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Three Reasons Why Not To Sign Non Disclosure Agreements

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Re: Three Reasons Why Not To Sign Non Disclosure Agreements

#11

Post by tptacek »

qeorge wrote: post #9
tptacek wrote: post #8

Earlier quoted context omitted.

There's nothing wrong with offering up your own NDA. You'll usually lose if you're negotiating with a company with in-house legal, but for small gigs, that's a fine way to handle the problem. There's also nothing wrong with refusing to sign an NDA in the early stages of a pitch, and I should have been clearer about that in my rant above. As soon as you're offered access to a client's network, source code, or data, th…

For what it's worth, it's true that there are landmined NDA's that are really IP agreements in sheep's clothing, and yeah you shouldn't sign those --- but for the most part, a standard NDA isn't going to limit what you can work on in the future; it's just going to keep you from disclosing anything sensitive and client-specific you learn at the client. That's what I was trying to say, but you put it much more succinct…

I just looked at 4 NDAs we recently handled from megacorps, and all of them were very clear that the NDA covered:

* valuable or sensitive information

* that was disclosed by the client to the vendor

* that hadn't been publicly disclosed by anyone

* and hadn't been known to the vendor prior to the NDA

* and hadn't been disclosed to the vendor by someone else sans-NDA

That seems to me like extraordinary care not to be overbroad. These were megacorp boilerplate MNDA's, not something we had to negotiate.

Three of these NDA's, from totally different megacorps, used literally identical language to define "Confidential Information".

Re: Three Reasons Why Not To Sign Non Disclosure Agreements

#12

Post by tptacek »

Barnabas wrote: post #10
tptacek wrote: post #8

Earlier quoted context omitted.

There's nothing wrong with offering up your own NDA. You'll usually lose if you're negotiating with a company with in-house legal, but for small gigs, that's a fine way to handle the problem. There's also nothing wrong with refusing to sign an NDA in the early stages of a pitch, and I should have been clearer about that in my rant above. As soon as you're offered access to a client's network, source code, or data, th…

Great idea. But short of paying a lawyer $X thousands to make my own generic NDA, where can I get an NDA that I can counter-offer with as you suggest? Any suggestions for good off-the-shelf documents such as this that protect both parties? I'd be willing to pay a couple of hundred bucks for a set of good documents like this. I'm an independent web developer like many here and have signed my fair share of NDAs.

You can get a boilerplate NDA from docstoc. LinkedIn lawyers (and maybe @grellas) will advise you to consult a lawyer, but, for what it's worth, the major concerns of articles about how "boilerplate NDA's aren't enough" seem to be issues for the client, not the vendor (ie, clients may want non-use in addition to non-disclosure, so you can't profit from their information privately).

Re: Three Reasons Why Not To Sign Non Disclosure Agreements

#13

Post by qeorge »

Barnabas wrote: post #10
tptacek wrote: post #8

Earlier quoted context omitted.

There's nothing wrong with offering up your own NDA. You'll usually lose if you're negotiating with a company with in-house legal, but for small gigs, that's a fine way to handle the problem. There's also nothing wrong with refusing to sign an NDA in the early stages of a pitch, and I should have been clearer about that in my rant above. As soon as you're offered access to a client's network, source code, or data, th…

Great idea. But short of paying a lawyer $X thousands to make my own generic NDA, where can I get an NDA that I can counter-offer with as you suggest? Any suggestions for good off-the-shelf documents such as this that protect both parties? I'd be willing to pay a couple of hundred bucks for a set of good documents like this. I'm an independent web developer like many here and have signed my fair share of NDAs.

It might not cost as much as you think to have a lawyer generate an NDA for you. We've had our lawyer generate 10 or so general contracts that we can modify to use in most situations, which I would recommend to any business owner.

Most lawyers have these already, and although they'll certainly charge you for the domain knowledge, you shouldn't have to pay hourly. You should be able to get a good, generic NDA for I've never tried docstoc et. all, because part of the value for me is having a domain expert say "yes, this will cover your specific business needs."

One other thing: I've seen a number of companies providing their NDA on the contact / quote request page. I've been considering the same, as it might be a good way to head these uncomfortable conversations off at the pass.

Edit: this is a great place to barter as well. What you want from the lawyer is their expertise, not their time, and lawyers know the ROI a good website can bring them. I'm sure you know some lawyers, ask one of them if they'd be willing to barter a website in return for a set of documents. If you happen to be an SEO (I know, dirty word around here), offer that instead - one of my clients is an attorney, and the #2 Google ranking we helped him achieve yields thousands of dollars each month.

Re: Three Reasons Why Not To Sign Non Disclosure Agreements

#14

Post by qeorge »

tptacek wrote: post #11
qeorge wrote: post #9

Earlier quoted context omitted.

For what it's worth, it's true that there are landmined NDA's that are really IP agreements in sheep's clothing, and yeah you shouldn't sign those --- but for the most part, a standard NDA isn't going to limit what you can work on in the future; it's just going to keep you from disclosing anything sensitive and client-specific you learn at the client. That's what I was trying to say, but you put it much more succinct…

I just looked at 4 NDAs we recently handled from megacorps, and all of them were very clear that the NDA covered: * valuable or sensitive information * that was disclosed by the client to the vendor * that hadn't been publicly disclosed by anyone * and hadn't been known to the vendor prior to the NDA * and hadn't been disclosed to the vendor by someone else sans-NDA That seems to me like extraordinary care not to be…

That's a great list, and very similar to the language in our standard NDA. I have no problem signing an NDA with those terms.

We've never worked with a megacorp, so its nice to know they're handling this in a more professional manner than some of the folks I've encountered. An NDA is certainly a stupid thing to derail a business deal.

Re: Three Reasons Why Not To Sign Non Disclosure Agreements

#15

Post by andrewhyde »

FriendDA rocks:

This agreement has absolutely no legal binding. However, upon breach or violation of the agreement, I will feel free to do any of the following:

   1. Curse you under my breath.
   2. Publicly disclose the manner of your screw-i-tude.
   3. Write about your transgressions in ALL CAPS.
   4. No longer consider you a person with whom I can share my ideas.
http://friendda.org/

Re: Three Reasons Why Not To Sign Non Disclosure Agreements

#16

Post by Tichy »

tonystubblebine wrote: post #3

Does anyone have a good way to explain why they're not going to sign an NDA? We'll sign as part of signing a contract, but not as part of the initial discussion. I've never found a way to say no without getting a shocked reaction from the requester.

For me the risk just seems too high. I have lots of ideas all the time. The problem with an NDA is that I don't know beforehand what they want to tell me. What if they tell me something I already had as an idea myself, and was looking forward to working on?

Worse, it seems difficult to prove in hindsight what is things they told me and what isn't. An NDA might give them the option to hijack any of my further work by claiming that it is based on something they told me beforehand.

So I have a lot to lose and nothing to gain.

Re: Three Reasons Why Not To Sign Non Disclosure Agreements

#17

Post by Angostura »

Barnabas wrote: post #10
tptacek wrote: post #8

Earlier quoted context omitted.

There's nothing wrong with offering up your own NDA. You'll usually lose if you're negotiating with a company with in-house legal, but for small gigs, that's a fine way to handle the problem. There's also nothing wrong with refusing to sign an NDA in the early stages of a pitch, and I should have been clearer about that in my rant above. As soon as you're offered access to a client's network, source code, or data, th…

Great idea. But short of paying a lawyer $X thousands to make my own generic NDA, where can I get an NDA that I can counter-offer with as you suggest? Any suggestions for good off-the-shelf documents such as this that protect both parties? I'd be willing to pay a couple of hundred bucks for a set of good documents like this. I'm an independent web developer like many here and have signed my fair share of NDAs.

To be honest (and I'm in a similar IT consulting business as you) I agree that once you're working closely with the client, signing a NDA is standard. You want them to feel free to divulge the secret sauce of their business so that you can offer the best service.

HOWEVER, I frequently delete or amend small portions of the NDA before signing and explain to the client why I have done so. I've never had a problem so far.

Re: Three Reasons Why Not To Sign Non Disclosure Agreements

#18

Post by Angostura »

tonystubblebine wrote: post #3

Does anyone have a good way to explain why they're not going to sign an NDA? We'll sign as part of signing a contract, but not as part of the initial discussion. I've never found a way to say no without getting a shocked reaction from the requester.

As I've posted above, I've never refused but I have frequently suggested small amendments and explained why I was concerned. It's never been a problem, though in all honesty this has been with mid-sized businesses rather than megacorps.

Re: Three Reasons Why Not To Sign Non Disclosure Agreements

#19

Post by bensummers »

tptacek wrote: post #2

These people are --- and excuse the breach of decorum here --- insane. VC's (for instance) won't sign NDAs because they don't want to be sued by spurned startups over something they "never" do (stealing ideas from pitches --- note: this is something several of them do). VC's get to not sign NDAs, because no VC will sign them, and they have all the money. Consultancies sign NDAs because they are going to work in close…

When I worked as a consultant, I never found my refusal to sign an NDA a problem. I did, of course, carefully explain my reasons.

It's a slightly different matter after the contract is signed, though. If they have some unique technology or sensitive data to protect, then an NDA is reasonable. But not before the work is agreed!

Re: Three Reasons Why Not To Sign Non Disclosure Agreements

#20

Post by mark_l_watson »

Barnabas wrote: post #10
tptacek wrote: post #8

Earlier quoted context omitted.

There's nothing wrong with offering up your own NDA. You'll usually lose if you're negotiating with a company with in-house legal, but for small gigs, that's a fine way to handle the problem. There's also nothing wrong with refusing to sign an NDA in the early stages of a pitch, and I should have been clearer about that in my rant above. As soon as you're offered access to a client's network, source code, or data, th…

Great idea. But short of paying a lawyer $X thousands to make my own generic NDA, where can I get an NDA that I can counter-offer with as you suggest? Any suggestions for good off-the-shelf documents such as this that protect both parties? I'd be willing to pay a couple of hundred bucks for a set of good documents like this. I'm an independent web developer like many here and have signed my fair share of NDAs.

I have been an independent consultant for 12 years. I have a master services agreement/NDA that has slowly evolved over time, often adding something to get a gig.

Feel free to use mine (http://markwatson.com/consulting/nda.htm) but if you improve it, please share your changes back with me.

After just re-reading my own doc, it is probably too long. It used to be about half this length.

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