When is an NDA valid? OR How generic is is too generic?
There are a lot of questions up here about NDAs but I didn't see anything for more generic forms. Here's my issue:
I'm a software engineer and have written some iOS (iPhone/iPad) software. A friend of a friend has been introduced to me, asking if I will turn her idea into software. I'd be fine discussing the project. However, before getting that far she's asked me to sign and date an email she sent that says that I won't steal her idea, develop it without her, etc. The email is very general and simply states that the idea is for a game.
I almost wouldn't mind signing because I have no intention of stealing an idea. However, the wording is so general that I'm left with a couple questions...
First, if I did sign it, is that type of thing (a very general signed email) actually legally binding?
Second, if it is legally binding how much does its generic nature matter? The email simply states that it's an idea for a game. I've written games for iOS device and will likely write more. So if we talk and I decide I'm not interested in her idea and then go write something completely different, what would stop her from claiming that this other idea was her's?
Thank you!
3 Answers
I'll refrain from offering any opinion on whether such a generic, vague NDA is legally enforceable in California. I think that's a matter for an attorney familiar with Californian law. Instead I'll focus on something else:
The email is very general and simply states that the idea is for a game.In my opinion, this marks her as a rank amateur. I wouldn't sign this email, regardless of whether it will be legally binding or not, on the grounds that she's an amateur who might cause grief later.
I would politely tell her that I'm not signing anything so un-specific, because I'm already developing iOS apps, and I cannot know if she is proposing something that is close to what I'm already doing -- in which case that email might become an unreasonable legal risk for me. And that I'm not signing an NDA on to answer a preliminary inquiry from her; she would have to sell me on the project before I care to involve a lawyer to review an NDA from her.
If you choose to act in this way, and she has a great proposal to make, then you risk loosing a valuable project right away.
But really, IMHO this is a modern day catch 22:
- she wants you to sign an NDA
- without any limitations in scope (items under NDA, length of the NDA period in time, size of the claim, etc)
- and without having given you any information to assess that she's for real and actually has the money and professional skills to do her part.
Pfftt.
Edit: Perhaps, more helpfully, you could read past discussions about NDA's, find a free example of a mutual NDA, and send a proper NDA to her instead of that email of hers. If you go with a good, well structured and clear NDA of your own choosing, and you read it carefully first, then you'll know what you are committing to. And as a bonus, you might even make a good, professional first impression on her.
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@Pierre 303: Thank you for the offer, but that won't be necessary -- I have signed quite many NDAs in my time. I don't quite agree that "items protected by an NDA are never listed in an NDA in details", in fact, I regularly ask for NDAs to be more specific in scope, and get that. One common case where there is no clear delimitation on what's covered are the "ongoing" NDAs for ongoing business partnerships -- but in that case, they're most commonly mutual NDAs. – Jesper Mortensen 14 years ago
If she makes an offer, and there is consideration and acceptance then I believe that the contract is legal. Points to consider
- A NDA wont stop copycats
- Unless you can afford the court costs an NDA has little value, but if she had the money she would employ you as a contractor
- Jesper's point that her request makes her appear like an amateur (as such she probably places far to much value on the wealth present in the idea itself)
To work out if she is an amateur I would ask her
- Why will her game be successful in a crowded market
- How will people find the game and why would they buy it
- Whats the budget for the project
- How long will the game take to develop
- How much will she pay you to develop the game, what revenue share if any is she offering
- How much money has she personally spent developing the idea
- What has she done to validate that the game is fun to play
If she cant answer those simple questions then I wouldn't waste your time unless she is offering a big chunk of cash.
I have to second the suggestion of a mutual NDA, that YOU provide her with. In our company we have a drop-dead policy of never signing NDAs that are not ours. We have one mutual NDA we don't accept any modifications to. You have two choices: our mutual NDA or no NDA.
If someone insists on their NDA and you really want the project, just jack up your rate 2X or 3X and insist on lawyer review.
