 page document. And what are we losing in that? You know, this is not a critique of this specific document, but there is, I think, a big picture general principle question of if we make this effort of trying to narrow this down and trying to get it to the point that somebody will read it, is that is that a realistic aim if it’s anything more than a page? Right? Have we gone too far? What do you think about that? Can we meet that goal of condensing this kind of information down? 

Michael Bloom [00:22:26] Yeah, I think it’s a great question. So with any effort like that, it starts with like you’re alluding to audience and goals. Who are the users? What do we want them to? You do this that you use this work product for, I think in general, reducing document, taking the blow out of documents, making them easier to use generally is a is a worthwhile endeavor, even if that means that most people are still unlikely to to read the document. I think sometimes with projects like that, the focus gets laser zoomed in on cleaning out, you know, legalese, which I’m not saying. That’s a bad thing. That’s a good thing. As part of the effort, but also part of the effort of taking out bloat is figuring out how to efficiently you like, create a logical structure in the agreement and then efficiently use it right? That’s a little bit harder and requires, you know, reducing the fraction and thinking about ways you can design the document more efficiently. I would argue that equally, if not more important, than taking out the legal use and speaking in plain language where we’re doable. And then I with a technical document like a contract, I wouldn’t want to leave on the cutting room floor. A couple of extra words that makes literal and precise how all the parts work together. So just the example we talk through here how paragraph two and paragraph three work together. I wouldn’t wanted to leave. I would not want to leave on the cutting room floor. Things that make really explicit what these words that we’re writing down are doing. Is this an acknowledgment? I would say that the parties acknowledge the fact I know that’s a couple of extra words, but it helps to make clear that we’re not creating an obligation, something you have to do. We’re just saying that as at this point in time, we’re agreeing this is the case. That’s helpful so that you’re, you know, in both cases, we’re thinking about the lawyerly exercise of what are the future arguments. My worst enemy might make the action shouldn’t just throw lots and lots of paragraphs in there to try to protect myself. But I should nimbly try to forestall those arguments. Make this document really logical, clear and clean and and clear in how all the parts work together. So structural, that structural aspect, I think, is harder work and sometimes overlooked in these in these exercises. That’s one big thing. And the other big thing is this trying to be all things to all people, all things to all circumstances? Right? Well, sometimes that might be worth it. I don’t know enough about this context. Microsoft might be saying, Look, this is low stakes. We’re not sharing the Coca-Cola recipe. We want something in there to protect both sides real plain vanilla stuff. And and that’s it. It’s not well. Well, I mean, five different templates 

Mike Whelan [00:25:17] to nail that. From what I can tell, this thing covers both. You are an I.T. local company doing Microsoft approved services, and you’re a dude with a website who’s got an affiliate link on there. And you know, in my background, pre-law was in in logistics and shipping and trucking. And you know, you’d have one kind of contract for the company that’s like the shipping company. But then, dude, on the dock, he’s got a one page purchase order, right? And so to your point, this feels like a document that’s trying to cover two different scenarios that in fact, the audience, as you said, is a very different kind of engager with documents like this. 

Michael Bloom [00:25:56] Yeah, yeah, exactly. And again, maybe it’s maybe that’s the maybe that’s the right approach for Microsoft, sure, because they don’t have to manage 50 different documents instead of just one. And given the risk profile and how this is being, you know, that might be more efficient and where that kind of cost benefit analysis comes down for them. So it’s easy for us, for me to kind of come in sideways and say, Oh, this could be tighter here, this could be tighter, but I’d say even trying to be all things for all people or drawing that with drawing the line the same way they’re doing it right now. We can still, as we’ve discussed a few examples of the language here, so it might be leaving, for example, the one B given the nature of the disclosure type approach, even though that’s a bit vaguer and more flexible, but that allows it to work across. But adding the nonuse restriction, tightening up the relationship between two and three for it making clear the what for is intending to do and that that could be a way to kind of have your taking it to here. 

Mike Whelan [00:26:58] Yeah, the nature of making conscious decisions out of things that we used to just copy and paste means they can constantly be improved. And I, you know again, the people I know at Microsoft, I think they know that right? And they’re doing that work. And I think that’s that. That’s great. So to get, you know, to you thinking about what your company does and what you’re working on, if people want to learn how to make these kinds of decisions to think about things like structure to constantly improve their base of contracts, what’s the best way to connect with you? 

Michael Bloom [00:27:26] Yeah. So praktio.com, I assume that’ll be on the screen here, too, is a great way to learn more about the. Company, you can contact me a bunch of different ways through the site. Main use cases so far in the last few years have been training up incoming associates, training summer associates at large firms. We’ve more recently got into training procurement departments at global companies, and we’re always adding new new products and serving new use cases. So if we don’t do something that’s, you know, something that you think would be useful for what you’re up to. We’d love to hear that and potentially come up with something that 

Mike Whelan [00:28:02] might throw money at us. We’ll fix your thing. I like it. Well, I appreciate that, Michael. Thank you for being with us and all of you watching. Thanks for hanging out with us. All of the information on this episode, including a link to this particular document, will be over at lawinsider.com/resources. And if you want to be a guest on the contract down show and be mean to contracts like Michael and I are, just email us. We are at Community@LawInsider.com. We will see you guys next time. Thanks again, Michael. Have a good day. 

Michael Bloom [00:28:31] Thanks Mike, you too. Take care. 

Contributors

Michael Bloom
Michael Bloom
Founder, CEO
Mike Whelan
Mike Whelan
CEO @Lawyer Forward

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