Being asked to sign a non-disclosure agreement before quoting 5

[Euler07]

Hi all,

We have a new client who wants us to sign a non-disclosure agreement before we are allowed to even see the building drawings to quote on the job. We've looked at the contract and it has all these other items inside, such as, we cannot hold them liable for any wrong doing or negligence if they cause us harm etc. In total it's 6 pages.

I'm wondering if it's normal for other structural engineering companies to be asked to sign this type of NDA? I thought a normal NDA simply states that you can't tell other people about the project? Thanks.

 

[TLHS]

NDA's aren't unusual, but don't go signing random liability waivers and things. Cross out the stuff you don't like, initial the cross outs, sign it and send it back to them with your concerns asking them to countersign and provide you a copy. I've never had pushback from reasonable companies about things like that. If they're weird about it, it's a sign that they're going to push on similar things in the future.

Also in NDAs make sure it doesn't have stuff like having to return everything to them upon request. You should have exceptions that allow you to retain whatever you need for your legally mandated document retention, and whatever you need for insurance.

 

[Just Some Nerd]

we cannot hold them liable for any wrong doing or negligence if they cause us harm etc. In total it's 6 pages.

If this agreement is just to quote the design then that actually seems quite odd to have in at this stage. Did they just copy-paste?

 

[Euler07]

Thanks all.

If this agreement is just to quote the design then that actually seems quite odd to have in at this stage. Did they just copy-paste?

They have their company name all inside the agreement so I assume that it's not copy paste. I've also looked for standard NDAs online and it looks like half the stuff they've added themselves which says that we waive all our rights etc. It also includes that we indemnify them (wtf?).

I'm going to ask them to use a standard NDA I find online. Otherwise I think I'll pass.

 

[phamENG]

I'm going to ask them to use a standard NDA I find online.

By all means, research as much as you can, but whatever you send them or ask them to use should be coming from a lawyer paid to have your best interest at the center of what they're doing.

 

[dik]

we cannot hold them liable for any wrong doing or negligence if they cause us harm etc. In total it's 6 pages.

That's scary.... check with your lawyer.

 

[271828]

The NDA part sounds OK. I've seen similar requirements a few times, and they make sense sometimes.

The rest of it sounds odd. Like several others have recommended, it seems like something to run past your lawyer.

 

[rb1957]

An NDA is one thing, Indemnity is another. How can you cause them harm if you don't have a contract ? Could they say you harmed them by not completing the contract ? that they were negotiating with you, and lost time, and now you owe them ?? Sounds "fishy" ...

 

[Smoulder]

Would have to see exact wording on wrongdoing/negligence part. Indemnity not uncommon. If no indemnity then what happens if you break NDA? Why bother if no compensation? Just ask nicely to keep it a secret.

 

[human909]

It sounds like classic overreach in contracts and possibly a poorly written one too. I wouldn't worry about it.

It is an NDA. Unless you are actually signing away something significant that YOU could be liable for then I wouldn't worry about it. I've signed plenty of such things and they just go in the back of the PDF folder on a new client engagement. You then just get to work and make money.

IMO the time and effort to dispute such clauses is not worth my energy or the energy of the person who is engaging me who normally had nothing to do with any of the terms in the contract.

 

[Enable]

I’ll let a fair bit slide in the name of staying in business but signing ridiculously worded contracts is not usually one of them.* For bidding / quoting purposes I would strike out whatever you are uncomfortable with, initial those parts, and sign in the usual spot. If those parts are truly not a big deal then they shouldn't have an issue with that. I do this when I’m asked to sign things like that below during bidding, or I just submit my quote on my own paper and ignore everything they’ve sent me.



If you’re completely uneasy about the entire thing then at this point then you should probably pass. It’s not worth the lost sleep, and I can hardly imagine your potential fee (considering your probability of award) would justify onboarding a lawyer at the quoting stage for that piece of mind.

*As a subtrade who sometimes works for mega GCs who have entire legal departments, and non-negotiable contract templates, I do sometimes sign ridiculous things. However, I only do so if the project is live (i.e. not in the bidding stage), and I know the project manager who will be in charge of the project. Even if I’ve worked with the GC before, I will not sign such a contract unless the PM is a known commodity. So much of our work depends on the reasonableness of others, and I have found most not to be, this is especially true these days since the average GC / PM is not all that great to begin with. But as human909 points out, everyone has to eat, so I take the leap when I know the person on the other side.

EDIT - True NDAs (not what you're talking about) are common during bidding for certain clients though. So that in and of itself is not a concern.

 

[lexpatrie]

I suppose without seeing the drawings you don't feel comfortable quoting? Because if you sent them a quote without signing the NDA, issue circumvented.

It sounds like classic overreach in contracts and possibly a poorly written one too. I wouldn't worry about it.

Good God.

 

[human909]

Good God.

I have good relationships with my clients and they can't help what is on their boiler plate legal waivers. The overreach stuff is mostly not enforceable anyway. Do you really think that if they slipped in a clause into an NDA they they will own your first born son that the clause will actually be binding?

I'm not naïve on legal matters. Nor am I naïve on practicalities of getting business done.

Maybe every job you do is through lawyers at 10 paces. But I do my job without that and I wouldn't want to get involved with jobs like that either.

 

[lexpatrie]

Well I do a lot of forensics, so, yeah, by definition, there's squadrons of lawyers involved. Although I think "brief" would be a better collective noun for attorneys. A "brief" of lawyers. Or maybe a "suit" of lawyers. Haven't been sued, and don't do a lot of contracts, but UH, NO, signing stuff you don't agree with won't make it "unenforceable". Contracts are generally subject to dispute when the meaning is unclear (at which if two reasonable interpretations are possible, then you've got something actionable), broadly speaking, ,ambiguity in a contract is interpreted in the favor of the person who did NOT write the contract, if somebody wanted custody of the first-born son, I'm not seeing a lot of ambiguity there to fight over.

"What do you mean by First, in first-born?" etc.

Now, clauses that are illegal, those tend to get struck. You can lose the whole contract if there's not that bit about severability (that's in the building code, too, by the way) so a chink in the armor doesn't void the whole contract.

Again, NOT a lawyer, here. Just my 50 cents. Or I guess it's actually Jay-Z. I may not have passed the bar but I know a little bit, and I know an illegal clause in a contract ain't legit.

Maine dairy company settles Oxford comma suit for $5 million

A Maine dairy company has settled a lawsuit over an overtime dispute that was the subject of a ruling that hinged on the use of the Oxford comma.

www.nbcnews.com

The $10 million dollar comma

For those of you who don’t believe punctuation matters, here’s a news flash; indeed, it does. In one particular case a comma cost Maine’s Oakhurst Dairy $5 million dollars at the conclusion of a $10…

www.thefencepost.com

I think this is the same comma, twice, but you get the idea.

 

[EdStainless]

And reword the NDA so that it is all mutual.
If they are not willing to keep your work secret, then why would you keep theirs?
In my work it is mutual or nothing.

 

[human909]

Well I do a lot of forensics, so, yeah, by definition, there's squadrons of lawyers involved.

Well that is different. And you commenting on my comment from your specific context which clearly is much more legally involved is hardly sensible. We don't all work in forensics.

Haven't been sued, and don't do a lot of contracts, but UH, NO, signing stuff you don't agree with won't make it "unenforceable".

Huh!? I never suggested such a thing. However there is plenty of unenforceable items in many contracts.

Contracts are generally subject to dispute when the meaning is unclear

Contracts are subject to dispute any time and in any way you wish. Having an unclear meaning just makes successfully winning the dispute easier.

if somebody wanted custody of the first-born son, I'm not seeing a lot of ambiguity there to fight over.

When it is slipped into a 6 or 20 page NDA engineering contract. Yeah I'm not seeing that being successfully enforced no matter the text says. This black and white letter of the law business is starting to sound like Shylock demand literally "a pound of flesh".

Maybe Eng-Tips should just insert such a clause into their terms of usage. ;-) All uses will more that 1000 posts agree to surrender their first born child.

 

[lexpatrie]

GO ahead and think what you want. I'm done "discussing".

Thousands sign up to clean sewage because they didn't read the small print

Those who fell for the gag clause inserted into wifi terms and conditions committed to more than a month of community service

www.theguardian.com

 

[human909]

GO ahead and think what you want. I'm done "discussing".

Thousands sign up to clean sewage because they didn't read the small print

Those who fell for the gag clause inserted into wifi terms and conditions committed to more than a month of community service

www.theguardian.com

And now I'm confused and left wondering whether you have now agreed with me. Or, extremely ironically, not read the article you referenced. That article proves my point using the same examples I gave!

"In 2014, cybersecurity firm F-Secure ran a similar experiment in London, operating a wifi hotspot that anyone could use – in exchange for their firstborn child."

Are you suggestion to me that F-Secure did have a legally binding and enforceable contract to take those who signed up first born child? And while the article is by no means legal advice it even closes with the gem that I have been arguing all along;

"While they are contracts, and usually considered legally binding as such, some have argued that the inability to negotiate them violates common law principles of fairness, leaving them void."

 

[TLHS]

You can get incredibly complacent on letting things into contracts because they generally don't become a problem. Most clients are reasonable and most projects don't get to the point of disagreement where you're parsing contract terms in detail.

Most of the time our contracts are basically just work orders that explain the scope of work and payments. They don't go beyond that until stuff goes horribly wrong.

The issue is that you don't know when things are going to go horribly wrong and who they're going to go horribly wrong with. Also, when things go horribly wrong it can easily escalate above the people you have personal relationships with or to lawyers where it stops mattering who you have a relationship with. It's impractical to have a lawyer look at everything, and honestly it's hard to get a lawyer that knows the realities of the industry unless you find a very specific person. But you should generally take everything in the contracts seriously and, to the extent it doesn't completely stop you from getting work, do your best to leave yourself in a good situation.

And yeah, some contract terms might not be enforcable, but half the time having contract terms on your side is just about getting yourself in a better negotiating position when you're trying to settle something. You don't want to sign egregiously bad stuff just because you think they may not be able to enforce it.

The good thing about us all being pretty wishy washy on contracts is that this is pretty representative of a lot of people in the industry. So if you're willing to ask, you can get a lot of stuff changed in your favour pretty easily except when you're up against really big organizations.

 

[dik]

It sounds like classic overreach in contracts and possibly a poorly written one too. I wouldn't worry about it.

I'd worry a bit... if badly written, and you sign it... who knows what the outcome would be. In addition to running it past your lawyer as I noted above, you should run it past your insurers.