Tags: | Posted by Admin on 9/9/2008 1:59 PM | Comments (0)
It's not that unusual for non-disclosure agreements to include a provision that the agreement itself is not to be disclosed. But one expects more of Google, an internet giant which at least preaches virtue. Visitors to the search engine company's Mountain View campus are automatically given a non-disclosure agreement upon arrival. The NDA, republished after the jump, contains this particularly Orwellian prohibition. Participant agrees not to do the following, except with the advanced review and written approval of Google: issue or release any articles, advertising, publicity or other matter relating to this Agreement (including the fact that a meeting or discussion has taken place between the parties) or mentioning or implying the name of Google. Non-Disclosure Agreement Revision 0727.2005 Google Inc. This Non-Disclosure Agreement ("Agreement") is made and entered into between Google Inc., for itself and its subsidiaries and affiliates ("Google"), and "Participant" identified below, individually referred to as a "Party" and collectively referred to as the "Parties". The Parties wish to exchange Confidential Information (as defined below in Section 2) for the following purpose(s): evaluating a potential employment opportunity with Google (the "Purpose"). The Parties have entered into this Agreement to assure that the confidentiality of such information is maintained, in accordance with the following terms of this Agreement: 1. The Effective Date of this Agreement is _____________________. 2. Google may disclose certain information under this Agreement it considers confidential and/or proprietary concerning Google's business and/or technology ("Confidential Information") including, but not limited to, all tangible, intangible, visual, electronic, present, or future information such as: (a) trade secrets; (b) financial information, including pricing; (c) technical information, including research, development, procedures, algorithms, data, designs, and know-how; (d) business information, including operations, planning, marketing interests, and products; (e) the terms of any agreement and the discussions, negotiations and proposals related to any agreement; and (f) information acquired during any facilities tours. 3. Participant will use the Confidential Information only for the Purpose described above. Participant will use the same degree of care, but no less than a reasonable degree of care, as Participant uses with respect to its own similar information to protect the Confidential Information and to prevent: (a) any use of Confidential Information not authorized in this Agreement; and/or (b) communication of Confidential Information to any unauthorized third party. Confidential Information may only be disseminated to employees, directors, agents or third party contractors of Participant with a need to know and who have first signed an agreement with Google containing confidentiality provisions substantially similar to those set forth herein ("Authorized Personnel"). Participant shall ensure compliance by Authorized Personnel with the terms and conditions of this Agreement, and shall be responsible for any breach of such terms and conditions by any Authorized Personnel. 4. Participant agrees not to do the following, except with the advanced review and written approval of Google: (a) issue or release any articles, advertising, publicity or other matter relating to this Agreement (including the fact that a meeting or discussion has taken place between the parties) or mentioning or implying the name of Google; (b) make copies of documents containing Confidential Information; or (c) reverse engineer, disassemble, decompile, translate, or attempt to discover any prototypes, software, algorithms, or underlying ideas which embody Google's Confidential Information. 5. This Agreement imposes no obligation upon Participant with respect to Confidential Information that: (a) was known to Participant before receipt from Google, as evidenced by Participant's files and records in existence before the time of disclosure; (b) is or becomes publicly available through no fault of Participant; (c) is rightfully received by Participant from a third party without a duty of confidentiality; (d) is disclosed by Google to a third party without a duty of confidentiality on the third party; or (e) is disclosed by Participant with Google's prior written approval. If Confidential Information is required to be produced by law, court order, or other governmental demand ("Process"), Participant must immediately notify Google of that obligation. Participant will not produce or disclose Confidential Information in response to such Process unless Google has (i) requested protection from the court or other legal or governmental authority requiring the Process and such request has been denied, or (ii) consented in writing to the production or disclosure of the Confidential Information in response to the Process. Nothing in this Agreement shall prohibit or limit either party's use or disclosure of the U.S. Federal income tax treatment and U.S. Federal income tax structure of any transaction contemplated by this Agreement and all materials of any kind (including opinions or other tax analyses) that are provided to it relating to such tax treatment or tax structure, except where confidentiality is necessary to comply with applicable federal or state securities laws. 6. ALL CONFIDENTIAL INFORMATION CONTAINED HEREIN IS PROVIDED "AS IS". NO OTHER WARRANTIES ARE MADE, EXPRESS OR IMPLIED. 7. Google does not wish to receive any confidential information from Participant, and Google assumes no obligation, either express or implied, for any information disclosed by Participant. 8. This Agreement shall remain in effect until such time as all Confidential Information of Google disclosed hereunder becomes publicly known and made generally available through no action or inaction of Participant. 9. Participant, upon Google's written request, will promptly return all Confidential Information received from Google, together with all copies, or certify in writing that all such Confidential Information and copies thereof have been destroyed. 10. This Agreement imposes no obligation on Google to exchange Confidential Information, to proceed with the business opportunity, or to purchase, sell, license, transfer or otherwise make use of any technology, services or products. 11. No Party acquires any intellectual property rights under this Agreement (including but not limited to patent, copyright, and trademark rights) except the limited rights necessary to carry out the purposes as set forth in this Agreement. 12. Participant acknowledges that damages for improper disclosure of Confidential Information may be irreparable; therefore, Google is entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies. 13. This Agreement does not create any agency or partnership relationship. This Agreement will not be assignable or transferable by Participant without the prior written consent of Google. 14. This constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes any prior oral or written agreements. All additions or modifications to this Agreement must be made in writing and must be signed by all Parties. Any failure to enforce a provision of this Agreement shall not constitute a waiver thereof or of any other provision. 15. This Agreement may be executed in two or more identical counterparts, each of which shall be deemed to be an original and all of which taken together shall be deemed to constitute the agreement when a duly authorized representative of each party has signed the counterpart. 16. This Agreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. The exclusive venue for any dispute relating to this Agreement shall be in the state or federal courts within Santa Clara County, California.
Tags: | Posted by Admin on 9/9/2008 1:56 PM | Comments (0)
Tomorrow I am going to interview over at Google. Before I do so, I need to sign an NDA which states, among other things, that I'm not allowed to tell anyone I'm interviewing over there, or indeed, to mention the name of Google at all. So I'm going to do all that now and get it out of my system, so I'm not tempted to violate the agreement after I've signed it. Since linking the entire NDA would likely violate Google's copyright on the document, I'll just quote sections of it below: The biggest flaw, to my mind, is the lack of any expiration date. Clause 8, "This Agreement shall remain in effect until such time as all Confidential Information of Google disclosed hereunder becomes publicly known and made generally available through no action or inaction of Participant." Since some of the information "disclosed hereunder" will only ever be known to me and Google (see next bullet), this means that the NDA lasts forever. Technology moves fast — certainly it must be possible to put some time limit on the information I might (inadvertently) receive. 3 years? 5 years? 10? 20? The definition of "Confidential Information" in section 2 includes, "the terms of any agreement and the discussions, negotiations, or proposals related to any agreement." So, according to the NDA, I can't even tell my mother (not an "employee, director, agent, or third party contractor", even if she signs a Google NDA herself) what salary or options are in any Google offer. I'd like to ask my friends at Google, say, what ballpark compensation I might expect, but under the terms of their NDAs they couldn't tell me either. Further, since it's highly unlikely that the terms of my offer become "publicly known ... through no action or inaction of Participant" this bullet combined with the previous makes the agreement eternal. I can never mention Google again in any public statement after I sign this NDA: 4. Participant agrees not to do the following, except with the advanced review and written approval of Google: (a) issue or release any articles, advertising, publicity, or other matter relating to this Agreement (including the fact that a meeting or discussion has taken place between the parties) or mentioning or implying the name of Google." So, after I sign this NDA, I can't tell you that I've done so. (Luckily, I haven't signed it yet.) I have crossed out "mentioning or implying the name of Google" in my copy, as I simply cannot in good conscience promise never to "mention or imply the name of Google" in public (say, on this blog) ever again. What lawyer wrote this crap? The third clause of item 4, whose first clause is above, is: [4] (c) reverse engineer, disassemble, decompile, translate, or attempt to discover any prototypes, software, algorithms, or underlying ideas which embody Google's Confidential Information. As the NDA is very loosey-goosey about what, exactly, Google considers Confidential Information — nowhere in the NDA does is say that Confidential Information will be marked or identified in any way — this may effectively forbid me ever to take apart any of Google's software. US law allows me to (for example) reverse engineer for compatibility (what Ed Felten calls the Freedom to Tinker), and as a practicing computer scientist I'd rather not forfeit those rights for all time for all Google code. Time-limiting the NDA or clearly marking Confidential Information may have made this term less objectionable. One may also attempt to argue that "Confidential Information" is limited to stuff I directly observe or is presented to me — for example, if I'm told that there's some secret at the heart of Google Mail, I can't ever "view source" in my browser to try to discover what it is, but that I'm still free to view the source of (say) Google Calendar. I'd prefer that to be the case, but the language used in the NDA is: 2. Google may disclose certain information under this Agreement it considers confidential and/or proprietary concerning Google's business and/or technology ("Confidential Information") including, but not limited to... Is the Confidential Information only that information which Google discloses, or is there a broad swath of Confidential Information owned by Google, some of which it may disclose, but all of which I'm forbidden to "attempt to discover"? Finally, item 5 provides that "If Confidential Information is required to be produced by law, court order, or other governmental demand... Participant must immediately notify Google of that obligation," regardless of the fact that disclosure of a National Security Letter is illegal. Not that this possibility is likely, but it is just one more term with which it could be impossible to comply. I have signed NDAs with other companies which seemed entirely reasonable. The Google NDA, however, seems to fly directly in the face of Google's reported "Do No Evil" motto. What's more, after tomorrow I may be entirely unable to complain about it — and I expect that current Google employees are similarly contractually bound not to comment. But while I can, let me say: this stinks! UPDATE: A quick google for "Google NDA" turned up several more complaints about the Google NDA, such as this one from Colin Percival. Valleywag reproduces the entire Google NDA, so you can read it in its entirety yourself. Further, I've written an amendment to the NDA which remedies its faults as I see them. If I can get Google to agree to at least term 2 of this amendment, then you'll hear about my experiences here tomorrow. UPDATE x2: I crossed out some terms before I signed the NDA this morning. At the end of the interview (4 or so hours later) my recruiter returned to tell me that he'd talked to his supervisor and it turns out that I could have not signed it at all. (Thanks for checking, Jeff!) They'll still talk to you if you decline. In fact, when you arrive at Google they ask you to sign a different NDA (a much less evil one) in order to get a visitor's badge, and it turns out that you can decline that as well: your badge will have a big red "No NDA" label or some such on it, but no harm done. So, my advice to future interviewees: be brave! Just decline the NDAs, and ask your recruiter to check with their boss if that makes them nervous. It would probably be a good idea to warn your recruiter first if you plan to do this, so that the boss-checking won't throw off the schedule. It will be all right. Original story