NON-DISCLOSURE AND NON-SOLICITATION
Confidential Information Defined. “Confidential Information” means: (a) any “trade secret” as defined in California Civil Code section 3426 et seq.; and further, (b) any information not readily accessible to the public that Consultant obtains through Company, which relates to Company’s finances, operations, clients, vendors, or other third party with whom the Company has an existing or reasonably anticipated relationship. Such Confidential Information includes, without limitation, Company’s technology, processes, products, programs, vendors, suppliers, consultants, research, development, accounting, marketing, pricing, staffing, strategies, contracts, security protocols, client lists or databases, client documents, post orders, marketing or sales proposals, and any actual or contemplated trademark, service mark, trade name or patent. The information described above is Confidential Information no matter how obtained, and regardless of whether such information is intangible (such as a fact known but not recorded), recorded in written form (such as a letter, memorandum or other document), or otherwise recorded (such as a photograph, videotape, audiotape or computer disk). Information concerning Company clients has independent economic value to the Company, and the Company has expended considerable time and effort to develop, compile and protect the confidentiality of that information.
No Solicitation/Interference. While providing services to Company or for a period of three (3) years thereafter, Consultant shall not: solicit on behalf of any entity other than Company, business from any Company client whose identity and/or interests are Confidential Information of Company. Consultant further agrees that while providing services to Company and for a period of three (3) years thereafter, Consultant shall not solicit any Company employee for employment by any competing security or event services entity. Consultant further agrees that while providing services to Company and for a period of three (3) years thereafter, Consultant shall not induce any Company client, Company employee, consultant, independent contractor, licensee or other third party to sever any relationship with Company, or to modify its business with Company on terms which are less favorable to Company.
Equitable Relief and Liquidated Damages. In addition to any other rights and remedies Company may have, any Consultant breaching this section agrees that Company, without the necessity of proving actual damages, shall be entitled to temporary and permanent injunctive relief to prevent Consultant from breaching or continuing to breach this section and that Company shall be entitled to such relief without posting bond. Because damages for such breach may be difficult to ascertain, Consultant agrees to pay to the Company the sum of one-hundred thousand dollars ($100,000.00) for each such breach as liquidated damages in the event that Consultant violates the terms of this section.
Categorized | Affiliate Marketing 101
If You Were The Consultant, Would You Agree And Sign This Nda Legal Agreement?
Posted on April 24, 2013.
If I were the attorney of that consultant, I would point out numerous flaws in it and suggest marking it up and sending it back.
For instance, the definition of “confidential” is overly broad and unenforceable, so having it in there is just begging for trouble. In particular, “any actual patent or trademark” would be (by definition) public information. Also, many professionals would have already had or later acquire the same information, though not “available to the public”, so you would certainly not want to be prohibited under THIS contract from using information you already had under ANY OTHER contract. There is, therefore, a need to write various exclusions for things like that, among others. Also, the liquidated damages clause is unworkable and overreaching, if not actually illegal.
The non-solicitation is also overly broad. Just because the name might be on a confidential list does not in any way, shape or form, make it “confidential” that the other entity engages in that type of business, so preventing you from contacting them is ridiculous.
Your attorney will assist you with the details.
You should never ASSUME a signed contract won’t hold up in court. Judges sometimes let parties do really stupid things to each other, based upon mutual consent. If you really want the work and you don’t want to rock the boat, and you have no other prospects, then you could just sign it and hope this goes into a file and never gets pulled out again, let alone enforced. Depends upon your negotiating position; does the client have other options if you send them a marked up counter-offer?
Parts of this would probably “hold up” in court, but depending upon jurisdiction, the judge might “blue pencil” violations of public policy out of the agreement as a matter of law. However, if you need some information about proposal writing service you can visit this site http://www.proposalwritingservice.com/