Nondisclosure Agreements
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Web and Software Development: A Legal Guide[^]
Jon Sagara Vegetarianism is unhealthy. Humans need protein, and lots of it. Put down those sprouts and pick up a T-bone! -- Michael Moore
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geeeez.. thanks ... ony two problem with that.. 1) I asked for personal thoughts (so unless you wrote the book) and 2) I know gow to use google ;-) (Just being a pain .. pay no real attention I appreciate any response) :D qcha0s
qcha0s wrote: 2) I know gow to use google I have read the book. I was implying that you should read it, too. qcha0s wrote: (Just being a pain .. pay no real attention I appreciate any response) :rolleyes:
Jon Sagara Vegetarianism is unhealthy. Humans need protein, and lots of it. Put down those sprouts and pick up a T-bone! -- Michael Moore
Latest Article: Breadcrumbs in ASP.NET -
my particualr circumstance is a little strange, I did and still do contract/consulting work (development/project management/software architecture) I took a FT Perm position with a client over 2 years ago and did several things to my "Employee" contract when I was hired on FT, I crossed out and signed the sections that stated my developments either on or off company time or in or out of the company location belonged to them, so they read that during regular hours or while on location for the comapny the work I do is for them, but while on my time or my location what I do is none of thier business (I have signed other NDA's with clients that do't permit me to hand over thier company secrets to my FT employer), I also signed the contract "Without Prejudice" which to my understanding means "I was told to sign, and so I have but I do not agree with the contents" (may have diffrent implications in diffrent locations. I have now been asked to architect and develop (lead) an application that has some simularity to a project I worked on with my FT employer, I went to great lengths to make this new applications design totally diffrent then what I have previously developed, and made a firm decision on a diffrent language (to remove the possibility of "reused" code) I also thought it would be a smart idea to get my employer to sign off on the software proposal document for my client to state that it was not thier software, and they would not now or in the future try and claim ownership of the new application... *sigh* ... I also had several discussions with my client and got the athority from them to allow my employer free use of the compiled application (minus any support or possible contracts for them) if it would make things go smoth with my employer.... My Employer is in the process of runingit up thier legal flagpole and totally constipating my abaility to begin coding or advance with this project.... In a nutshell thats what provokes the question.. but i'm interested in ANY thoughts on the subject... ways out of such a pain... what to do next time ... what to do now .... qcha0s
ahhhhhhhhhhhhhhhhhhh now i see what i always do is make it clear that i will not suggest any features or additional functionality outside of that which the company asking me to write the software suggests it is a very murky area u are in tho ... if u crossed out the paragraphs and they accepted and co-signed the modifications then it is a legally binding document ... if not then it isnt it is going to be almost impossible to prove u didnt use any of the "secrets" of the one client for the benefit of the other client if the apps are in a similar field tough one i guess a lawyer is a good idea but it wont get u anywhere really apart from spending a lot of money and paralysing u from doing anything for ages more
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Anyone out there (in here) have personal experience with NDA's or the Legal side of Software Development (Intellectual Property)? I'm interested in hearing about some ups and downs on the legal rollercoaster, thoughts, suggestions, provoking comments, etc... in an effort to prepare myself for the same ride (appears to be imminent) Thanks for your time in advance! (Never underestimate the power of guilt) qcha0s
You said you crossed out the lines that say what you do on personal time is yours and initialed / signed them. Did an authorzied rep from the company sign it. If not do not assume the company will really honor it. Second, id almost does not matter at times what is signed or not. It is a matter of risk versus reward. Is your outside work worth enough to your employer to go after it. The fact it is similar even with everything signed and agreed, they could come back and say, hey that part is like ours so it was taken from us and this is theft of work. Given this last option. I would be very wary of taking it on, unless I was perpared to leave now. So I ask you, What impact to you if you get tied up with no income for a year? By your self and can do or obligations to a family that would also be at risk? I had been doing some outside work and had recieved copyright releases for it. However my postision changed a few years back and I dropped it because it was just to close to what I was now doing. Just not the risk to my family. Anyways, my opinion.
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Anyone out there (in here) have personal experience with NDA's or the Legal side of Software Development (Intellectual Property)? I'm interested in hearing about some ups and downs on the legal rollercoaster, thoughts, suggestions, provoking comments, etc... in an effort to prepare myself for the same ride (appears to be imminent) Thanks for your time in advance! (Never underestimate the power of guilt) qcha0s
I write financial and accounting software both for clients and my own package that I resell. I was contracted to design and oversee the development of retail Point of Sale. They understood that I sell my own software and I would not compete directly or disclose any of their confidential information when I signed the nondisclosure. I finished and left then was sued after I released the .Net version of my software a year later. I was lucky enough that my software was in a different language, style and their Nondisclosure was downloaded off the Internet and was worthless. The stress on my family was huge and I felt like an idiot in not having a Lawyer look it over before I signed it.
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my particualr circumstance is a little strange, I did and still do contract/consulting work (development/project management/software architecture) I took a FT Perm position with a client over 2 years ago and did several things to my "Employee" contract when I was hired on FT, I crossed out and signed the sections that stated my developments either on or off company time or in or out of the company location belonged to them, so they read that during regular hours or while on location for the comapny the work I do is for them, but while on my time or my location what I do is none of thier business (I have signed other NDA's with clients that do't permit me to hand over thier company secrets to my FT employer), I also signed the contract "Without Prejudice" which to my understanding means "I was told to sign, and so I have but I do not agree with the contents" (may have diffrent implications in diffrent locations. I have now been asked to architect and develop (lead) an application that has some simularity to a project I worked on with my FT employer, I went to great lengths to make this new applications design totally diffrent then what I have previously developed, and made a firm decision on a diffrent language (to remove the possibility of "reused" code) I also thought it would be a smart idea to get my employer to sign off on the software proposal document for my client to state that it was not thier software, and they would not now or in the future try and claim ownership of the new application... *sigh* ... I also had several discussions with my client and got the athority from them to allow my employer free use of the compiled application (minus any support or possible contracts for them) if it would make things go smoth with my employer.... My Employer is in the process of runingit up thier legal flagpole and totally constipating my abaility to begin coding or advance with this project.... In a nutshell thats what provokes the question.. but i'm interested in ANY thoughts on the subject... ways out of such a pain... what to do next time ... what to do now .... qcha0s
There are a ton of issues here, and so you're best to consult a lawyer. (Disclaimer:) I'm not a laywer, and you shouldn't construe any suggestions I make here as a substitute for proper legal advice. There are two key issues I think, the moral one and the legal one. Do you feel like you're violating someone's trust? That's not an insignificant issue (IMHO) and one you'll have to determine for yourself I'd think. The legal issues are complicated in my experience and involve a tremendous array of factors: Where you live and work. The west coast not surprisingly tends to be employee centric legally, the east coast employer focused. Should you end up in court this will undoubtedly end up being a factor. Size of the companies involved: Small companies are almost never up to enforcing agreements and by small I'd say < $10M in annual revenues. The cost of prosecuting a law suit is tremendously onerous, and unless it's a do or die issue for the company they are not likely to go to the mat over an issue like this. Defending being sued is often covered by insurance, and so companies are much more likley to mount a strong defence. Also these cases are incredibly technical, and so the expert testimony and other issues make these cases very expensive. Fundamentally, if you're working for a company, and they've paid you to develop and research unique technology serving a vertical market, or other specialized niche, you probably should respect that. If however your doing relatively common development, your not 'researching' or working with confidential knowledge of an organization to develop products, you should feel confident in the outside work you're providing. David
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ahhhhhhhhhhhhhhhhhhh now i see what i always do is make it clear that i will not suggest any features or additional functionality outside of that which the company asking me to write the software suggests it is a very murky area u are in tho ... if u crossed out the paragraphs and they accepted and co-signed the modifications then it is a legally binding document ... if not then it isnt it is going to be almost impossible to prove u didnt use any of the "secrets" of the one client for the benefit of the other client if the apps are in a similar field tough one i guess a lawyer is a good idea but it wont get u anywhere really apart from spending a lot of money and paralysing u from doing anything for ages more
I was in a similar situation, the lawyer stated that if my previous employer decided to sue me, they would probably win. The only way to make 'sure' they don't is if you work to a specification written entirely by someone else. Even then there still could be a court case, suing ex employees on these grounds is very common, 'to preserve trade secrets' etc. So if you are sued as an individual could you afford fight the case? Another scenario where lawyers get rich! Although if you genuinely did steal your ex employers code they would be justified. Just a 'grey' where you could argue they are restricting your trade, they would argue you are stealing their product. A simiar case I heard was of a vet, their contract stated if they left they could no open a new practice within 30 miles of their current employer premises, within 1 yesar of leaving, this is 'legal', but if it said within 1000 miles it would not, as it is a restiction of trade, i belive, in the UK only of course.
"My favorite thing about the Internet is that you get to go into the private world of real creeps without having to smell them." - Penn Jillette
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There are a ton of issues here, and so you're best to consult a lawyer. (Disclaimer:) I'm not a laywer, and you shouldn't construe any suggestions I make here as a substitute for proper legal advice. There are two key issues I think, the moral one and the legal one. Do you feel like you're violating someone's trust? That's not an insignificant issue (IMHO) and one you'll have to determine for yourself I'd think. The legal issues are complicated in my experience and involve a tremendous array of factors: Where you live and work. The west coast not surprisingly tends to be employee centric legally, the east coast employer focused. Should you end up in court this will undoubtedly end up being a factor. Size of the companies involved: Small companies are almost never up to enforcing agreements and by small I'd say < $10M in annual revenues. The cost of prosecuting a law suit is tremendously onerous, and unless it's a do or die issue for the company they are not likely to go to the mat over an issue like this. Defending being sued is often covered by insurance, and so companies are much more likley to mount a strong defence. Also these cases are incredibly technical, and so the expert testimony and other issues make these cases very expensive. Fundamentally, if you're working for a company, and they've paid you to develop and research unique technology serving a vertical market, or other specialized niche, you probably should respect that. If however your doing relatively common development, your not 'researching' or working with confidential knowledge of an organization to develop products, you should feel confident in the outside work you're providing. David
My employer is a LARGE fortune 100 company... The technology isn't all that unique, there are several companies that have developed the same type of aplications, and many companies use the same technologys for various things... just my employer wanted to do it in house (any attempts to patent this type of application would be futile, as prior work exists in many diffrent companies)... But with the size of my employer, if they wanted to tie this up in legal procedings, I can't compare to the depth of thier pockets.... In answer to the ethic/legal questions, I don't beleive that I am violating any trust, I have been totally up front and forthcoming with both my client and my employer... I have no desire to "screw" anyone, I simply want to be able to do what I do best... develop software ;-) I think that because of my openess and non-willingness to violate any trust is actually what got me into this jam in the first place . o O ( Thoughts of my fathers voice ... "never poke a bear with a stick, and don't alert the enemy" ) O o . I'm in Ontario, so I suppose that I would fall in the "East" mentality (I know my employer meets the descripption) ;P I suppose I will end up doing the lawyer thing, or directing my client to another developer... I'm really not into paying pinheads to unnessessarly complicate issues.... Thanks for the feedback qcha0s
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ahhhhhhhhhhhhhhhhhhh now i see what i always do is make it clear that i will not suggest any features or additional functionality outside of that which the company asking me to write the software suggests it is a very murky area u are in tho ... if u crossed out the paragraphs and they accepted and co-signed the modifications then it is a legally binding document ... if not then it isnt it is going to be almost impossible to prove u didnt use any of the "secrets" of the one client for the benefit of the other client if the apps are in a similar field tough one i guess a lawyer is a good idea but it wont get u anywhere really apart from spending a lot of money and paralysing u from doing anything for ages more
The client selected me based on the work that I have done for my employer... (they require simular functionality) .. but it really isn't all that special (thousands of applications do the same thing in a manner of speaking) my client just see's that I have a good working knowledge of what they need... the client and employer aren't even in the same busniess domain... my employer is Y and provides to X, and my client is Z and provides to A, B, C and Y.. but not X ... (did that make sence to anyone else?) :P it would almost be like someone saying that *ANY* development for anyone other then my employer on the 80x86/Win platform is not permitted because I'm using the Same API to return the OS Version information... @ least thats how I relate my employer constipating my potential contract with thier legal department... Thanks for the feedback.. I will prolly go crawl under a rock and think things over :P qcha0s
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You said you crossed out the lines that say what you do on personal time is yours and initialed / signed them. Did an authorzied rep from the company sign it. If not do not assume the company will really honor it. Second, id almost does not matter at times what is signed or not. It is a matter of risk versus reward. Is your outside work worth enough to your employer to go after it. The fact it is similar even with everything signed and agreed, they could come back and say, hey that part is like ours so it was taken from us and this is theft of work. Given this last option. I would be very wary of taking it on, unless I was perpared to leave now. So I ask you, What impact to you if you get tied up with no income for a year? By your self and can do or obligations to a family that would also be at risk? I had been doing some outside work and had recieved copyright releases for it. However my postision changed a few years back and I dropped it because it was just to close to what I was now doing. Just not the risk to my family. Anyways, my opinion.
My Manager had to sign it following me.... I'm of the opinion that if they didn't re-draft the contract, and filed it the way I signed it.. then they accepted my terms... am I off here? well I think that the use of a seperate language and a totally diffrent architecture should prevent the "theft of work" angle... and to my knowledge, I'm paid to develop not think .. so my toughts are mine? no ? Leaving my employer is an option ... I have already discussed this potential solution with my client... I would love to get back into the Freelance FT .. convincing the wife of that however is a tricky one ;-) ... I know that my family comes first, and ca't jepordize them.. if it was just me this wouldn't be an issue.. i would take the risk in the name of experiance (good or bad) ... but as a husband, and father of two.... I tend to take fewer risks ;-) Thanks for the opinion qcha0s
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My Manager had to sign it following me.... I'm of the opinion that if they didn't re-draft the contract, and filed it the way I signed it.. then they accepted my terms... am I off here? well I think that the use of a seperate language and a totally diffrent architecture should prevent the "theft of work" angle... and to my knowledge, I'm paid to develop not think .. so my toughts are mine? no ? Leaving my employer is an option ... I have already discussed this potential solution with my client... I would love to get back into the Freelance FT .. convincing the wife of that however is a tricky one ;-) ... I know that my family comes first, and ca't jepordize them.. if it was just me this wouldn't be an issue.. i would take the risk in the name of experiance (good or bad) ... but as a husband, and father of two.... I tend to take fewer risks ;-) Thanks for the opinion qcha0s
qcha0s wrote: My Manager had to sign it following me This should make a strong case for yourself. Even if he was not authorized to do so. qcha0s wrote: so my toughts are mine? no ? Not always. All depends on how intellectual capital is interpreted. But back to the first line. You should be ok, but I can see it going to court and that is still your time and trouble. (Just My Opinion.) qcha0s wrote: but as a husband, and father of two.... I tend to take fewer risks Same Here. Good Luck. I do not mind getting old. It beats all the other options that can think of.