Dealing with Americans

[Fishface]

Originally Posted by MPwannadecentincome

I am trying to fill some spare time to get some paid work from a prospective client in the US who wants to pick my brains on how things work in the industry I specialise in.

He said he would send me a NDA - what I got instead was his standard contract for taking on consultancy, this was after me sending him my standard contract - at least I did not pretend it was a non-disclosure agreement.

Anyway, his contract is not one I can sign, e.g:

1 - the company wants to own anything I may produce - even if I send him a document or diagram explaining how things fit together which would be common knowledge in the industry, the contract attempts to claim ownership for it and ownership of any 'techniques' involved.

2 - for a period of 2 years I cannot in any capacity have any involvement whatsoever in any other business that is in competition with or is a similar business to this company - so how am I supposed to get other work?

3 - I have to agree to the company being entitled to "injunctive and other equitable relief" having released anyone in the company from any liability whatsoever to me.

Is this common in contracts in the US (California)?

The work is only for 2 days or so - not worth me paying a lawyer to check it even and not worth a week's worth of negotation to sort out the issues either IMO.

Oh and I am not allowed to reveal any of the terms and conditions of the agreement!

sounds like you have a 'hot-shot' attorney requesting all this.

I avoided similar - but start as you mean to go on.

1. don't agree to any 'work made of hire' statements - i.e their ownership - offer to put it in escrow for their comfort.

2. I understand this is unenforceable after the contract ends *unless they pay you* or effectively keep you in contract - there is something behind that request.

3. no way - they could take you to court in Chicago and then your f***ed. no British Indemnity insurance will cover this.

stand your ground.

[Not So Wise]

While I can agree in principal with what others have said in regards to Bin or Negotiate, looking at the terms you out outlined here it sounds more like a case of Bin or tell them to use your contract as their terms are so OTT it's not even worth trying to negotiate them

Basically what they have sent you is a standard "perfect world" (for client) template contract which gives them every advantage/perk and gives none to you, common to see this type of thing both sides of Atlantic. Most of them are not worth the paper they are written on but all would require you to go to court to fight them and the cost is generally just not worth it.

Basically they are the lawyers version of a terrorist shoe bomber, scary and off-putting, but if your are prepared to risk it no real threat, but risking it, win or lose, costs a lot of money and hassle

So my recommendation is Bin it or send them your own and in case you have not used yours internationally before make sure it has the appropriate jurisdiction clause's in case of any dispute

[MPwannadecentincome]

The potential client has been chasing me up, so I tried the line of "I thought it was an NDA did you send me the right document?" to which they replied "Legal say there is one clause covering the NDA in there", so I took it from there and am now red-lining most of the clauses out and changing others to be more acceptable to me.

I just sent it off, lets see what their legal dept say now!

[cykophysh39]

Why don't you just French the contract. Sign it, agree with it but never comply with it.

In all seriousness, I do work for a number of US companies. The legal cost for them actually ever enforcing a contract is more often a deterent for them not to follow through with it.

The most difficult thing I find, is for them to guarantee payment. I usually ask them for an up front deposit for work. If they don't pay the deposit, I don't do any work.

A paper contract can behandy at times, but in essence it requires legal interference to enforce. The deposit is in your bank, and that normally entices a working relationship far better than any legal document.

[MPwannadecentincome]

Originally Posted by cykophysh39

The most difficult thing I find, is for them to guarantee payment. I usually ask them for an up front deposit for work. If they don't pay the deposit, I don't do any work.

A good tip, many thanks!

[MPwannadecentincome]

A week ago the guy skyped me saying 'we have to get started', to which I replied 'what about the amended contract I sent you' to which he said 'oh I forgot, send it again please', so I did.

And their legal dept. have come back and accepted most of what I've said, answered my questions and are willing to take out 'laws of California' if I can't get insurance because of it!

Originally Posted by cykophysh39

The most difficult thing I find, is for them to guarantee payment. I usually ask them for an up front deposit for work. If they don't pay the deposit, I don't do any work.

They accepted an upfront payment too

I just have to check it carefully and compare with what I sent them last time - then once agreed I can wait for the deposit to arrive then, I just have to find time to do it in between the full time role I'm in now and the wife and kids

[RichardCranium]

Nice brinkmanship.