What is the name of your state (only U.S. law)? CA
I have worked ~50 hours under a very loose consulting arrangement for an old boss/acquaintance and am copying a non disclosure agreement that was presented by the legal counselor of this start-up company. I say “loose consulting arrangement” because we have not discussed exactly how much I will be paid, and I have not invoiced him yet. That is not my best form, but we have discussed my interest and his eventual need to hire someone like me for a position in the company. My query is regarding the aggressive NDA.
^p
The boss plans to do data-basing and protocol development for a huge range of services and applications in medicine, entertainment, general health, sport, and more (repeat, Huge Range). He has also discussed applying for the most general and far-reaching patents to protect protocols (that we have yet to develop) and control all imaginable profit streams to the company.
^p
I have my Ph.D. and a broad range of experiences, which the boss will naturally take full advantage of (background, abilities, connections, title…
. But, I too want to take full advantage of my knowledge, critical analysis skills, and so on, and subsequent to any span of employment with the company.
^p
Following are two particularly troubling passages: ^p
Recipient will hold in confidence … except information Recipient can document … ^p
…any breach of this agreement would cause irreparable harm to Megalo for which damages are not an adequate remedy and that Megalo shall therefore be entitled to equitable relief in addition to all other remedies available at law…
^p
Should I refuse to sign the NDA, and let the negotiation fizzle as it may? Or, should I sign it and plan to steer future technical work toward cutting-edge science and technology that is in the public domain?
^p
The NDA reduced slightly and with Company ID disguised:
^p
In connection with a proposed business relationship, Mr S (Megalo), has allowed or may allow (“Recipient” access to business, technical or other information, materials and/or ideas (“Proprietary Information,” which term shall include, without limitation, anything Recipient learns or discovers as a result of exposure to or analysis of any Proprietary Information).
In consideration of any disclosure and any negotiations concerning the proposed business relationship, Recipient agrees as follows:
^p
1. Recipient will hold in confidence and not possess or use (except to evaluate within the U.S. the proposed business relationship) or disclose any Proprietary Information except information Recipient can document ^p
(a) is in the public domain through no fault of Recipient’s, ^p
(b) was properly known to Recipient, without restriction, prior to disclosure by Megalo, or ^p
(c) was properly disclosed to Recipient by another person without restriction.
^p
Recipient will not reverse engineer or attempt to derive the composition or underlying information, structure or ideas of any Proprietary Information. The foregoing does not grant Recipient a license in or to any of the Proprietary Information. If Recipient decides not to proceed with the proposed business relationship or if asked by Megalo, Recipient will promptly return all Proprietary Information and all copies, extracts and other objects or items in which it may be contained or embodied. Recipient will promptly notify Megalo of any unauthorized release or use of Proprietary Information.
^p
2. Recipient understands that this Agreement does not obligate Megalo to disclose any information or negotiate or enter into any agreement or relationship. Recipient will strictly abide by any and all instructions or restrictions provided by Megalo from time to time with respect to Proprietary Information or Megalo systems. Recipient will ensure the security of any facilities, machines, accounts, passwords and methods Recipient uses to store any Proprietary Information or to access Megalo systems and ensure that no other person has or obtains access thereto. ^p
3. The terms of this Agreement will remain in effect with respect to any particular Proprietary Information until Recipient can document that it falls into one of the exceptions stated in Paragraph 1 above. ^p
4. Recipient acknowledges and agrees that due to the unique nature of the Proprietary Information, any breach of this agreement would cause irreparable harm to Megalo for which damages are not an adequate remedy and that Megalo shall therefore be entitled to equitable relief in addition to all other remedies available at law. ^p
5. This Agreement is personal to Recipient, is non-assignable by Recipient, is governed by the laws of the State of Z and may be modified or waived only in writing. If any provision is found to be unenforceable, such provision will be limited or deleted to the minimum extent necessary so that the remaining terms remain in full force and effect. The prevailing party in any dispute or legal action regarding the subject matter of this Agreement shall be entitled to recover attorneys’ fees and costs.
I have worked ~50 hours under a very loose consulting arrangement for an old boss/acquaintance and am copying a non disclosure agreement that was presented by the legal counselor of this start-up company. I say “loose consulting arrangement” because we have not discussed exactly how much I will be paid, and I have not invoiced him yet. That is not my best form, but we have discussed my interest and his eventual need to hire someone like me for a position in the company. My query is regarding the aggressive NDA.
^p
The boss plans to do data-basing and protocol development for a huge range of services and applications in medicine, entertainment, general health, sport, and more (repeat, Huge Range). He has also discussed applying for the most general and far-reaching patents to protect protocols (that we have yet to develop) and control all imaginable profit streams to the company.
^p
I have my Ph.D. and a broad range of experiences, which the boss will naturally take full advantage of (background, abilities, connections, title…
. But, I too want to take full advantage of my knowledge, critical analysis skills, and so on, and subsequent to any span of employment with the company. ^p
Following are two particularly troubling passages: ^p
Recipient will hold in confidence … except information Recipient can document … ^p
…any breach of this agreement would cause irreparable harm to Megalo for which damages are not an adequate remedy and that Megalo shall therefore be entitled to equitable relief in addition to all other remedies available at law…
^p
Should I refuse to sign the NDA, and let the negotiation fizzle as it may? Or, should I sign it and plan to steer future technical work toward cutting-edge science and technology that is in the public domain?
^p
The NDA reduced slightly and with Company ID disguised:
^p
In connection with a proposed business relationship, Mr S (Megalo), has allowed or may allow (“Recipient”
access to business, technical or other information, materials and/or ideas (“Proprietary Information,” which term shall include, without limitation, anything Recipient learns or discovers as a result of exposure to or analysis of any Proprietary Information).In consideration of any disclosure and any negotiations concerning the proposed business relationship, Recipient agrees as follows:
^p
1. Recipient will hold in confidence and not possess or use (except to evaluate within the U.S. the proposed business relationship) or disclose any Proprietary Information except information Recipient can document ^p
(a) is in the public domain through no fault of Recipient’s, ^p
(b) was properly known to Recipient, without restriction, prior to disclosure by Megalo, or ^p
(c) was properly disclosed to Recipient by another person without restriction.
^p
Recipient will not reverse engineer or attempt to derive the composition or underlying information, structure or ideas of any Proprietary Information. The foregoing does not grant Recipient a license in or to any of the Proprietary Information. If Recipient decides not to proceed with the proposed business relationship or if asked by Megalo, Recipient will promptly return all Proprietary Information and all copies, extracts and other objects or items in which it may be contained or embodied. Recipient will promptly notify Megalo of any unauthorized release or use of Proprietary Information.
^p
2. Recipient understands that this Agreement does not obligate Megalo to disclose any information or negotiate or enter into any agreement or relationship. Recipient will strictly abide by any and all instructions or restrictions provided by Megalo from time to time with respect to Proprietary Information or Megalo systems. Recipient will ensure the security of any facilities, machines, accounts, passwords and methods Recipient uses to store any Proprietary Information or to access Megalo systems and ensure that no other person has or obtains access thereto. ^p
3. The terms of this Agreement will remain in effect with respect to any particular Proprietary Information until Recipient can document that it falls into one of the exceptions stated in Paragraph 1 above. ^p
4. Recipient acknowledges and agrees that due to the unique nature of the Proprietary Information, any breach of this agreement would cause irreparable harm to Megalo for which damages are not an adequate remedy and that Megalo shall therefore be entitled to equitable relief in addition to all other remedies available at law. ^p
5. This Agreement is personal to Recipient, is non-assignable by Recipient, is governed by the laws of the State of Z and may be modified or waived only in writing. If any provision is found to be unenforceable, such provision will be limited or deleted to the minimum extent necessary so that the remaining terms remain in full force and effect. The prevailing party in any dispute or legal action regarding the subject matter of this Agreement shall be entitled to recover attorneys’ fees and costs.