Confidentiality agreement part 2

Following on from this:

http://singletrackworld.com/forum/topic/non-disclosure-agreements-should-i-sign-one

(Yes, that was a year ago)

I’ve just received two copies of a confidentiality agreement in the post with no covering letter. Under the things covered by the agreement are various bits of the frame design (some of which I’m pretty sure I thought of or substantially refined), and mention that some parts are subject to EU Design Registration.

Another clause is interesting: “The Receiver has not disclosed, and shall not disclose, the Agreement or the purposes of the Agreement.”

I’m not at all interested in screwing this person over, but equally don’t see any reason to sign that – presumably if I don’t sign it then there’s no way it can be binding, and the designer would have to rely on the EU Design Registration to protect the design?

I hate legal stuff 😀

I would ask that they cover the cost of you getting independent legal advice on the contract and only sign once you’ve had that.

Another clause is interesting: “The Receiver has not disclosed, and shall not disclose, the Agreement or the purposes of the Agreement.”

You can’t sign it now. You’d immediately be in breach, having told us about it.

Unless there was a substantial financial consderation, I’d not be signing it.

Furthermore, for pure devilment, i’d be researching the bits of the design they claim are covered by the design registration and applying for design registration yourself for any bits not already covered and challenging any bits, you designed that have been claimed by them.

Having said that….IANAL.

If I were in your position i’d lawyer up.

That’s an interesting idea. Is there any way this could be binding if I don’t sign it?

Just read the original thread.

Personally, I’d send it back unsigned “no thanks”.

Asking you to sign it retrospectively 2 years after the end of your involvement seems odd to me – I personally think someone is looking at a payday and wants to insulate themselves from the risk of having to share it, or worse is looking to stop you getting them into more trouble.

Either way, I can’t imagine any upside to you signing it and as they’re not offering any incentive, why sign it?

That’s an interesting idea. Is there any way this could be binding if I don’t sign it?

It would be very foolish to sign a contract under the assumption it’s not valid / enforceable.

You can’t sign it now. You’d immediately be in breach, having told us about it.

I did wonder about that 😀 But I haven’t told you who the agreement is with, so I think that’s still okay, maybe.

Furthermore, for pure devilment, i’d be researching the bits of the design they claim are covered by the design registration and applying for design registration yourself for any bits not already covered and challenging any bits, you designed that have been claimed by them.

I don’t have the time to be that evil. The daft thing is any random could come along and copy design ideas from the bike, it happens all the time – every bike designer copies ideas from other bikes. This agreement would bind me more than anyone else.

NB A company I used to work for kept sending me similar docs to sign over Patent rights for something I’d worked on. I refused on the grounds that there was absolutely nothing in it for me and everything in it for them.

The irony was that the contract did mention recompense of a nominal $1, and when I inquired as to whether they’d really send me a cheque for $1, I was told no!

Best bit of advice given to me by a lawyer (OK it was two pieces of advise), when considering legal stuff such as contracts ask yourself:
Is this reasonable?
Is there mutuality?

A contract implies that there is some mutual benefit and that neither party should end up worse off. Obviously it doesn’t necessarily end like that in reality.

IANAL but it looks to me as though you can’t sign that document as you have disclosed it’s existence before agreeing to it anyway! Not worth the paper its written on anyway. Also surely its not reasonable to attempt to undermine one piece of legislation (IP) by using a pseudo-legal document to enforce perceived IP rights?

It would be very foolish to sign a contract under the assumption it’s not valid / enforceable.

What I meant was, if I put it in a drawer and ignore it, would there be an assumption that I’ve signed it?

What I meant was, if I put it in a drawer and ignore it, would there be an assumption that I’ve signed it?

Nope. They need an original with your signature and normally that of a witness.

Don’t sign it unless they’re compensating you. NDAs of any type are usually for the benefit of both parties. Normally you and I sign an NDA; you work for me and get money, I get a “guarantee” you won’t disclose my IP to anyone else. If only they get something, I’d be telling them to sling their collective hooks.

This agreement would bind me more than anyone else.

You’ve just answered your own question there.

It’s been my experience that any legal document is written entirely for the benefit of whoever writes it. On general principle i’d seek amendments to any contract I signed.

Either – Tell them you’re binning it and wait until they make it such a problem that you need a lawyer.

or

Lawyer up now and have them amend the arse out of it to an extent that it benefits you more than them.

I don’t think they can make it a problem. Unless he’s signed some sort of Letter of Intent saying his payment was dependent on signing an NDA then there is reasonably nothing they can do. It’s like buying a car then going back later and asking for some free floor mats. You MIGHT get them but you’re trying it on.

Are you sure he’s not trying to sell the design and this is a condition of the deal?

Are you sure he’s not trying to sell the design and this is a condition of the deal?

I have a feeling that might be the case, yes.

I’ve signed NDAs. When I have it’s always been before I’ve been given any information and such information was only given on condition that I signed (hence the upside for me in signing). It sound like you already have all the information so as others have pointed out, if you’ve also already been paid for what you did and aren’t being paid to sign then there’s no upside at all for you in signing it. If you think he might pay you for it then maybe worth pursuing, otherwise I’d file in the circular filing cabinet.

I have a feeling that might be the case, yes.
[/quote]

In which case ask what’s in it for you. Clearly the original agreement didn’t require that, so presumably there is some added value to him in having it…

Worth a read if it’s one sided:

http://e-lawresources.co.uk/Consideration.php

Consideration isn’t a requirement for a binding contract under Scots Law.

We’re a generous nation and are free to enter into one sided contracts if we so choose. 😀

I have a feeling that might be the case, yes.

GET IN! I got one right.
In that case, signing will cost him. A fair sum of course, but there is zero chance he’d be getting it for nowt.

You should be asking for a further payment for “consultancy work” to sign it to cover your legal legwork, costs of insurance etc, plus a small profit for you to make it worth while.

Obviously the designer feels there is money in it for him if you sign, you should be getting some of that.

Having read the initial post – who tries to get a NDA signed after the work is completed – crazy!

Also posting about your confidentiality agreement on here to discuss it is probably invalidated it.

Having read the initial post – who tries to get a NDA signed after the work it completed – crazy!

Yes, I’ve signed a bunch of other NDAs, always before the project started – no problem with them. I guess this is an example of why doing something informally is a very bad idea.

What I meant was, if I put it in a drawer and ignore it, would there be an assumption that I’ve signed it?

No, but with no covering letter I’d also make the point that you haven’t even been told to keep it secret, an unsigned contract is pretty meaningless.

IANAL

I wouldn’t completely ignore it however, IME some people fall right into the Dunning Kruger trap with legal stuff. And those people are often nutcases to be kept on side (or defeated with logic/correct procedure).

IANAL – right in the bottom left, I assume I know nothing.

fruitcases sending NDA’s 2 years after the event with no consideration, that’s the peak.

Lawyers saying – it’s not my area – the middle bit

Actual IP lawyers somewhere on the right.

Ah the Dunning-Kruger Effect, I know all about that 😀

Are you sure?

😀

Also posting about your confidentiality agreement on here to discuss it is probably invalidated it.

Another bit of the story I forgot to mention. Yesterday the postie delivered an empty envelope, it had burst open. Asked him about it today and he handed me a RM envelope and said “the girls in the office found this loose paperwork, and read through it to get your address.”

So good detective work by Royal Mail, but that’s also scotched the confidentiality of the agreement I’d think…

If this is what I think it is and who I think it is, I would suggest this has happened :

Someone is interested in buying the brand/design/IP, new owner wants all documentation, original contracts etc, including any NDAs that may exist. Current owner, (let’s call him Mick) suddenly realises, ‘oh forgot to get Ben to sign an NDA when we talked about this informally, better do it now’.

I think it’s just tidying up loose ends and paperwork. Sign it or don’t. Can’t see it making any difference either way.

Yes, I don’t want to screw him over and good luck to him if he’s found a buyer, but I just don’t want to sign away rights to ideas I’ve had and might want to use on something else in future.

Any reasonable NDA should acknowledge the possibility of pre-existing IP and knowledge in the public domain. This would generally protect your ideas as long as you have expressed them in other work. If the NDA does not refer to such, I would not be for signing it.

but I just don’t want to sign away rights to ideas I’ve had

What rights do you think you have? Very hard to say ‘that was my idea’ without something to back it up.
But agree that signing it does nothing for you.

Say that you’ll sign it as long as you are granted an open ended licence to the design features that you contributed to and might want to use again. If they want you to sign away any rights to them, then it’ll need to be for some additional payment.

Your lump sum, if i read the other thread properly, was in lieu of a profit sharing agreement. Unless it was also to buy your rights to your part of the design, which I’d imagine would have to be documented in some way, this is a separate matter now.

Why don’t you just ask him why he wants you to sign it?

I fell out with a company who I think were trying to offer me a job because of their non-disclosure agreement (roughly the same idea).

I took the view that if that was the way they wanted to express themselves when they were trying to convince me to work with them then I’d hate to think what they would be like if we fell out.

What I meant was, if I put it in a drawer and ignore it, would there be an assumption that I’ve signed it?

Of course not t

The Only exception I know is employment law where turning up after the contract change is deemed to be evidence of having accepted it

IANAL

Think others cover it they cannot ask for this after the event and i they do then they need to pay

Your choice ignore or haggle for money or just sya you discussed it on STW ans see what happens

He can’t make you sign it. Without you signing it there is nothing to enforce. Looks to me like you have him over a barrel. He’s not gone to the trouble (and expense) of getting a lawyer to draw up an NDA without having a good reason. I’d be sending him a letter stating that you have no intention of signing an NDA unless you are financially compensated in appropriate fashion. At the end of the day if he can’t get his deal away without your signature you’re holding all the cards. If you felt that he shafted you a bit earlier (bit unclear in other thread) this is your chance to level the scores. Of course you may not want to play that game, but you are under no obligation to sign anything unless you choose to do so of your own accord..

I too am not a lawyer