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Now that I'm doing more business in different areas of tech, makes me realize how some toxic industry niches slide NDAs in front of people with borderline illegal, overreaching clauses then say they're just "a standard industry practice" when confronted. Yeah not like that buddy
Some things to look out for, though really you should talk to a lawyer because there's a lot more than this:
1. What counts as confidential info? Sometimes it's way too overreaching, sometimes nothing is confidential unless explicitly and strictly labeled as such.
1. What counts as confidential info? Sometimes it's way too overreaching, sometimes nothing is confidential unless explicitly and strictly labeled as such.
For instance, I once had an NDA that said anything I mentioned in a conversation was now confidential info owned by the other party. Uh, no, no no.
2. Related, inappropriate IP transfers. What counts as each person's IP and how is this entangled with confidential information.
2. Related, inappropriate IP transfers. What counts as each person's IP and how is this entangled with confidential information.
3. Can you get a Mutual NDA? Mutual NDAs, in my experience, tend to be much fairer because the same terms usually apply to both parties (but sometimes they don't-- check!). But sometimes one party is willing to accept abusive clauses cause they know you won't sue. So, be diligent
4. Sneaky clauses that shouldn't be in NDAs. Non-disparagement (ugh, a nasty clause in general), non-compete, etc.
5. How long will this NDA last, how long does this stay confidential? Avoid signing anything that has no expiration date or a super long date.
5. How long will this NDA last, how long does this stay confidential? Avoid signing anything that has no expiration date or a super long date.
In addition, having active NDAs can harm business deals with other customers or things like acquisition.
6. Do you even need to sign an NDA? We avoid NDAs at all costs. I have done deals with big companies with no NDA involved. Actually think about it, don't blindly accept.
6. Do you even need to sign an NDA? We avoid NDAs at all costs. I have done deals with big companies with no NDA involved. Actually think about it, don't blindly accept.
7. And then there are tricky clauses around indemnification and other sneaky legal stuff I still don't really understand because it's often so obfuscated. This is why if especially you suspect this is a predatory NDA, you've got to get a lawyer to review. Protect yourself.
8. Know that predatory NDAs often are asked to sign before stuff like interviews, office visits, etc. It's not always around a big event like a hiring or business deal. Signing a contract is a *big deal,* don't let them convince you otherwise or not to read it thoroughly.
For instance, I once had an NDA slid in front of me before a job interview as a "standard practice, not a big deal." In there was a non-disparagement clause saying I could never say anything "bad" about them-- FOREVER. Or I could get sued. Passed on to my children too. Uh? No thx
These thoughts came to me because I signed an entirely reasonable NDA this morning that was shocking in how reasonable it was and I was like dang, NDAs I was used to tried to push it didn't they. Someone's gonna end up in big trouble for pushing predatory ones one of these days.
But I can't stress point #6 enough-- do you even need an NDA? Really? This was my first time signing an NDA in... >2 years? And I've still done business. I avoid them unless absolutely necessary and they get reviewed very seriously and carefully. IP is very serious business to me
As a small business owner, NDAs are pretty much useless in protecting my own IP. What am I gonna do, go around suing people with shoddy evidence who can go work for big corps with teams of lawyers? lol. I sign NDAs mostly as a last resort to work with someone, not for my benefit.
The way I protect my IP is old fashioned secrecy. If I need something to stay private, I don't tell anyone except for Rich, who owns the other half of the IP. I still take some precautions when chatting with others but I'm realistic about leaks and what I can actually protect.
And I tell that to customers too. Like dude, I don't want to know your business. I want to hand you my tech in exchange for money or meet with you to say hi and then go about my day. We don't need NDAs for that shit, just don't tell me what you don't want me to know.
