Comment by flooha | Hacker News Reader

Comment by flooha | Hacker News Reader

Funny seeing this. I'm currently reviewing a NDA & contract for a consulting gig and came across this gem:

Recipient agrees that any violation or threatened violation of this Agreement will cause irreparable injury to COMPANY, entitling COMPANY to obtain injunctive relief in addition to all legal remedies without showing or proving any actual damage and without any bond required to be posted.

without showing or proving any actual damage

yeah, whatever.

Consultant agrees that all right, title, and interest in and to any copyrightable material, notes, records, drawings, designs, inventions, improvements, developments, discoveries and trade secrets conceived, discovered, authored, invented, developed or reduced to practice by Consultant, solely or in collaboration with others, during the term of this Agreement and arising out of, or in connection with, performing the Services under this Agreement and any copyrights, patents, trade secrets, mask work rights or other intellectual property rights relating to the foregoing (collectively, “Inventions”), are the sole property of the Company. Consultant also agrees to promptly make full written disclosure to the Company of any Inventions and to deliver and assign (or cause to be assigned) and hereby irrevocably assigns fully to the Company all right, title and interest in and to the Inventions.

I probably won't be getting the job due to crossing off all of this crap.

I see your first point, but isn't the second paragraph you quote just standard practice? Granted the legal jargon is horrible, but it seems to be saying that the work you do as a consultant during the term of the contract belongs to the company. Every consulting contract says that. How is this one egregiously different?

The legal jargon is the first grievance, which I obviously have to just accept as part of the game, but the ambiguity of it is what I have difficulty accepting. Does this clause prevent me from pursuing my own ventures during this time? Is everything I do during this time claimable by them?

rising out of, or in connection with, performing the Services

This bit seems to limit it to whatever I happen to be doing for them, but as this story, currently on the front page of HN shows, even lawyers have difficulty nailing it all down.

http://news.ycombinator.com/item?id=1050952

For example, if I come up with some clever little bit of javascript that does something interesting, does it mean I can never use that for any purpose ever again? It's terribly ambiguous and limiting. I don't expect to take the job because I am currently working on my own projects and have no concrete way of defending myself against them claiming all of my work.

The second problem I have is this phrase:

Consultant also agrees to promptly make full written disclosure to the Company of any Inventions...

WTF does that mean? Even if it is limited to the "inventions" I "invent" for them, does that mean I'm supposed to immediately write some kind of disclosure after I "invent" something and give it to them? It's ridiculous. Let's assume this refers to my existing "inventions", not developed during the contract term, which I don't think it does. In that case, how could I possibly expect to protect myself? What if I forget to list one of my "inventions". They can claim it? I honestly don't think all of the doubt is even worth the time and effort to nail it all down.

I should pay a lawyer to go over it, but I already know I will require some lines to be removed, which will probably negate their interest in hiring me and thus make paying a lawyer a complete waste of money.

I understand the motivations for these kinds of contracts, but it puts all of the burden on the consultant and gives the overall impression that they can bend you over on a whim and screw you royally. It's basically making me not interested in the job, especially since I have my own things I want to work on. Initially, I recognized that my particular skills were exactly what they needed and it would be a pleasant job, but the "pleasant" part is quickly disappearing.

I'm probably just too uptight about this kind of stuff.

In general as a consultant you can assert certain rights for yourself. don't be afraid to request changes to the contract.

Also as a contractor you are VERY different from an employee and the resulting IP rights are quite different. While ALL an employee does during their employment usually belongs to the company (even inventions done while at home sleeping :) the situation is very different for a contractor.

For example it is a standard practice that NOT ALL of the code that you write for them is theirs, but only "business specific" parts. You should retain the rights to the generic parts of the code, all successful consultancies build a code libraries that they can reuse. We usually release such things as open source but not always, we do keep the rights to ourselves though. Customer just gets a full royalty free license to do whatever they want.

Same with inventions. If during the term of the agreement while working on their project you invent a super-duper-fast sorting algorithm and implement it in their project, it still doesn't mean the algorithm is theirs.

The implementation is (and only if its business specific) but the idea is yours and you can go as far as filing a patent for it (I'm quite against software patents, but still). Again, the client gets all the necessary rights to use it in-this-particular-implementation but that is.

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