Non-Disclosure Agreements

The best NDA is called a Mutual Non-Disclosure Agreement.

It means basically, "I'll show you mine if you'll show me yours" ;-)

BUT, we both agree not to divulge each other's intellectual property to those outside of the agreement for a period of... (typically three to five years), without compensation determined by contract, etc.

Also it will include that each party continues to own his own IP and no license is granted to the other party without further agreements.

Anything more involved than that, I say simply, "Shove it", and walk.

They almost always come back with the simple approach.

...Jim Thompson

--
|  James E.Thompson, P.E.                           |    mens     |
|  Analog Innovations, Inc.                         |     et      |
|  Analog/Mixed-Signal ASIC\'s and Discrete Systems  |    manus    |
|  Phoenix, Arizona            Voice:(480)460-2350  |             |
|  E-mail Address at Website     Fax:(480)460-2142  |  Brass Rat  |
|       http://www.analog-innovations.com           |    1962     |
             
I love to cook with wine.      Sometimes I even put it in the food.

It's often a requirement of the client. There are also ethical constraints, both personal and professional (especially in the case of a licensed/licenced engineer).

Depending on the agreement, sure. Many are sort of mutual non-disclosure for a reasonable period of time. A few are gawd-awful and might legally inhibit the consultant or design company from doing things they are currently doing at the moment-- in particular ones which mention products which may compete with products of subject company for x years into the future- how do you know what they are making, will be making a year from now etc? They should also protect items which the consultant discloses to the client- you want them to be able to 'spill the beans' a bit in discussing how they'd do the job, without undue fear you'll just take all their ideas to someone else.

It should cover just cover items that are *disclosed* not things already known from other sources, not competition, etc. You also have to think about whether you want to specifically indicate items which are of a proprietary nature or if you want to consider all items to be proprietary.

Sure. You may be able to define the project sufficiently to narrow it down so you only need an NDA with the one you select. It's often not necessary to discuss every detail of a project to get a general idea of what it will take to implement it-- and it may not be all that new a concept to the consultant anyway.

Best regards, Spehro Pefhany

--
"it\'s the network..."                          "The Journey is the reward"
speff@interlog.com             Info for manufacturers: http://www.trexon.com
Embedded software/hardware/analog  Info for designers:  http://www.speff.com

And if they don't, good riddance!

Best regards, Spehro Pefhany

--
"it\'s the network..."                          "The Journey is the reward"
speff@interlog.com             Info for manufacturers: http://www.trexon.com
Embedded software/hardware/analog  Info for designers:  http://www.speff.com

In relation to a new product.

Is it standard practice for EE companies/consultants to provide a non-dislosure agreement prior to discusssing a new project or is it the requirement of the client?

Are there any legal traps to be aware of?

It may be necessary to visit more than one company to find a suitable relationship.

Regards, Peter.

That sounds like ours. The real purpose is to tell the client/contractor/customer *not* to tell us anything because we can't guarantee that someone somewhere in &large_company. isn't developing something that will compete with them. At the same time, we have information that must be divulged, in order to do business, that shouldn't go further.

As would I. Be carefull of any such agreements. There are certain legal traps, particularly with patents.

--
  Keith

probably, but that nasty highjacker sez

or in

martin

some SED stuff.

martin

I've had to sign NDAs with IC manufacturers to use their parts before now, and I am sure others here have had the same experience. The ones that spring to mind for myself are QLogic, Broadcom, Mellanox and Intel. There were others, but those are the fairly recent ones. The NDAs were roughly patterned after John's sample above, with a specific clause permitting auditing of the confidential material by the IC mfr's authorised rep.

I have been known to change the part(s) in a design because I (and/or my employer at the time) couldn't live with the NDA requirements. Admittedly, I wasn't making large volume products, but the loss of even a small design win can ultimately hurt if it's a proof of concept or early market product.

Most of the mfrs are now quite reasonable in their NDAs.

Cheers

PeteS

Do you have a link to it?

Best regards, Spehro Pefhany

--
"it\'s the network..."                          "The Journey is the reward"
speff@interlog.com             Info for manufacturers: http://www.trexon.com
Embedded software/hardware/analog  Info for designers:  http://www.speff.com

I read in sci.electronics.design that Peter Thompson wrote (in ) about 'Non-Disclosure Agreements', on Sat, 8 Oct 2005:

Could be either. Generally, whether you are a consultant or a client, an NDA is your friend, because it removes vagueness in the relationship.

There are always legal traps, but I don't know of anything that applies in general to NDAs.

I don't know what you mean by that.

--
Regards, John Woodgate, OOO - Own Opinions Only.
If everything has been designed, a god designed evolution by natural selection.
http://www.jmwa.demon.co.uk Also see http://www.isce.org.uk

collaboration between them relating to [define project closely] , whether

joint-venture, investment, sale and purchase, use or licensing of know-how,

such discussions being the "Project"). In connection with the

to the other party (the "receiving party") proprietary

nature and/or other information and documents which the

shall include all such matters in whatever form(s) the same may be

receiving party it will:

made available to any person, firm, company or third party other

for the Project;

in advance of its obligations of confidence under this

receiving party has disclosed such Information breaches the

Information if and to the extent that such Information:

public domain, except where this has arisen as a result of a breach of

the disclosing party; provided that the receiving party shall

to include evidence of such prior possession, within 7 days of

party; or d. becomes known to the receiving party from a third party

receiving party is not in breach of the terms of this Agreement.

be made in accordance with the terms of this Agreement) shall

disclosing party as to the content, accuracy, completeness or

it shall exercise the utmost good faith and the parties further

at any time the opportunities of which they have been made aware

commitments of any kind for, or on behalf of, the other party without

expressly or implied, any ownership right or license to use (except

Information.

to purchase any products from the other party or to obligate or be

other party for the Projects of any products from the other party

deliver any product under this Agreement.

the receiving party acknowledges that

receiving party of this Agreement;

and without limiting any other legal remedy) to the remedies of

or actual breach of the provisions of this Agreement; and

this Agreement.

between the parties in respect of the Project;

the provisions of this Agreement shall continue in force in

hereof by the party last signing this Agreement.

end of this document or such other address as a party may designate

be returned by the receiving party to the disclosing party or,

written request by the disclosing party for the return, or

party without the express written consent of the other party.

law of England and Wales and the parties hereby irrevocably

to execute this Agreement as the act and commitment of such

Here's a random selection from my files.......

MUTUAL NON-DISCLOSURE AGREEMENT

THIS MUTUAL NON-DISCLOSURE AGREEMENT (this ?Agreement?) is made and entered into this 28th day of November, 2000, by and between xxxxxxx xxxxx, Inc., a California corporation, located at xxx xxx xxx xxx ), and Analog Innovations, Inc., a corporation with offices at 824 East Cathedral Rock Drive, Phoenix, AZ 85048-6300 (?Analog Innovations?):

1. Definitions. For purposes of this Agreement, ?Information? shall mean the information provided by the disclosing party to the receiving party which relates to plans and information relating to the disclosing party?s products and/or services, which may include, but is not limited to, the following types of information or other information of a similar nature, whether written or oral: all documentation and other tangible or intangible information, discussions, flowcharts, or diagrams, relating to all or any portion of the disclosing party?s existing or prospective products and/or services; prospective new ventures; policies and procedures regarding the design, development, and distribution of goods and/or services; research methods and results; creative and programming tools, methodologies, techniques; the identities of customers, business partners, and/or suppliers (actual or prospective), and any information relating to their actual or prospective products and/or services; business practices, operational procedures, internal policies, and business plans; employment and contractor relationships; or consulting services.

In order to be considered Information, written information must be identified at the time of the disclosure with an appropriate legend, marking, stamp or other identification on its face as Proprietary Information. In order to be considered Information, verbal or visual information shall be so identified at the time of said disclosure and the disclosing party shall notify the recipient in writing within thirty (30) days of the disclosure and specifically identify the Information previously disclosed. Magnetic tape, computer software or any other similar type of machine readable format shall be considered a verbal disclosure pursuant to this Agreement.

Such Information excludes, however, any information that (1) has been or is obtained by the receiving party from a source independent of the disclosing party, (2) is or becomes generally available to the public other than as a result of an unauthorized disclosure by the receiving party or its personnel, or (3) is independently developed by the receiving party without reliance in any way on the Information or Materials provided by the disclosing party.

?Materials? shall mean all memoranda, notes, records, drawings, manuals, disks, or other documents and media, including all copies, extracts, and summaries thereof, containing any Information or provided to the receiving party by the disclosing party with reference to this Agreement.

1. Authorized Use. The Information and Materials are provided to the receiving party for the purposes of (1) discussions between the parties to explore the possibility of a business relationship, (2) negotiation of any definitive agreement to be executed, and (3) the performance of any business agreement between the parties (?Authorized Use?).
2. Limited Use. The receiving party acknowledges that it is to be given access to the Information and Materials solely for purposes of Authorized Use. The receiving party agrees that, except as expressly authorized by the disclosing party, it (1) will not use the Information, (2) will keep the Information confidential at all times, and (3) will not copy or modify the Materials, or any copy, adaptation, transcription, or merged portion thereof. The receiving party shall limit its disclosure of the Information and Materials to employees within its own organization whom the disclosing party could reasonably expect to have a legitimate need to receive such Information and Materials in order to accomplish the Authorized Use. The receiving party is specifically prohibited from revealing any of the Information to any third parties who may be competitors or potential competitors of the disclosing party.
3. Proprietary Protection. The disclosing party shall have sole and exclusive ownership of all right, title, and interest in and to the Information and Materials, including ownership of all copyrights, patents and trade secrets pertaining thereto, subject only to the rights and privileges expressly granted by the disclosing party.

The Information is considered to include valuable trade secrets of the disclosing party. The receiving party acknowledges that, in the event of any breach of this Agreement, the disclosing party will not have an adequate remedy in money or damages. The disclosing party, therefore, shall be entitled in such event to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request, without the necessity of posting a bond, even if otherwise normally required. The disclosing party?s right to obtain such relief shall not limit its right to obtain other remedies.

1. Disclaimer. Except as may otherwise be set forth in a signed, written agreement between the parties, the disclosing party makes no representation or warranty as to accuracy, completeness, condition, suitability, or performance of the Information or Materials, and the disclosing party shall have no liability whatsoever to the receiving party resulting from its use of the Information and Materials.
2. Term. The obligations of the recipient shall terminate five (5) years after the date of this Agreement. Upon the earlier of the disclosing party?s request or the completion of the Authorized Use, the recipient shall promptly return or destroy all Materials and discontinue all further use of the Information. Upon the disclosing party?s request, the recipient shall promptly certify that such action has been taken.
3. General. The interpretation and enforcement of this Agreement shall be governed by the laws of the State of California in the County of Orange, California, as it applies to a contract executed, delivered, and performed solely in such state. The receiving party may not sell, transfer, assign, sublicense, or subcontract any right or obligation hereunder without the prior written consent of the disclosing party.
4. Arbitration. Any controversy or claim arising out of or relating to this Agreement or the breach thereof shall be settled by arbitration in Orange County, California, administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator may award monetary damages, punitive damages, injunctive relief, rescission, restitution, costs and attorney?s fees. The arbitration award shall be final and binding regardless of whether one of the parties fails or refuses to participate in the arbitration. The arbitrator shall not have the power to amend this Agreement in any respect. Notwithstanding the foregoing, the parties agree that this Section does not apply to the breach of provisions pertaining to confidentiality and proprietary rights, and that either party may petition a court of law for injunctive relief and such other rights and remedies as it may have at law or equity against such breaches.
5. Attorney?s Fees. The prevailing party in any action sought to enforce or interpret this Agreement or any provision thereof shall be entitled to recover attorneys? fees and costs in conjunction with such legal proceedings.

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as set forth below.

By: ___________________________________ Signature

By: ___________________________________ Signature

...Jim Thompson

--
|  James E.Thompson, P.E.                           |    mens     |
|  Analog Innovations, Inc.                         |     et      |
|  Analog/Mixed-Signal ASIC\'s and Discrete Systems  |    manus    |
|  Phoenix, Arizona            Voice:(480)460-2350  |             |
|  E-mail Address at Website     Fax:(480)460-2142  |  Brass Rat  |
|       http://www.analog-innovations.com           |    1962     |
             
I love to cook with wine.      Sometimes I even put it in the food.

I read in sci.electronics.design that Spehro Pefhany wrote (in ) about 'Non-Disclosure Agreements', on Sat, 8 Oct 2005:

Of course. One would be stupid to sign an NDA without reading it! The best thing to do it to be pre-emptive. As soon as 'NDA' is mentioned, say, 'I always use my standard form of NDA. Here it is!'. Even better if you can say it's approved by some institution like IEEE.

--
Regards, John Woodgate, OOO - Own Opinions Only.
If everything has been designed, a god designed evolution by natural selection.
http://www.jmwa.demon.co.uk Also see http://www.isce.org.uk

I read in sci.electronics.design that Spehro Pefhany wrote (in ) about 'Non-Disclosure Agreements', on Sun, 9 Oct 2005:

No, but I suppose a text version is not too long to post here. It is, however, a trifle wide!

NON-DISCLOSURE AGREEMENT BETWEEN: (1) My Company name and address and (2) Your company name and address THE PARTIES AGREE AS FOLLOWS: The parties intend to enter into discussions with a view to potential collaboration between them relating to [define project closely] , whether such collaboration is proposed to be through contractual relations, joint-venture, investment, sale and purchase, use or licensing of know-how, patents and/or patent applications, or in any other form (in any such case, such discussions being the "Project"). In connection with the Project, either party (the "disclosing party") may from time to time disclose to the other party (the "receiving party") proprietary information, know-how, trade secrets, documents, information of a confidential nature and/or other information and documents which the disclosing party expressly designates as confidential ("Information", which shall include all such matters in whatever form(s) the same may be disclosed).

1. Each party hereby undertakes to the other that where it is the receiving party it will: a. hold the Information in confidence and not disclose or permit it to be made available to any person, firm, company or third party other than those of its employees or third parties who need to know the same solely for the Project; b. only use the Information for the Project: and c. ensure that each person to whom disclosure is made by it is fully aware in advance of its obligations of confidence under this Agreement. The receiving party will be responsible in the event that any party to whom the receiving party has disclosed such Information breaches the terms of this Agreement.
2. The above restrictions on use and disclosure shall not apply to any Information if and to the extent that such Information: a. is, at the time of its disclosure by the disclosing party, in the public domain, except where this has arisen as a result of a breach of the terms of this Agreement; b. was in the possession of the receiving party prior to its receipt from the disclosing party; provided that the receiving party shall have given notice to the disclosing party of such prior possession, the notice to include evidence of such prior possession, within 7 days of receipt of such Information from the disclosing party; c. is used or disclosed with prior written approval of the disclosing party; or d. becomes known to the receiving party from a third party not under an obligation of confidentiality in relation thereto and where the receiving party is not in breach of the terms of this Agreement.
3. Any copies of the Information made by the receiving party (which shall only be made in accordance with the terms of this Agreement) shall reproduce the proprietary markings and any other legends contained thereon.
4. The disclosure of any Information shall not constitute any warranty by the disclosing party as to the content, accuracy, completeness or fitness for Project thereof.
5. Each party undertakes to the other that in all its dealings with the other it shall exercise the utmost good faith and the parties further undertake that they will not, whether directly or indirectly, seek to exploit at any time the opportunities of which they have been made aware by virtue of this agreement except in direct connection with the Project.
6. Nothing in this Agreement shall grant to either party the right to make commitments of any kind for, or on behalf of, the other party without the prior written consent of the other party. Nothing herein shall grant, expressly or implied, any ownership right or license to use (except for the Project and in accordance with the terms of this Agreement) any Information.
7. This Agreement shall not obligate or be construed to obligate either party to purchase any products from the other party or to obligate or be construed to obligate either party to enter into any other agreement with the other party for the Projects of any products from the other party or any other party. Neither party is obligated to develop, manufacture or deliver any product under this Agreement.
8. Without prejudice to any other rights or remedies of the disclosing party, the receiving party acknowledges that (i) monetary damages would not be an adequate remedy for any breach by the receiving party of this Agreement; (ii) the disclosing party shall be entitled (in addition to monetary damages and without limiting any other legal remedy) to the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of the provisions of this Agreement; and (iii) no proof of special damages shall be necessary for the enforcement of this Agreement.
9. This Agreement shall remain in force until the earliest of:- a. a further agreement which supersedes this Agreement being entered into between the parties in respect of the Project; b. termination of this Agreement by the parties in writing; or c. 3 years from the date of this Agreement provided that in any such case the provisions of this Agreement shall continue in force in respect of any Information disclosed prior to such termination.
10. The effective date of this Agreement is the date affixed on the last page hereof by the party last signing this Agreement.
11. All notices hereunder shall be given by letter addressed as shown at the end of this document or such other address as a party may designate in writing to the other:
12. All Information and copies thereof (whether or not in hard copy form) shall be returned by the receiving party to the disclosing party or, at the option of the disclosing party, destroyed, within 5 days of receipt of a written request by the disclosing party for the return, or destruction, of such Information.
13. This Agreement shall not be assignable, in whole or in part, by either party without the express written consent of the other party.
14. This Agreement shall be governed by and interpreted in accordance with the law of England and Wales and the parties hereby irrevocably submit to the non-exclusive jurisdiction of the courts of England and Wales. IN WITNESS WHEREOF, the parties hereto have authorised the undersigned persons to execute this Agreement as the act and commitment of such parties

Addresses for communication:

--
Regards, John Woodgate, OOO - Own Opinions Only.
If everything has been designed, a god designed evolution by natural selection.
http://www.jmwa.demon.co.uk Also see http://www.isce.org.uk

I work for another LARGE company, and we do the same thing--for the simple reason that we can get in extremely deep yogurt if we include anybody's proprietary info in a product without a license. We're much more amenable to disclosing ours than to receiving anyone else's.

Cheers,

Phil Hobbs

Exactly. Though I've been in negotiations with others who don't trust that attitude. In one case, the contractor hired a big law firm in DC to "protect" them. It took them so long to read the contracts and to deal with our lawyers that the window was closed before anyone could make a dime. :-(

--
  Keith

I've seen similar language in contracts between a previous employer and several subcontractors. From a practical standpoint, it is impossible to ensure that all copies have been destroyed or returned. But from a legal standpoint, it eliminates the subcontractors' ability to submit evidence that they could use in their defense against their client. If they find a copy, they are in violation of their contract. Even documentation submitted to federal regulators for certification purposes are to be returned upon completion of their review.

I always thought that our legal department got their experience working for the mob.

--
Paul Hovnanian     mailto:Paul@Hovnanian.com
------------------------------------------------------------------
Programmers don\'t die, they just GOSUB without RETURN.

[ snipped but noted ].

Thanks to Spehro Pefhany for answering all my concerns and clearing the air and to Jim Thompson and John Woodgate for their fine examples and hammering home the need for the NDA's to be mutual NDA's. Excellant!

Thinking about it logically, though, with so many new (or rehashed) ideas being presented to companies on a regular basis would they really have the time to persue each and every one to their advantage. I am sure you see many new product ideas only to think I wish I had thought of that and left it that and others you would think wouldn't make the light of day.

Regards, Peter.

At this stage I have only seen web sites and phone number for EE's. I may start discussions with the first to find out they are too busy or too big or they don't have the experience in my design area. There are some EE's in this group who I am sure are very good in say analogue but are a bit lost when it comes to embedded design.

I may have to shop around to find the right company but in the meantime I have spilled the beans so to speak. Spehro mentioned to speak in general terms at first till I find the right mix.

Regards, Peter.

It surprises me that you would volunteer the second half of this paragraph, about destroying all Materials. That is always what causes us the most difficulty.

Firstly, if we actually do any work on the project (as opposed to just discussing the possibility) then we want to keep at least one copy of everything forever. How else do you defend your design if some issue comes up later, if you no longer have all the information you were originally supplied with?

Secondly, from a practical point of view it is impossible to destroy all copies. Unless we take special steps, anything that enters the office ends up in electronic form and will persist on backup tapes forever.

Does your agreement really mean that you return or destroy all copies, or does it just apply to the actual physical Materials that have been supplied to you and not copies you have made (in which case it seems a bit pointless)?