I am looking for a fast and cheap way to have an NDA reviewed...
February 6, 2019 7:05 PM Subscribe
But the options that I've found are neither of those things.
I have been offered a short freelance gig but in order to start work I will need to sign an NDA. I would rather not sign anything, even a seemingly basic NDA, without knowing what the risks are.
I have looked at a legal service (legalshield) but it requires a yearly commitment the cost of which will be more than I will make with the gig. I haven't looked at lawyers in my area lately but the last time I did the cost of reviewing a short contract was still on the order of $300-$400. I expect that the entire contract might only pay $100-$200
Are there any trusted legal forums that people have used and that might take a look at a short, 2 page nda for me
I have looked at a legal service (legalshield) but it requires a yearly commitment the cost of which will be more than I will make with the gig. I haven't looked at lawyers in my area lately but the last time I did the cost of reviewing a short contract was still on the order of $300-$400. I expect that the entire contract might only pay $100-$200
Are there any trusted legal forums that people have used and that might take a look at a short, 2 page nda for me
You may be able to get free or low-cost help from a law school clinic, and other ideas for free or low-cost legal assistance are listed at the MeFi Wiki Get a Lawyer page.
posted by Little Dawn at 7:51 PM on February 6, 2019
posted by Little Dawn at 7:51 PM on February 6, 2019
Best answer: I expect that the entire contract might only pay $100-$200
This may not be a good way to think about the problem. If you’re confident this project is just a starting point for a much larger chunk of profitable work with the client then consider the legal costs in that light. If not, then walk away because you’re going to put $200 of your time into this even if you find a lawyer willing to review it for free.
posted by jon1270 at 5:10 AM on February 7, 2019 [1 favorite]
This may not be a good way to think about the problem. If you’re confident this project is just a starting point for a much larger chunk of profitable work with the client then consider the legal costs in that light. If not, then walk away because you’re going to put $200 of your time into this even if you find a lawyer willing to review it for free.
posted by jon1270 at 5:10 AM on February 7, 2019 [1 favorite]
IANAL. An NDA is written to keep you from revealing information (typically trade secrets or other confidential information) about the business that wants you to sign. If you can be confident that you can keep that information to yourself, your risks are small to non-existent.
Is it possible that you will learn of actions/behavior that is illegal? Yes. In that case, I would imagine that reporting that information to law enforcement would not trigger liability under an NDA.
Per jon1270, however, your best bet could be to walk away.
posted by John Borrowman at 9:03 AM on February 7, 2019
Is it possible that you will learn of actions/behavior that is illegal? Yes. In that case, I would imagine that reporting that information to law enforcement would not trigger liability under an NDA.
Per jon1270, however, your best bet could be to walk away.
posted by John Borrowman at 9:03 AM on February 7, 2019
Best answer: [I-am-a-lawyer-but-not-your-lawyer disclaimers here. And I recognize that this is not a specific answer to "where can I get my NDA reviewed" but I hope it's of some help.]
Most NDAs are bog-standard and low risk (provided of course that you are committed to maintaining the confidentiality of what you get.) And I definitely would expect any contractor that my company hired to sign one. Where things vary and could increase the risk are generally in a few key places:
1. Term. How long are you agreeing to keep stuff secret? Our template says that the period of disclosure covers 2 years and then the secrecy goes for 3 years after that. That seems like a long enough time to protect secret stuff but not so long that you have to worry about being sued a decade from now. If the term is undefined or is forever, that's something to discuss. [Note that many forms will carve out trade secrets and say that they are protected for as long as something remains a trade secret. That makes legal sense, but honestly those guys shouldn't be sharing trade secrets with random contractors.]
2. Definition of Confidential Information, and Exclusions. What actually is covered? Some forms say "everything we disclose," some include proprietary, non-public info and then have broad "including but not limited to" lists, some require the documents to be formally identified as confidential. Almost all will exclude things already in the public domain, stuff that you could get from other sources free and clear, stuff you independently develop, etc. You should feel comfortable that you know the universe that you are promising to keep secret.
3. Is it mutual or one-way? A mutual NDA will cover information going both ways, which means that they are committing to keep YOUR confidential info secret, too. A one-way NDA will obligate you to keep their stuff secret but gives you no protection in return. Maybe this won't matter to you if you have nothing secret, but if you do you should ask for a mutual NDA. [A shortcut that I use on mutual NDAs is to see if they are true mirrors of one another. If they call one side the "Disclosing Party" and the other side the "Receiving Party," and then they don't reserve any special items for themselves, it's a small reassurance that they are willing to give everything they are demanding in return. If they have special provisions just for them in a mutual NDA, that's not necessarily a killer but it's not a great look.]
4. What are the return/destroy obligations? What are you promising to do with the Confidential Info at the end of the term? And is it triggered automatically or upon request? Sometimes it says that at the end of the term you will physically return any documents containing confidential information, which I have never ever ever seen actually happen but it would be a giant pain if it ever did. Sometimes it says you will return or destroy, at your choice. That's better because in theory you could just nuke your emails and shred your paper. Sometimes it says you will only do those "at the request of the disclosing party," which is the best, because realistically you don't want to have to go through the hassle of segregating and returning information and they probably won't ask you to.
5. Is there IP or Invention language (or other stuff that doesn't relate to Confidentiality)? Sometimes companies will put stuff in an NDA that doesn't really belong there, like a promise that any Inventions or IP generated will automatically belong to them and you promise to assign it over. To me that is unrelated to a promise to keep info secret, and I delete those with a note back that we will be glad to discuss and negotiate IP matters but that they are better addressed in a separate document.
Similarly, I wouldn't agree to language that gets at the heart of your engagement rather than the confidentiality undertaking. Stuff like a promise to be exclusive to them or to not do work for competitors, promises to adhere to their policies, billing/payment terms, audit rights, or [insert commercial thing here.] Again, those may be totally fine things to agree to but they should be part of a commercial agreement or engagement letter rather than an NDA.
6. Choice of Venue. Are you promising to bring suit (or to be sued) in some far off jurisdiction that would be cost-prohibitive for you?
7. Standard Stuff. You will almost for sure see provisions that say that an adequate remedy at law would be unavailable if you breach and so they can seek an injunction (that sounds scary but it's in 99.9% of NDAs and it's meant to establish that if you start spilling their secrets they can go straight to court and get an order for you to stop as opposed to suing you for breach of the NDA and waiting out the results of the case.) You'll likely also see a provision that if you are subpoenaed or ordered to produce documents that include their Confidential Information, you will give them a heads up so that they can try to block it. That's standard. And there will be a ton of boilerplate stuff about successors and assigns (if they sell themselves you are still bound), and signature in counterparts (you can sign and they can sign separately and its still valid), and electronic/facsimile exchange (you can send PDFs instead of originals) and severability (if part of the NDA is unenforceable the rest is still okay), and a choice of law provision in the state where they are located and/or incorporated, and language that amendments must be in writing, etc.
With all of this said, some companies take a position - especially with a freelancer - that their documents are not invitations to negotiate but instead are gates to clear to get to the job. If that's the case, it doesn't necessarily mean that you should walk away, it could just mean that their legal or procurement group is a hassle or that your contact on the other side is lazy and/or doesn't want to spend the capital to get your changes reviewed.
posted by AgentRocket at 11:47 AM on February 7, 2019 [14 favorites]
Most NDAs are bog-standard and low risk (provided of course that you are committed to maintaining the confidentiality of what you get.) And I definitely would expect any contractor that my company hired to sign one. Where things vary and could increase the risk are generally in a few key places:
1. Term. How long are you agreeing to keep stuff secret? Our template says that the period of disclosure covers 2 years and then the secrecy goes for 3 years after that. That seems like a long enough time to protect secret stuff but not so long that you have to worry about being sued a decade from now. If the term is undefined or is forever, that's something to discuss. [Note that many forms will carve out trade secrets and say that they are protected for as long as something remains a trade secret. That makes legal sense, but honestly those guys shouldn't be sharing trade secrets with random contractors.]
2. Definition of Confidential Information, and Exclusions. What actually is covered? Some forms say "everything we disclose," some include proprietary, non-public info and then have broad "including but not limited to" lists, some require the documents to be formally identified as confidential. Almost all will exclude things already in the public domain, stuff that you could get from other sources free and clear, stuff you independently develop, etc. You should feel comfortable that you know the universe that you are promising to keep secret.
3. Is it mutual or one-way? A mutual NDA will cover information going both ways, which means that they are committing to keep YOUR confidential info secret, too. A one-way NDA will obligate you to keep their stuff secret but gives you no protection in return. Maybe this won't matter to you if you have nothing secret, but if you do you should ask for a mutual NDA. [A shortcut that I use on mutual NDAs is to see if they are true mirrors of one another. If they call one side the "Disclosing Party" and the other side the "Receiving Party," and then they don't reserve any special items for themselves, it's a small reassurance that they are willing to give everything they are demanding in return. If they have special provisions just for them in a mutual NDA, that's not necessarily a killer but it's not a great look.]
4. What are the return/destroy obligations? What are you promising to do with the Confidential Info at the end of the term? And is it triggered automatically or upon request? Sometimes it says that at the end of the term you will physically return any documents containing confidential information, which I have never ever ever seen actually happen but it would be a giant pain if it ever did. Sometimes it says you will return or destroy, at your choice. That's better because in theory you could just nuke your emails and shred your paper. Sometimes it says you will only do those "at the request of the disclosing party," which is the best, because realistically you don't want to have to go through the hassle of segregating and returning information and they probably won't ask you to.
5. Is there IP or Invention language (or other stuff that doesn't relate to Confidentiality)? Sometimes companies will put stuff in an NDA that doesn't really belong there, like a promise that any Inventions or IP generated will automatically belong to them and you promise to assign it over. To me that is unrelated to a promise to keep info secret, and I delete those with a note back that we will be glad to discuss and negotiate IP matters but that they are better addressed in a separate document.
Similarly, I wouldn't agree to language that gets at the heart of your engagement rather than the confidentiality undertaking. Stuff like a promise to be exclusive to them or to not do work for competitors, promises to adhere to their policies, billing/payment terms, audit rights, or [insert commercial thing here.] Again, those may be totally fine things to agree to but they should be part of a commercial agreement or engagement letter rather than an NDA.
6. Choice of Venue. Are you promising to bring suit (or to be sued) in some far off jurisdiction that would be cost-prohibitive for you?
7. Standard Stuff. You will almost for sure see provisions that say that an adequate remedy at law would be unavailable if you breach and so they can seek an injunction (that sounds scary but it's in 99.9% of NDAs and it's meant to establish that if you start spilling their secrets they can go straight to court and get an order for you to stop as opposed to suing you for breach of the NDA and waiting out the results of the case.) You'll likely also see a provision that if you are subpoenaed or ordered to produce documents that include their Confidential Information, you will give them a heads up so that they can try to block it. That's standard. And there will be a ton of boilerplate stuff about successors and assigns (if they sell themselves you are still bound), and signature in counterparts (you can sign and they can sign separately and its still valid), and electronic/facsimile exchange (you can send PDFs instead of originals) and severability (if part of the NDA is unenforceable the rest is still okay), and a choice of law provision in the state where they are located and/or incorporated, and language that amendments must be in writing, etc.
With all of this said, some companies take a position - especially with a freelancer - that their documents are not invitations to negotiate but instead are gates to clear to get to the job. If that's the case, it doesn't necessarily mean that you should walk away, it could just mean that their legal or procurement group is a hassle or that your contact on the other side is lazy and/or doesn't want to spend the capital to get your changes reviewed.
posted by AgentRocket at 11:47 AM on February 7, 2019 [14 favorites]
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