Roland’s position with respect to non-disclosure agreements
Mr. Rich, a billionaire from the Bahamas, has fallen from a boat into a lake in Germany, and he cries for help. A well-known German rescue swimmer happens to be nearby. He runs towards the shore to rescue the man.
But before he can jump into the water, a lawyer stops him and says: “Before you even touch my boss, you must sign this 17 page document here.”
The rescue swimmer starts reading a very long preamble and a few introductory paragraphs. Then he reads sentences like
“If during the rescue operation Mr. Rich gets hurt, you will have to pay for all the damages and consequential damages.” and “If you do not keep all details of this rescue event highly confidential, the public might get to know that Mr. Rich cannot swim. This would severely damage his reputation. As these damages in reputation cannot easily be quantified in money terms, Mr. Rich reserves the right to sue you for any sum he deems appropriate.”
“So if Mr. Rich wrongly assumes that I have told somebody about this rescue event, he has the right to sue me for several million dollars?” the rescue swimmer asks.
“Yes!” the lawyer confirms.
The rescue swimmer gets confused. “But I only want to help Mr. Rich!”
“Yes, but the legal terms must be clarified first!” the lawyer says. The rescue swimmer continues to read:
“Mr. Rich is a citizen of the Bahamas. Therefore in the case of a dispute, the laws of the Bahamas are applicable. The place of arbitration will of course be the Bahamas.”
“So if Mr. Rich wrongly assumes that I have told somebody about this rescue event, I will have to hire a lawyer from the Bahamas and fly to the Bahamas many times at my own expense to defend myself in a multi million dollar claim?” the rescue swimmer asks.
“Absolutely!” the lawyer answers.
The rescue swimmer shakes his head in disbelief. Then he drops the papers and walks away.
Why do I tell you this?
After studying mechanical engineering at RWTH Aachen University I have worked in the crane and rope industry for 48 years. 39 of those years I worked as a self- employed engineer. I always enjoyed working on sometimes highly complicated technical problems, and I still enjoy this.
I enjoyed even more helping other engineers in their challenging projects, but that is no longer the case. The reason is that sometimes before I can start working on a 1 day consultancy job I have 3 days of discussions with lawyers about a non-disclosure agreement that only an idiot would sign.
But I am not an idiot.
I give my customers good advice based on engineering facts and based on 48 years of experience.
So if you want my support, please understand:
- I have never had a dispute about confidentiality in 48 years, and I want to keep it like that.
- I will only sign mutual (two-sided) confidentiality agreements.
- I will not sign a non- disclosure agreement which is valid for longer than 5 years. (I am not even sure I will live for another 5 years, which, on the other hand, would solve this problem).
- I will not sign confidentiality agreements where a possible compensation is not limited to the consultancy fee paid to me for this project.
- I will only sign non-disclosure agreements where the governing law is that of Germany, and where the seat of arbitration is Cologne (Köln), Germany.
- I will sign an agreement which forces me to delete all confidential documents provided to me at the end of the contract duration, but not if it requires me to delete electronic files on automatic backup systems. I cannot promise what I cannot fulfill.
I grew up at a time where a handshake was worth more than a 17 page contract.
If a cooperation starts with a handshake and mutual trust, it will be successful. If, however, the suspicion is that you sign a contract with a crook, every eventuality must be delt with in a separate paragraph. Such a cooperation is doomed before it has even started.
So please, if you want my support, send me an NDA, if you need it. But this NDA should reflect the points above, otherwise I will definitely not sign it.