Need urgent advice regarding NDA (Non Disclosure Agreement) methods please..

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Adappted

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Master Geek

#88735 22-Aug-2011 18:40

Hi,

I have some Aussies wanting to see some confidential information of mine. For the purposes of this thread let's just say they eagerly want to see what I have, which will then determine whether we enter into a collaboration. They also stated I too would need to sign an NDA from them. All this NDA stuff makes me a bit on edge but it could be well worth it so I need to proceed quickly. I have never had to present another company with an NDA. I don't really have the cash right now to hire a lawyer for this. I found http://www.lawlive.co.nz and created a general NDA there (only thing is they want $79 to download it), at this point I am not sure if that is a scam or a respected site in NZ. I was then going to host this NDA at DocShaker.com where the Aus company would then sign it via DocShaker's on line authentication system. Am I on the right track here? Extremely open to suggestions, thanks!

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#510098 22-Aug-2011 19:00

IANAL and most people here will not be, and even less likely to give free advise ;)

Have you spoken to someone at your local community law centre? Secondly, depend on how much this venture may be worth, have you considered approaching an Interlectual Property lawyer?

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mattwnz

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#510100 22-Aug-2011 19:02

Adappted: Hi,

I have some Aussies wanting to see some confidential information of mine.? For the purposes of this thread let's just say they eagerly want to see what I have, which will then determine whether we enter into a collaboration.? They also stated I too would need to sign an NDA from them.? All this NDA stuff makes me a bit on edge but it could be well worth it so I need to proceed quickly.? I have never had to present another company with an NDA.? I don't really have the cash right now to hire a lawyer for? this.? I found http://www.lawlive.co.nz and created a general NDA there (only thing is they want $79 to download it), at this point I am not sure if that is a scam or a respected site in NZ.? I was then going to host this NDA at DocShaker.com where the Aus company would then sign it via DocShaker's on line authentication system.? Am I on the right track here?? Extremely open to suggestions, thanks!

They should arrange and pay for the NDA, not you, if they are wanting you to sign one. Although you would probably also want your own one too, so they don't steal your own ideas. Not unsure if you need a lawyer to sign one, although probably good to have, especially if it is Ozzie law.

SaltyNZ

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2degrees

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#510109 22-Aug-2011 19:32

Best advice: get a lawyer.

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gzt

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#510113 22-Aug-2011 19:39

No experience here. Ask for theirs first, see exactly what it covers. It could be a mutual NDA conferring obligations on both parties at the same time. If so, see if you feel comfortable with that. Personally I would contact an NZ based IP legal professional experienced in your area of activity.

Adappted

121 posts

Master Geek

#510115 22-Aug-2011 19:52

looks like there is no cheap way out of this. I have driven the correspondence so am not comfortable asking the other party to front up with the NDAs. I would suspect going the full legal route will nail me for close to 1k or more. I am curious though, is email correspondence not copyright? If I am emailing someone back and forth and say to them "I have a great idea" then that person a week later produces and sells my idea, seems you could take them to court. One thing I could do is first print out my proposal and have it sealed and dated by a notary. Then fall back on email correspondence and the general NDA. hmm

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#510117 22-Aug-2011 20:05

Adappted: looks like there is no cheap way out of this. I have driven the correspondence so am not comfortable asking the other party to front up with the NDAs. I would suspect going the full legal route will nail me for close to 1k or more.

Well, you might be right, but make a few calls or you'll never know. Also, you might get lucky.

I am curious though, is email correspondence not copyright? If I am emailing someone back and forth and say to them "I have a great idea" then that person a week later produces and sells my idea, seems you could take them to court.

Not at all. Succeed in court for copyright violation if they used your text verbatim from your email in advertising or in a product - yes, maybe.

Beyond that, copyright law does not protect ideas or business methods at all. Not one bit.

doublehell

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Master Geek

#510120 22-Aug-2011 20:12

IANAL, and you should really consult one if you can budget for it.

Email correspondence is generally bound by some limited amount of confidentiality (i.e. anyone not being sent or copied on the email should not be benefiting from it), but if there's no NDA in place prior to the email discussion taking place, then nothing can stop the other party from using/sharing any ideas discussed.

If it's any help, here is the generic NDA I've used many times over the past years, you'll need to modify it accordingly:

Non Disclosure Agreement

This Non-Disclosure Agreement, effective DATE, between ABC, (the “Discloser”), and XYZ, (the “Recipient”). Discloser agrees to disclose and Recipient agrees to receive certain confidential information regarding INFORMATION BEING SHARED on the following terms and conditions:

1.   Confidential Information – Recipient understands and acknowledges that Discloser’s confidential information consist of information and materials that are valuable to Discloser and not generally known by competitors of Discloser. Discloser’s confidential information (“Information”) provided under this agreement includes, any and all information concerning Discloser’s current, future or proposed personal care products, operations, products and services. Such information will include but not be limited to formulations, organizational information, marketing information, and financial information about Discloser and his operations.

2.   Purpose and Disclosure: Recipient shall make use of this information only for the purpose of PURPOSE.

3.   Non Disclosure: In consideration of Discloser’s disclosure of this Information Recipient agrees that it will treat this Information with the same degree of care and safeguards that it takes with its own Information, but in no event less than a reasonable degree of care. Recipient agrees that, without Discloser’s prior written consent, Recipient will not:

(a)   Disclose this Information to any third party;

(b)   Make or permit to be made copies or other reproductions of Discloser’s information; or

(c)   Make any commercial or competitive use of such Information.

(d)   Recipient will not disclose Discloser’s Information to Recipients employees, agents and consultants unless: (1) they have a need to know the Information in connection with their employment or consultant duties; and (2) they personally agree in writing to be bound by the terms of this Agreement.

4.   Return of Materials: Upon Discloser’s request, Recipient shall promptly (within 30 days) return all original materials provided by Discloser and any copies, notes or other documents in Recipient’s possession pertaining to the Information Discloser shared with Recipient.

5.   Term of Agreement: This Agreement and Recipient’s duty to hold Discloser’s Information in confidence shall remain in effect until the above-described confidential information is no longer considered a Trade Secret or until Discloser sends Recipient written notice releasing Recipient from this Agreement, which ever occurs first.

6.   No Rights Granted: Recipient understands and agrees that this Agreement does not constitute a grant or an intention or commitment to grant any right title or interest in Discloser’s Information or Trade Secrets, to Recipient.

7.   Warranty: Discloser warrants that it has the right to make the disclosures under this Agreement. DISCLOSER, UNDER THIS AGREEMENT, MAKES NO OTHER WARRANTIES. ANY INFORMATION DISCLOSED, UNDER THIS AGREEMENT IS PROVIDED “AS IS.”

8.   Injunctive Relief: Recipient recognizes and acknowledges that any breach or threatened breach of this Agreement by Recipient may cause Discloser (shareholder) irreparable harm for which monetary damages may be inadequate. Recipient agrees, therefore, that Discloser shall be entitled to an injunction to restrain Recipient from such breach or threatened breach. Nothing in this Agreement shall be construed as preventing Discloser from pursuing any remedy at law or in equity for any breach or threatened breach of this Agreement.

9.   Attorney Fees: If any legal action arises relating to this Agreement, the prevailing party shall be entitled to recover all court costs, expenses and reasonable attorney fees.

10.   Modification: All additions or modification to this Agreement must be made in writing and must be signed by both parties to be effective.

11.   No Agency: This Agreement does not create any agency or partnership relationship between the parties.

12.   Applicable Law: This Agreement is made under and shall be construed according to the laws of COUNTRY.

ABC

By: ___________________________
       ABC Signature

_______________________________________
XYZ Signature

oxnsox

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#510122 22-Aug-2011 20:13

Even with NDA on both sides there still must be an element of trust

Regs

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Snowflake

#510165 22-Aug-2011 21:26

if its worth a lot to you, get a lawyer for sure. Probably even worth a conversation with one that specialises in Intellectual Property Protection if thats what this is about.

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kiwitrc

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#510172 22-Aug-2011 21:48

PM me and I can send you one that we have used for a while As Oxnsox says there has to be some mutual trust anyway.

If you have developed Facebook 2, then its worth getting some protection.

Handle9

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#510208 22-Aug-2011 22:51

As for everyone IANAL and I would suggest you consult one.

However commercially in a negotiation with where one party suggests legal agreements such as NDAs you should always insist that they are two way (i.e. they are bound by the same terms they want you to sign). If they aren't happy to do that you will probably find something onerous in the agreement.

Just a tip that actually does work. It can also make the negotiation a bit easier if you don't want to sign it as if they won't agree on a two way agreement they end up looking a bit of a turkey.

The conversation usually goes something like

The other guy "You need to give me a contract that gives me your house if you spill a glass of water"
You "Of course you will be happy to give me the same terms?"
The other guy "Why don't we talk about it another time...."

Sounds simple but it really does work.

You also may want to make the agreement subject an NZ court not an overseas one - saves you having to go to Australia if anything goes wrong.

Adappted

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Master Geek

#510214 22-Aug-2011 23:15

I have gently tried to put the ball back in their court. I contacted them to say I believe what we both want is a 2-way NDA and do they have one available. ^^kiwitrc might take you up on that PM depending on what I hear back. Thanks to all for the advice!

sleemanj

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#510536 23-Aug-2011 12:31

Dragging a little off topic, but perhaps in my own odd way when a potential client asks me to sign an NDA it rings alarm bells in my head very loudly.

It screams "this client is going to be way more trouble than they are worth they probably think they are going to compete with trademe or something like that".

If somebody wants me to sign an NDA before they even give me a synopsis of the project, or their server details, or even their domain name, I politely make up some plausible reason to decline their business.

Of course, I deal with small clients. Big companies love paper work.

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I sell lots of stuff for electronic enthusiasts...

Ragnor

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#510695 23-Aug-2011 15:09

Adappted: I am curious though, is email correspondence not copyright? If I am emailing someone back and forth and say to them "I have a great idea" then that person a week later produces and sells my idea, seems you could take them to court.

In New Zealand, copyright protects original literary, dramatic, musical and artistic works, sound recordings, films, communication works and the typographical arrangement of published editions

So no copyright won't cover a business idea in an email imo (I am not a lawyer though!)

Please remember ideas aren't worth anything by themselves, even being first to execute an idea might not be worth anything (first mover advantage is overrated).

What matters is how effective your execution of the idea is and whether there is a business model, people willing to pay for it.

Google wasn't the first search engine, Facebook wasn't the first social media site, Microsoft wasn't the first PC OS etc etc... their execution of the idea was simply better than competitors.

What I'm saying in a roundabout way is that really NDA's don't matter.

CADMAX

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Ultimate Geek

#510708 23-Aug-2011 15:25

get a interlectual property lawyer on the job or you will lose money and time.

been there done that.

In any moment of decision, the best thing you can do is the right thing, the next best thing is the wrong thing, and the worst thing you can do is nothing.

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