Ask HN: about NDAs - do I just need to lighten up?

[disposable222]

Apologies for using a disposable account. I prefer this not be tracked back to my real alias.

I have a potential client that is interested in my software consulting services, and we've progressed past 1 initial phone interview to arrange a face to face meeting. The night (12 hours) before the face to face meeting, the potential client emails me an NDA. There was no previous mention of an NDA.

I'm not a big fan of NDAs, as I find them over-reaching, incredible vague and one-sided. This one in particular included this language:

"" In consideration of this process, it is understood that following execution of this Agreement and ending 4 years from the date hereof, Recipient shall not directly participate in the Project or any similar [INDUSTRY] website business, other than with [CLIENT]. In addition, Recipient shall not directly or indirectly solicit, entertain, initiate, participate in or encourage or continue discussions or negotiations with, or submit any bids, offers, or proposals, or enter into any agreement with any other person concerning the Project or any similar [INDUSTRY] website business, other than with [CLIENT], and Recipient shall notify [CLIENT] immediately if any such bids, offers or proposals are made (and the terms thereof), or any such negotiations or discussions are sought.""

Now keep in mind that I don't actually know what "The Project" is. Ostensibly, that's what the face to face meeting is about... to discuss "The Project" and see if it's a good fit for my services, and if there is mutual interest to move forward. I only know they technologies they need help with, and that my skills fit the bill.

This clause (to me) seems more appropriate for an employment agreement, and if we got to that point I would be willing to sign document with a similar clause. In the case of this meeting, it feels like I'm being asked to agree something where I don't exactly know what I'm agreeing to (since I don't know The Project). Furthermore, the way I'm reading this is that even after this meeting and signing of the NDA, if we never choose to do business together, I'm supposedly not allowed to work in their industry (as they define it). On principle, this really bothers me. Finally, I believe the meeting can still be useful for both parties without discussing anything truly proprietary, so don't see the need for an NDA.

Some other factors to consider:

* this potential client is from what I would deem an older / "traditional" industry, where such NDAs might be more common place.

* I'm in a place in my career/life where I'm not desperate for this client. So I am willing to take a principled stance against signing this NDA. I don't mind walking from this opportunity.

* I'm dealing with business school wonks (brand name/top 5 B-school), who place an emphasis on "idea". For better or for worse.

Questions: 1) Should I ask for revisions to the NDA previous to the meeting (Which would now be on extremely short notice)? Or just show up to the meeting with my revised NDA? It certainly doesn't start the meeting / relationship off on the right foot.

2) Am I being short-sighted in my principled stance? Should I just be more pragmatic and consider that the absolute worst case scenario is so unlikely that it doesn't really matter if I sign this or not? I've been told before, by previous employer (where I made a big stink about them slightly changing terms of their Non-compete doc on my first day of work) that I need to be more pragmatic about these things, and consider what the "real" risks are.

[brk]

No point in showing up with a revised NDA, they won't be able to sign it without running it through their lawyer-mill, so you'll just delay the whole thing if you do that.

I would respond to them and tell them that you respect their concerns for privacy and confidentiality. However, in your current position you cannot afford legal counsel of your own to properly review and interpret the NDA, and its possible ramifications to you in other career pursuits unrelated to their business/your meeting. You might offer that you will sign the NDA and be bound to it for the purposes of your interviews with them, if they agree to release you from any and all restrictions in the NDA if you and the company do not formalize a business agreement within X (3-6mos. should be sufficient).

If the above is not acceptable, suggest that you hold to the meeting, but refrain from discussing specifics and instead talk in higher-level/more abstract terms (eg: "how would you architect a database to handle 5,000,000 read or write operations over a 24 hours period with the queries generally being concentrated over short periods of time" vs. "how would you build a database to compete with groupon" kind of a thing).

You are not being completely short-sighted, but you should be aware that in a big swath of the industry NDAs are common. The good thing is that they are rarely ever enforced in any way unless you leave the meeting and then immediately put up a post on HN trying to recruit a team to build the very thing you just discussed with them :)

[bdfh42]

Anything that purports to restrict your future choice of work or development field is a no-no in my opinion.

We never ever sign NDAs - and (so far) have always got to the meeting. Usually you just have to point out the dafter (or most unreasonable) clauses in the NDA and the potential client will cave straight away.

I am often amused to find that it is the client looking towards our business for ideas and inspiration when they punt one of these things in our direction so we should be making them sign an NDA and not the other way around.

[us]

1. I find that NDAs are dated in today's world and in all honesty, few rarely pursue anything if the NDA should be violated. It's a waste of everyone's time.

2. Your a consultant, signing an NDA with something like makes no sense as your business it to talk to businesses. Much like an investor would never sign an NDA, I'd be careful about signing one.

3. If they're pressed on this, and you want the job, ask for a mutual NDA and revise clauses that are more reasonable, and that won't affect your main line of work. Four years is insane.

[jayzee]

hmmm... We got a similar NDA less than a week before a meeting with a research-commercial tech group at Harvard. It was very annoying because the NDA was so over-reaching. Just like in your case. We were meeting to discuss what we could do together potentially and before we even knew the scope of the potential collaboration I was expected to sign away everything.

The NDA basically said that if we did not have documentary evidence predating the meeting then anything conveyed in the meeting would be owned by Harvard. Now as a start-up we dont go around dating, signing, and filing away in a safe all the ideas we have. When I brought it up they said that we could make exclusions and they would follow up with their lawyers and on and on. So basically we should spend a ton of money going back and forth on this with our lawyers while it was not even clear that we wanted to partner. We passed.

Coming back to your case: The NDA is over-reaching. One subtle change you can do and keep everything the same is just change the duration. Bring it down from 4 years to 6 months or 1 year. Esp. if this is an industry in which you do not often find your clients. That way the suit thinks that you agreed to everything but you have just essentially diluted everything away.