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I'm not entirely familliar with NDA's and reading through, this section seems unclear to me.

The Developer is liable for all costs, expenses and expenditures including, and without limitation, the complete legal costs incurred by the Inventor in enforcing this Agreement as a result of any default of this Agreement by the Developer.

This seems awfully broad. Is this normal and am I safe agreeing to this? Would it be reasonable to send back a request for ammendment?

Josh Kahane
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  • This basically means that if you breach the NDA and they sue you in court and you lose that they can also recover the lawyers fees/court costs for suing you as part of the judgement. The only thing I'd ask for is a reciprocity clause, that if they sue you and they lose, that they pay your fees/costs. Whether or not they can do this may be jurisdiction dependent, some courts won't entertain lawyers fees as part of a judgement. Where is this NDA enforced? – Ron Beyer Feb 14 '20 at 13:33

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Is this normal and am I safe agreeing to this? Would it be reasonable to send back a request for ammendment?

That type of clauses is not unusual, but your decision should be made only in accordance to what is acceptable to you.

Ron Beyer's suggestion of reciprocity is a valid, reasonable approach. I, by contrast, would reject any clause that involves paying the counterparty's attorney fees because these often are abusive. Court costs are oftentimes a very small fraction of what lawyers bill even for a relatively simple case. The fact that this clause refers to actual costs rather than reasonable costs will make it harder for you to dispute the lawyer's overpriced services.

Furthermore, you basically are gambling if your case is presided by literally a felon whose judicial mentality is all about siding with "anybody who's powerful". The clause as submitted to you only raises the stakes (in regard to attorney fees) with essentially no benefit to you.

Iñaki Viggers
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