Date: Sun, 19 May 1996 11:33:49 -0500 From: Dave Bodenstab <imdave@synet.net> To: freebsd-questions@FreeBSD.org Subject: Opinions wanted on a non-disclosure agreement Message-ID: <199605191633.LAA02025@base486>
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Hi, It seems that at least one other person thinks that this might be an appropriate place to pose this question. So for anyone familiar with NDAs, or for anyone else who's interested, here goes... I saw an add on the net for a product that sounded interesting. It was targeted for windows users, but the hardware device is what was intriguing. So I contacted the firm and asked if the programming specifications were available. Well, after some thought, they offered to release the specs under a NDA. When I mentioned that I would want to release any software that I write to use the device to the free Unix community, they included what I believe is an attempt to accommodate this scenario. I've included the terms of the NDA (omitting the identity of the firm) below. Here's the pertinent part of the document: -- WHEREAS: -- -- 1. <Company X> develops and uses valuable technical and non-technical -- confidential and proprietary information. -- -- 2. Licensee is interested in receiving certain confidential -- information from <Company X> for the purposes of developing -- application software which supports <device Y> -- -- Therefore, the following are the terms of the agreement under which -- <Company X> will license the information to licensee: -- -- Licensee understands that <Company X> is under no obligation to -- offer assistance or technical support on the information -- -- Licensee understands that the confidential information is subject -- to change without notice -- -- Licensee understands that <Company X> does not make any promises -- or guarantees that revisions and changes to the confidential -- information will be documented in a timely manner -- -- Licensee understands that the information is copyrighted. As such, -- copying and distribution of this information is prohibited under -- copyright law. -- -- Licensee understands that the confidential information will be -- delivered "as is". No warranties are given, whether express, -- implied or statutory, including implied warranties of fitness of -- merchantability. In no event will <Company X> be liable for any -- incidental or consequential damages or any liability in tort incurred -- by or under agreement or the delivery of information to licensee -- -- All confidential information disclosed by <Company X> shall remain -- the property of <Company X>. <Company X> is not hereby granting -- or extending to licensee any rights of any kind under any patent, -- copyright, trademark, or other intellectual property right which -- <Company X> may not have or may obtain with respect to the confidential -- information. -- -- In the case of operating systems where software is distributed in -- the form of source code, the source code can be distributed provided -- the following statement is included at the top of all <device Y> -- related, distributable source code files: "This software was created -- with the help of proprietary information belonging to <Company X>." -- -- Licensee shall use the confidential information only for the above -- stated purposes, unless otherwise agreed to by further written -- agreement of the parties, and shall keep confidential and not -- disclose the confidential information to another person, firm or -- corporation. Now, the problem I have is that the last two terms seem contradictory. If I release the source under the 2nd to last term, then any third party can discern the *proprietary information* by examining the source, thus, I would be violating the last term. [[ I don't have any legal background, but isn't it true that a contract that contradicts itself is not enforceable wrt to those parts -- not that I want to get into a legal dispute with anyone (btw, it just affects the certain parts of the contract, the other parts of the contract are still valid.) ]] The company apparently wants to retain the right to patent their software and believes that releasing the interface specs would somehow interfere with this. Not that I care... I don't want their software, I just want to talk to their hardware from my FreeBSD box! Bottom line then: since this would be just a project for *fun*, does this look like its something that I should consider getting involved with? Thanks for your comments (and putting up with this *long* post) Dave Bodenstab imdave@synet.net
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