Non Disclosure Agreements

[Kez]

A client has asked me to enter in an NDA with him, which as I have been told by Girl, is me agreeing to the following terms:

"You tell anyone about the data on this system or what research we do in that room, and I'll sue you".

I do understand the nature of his work does require me to not tell anyone about the stuff that happens in his organisation, so hence if I want the business I sign the agreement and stick to the terms.

I do security and disaster management consulting with my Dad, and I also offer data recovery services, which a few clients often have asked "You get to see all the data you recover dont you?", and generally results in them not wanting me to go near the drives. The only problem is, the data recovery bit I do is cash in hand, hence no paper trail as such. Since I dont even have an ABN as yet, my Dad just says to them to call me, and that I'll offer it as a private service.

This has gotten me thinking. What does it take to get an NDA drafted for when I get my business started at the beggning of next year?

I'm thinking if I offered them that extra legally binding safety of me not telling anyone outside of the contract about the nature of the work, that might put them very much at ease of giving an 18 year old access to data that they dont want anyone outside of their own organisations seeing.

Cheers

[The Cunt]

I've got a question I might add to that.

Lets say I have a hard drive that's fucked and I'd like the data retrieved from it. And I get young Kez here to do it. And I have him sign a NDA.

Should I also have him sign an NDA about the NDA so he can't go around saying that he signed an NDA with The Cunt?

[sagit]

...
This has gotten me thinking. What does it take to get an NDA drafted for when I get my business started at the beggning of next year?
...


Wouldnt you just add a clause into whatever written you have with the client, stating that you won't (or you undertake not to) reveal any client data, processes or IP you come across during the course of the contract/work?

edit: I work under the Australian Govt's Official Secrets Act. There may be something there for you to look at/use.

[beowulf437]

I'm not sure if this will help as you live in the southern hemisphere but it might give you some ideas.

http://www.lawdepot.com/contracts/confid/?pid=google-confid_us-nondisclosure_b

http://www.ilrg.com/forms/non-disc.html

http://www.bitlaw.com/forms/nda.html

[Sagacious]

If you are usisng or offering your own NDA there are a couple of 'advantages' it offers from a business perspective:

1. It shows the client that you are a serious player who takes your work and their business seriously. That's got to be a plus if only in the PR Stakes and should be reflected in the price you charge.

2. Its your NDA so you know (or should know) exactly what it does and how far it extends so there is no question of you getting caught out by it.

This sort of agreement/clauses can be easily incorporated into your terms of trade and engagement documentation.

You need a terms of trade if you are in a service industry because what you are selling is largely incorporeal and intangible so a good TOT should put to bed any disputes as to value.

You need to get a good commercial lawyer to help you with composing and tightening up a good set of appropriate engagement documents including a Terms of Trade etc.

[Kez]

Ah brilliant!

Girl gave me the details of a lawyer that's close by my area, who I'll be calling tommorow morning, and explaining my situation to him.

I'll have a look at what the Terms of Trade document incorporates while I'm on now.

Thanks for the help!

[Chocoholic]

You should probably look into having a standard NDA drafted for future customers. I know I wouldn’t let anyone near my data without one and if you included it as part of your pitch I would be impressed.

[Peach]

Or you could take the view that if you have an NDA, your customer can hold you to it. If something does go wrong (can't think of an example here) without an NDA you can shrug and tell them that you exercised due care. With an NDA it's much easier to sue your ass.

[Kez]

If something does go wrong (can't think of an example here) without an NDA you can shrug and tell them that you exercised due care. With an NDA it's much easier to sue your ass.

As you say, without the NDA I can just shrug it off, but that's not good business, and is kinda un-ethical. (At least in my books). If I take on a job I want to actually get it done.

Only one of the techniques I use in data recover can destroy the drive. I only use that as a last resort, and at that point, I have to have my clients full approval.

The reason I'm getting the NDA drafted is to make my clients feel alot more secure. I do know someone can sue me under the conditions stated in the NDA, but it will be my NDA, so I'll know the terms and conditions in it, so it will give me a heads up.

It's mainly to say that I wont distribute; archive; copy; sell or publish their data in any form of public environment. It also states that after their verification of them recieving their data, that the only copy (Which is securely stored on my recovery server) will then be deleted to Gutmann standards. Which means that I cant recover their data after I've deleted it, and which means no one else can either.

So I guess it's a combination of covering myself, whilst still making them feel alot more secure about releasing that kind of data to someone else.

[rbranson]

Larger, more sophisticated clients will impose their own NDA on you.

An NDA is largely a matter of superior bargaining position -- the final outcome is determined by how much negotiating room you have, which will vary from one transaction to another.

If your contract is for a considerable amount of money or if you have obtained prior information that your co-contractant is very litigious, then it might be best to tell them that you'd rather have their NDA submitted to your attorney for review and comment. The greatest pitfall in most NDAs with the definition of what constitutes confidential information -- typically, they are drafted with excessive language, potentially making you responsible for information that is already in the public domain.

So bottom line -- with smaller or unsophisticated clients, having your own NDA creates a climate of confidence for them while limiting your potential liability on your own terms. Evidently, you should be acting as a corporate entity and not in your personal capacity, so that any potential liability will not involve your personal assets.

With the larger or more sophisticated clients, get as much prior information as you can, and if your risk/reward situation warrants it, then have their NDA reviewed by your own attorney, a decision you'll be making on a case by case basis.

[Sagacious]

Larger, more sophisticated clients will impose their own NDA on you.

An NDA is largely a matter of superior bargaining position -- the final outcome is determined by how much negotiating room you have, which will vary from one transaction to another.

If your contract is for a considerable amount of money or if you have obtained prior information that your co-contractant is very litigious, then it might be best to tell them that you'd rather have their NDA submitted to your attorney for review and comment. The greatest pitfall in most NDAs with the definition of what constitutes confidential information -- typically, they are drafted with excessive language, potentially making you responsible for information that is already in the public domain.

So bottom line -- with smaller or unsophisticated clients, having your own NDA creates a climate of confidence for them while limiting your potential liability on your own terms. Evidently, you should be acting as a corporate entity and not in your personal capacity, so that any potential liability will not involve your personal assets.

With the larger or more sophisticated clients, get as much prior information as you can, and if your risk/reward situation warrants it, then have their NDA reviewed by your own attorney, a decision you'll be making on a case by case basis.
THE problem with the duty of non disclosure (or confidentiality) is that it is a duty personal to the person made privy to information in circumstances where it is reasonable to infer or where there was an express statment that the information to which the person is made privy is information imparted in confidence.

The corporate veil will not assist you in relation to that as what the tendency to do is to sue both the individual to whom the information was made known and the company vor its vicarious liablility as an employer as well as the entity with whom the NDA was entered into. Further any decently drawn NDA will be constructed so as to be binding upon the servants, officers and employees of a company coming into contact withthe confidential information.

Companyies and trusts are good planning and fireproofing tools unles we are talking about personal responsibilities.

In these cases it is possible to 'fireproof' yourself against losing your hard earned assets and that is don't own any. Be a man of straw. Any judgemtn they get against you then is hollow as a bell and worthless.

Put all your assets in a spouses name or in a company name and make sure you are not the director or shareholder of the company. That way they can merrily sue you to kingdom come and be none the better off.

That is all.

[rbranson]

THE problem with the duty of non disclosure (or confidentiality) is that it is a duty personal to the person made privy to information in circumstances where it is reasonable to infer or where there was an express statment that the information to which the person is made privy is information imparted in confidence.

The corporate veil will not assist you in relation to that as what the tendency to do is to sue both the individual to whom the information was made known and the company vor its vicarious liablility as an employer as well as the entity with whom the NDA was entered into. Further any decently drawn NDA will be constructed so as to be binding upon the servants, officers and employees of a company coming into contact withthe confidential information.

Companyies and trusts are good planning and fireproofing tools unles we are talking about personal responsibilities.

In these cases it is possible to 'fireproof' yourself against losing your hard earned assets and that is don't own any. Be a man of straw. Any judgemtn they get against you then is hollow as a bell and worthless.

Put all your assets in a spouses name or in a company name and make sure you are not the director or shareholder of the company. That way they can merrily sue you to kingdom come and be none the better off.

That is all.

I agree with the gyst of your comment however the corporate veil protection in a non-disclosure situation is a matter of which jurisdiction you are in and how much negotiating leverage you have.

As far as being a man of straw, that is judicious advice, if your job calls for you to be exposed to potential litigation.

In some jurisdictions, if you transfer your assets over to your spouse a few months before a judgment is rendered against you, a court can deem that you fraudulently deprived your creditors of their money. It is important that the transfer of assets be effected well in advance, at a time when there is no litigation or threatened litigation.

The other aspect to look for is to secure good coverage under liability insurance obtained from a reputable company -- and to make sure that you are complying with their requirements. Policies will typically not extend coverage to acts of gross negligence or willful misconduct -- which means that if you took basic precautions and end up in a situation, you could get the insurance company to provide legal representation on your behalf, as well as limiting your liability in the event of an unfavorable judgment.

[The Cunt]

It's mainly to say that I wont distribute; archive; copy; sell or publish their data in any form of public environment.
Is the zgeek pr0n forum which allows only people access with over 100 posts considered a private environment?

[Sagacious]

As far as being a man of straw, that is judicious advice, if your job calls for you to be exposed to potential litigation.

In some jurisdictions, if you transfer your assets over to your spouse a few months before a judgment is rendered against you, a court can deem that you fraudulently deprived your creditors of their money. It is important that the transfer of assets be effected well in advance, at a time when there is no litigation or threatened litigation.
Many jurisdictions have a 2 year relation back period and a longer reach if the transfer was off market or at less than arms length.

The most effective way to be a man of straw is to plan not to own assets in your own name ever.

Acquire them in the name of your spouse or in the name of an externally (to you) controlled family trust.

that be the most effective way to do it.

[rbranson]

Many jurisdictions have a 2 year relation back period and a longer reach if the transfer was off market or at less than arms length.

The most effective way to be a man of straw is to plan not to own assets in your own name ever.

Acquire them in the name of your spouse or in the name of an externally (to you) controlled family trust.

that be the most effective way to do it.

Absolutely.

The way to get around it in terms of mortgages and the like, is to have your spouse sign as the purchaser and you intervene as a guarantor.

In Kez's line of work, if he's going to be continuously putting himself on the line just to access info he needs to do his job, it might be best that he becomes a straw man as early as possible. That, and subscribe to the best liability insurance you can get.

[rbranson]

Is the zgeek pr0n forum which allows only people access with over 100 posts considered a private environment?

No, it's an environment that people use while accessing their privates.