Is mutual confidentiality with carve-outs normal in a design services agreement?

Confidentiality in a design services agreement should be mutual and include the standard carve-outs (public, already known, independently developed, third-party) plus a compelled-disclosure exception. A one-way clause with no carve-outs is unbalanced and easy to fix.

What’s market-standard

Mutual obligation, 2-5 year term (or perpetual for trade secrets), with the standard carve-outs: information that is public through no fault of the recipient, already known, independently developed, or rightfully received from a third party. A carve-out for compelled legal disclosure.

Warning signs

• One-way: only the freelancer is bound
• No standard carve-outs
• Definition covers 'all information disclosed' with no marking or context requirement
• Perpetual obligation on all information, not just trade secrets
• 'Residuals' clause that lets the client freely use your unmarked ideas

Wording you can send

The confidentiality obligations are mutual. 'Confidential Information' excludes information that (a) is or becomes public without breach, (b) was known to the recipient without a duty of confidentiality, (c) is independently developed, or (d) is rightfully obtained from a third party. A party may disclose as required by law after giving reasonable notice. Obligations last 3 years from disclosure, except trade secrets, which are protected for as long as they remain trade secrets.

What it means for you

The obligation to keep the other side's non-public information secret. Standard and usually fine; the issues are whether it runs both ways and whether it has the normal exceptions.

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