Business Contracts What is The Correct Legal Interpretation of This Contractural Language?

[Mr-Travis]

Jurisdiction

California

Hello there!

Our company — a small advertising agency based in Los Angeles, CA — recently won a proposal to take over the digital marketing and social media management for a large online brand.

The SOW contract is surprisingly short and mostly boilerplate, but there is one clause whose applicability I'm not clear on. The text reads:

Contractor will not submit work product for awards or any other third party review or recognition.

Note: While much of our business comes from direct referrals, it's seeing our portfolio of work that ultimately determines whether potential clients hire us or not.

It's very clear that this clause would prohibit us from "submitting" our work to awards or for review by other "third parties", but would this language also restrict us from displaying the work in the portfolio of our website? Is making the work product publicly available on our own website synonymous with submitting the work product to a third party, aka web visitors?

I would greatly appreciate any insight you smart folks might be able to offer!

 

[justblue]

Hello there!

Our company — a small advertising agency based in Los Angeles, CA — recently won a proposal to take over the digital marketing and social media management for a large online brand.

The SOW contract is surprisingly short and mostly boilerplate, but there is one clause whose applicability I'm not clear on. The text reads:

Contractor will not submit work product for awards or any other third party review or recognition.

Note: While much of our business comes from direct referrals, it's seeing our portfolio of work that ultimately determines whether potential clients hire us or not.

It's very clear that this clause would prohibit us from "submitting" our work to awards or for review by other "third parties", but would this language also restrict us from displaying the work in the portfolio of our website? Is making the work product publicly available on our own website synonymous with submitting the work product to a third party, aka web visitors?

I would greatly appreciate any insight you smart folks might be able to offer!

Contract review, especially when only a very small snippet of the whole contract is provided, is beyond the scope of this site. Take the whole contract to an attorney to review.

 

[Mr-Travis]

Contract review, especially when only a very small snippet of the whole contract is provided, is beyond the scope of this site. Take the whole contract to an attorney to review.

I appreciate the spirit of your message, however I see dozens of posts asking for a review of much denser excerpts from all sorts of business contracts, all with thoughtful responses from the community.

This is a clause that stands on its own — as is — with no associations or references to anything else in the contract. Beyond this one sentence, the contract is short and otherwise boilerplate.

With all due respect, I was hoping to receive some input as to how a lawyer might interpret that bit of language, which I thought was the purpose of this forum?

 

[Zigner]

I appreciate the spirit of your message, however I see dozens of posts asking for a review of much denser excerpts from all sorts of business contracts, all with thoughtful responses from the community.

This is a clause that stands on its own — as is — with no associations or references to anything else in the contract. Beyond this one sentence, the contract is short and otherwise boilerplate.

With all due respect, I was hoping to receive some input as to how a lawyer might interpret that bit of language, which I thought was the purpose of this forum?

This site is designed to give general legal information and is not designed for specific contract review. From the bottom of every page on this forum:

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[Mr-Travis]

This site is designed to give general legal information and is not designed for specific contract review.

Fair enough. May I try another approach? If one were to publicly post content to their own website (appropriately attributed with respect to any potential copyrights), could that be considered synonymous with "submitting" said content to a third party for review?

 

[Zigner]

Fair enough. May I try another approach? If one were to publicly post content to their own website (appropriately attributed with respect to any potential copyrights), could that be considered synonymous with "submitting" said content to a third party for review?

Could it be? Sure. That's something that should be addressed by the parties in their contract.

 

[Mr-Travis]

Could it be? Sure. That's something that should be addressed by the parties in their contract.

Thanks for your input. That is certainly the plan. My hope was to simply get a better picture of the potential applicability of the language before making it a point of discussion/negotiation.

 

[zddoodah]

If the other party proposed something you think is vague, then you and the other party need to discuss it and, if appropriate, change the language in the final document so that it's less vague.

I review contracts every day. When those contracts haven't yet been signed, I take the opportunity to ensure that the language isn't vague and, if it is, I suggest to my internal clients that they seek clarification and, if necessary, negotiate different language that is clear. Vagueness is a recipe for expensive litigation.

I was hoping to receive some input as to how a lawyer might interpret that bit of language

It wouldn't surprise me in the slightest if ten different lawyers gave you five different interpretations.

 

[Mr-Travis]

If the other party proposed something you think is vague, then you and the other party need to discuss it and, if appropriate, change the language in the final document so that it's less vague.

I review contracts every day. When those contracts haven't yet been signed, I take the opportunity to ensure that the language isn't vague and, if it is, I suggest to my internal clients that they seek clarification and, if necessary, negotiate different language that is clear. Vagueness is a recipe for expensive litigation.



It wouldn't surprise me in the slightest if ten different lawyers gave you five different interpretations.

Thank you very much for this thoughtful response. Your feedback was extremely helpful, especially the insight into just how vague and open to interpretation the language might be.

Cheers, and thanks again for taking the time.

 

[adjusterjack]

Contractor will not submit work product for awards or any other third party review or recognition.

It's very clear that this clause would prohibit us from "submitting" our work to awards or for review by other "third parties", but would this language also restrict us from displaying the work in the portfolio of our website? Is making the work product publicly available on our own website synonymous with submitting the work product to a third party, aka web visitors?

My opinion for the two cents that it's worth is that it's a stretch but, yes, there is a risk that publicly displaying your work product could be interpreted as submitting the work to a third party.

According to Merriam-Webster "submit" is a transitive verb meaning "to present or propose to another for review, consideration, or decision."

It seems clear that your purpose in publicly displaying your work on your website is to induce potential customers to review your work, consider doing business with you and decide to do business with you. That you don't hand a sample of your work to any particular person does not appear to be relevant.

I also suggest you have your attorney review that provision and suggest other wording that would specifically allow you to display your work on your website. If the potential client won't go along with that change, you'll have to decide whether his business is worth enough to you to never display that particular work on your website.