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I'll have to sign an NDA as part of a job as a consultant. The job is only for a few weeks, yet the NDA states something along the lines of "any invention that was made 1 (one) year after contract termination will be presumed to have been made in the course of the engagement".

So I guess this means any idea I have afterwards becomes theirs, and they have all rights to it? Also, does the one year period not seem a bit long given that the contract is only for a few weeks? Should I ask to change the time period?

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I would not sign that agreement. It may even be unenforcable depending on where you live. But that is a question for a Lawyer rather than interweb pundits and pseudo-expertsoneverything that we have here. – Chad Jan 11 at 22:18
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Yeah, a heavily lopsided agreement, even if it turns out it's not enforceable, is a sign that there's probably a few other gotchas in there that make it worth running past a lawyer (or if you can't afford one, just plain running away from)! – Rachel Keslensky Jan 11 at 22:39
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My guess is they have a standard 1-year NDA they gave you cookie-cutter from their legal/IP department. You don't mention any more details about this (did they discuss this with you? did you ask about it and get any more information?) – enderland Jan 11 at 22:52
Depending where you live it can be enforceable. There have been cases like this in the UK. One I recall they even won because they said the person had the idea while working for them. Personally I wouldn't sign it. – Simon O'Doherty Jan 12 at 7:10

closed as off topic by Chad, Jim G., Oded♦, Jim♦, jcmeloni Jan 12 at 14:20

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3 Answers

up vote 4 down vote

Everything is negotiable. If you are unwilling to sign such a draconian clause, negotiate to have it removed. It's a pretty easy argument to make that a one year clause like that is nonsensical for a consulting job of "a few weeks".

If the client is unwilling to negotiate, unfortunately, you have to ask yourself whether this few weeks of work is worth the risk.

Edit: some comments point out that this clause may not even be enforceable. It may well not be, but definitely try getting an agreement to remove it. Don't put yourself in the position of hoping it won't turn out to be a problem.

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That is a good point. Ask them to put in there a 100% of hours remuneration clause for all hours spent outside of the contract any claim they wish to make against your inventions. – Chad Jan 11 at 22:22
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+1 to trying to negotiate. I work as a manager for a call center, standard NDA for them is anything made becomes my company's property due to the various clients we have most things are actually made by employees to help do their job. I program for fun on the side, and negotiated before signing it to have it say "anything made outside company time, and outside company property, not relating to any knowledge I gain at work, is still mine." – Randy E Jan 12 at 16:13
up vote 2 down vote

"any invention that was made 1 (one) year after contract termination will be presumed to have been made in the course of the engagement".

Simply tell the client that you'll accept these terms, but since the NDA would prevent you form working for one year after the termination of the contract that you expect full payment of one years contract rate.

So joking aside -

Edits -

So I guess this means any idea I have afterwards becomes theirs, and they have all rights to it?

Technically speaking yes, those are the terms that you'd be agreeing to.

Also, does the one year period not seem a bit long given that the contract is only for a few weeks?

The terms our more than 'a bit long' they are outrageous.

Should I ask to change the time period?

I'd refuse this outright or at least consult an attorney before signing. I've read of similar terms that were ruled as unenforceable but it's not worth the legal cost you'd incur if you were taken to court.

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@Chad, see the edits above. Thanks for pointing this out to me. – Stephen Jan 12 at 14:21
up vote -2 down vote

It is very possible that NDA has been made by people who simply have never written legal documents, and these people had no intent of saying that, indeed, everything you invent during the next year belongs to them.

Hanlon's razor suggests:

Never attribute to malice that which is adequately explained by incompetence.

In my history as an outsource developer, maybe every second NDA document I was offered to sign was written for the first time, without involvement of any lawyers. When I saw inconsistencies and asked, "is it really the meaning you are trying to convey?" they always answered I'm free to suggest any constructive modifications.

Hence, pointing them about this gap would probably solve the entire issue, and the keyword here is prior inventions. In other words,

any invention except those based on prior inventions listed in Appendix 1 that was made 1 (one) year after contract termination will be presumed...

What you have to do is simply listing all possible inventions and know-how in all relative areas that you already possess.
If they don't limit business areas - that's a bad sign, but you may suggest adding it to the scope of NDA.
If they disagree to have such a list - refuse the NDA.

update I see this answer has been downvoted, so let me explain a bit further.

You have some knowledge and know-how at the moment, otherwise why are you hired as a professional. Obviously, you already have this know-how, and it can't be considered obtained as part of your engagement.

Also, in the future you are planning to work as well, aren't you? Most likely, you will continue using your existing expertise in your business area and expanding that expertise.

During completing the work (covered by NDA) you will obtain new expertise. And what you do with NDA is that you are promising not to use it for competing purposes.

The only goal of fair NDA is putting a fair border between those two kinds of knowledge.

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Actually the wording that the OP used is not one I would sign. They are claiming Property rights of anything you do for a year after. So unless they are paying you enough money to take a year off it is not worth it. – Chad Jan 12 at 7:29
@Chad I agree. The reason why I answered is Hanlon's razor: "Never attribute to malice that which is adequately explained by stupidity." It is very possible that people who don't have expertise writing legal documents, just write what they think of, and they have no intent of meaning that, indeed, everything you do belongs to us. Hence, pointing them about this gap would probably solve the entire issue. Also note that my answer is the only constructive so far. :)) – bytebuster Jan 12 at 7:35
I dont think it is malice... the problem arises when it is and you can not work for a year. While it is probably incompetence to put it in, it is also incompetence to sign the agreement that could cost you a year of work with out compensation. – Chad Jan 13 at 1:01
@Chad It is a bigger incompetence to ask, even jokingly, "are you going to pay me for a year?", like others suggested. There are many tactics to ruin your possible contract, and only one or two can save it. Assuming that there's just a possible mistake in NDA text and asking if this is really the meaning they are trying to convey, seems to be the professional way. The only professional way. – bytebuster Jan 13 at 3:11

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