Assignment Of Inventions:
Any and all inventions and/or improvements and/or discoveries, whether patentable or not, which Consultant conceives and/or makes in the course of performance of the work, or as a result of the knowledge obtained by Consultant of any technical information covered by the confidentiality provisions of clause 5, shall be the sole and exclusive property of The Corporation and Consultant shall promptly disclose and cause to be disclosed to The Corporation, all such inventions, improvements and discoveries and, at the election of The Corporation, cause the execution and assignment to The Corporation of patent applications and letters patent thereon
This is a pretty reasonable assignment clause. The key phrase is "in the course of performance of the work." In any legal action to enforce this clause, the Corporation (whoever they are) is going to have to prove that whatever invention you are claiming as yours was developed on their nickel. All you have to do to avoid that clause is to keep a clear separation between your consultant work and your off-hours work. Use separate computers and this shouldn't be much of an issue. The other part regarding the use of information protected by the confidentiality agreement is just as hard for them to prove, and has the added complication that in the course of proving that you used confidential information, they will have to make that confidential information a part of the public court record.
I wouldn't worry too much about this provision.
Non Compete:
During the term of this agreement and for a period of two years thereafter, Consultant shall have no business dealings whatsoever, directly or indirectly, with respect to any product that is or could be competitive with the products of The Corporation in connection with which services are rendered hereunder by Consultant, including any mentioned on the Project Statement of Work and any which The Corporation subsequently notifies Consultant that utilize the Work. The parties agree that this restriction is reasonable in light of the payments to be made to Consultant hereunder.
This is a much bigger problem. As others have pointed out, it is incredibly broad. So broad as to make it very likely unenforceable. But I wouldn't sign any agreement on the grounds that you think it might be unenforceable. The risk is just too high - if you are wrong about enforceability, you've just signed away virtually all your rights. And while North Carolina is a "right to work" state, that phrase carries little meaning here. North Carolina is notoriously company-friendly.
Three problem areas with the coverage of this clause:
1. "no business dealings whatsoever, directly or indirectly" - That implies that you could not even purchase the competing product, much less actually work on it. Clearly this is not a reasonable restriction. The nature of the business dealings need to be more clearly specified. An acceptable alternative might be an enumerated list of the types of things prohibited, with or without a "catch-all" phrase. Something like: "shall not, directly or indirectly, contribute to the development, maintenance or production of a competing product, including (but not limited to) computer programming, project or personnel management, consultation with, or contracting for the producer of such a product".
2. "that is or could be competitive" - It isn't clear what is and isn't prohibited here. Virtually anything "could be" competitive, especially if the other guy gets to decide what the term means. Either get them to leave out that phrase altogether, or get them to phrase it in terms of reasonableness: "that could reasonably be considered competitive".
3. "and any which The Corporation subsequently notifies Consultant that utilize the Work" - Leaving aside the bad grammar which makes the meaning unclear, this clause leaves 100% of the control in the hands of the Corporation. They can, with a word, place anything in their sphere of business off limits, just by telling you that it is. This entire clause should be stricken. If that makes the company nervous, then add language which requires your consent to have something added. For example, "and any which the Corporation and Consultant subsequently agree utilizes the Work. Consultant shall not unreasonably withhold consent."
And one objection to the terms: Although it is standard business practice in other fields to require two years in a non-compete clause, that is an eternity in software. Six months to a year is better, and seems more in line with industry practice.
-Adam
The foregoing should not be construed as legal advice. Legal advice should come only from a licensed practitioner familiar with the specific facts of your case and the laws of your jurisdiction.
_______________________________________________ Juglist mailing list [EMAIL PROTECTED] http://trijug.org/mailman/listinfo/juglist_trijug.org
