NDA WTF'ry



  • I'm an independent contractor and I sub to Company A. Company A does work with Company B (well I do the actual work, but company A gets the credit - I just get the $$). Company B sends Company A a revised NDA document to handle information transfer between Company A and Company B. My handler at Company A sends me this NDA document (which is marked "preliminary draft - not for execution", but in the scheme of things looks like a straight forward, simple NDA with no obvious gotchas) along with an agreement that I think he wants me to sign. This agreement consists entirely of:

    The undersigned employee of [Company A] herby certifies that he/she has read the AGREEMENT entitled Confidential Disclosure Agreement, executed on [blank space], between Company B and Company A, and will abide by all provisions of that AGREEMENT, both as an employee and in any subsequent employment

    Date: [more blank space]
    Signature: [blank etc]
    Printed Name: [blank]

    The list of WTFs I have come up with include:

    1. The NDA is only a draft copy, so I have no idea what I would be agreeing to by not having seen the final copy.
    2. As a sub contractor, this NDA is not applicable to me anyway.
    3. The NDA explicitly describes how sub contractors should be handled (with an NDA between my company and Company A, that references Company B), and what I am being asked to sign is not it - so Company B would be pissed if they knew what was going on.
    4. The date on which the NDA was supposed to have been executed is blank so I have no idea if any NDA was agreed to.
    5. I am not an employee of Company A (probably redundant but hey I'm tired)

    This steaming pile of shit is so bad that I don't even need to even think about showing it to my lawyer. Then my handler sent me an email today which said in its entirety

    This is a request from Company B corporate. At some point you may not be able to do work there even remotely if you don't sign this thing. Let me know what you want to do.

    So you can add some extra WTFs about implied threats etc.

    I emailed my handler back today point out all of the above WTFs, and how there was no way in the world I would be signing it - said nicely of course. This is a wonderful start to the week!



  • @OzPeter said:

    I emailed my handler back today point out all of the above WTFs, and how there was no way in the world I would be signing it - said nicely of course. This is a wonderful start to the week!
     

    If it's not applicable to you anyway, couldn't you just fill in the date and sign it?

    I've only ever come across NDA's when dealing with US companies and I've usually just signed them and got on with the work. They want to keep their lawyers busy, psh, whatever. Am I too careless?



  • I once had to sit on my hands because I couldn't sign a strange "agreement" like this.  Eventually one of the managers had to fly interstate to come and tell me that the document didn't mean what it said, I could make up my own interpretation of what it said and it didn't apply to me anyway.  OK, under those conditions, I can sign anything.

    There's probably some legal term you can sign it with that will allow the person insisting on a signature to report back that you signed it but actually means you disagree with the contents.  The words "without prejudice" on a document have some specific legal meaning (at least under UK and Australian law) which basically means nothing on that document can be used in legal proceedings.



  • @b_redeker said:

    If it's not applicable to you anyway, couldn't you just fill in the date and sign it?

    Because an NDA is a legal document that is meant to provide certain protections for the parties that sign it. This "thing" (which is not an NDA) that I am being asked to sign attempts to define me as something I am not, and to stipulate that I have seen and understood to a document that I have not. Signing it would give me none of the protection that the NDA is meant to give and will expose me to more legal risk than if I haven't signed it.

    But if you want to take the attitude of "sure, I'll sign anything" without doing due diligence, then I have this nice contract sitting here for a bridge in Brooklyn - just sign this other document that says you have agreed to it.



  • Eh... I won't sign just about anything, but there is a class of documents that is often used but doesn't mean too much. This very much depends on country/culture/jurisdiction though. For instance, courts in many countries will customarily throw out non-compete clauses, even though the employee has signed them, becasue they are regarded as unreasonable.

    In this case, I found some advice about NDA's that said:
    1) they're very hard to enforce
    2) follow a reasonable strategy: disclose only that which you need to disclose at a certain moment, not more (layered approach)
    3) get a very good lawyer to draw them up for you

    How I read that is: with or without NDA, you need to follow the same strategy; having one is fairly useless. So I'll sign them if they don't look too weird. But having said that, my "Am I too careless" was a serious question, and I'd love to hear about someone who was actually sued over an NDA. Well, not love, but it'd be interesting.

    Now that bridge in Breukelen of yours. How much money can you spend? Because might have some attractive offers here.

     



  • @Qwerty said:

    There's probably some legal term you can sign it with that will allow the person insisting on a signature to report back that you signed it but actually means you disagree with the contents.  The words "without prejudice" on a document have some specific legal meaning (at least under UK and Australian law) which basically means nothing on that document can be used in legal proceedings.


    One of my bosses signed something like that once with the words "Under Duress" - I think that's what you're looking for. Also, FYI, a similar trick for signing for parcels is "Unchecked".



  • @b_redeker said:

    Eh... I won't sign just about anything, but there is a class of documents that is often used but doesn't mean too much. This very much depends on country/culture/jurisdiction though. For instance, courts in many countries will customarily throw out non-compete clauses, even though the employee has signed them, becasue they are regarded as unreasonable.

    There is no non-compete clause in this case, it is purely non-disclosure of company secrets (but I haven't set my lawyer on it). But if I sign this document it does open up myself and Company A to potential collateral damage that has nothing to do with the NDA.

    For instance by signing I am effectively agreeing that I am an employee. In which case Mr IRS would have a the right to say to me "you know, all those tax deductions you claimed as business expenses over the last X years, well if you are an employee then they are null and void .. so cough up!"

    Mr IRS could also say at the same time to Company A "About this employee that you haven't declared. You sort of missed paying the social security and payroll tax and everything else tax over the last number of X years .. so cough up!"

    Not that I consider an IRS audit possible (nobody expects the Spanish Inquisition), but situations such as this happen to companies and contractors all the time in the US. So why not insist on my legal rights and establish maximum legal protection (especially in a country that is litigation happy)



  • @Qwerty said:

    I once had to sit on my hands because I couldn't sign a strange "agreement" like this.  Eventually one of the managers had to fly interstate ...

    You see, here is the difference. You were an employee, so your legal obligations end at 5pm, and all that can happen to you is that you lose your job if things go worng. I am a business owner - I can lose my house, car and everything else in a lawsuit. Yes the laws protect my personal property from a business lawsuit - but the cash to pay the lawyer has to come from somewhere.



  • @OzPeter said:

    I'm an independent contractor and I sub to Company A. Company A does work with Company B (well I do the actual work, but company A gets the credit and the $$$ - I just get the shaft).


    There, FTFY.



  • @OzPeter said:

    @Qwerty said:

    I once had to sit on my hands because I couldn't sign a strange "agreement" like this.  Eventually one of the managers had to fly interstate ...

    You see, here is the difference. You were an employee, so your legal obligations end at 5pm, and all that can happen to you is that you lose your job if things go worng. I am a business owner - I can lose my house, car and everything else in a lawsuit. Yes the laws protect my personal property from a business lawsuit - but the cash to pay the lawyer has to come from somewhere.

     

    Being an independent contractor has many benefits. Usually as an employee the company lays claim to everything you do, while they claim nothing of a contractor. When the contractor gives code or whatever to the company, the company now owns it, but it is a "sale" of sorts. If the contractor does not "sell" something to the company, nothing happens.



  • It's a NDA, mister IRS isn't going to see that. these things dissapear in drawers and thats it.

    However, I wouldn't sign that either. Inform your "handler" (like wtf, you live in the dollhouse), that you can't sign that because of the described problems and he needs to get a proper one or something. It's not your problem that you can't do work for comp A because of comp B rules. Or at least, I hope it isn't, because otherwise mr IRS man might want to have that talk afterall. 



  • We had a saying at a company that I worked for a couple of decades ago. "If we limited ourselves to only sell to intelligent customers, we would be out of work in a week."
    That being said, if you have other business you can do, than do it, otherwise spend a little money on a real lawyer, who undoubtedly will tell you, "Just sign it, it means nothing." Don't forget to hide the cost of the lawyer in your bill somewhere.

    Been there.


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