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Legal translation: Non-Disclosure & Non-Compete Agreements

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Legal translation: Non-Disclosure & Non-Compete Agreements

Old 10-25-04, 11:37 PM
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Legal translation: Non-Disclosure & Non-Compete Agreements

First, I apologize for the length of this post. I've been lurking here for years and have seen a few posts here asking for legal advice so I thought I'd throw my own question out there... I tried to bold the basics for those that skim...

Here's the situation... I work fulltime in Information Technology for a company. I've also been doing a little work on the side with an old co-worker's consulting company (he owns a small company with a handful of clients doing PC installation and support, etc) for the last month or two. Now, he wants me to sign a non-disclosure and a non-compete agreement (which he claims he needs signed for insurance reasons) and I'm a little uneasy signing these, especially the non-compete.

The Non-Compete agreement seems to be worded very generically and I don't want to sign anything that could interfere with my full-time job or if I decide to do any work on the side for anyone else in the future (say my Doctor or a friend of a friend wanted me to help fix his PC, setup a network, etc.) He keeps telling me the non-compete is just so I don't try and steal his customers away from him. But when I read this as a layman, it seems to me it says a lot more than that.

My other fear is that the job market is so unstable right now that I could be laid off tomorrow and I don't want any non-compete agreement signed with a guy that I work a few hours a month for to interfere getting a new job. This guy's company is small and I know he most likely could never afford to enforce any agreements, but I want to cover myself just incase.

From my reading of the non-disclosure it's a basic Confidentiality agreement meaning I can't discuss any info I find on any of his client's PC's nor any convidential information he tells me about his company, etc.. Am I wrong?

If some of the legal savvy people here can take a quick look at these and give their thoughts I'd appreciate it. I know for true legal advice I should contact an attorney in New Jersey.

Thanks in advance!

Non Compete:
For good consideration and as an inducement for XYZ Corporation to employ Ben732, the undersigned Employee hereby agrees not to directly or indirectly compete with the business of the Company and its successors and assigns during the period of employment and for a period of __5__ years following termination of employment and notwithstanding the cause or reason for termination.

The term "not compete" as used herein shall mean that the Employee shall not own, manage, operate, consult or to be employed in a business substantially similar to, or competitive with, the present business of the Company or such other business activity in which the Company may substantially engage during the term of employment.

The Employee acknowledges that the Company shall or may in reliance of this agreement provide Employee access to trade secrets, customers and other confidential data and good will. Employee agrees to retain said information as confidential and not to use said information on his or her won behalf or disclose same to any third party.

This non-compete agreement shall extend only for a radius of__50__ miles from the present location of the Company and shall be in full force and effect for__5__ years, commencing with the date of employment termination.

This agreement shall be binding upon and inure to the benefit of the parties, their successors, assigns, and personal representatives.
Non-Disclosure:
CONFIDENTIALITY AGREEMENT
This CONFIDENTIALITY AGREEMENT is by and between XYZ Corporation, and the undersigned “Ben732”.
WHEREAS, Recipient has requested information from Disclosing Party in connection with consideration of a possible transaction or relationship between Recipient and Disclosing Party.
WHEREAS, in the course of consideration of the possible transaction or relationship, Disclosing Party may disclose to Recipient confidential, important, and/or proprietary trade secret information concerning Disclosing Party and his/its activities.
THEREFORE, the parties agree to enter into a confidential relationship with respect to the disclosure by Disclosing Party to Recipient of certain information.
1. Definitions. For purposes of this Agreement, "Confidential Information" shall include all information or material that has or could have commercial value or other utility in the business or prospective business of Disclosing Party. Confidential Information also includes all information of which unauthorized disclosure could be detrimental to the interests of Disclosing Party whether or not such information is identified as Confidential Information by Disclosing Party. By example and without limitation, Confidential Information includes, but is not limited to, the following: All personal, business, sales, development discussions under the XYZ Corporation.

_____________________________________________________________________________________________

For purposes of this Agreement, the term "Recipient" shall include Ben732, the company he or she represents, and all affiliates, subsidiaries, and related companies of Recipient. For purposes of this Agreement, the term "Representative" shall include Recipient's directors, officers, employees, agents, and financial, legal, and other advisors.
2. Exclusions. Confidential Information does not include information that Recipient can demonstrate: (a) was in Recipient's possession prior to its being furnished to Recipient under the terms of this Agreement, provided the source of that information was not known by Recipient to be bound by a confidentiality agreement with or other continual, legal or fiduciary obligation of confidentiality to Disclosing Party; (b) is now, or hereafter becomes, through no act or failure to act on the part of Recipient, generally known to the public; (c) is rightfully obtained by Recipient from a third party, without breach of any obligation to Disclosing Party; or (d) is independently developed by Recipient without use of or reference to the Confidential Information.
3. Confidentiality. Recipient and its Representatives shall not disclose any of the Confidential Information in any manner whatsoever, except as provided in paragraphs 4 and 5 of this Agreement, and shall hold and maintain the Confidential Information in strictest confidence. Recipient hereby agrees to indemnify Disclosing Party against any and all losses, damages, claims, expenses, and attorneys' fees incurred or suffered by Disclosing Party as a result of a breach of this Agreement by Recipient or its Representatives.
4. Permitted Disclosures. Recipient may disclose Disclosing Party's Confidential Information to Recipient's responsible Representatives with a bona fide need to know such Confidential Information, but only to the extent necessary to evaluate or carry out a proposed transaction or relationship with Disclosing Party and only if such employees are advised of the confidential nature of such Confidential Information and the terms of this Agreement and are bound by a written agreement or by a legally enforceable code of professional responsibility to protect the confidentiality of such Confidential Information.
5. Required Disclosures. Recipient may disclose Disclosing Party's Confidential Information if and to the extent that such disclosure is required by court order, provided that Recipient provides Disclosing Party a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure.
6. Use. Recipient and its Representatives shall use the Confidential Information solely for the purpose of evaluating a possible transaction or relationship with Disclosing Party and shall not in any way use the Confidential Information to the detriment of Disclosing Party. Nothing in this Agreement shall be construed as granting any rights to Recipient, by license or otherwise, to any of Disclosing Party's Confidential Information.
7. Return of Documents. If Recipient does not proceed with the possible transaction with Disclosing Party, Recipient shall notify Disclosing Party of that decision and shall, at that time or at any time upon the request of Disclosing Party for any reason, return to Disclosing Party any and all records, notes, and other written, printed or other tangible materials in its possession pertaining to the Confidential Information immediately on the written request of Disclosing Party. The returning of materials shall not relieve Recipient from compliance with other terms and conditions of this Agreement.
8. No Additional Agreements. Neither the holding of discussions nor the exchange of material or information shall be construed as an obligation of Disclosing Party to enter into any other agreement with Recipient or prohibit Disclosing Party from providing the same or similar information to other parties and entering into agreements with other parties. Disclosing Party reserves the right, in its sole discretion, to reject any and all proposals made by Recipient or its Representatives with regard to a transaction between Recipient and Disclosing Party and to terminate discussions and negotiations with Recipient at any time. Additional agreements of the parties, if any, shall be in writing signed by Disclosing Party and Recipient.
9. Irreparable Harm. Recipient understands and acknowledges that any disclosure or misappropriation of any of the Confidential Information in violation of this Agreement may cause Disclosing Party irreparable harm, the amount of which may be difficult to ascertain, and therefore agrees that Disclosing Party shall have the right to apply to a court of competent jurisdiction for specific performance and/or an order restraining and enjoining any such further disclosure or breach and for such other relief as Disclosing Party shall deem appropriate. Such right of Disclosing Party is to be in addition to the remedies otherwise available to Disclosing Party at law or in equity. Such right of Disclosing Party is to be in addition to the remedies otherwise available to Disclosing Party at law or in equity. Recipient expressly waives the defense that a remedy in damages will be adequate and any requirement in an action for specific performance or injunction for the posting of a bond by Disclosing Party.
10. Survival. This Agreement shall continue in full force and effect at all times.
11. Successors and Assigns. This Agreement and each party's obligations hereunder shall be binding on the representatives, assigns, and successors of such party and shall inure to the benefit of the assigns and successors of such party; provided, however, that the rights and obligations of Recipient hereunder are not assignable.
12. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey. The parties hereby irrevocably consent to the jurisdiction of the state and federal courts located in Toms River, New Jersey, in any action arising out of or relating to this Agreement, and waive any other venue to which either party might be entitled by domicile or otherwise.
13. Attorney's Fees. If any action at law or in equity is brought to enforce or interpret the provisions of this Agreement, the prevailing party in such action shall be awarded its attorneys' fees and costs incurred.
14. Counterparts and Right. This Agreement may be signed in counterparts, which together shall constitute one agreement. The person signing on behalf of Recipient represents that he or she has the right and power to execute this Agreement.
15. Entire Agreement. This Agreement expresses the full and complete understanding of the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous proposals, agreements, representations and understandings, whether written or oral, with respect to the subject matter. This Agreement is not, however, to limit any rights that Disclosing Party may have under trade secret, copyright, patent or other laws that may be available to Disclosing Party. This Agreement may not be amended or modified except in writing signed by each of the parties to the Agreement. This Agreement shall be construed as to its fair meaning and not strictly for or against either party. The headings hereof are descriptive only and not to be construed in interpreting the provisions hereof.
Old 10-25-04, 11:39 PM
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I only read the first couple of paragraphs but I doubt insurance has anything to do with this.

What state, New Jersey? Perhaps people here will know if it has any legal standing. However it doesn't look to me like something you should sign.
Old 10-25-04, 11:39 PM
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wow thats a lot of typing. From what I've read, the non compete agreements don't hold up in court anyways, so don't sweat it.
Old 10-25-04, 11:46 PM
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Yeah, he keeps telling me it's just so that I don't try and steal any of his clients (esp since he doesn't know squat and me and the other people working for him know a lot more than he does.)

My fear is this section of the non-compete...
Employee shall not own, manage, operate, consult or to be employed in a business substantially similar to, or competitive with, the present business of the Company or such other business activity in which the Company may substantially engage during the term of employment.

To me that sounds VERY generic and is probably too broad to hold up in court as RoQuEr said.

I need to cover myself tho where it comes to my current employment with my full time job and any potential new jobs in the future...
Old 10-25-04, 11:51 PM
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Originally posted by X
I only read the first couple of paragraphs but I doubt insurance has anything to do with this.

What state, New Jersey? Perhaps people here will know if it has any legal standing. However it doesn't look to me like something you should sign.
One of my good friends just got his Masters in Finance and he told me not to sign it. He agrees that the insurance angle is just an excuse for something.

He kept telling me today he's meeting with his lawyer and his accountant tomorrow and needs to know if i'm signing the forms. So I think there's something else going on here.
Old 10-26-04, 12:01 AM
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Do not sign it, what benefit does it give you? I would be more worried that whatever technology or practice you develop with the new company could be at the expense of your existing company. When I signed on with my employer I signed an agreement that whatever I developed related to my industry was property of my employer. Given that I am salary and not hourly I would have a tough time saying I didn't develop something on my own time.
Old 10-26-04, 12:05 AM
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Ben732,

No offense but your friend who just got his Masters in Finance wouldn't sign it himself, but I bet he would draft a whopper of a contract like this if it was protecting his ass.

This is a very thought-out contract.

However, it does have its loopholes and here they are:

2. Exclusions. Confidential Information does not include information that Recipient can demonstrate: (a) was in Recipient's possession prior to its being furnished to Recipient under the terms of this Agreement, provided the source of that information was not known by Recipient to be bound by a confidentiality agreement with or other continual, legal or fiduciary obligation of confidentiality to Disclosing Party; (b) is now, or hereafter becomes, through no act or failure to act on the part of Recipient, generally known to the public; (c) is rightfully obtained by Recipient from a third party, without breach of any obligation to Disclosing Party; or (d) is independently developed by Recipient without use of or reference to the Confidential Information.

Read it. Know it. Use your imagination on how it could apply to your future business dealings.

I think this contract is just fine, and obviously I'm in the minority here. If it means more money in your pocket, sign the fucker. If someone wants to argue with me that you could be sued for BOC, well, you can be sued without this contract too, so that doesn't mean much.

Last edited by DVD Polizei; 10-26-04 at 12:08 AM.
Old 10-26-04, 12:07 AM
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Originally posted by neiname
Do not sign it, what benefit does it give you? I would be more worried that whatever technology or practice you develop with the new company could be at the expense of your existing company. When I signed on with my employer I signed an agreement that whatever I developed related to my industry was property of my employer. Given that I am salary and not hourly I would have a tough time saying I didn't develop something on my own time.
That's pretty much what my friend with the masters in Finance said.. What's in it for me to sign these forms?

When we worked together, we all joked around and called this guy a facilitator... He doesn't know squat but talks a good talk. He offers to pay us half of whatever the customers pay him, yet we're the ones doing all the work.

It really doesn't seem to pay for me to sign these forms and work for him. It may be time to tell him to pay me what he owes me and end it right now.
Old 10-26-04, 12:08 AM
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Originally posted by DVD Polizei
I think this contract is just fine.
That "prior works" clause has nothing to do with the non-compete contract. And if you're going to claim prior works you better have them listed.
Old 10-26-04, 12:11 AM
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Ben732,

If the guy isn't giving you a fair financial shake, then you shouldn't deal with him. However, the contract is very good, regardless of the dumbass who wants you to sign it. A good and respectable employer would give you this kind of employment contract too, is what I'm saying.
Old 10-26-04, 12:13 AM
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Originally posted by DVD Polizei
Ben732,

No offense but your friend who just got his Masters in Finance wouldn't sign it himself, but I bet he would draft a whopper of a contract like this if it was protecting his ass.

This is a very thought-out contract.

However, it does have its loopholes and here they are:

2. Exclusions. Confidential Information does not include information that Recipient can demonstrate: (a) was in Recipient's possession prior to its being furnished to Recipient under the terms of this Agreement, provided the source of that information was not known by Recipient to be bound by a confidentiality agreement with or other continual, legal or fiduciary obligation of confidentiality to Disclosing Party; (b) is now, or hereafter becomes, through no act or failure to act on the part of Recipient, generally known to the public; (c) is rightfully obtained by Recipient from a third party, without breach of any obligation to Disclosing Party; or (d) is independently developed by Recipient without use of or reference to the Confidential Information.

Read it. Know it. Use your imagination on how it could apply to your future business dealings.

I think this contract is just fine, and obviously I'm in the minority here. If it means more money in your pocket, sign the fucker. If someone wants to argue with me that you could be sued for BOC, well, you can be sued without this contract too, so that doesn't mean much.
I'm sure he would, but as far as protecting me, he doesn't think I should sign them because there's nothing in it for me.

You're saying the non-compete shouldn't interfere with getting any jobs in the future?

And can someone translate what this exclusions section says? It's too late for my brain to attempt to...
Old 10-26-04, 12:15 AM
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Originally posted by DVD Polizei
Ben732,

If the guy isn't giving you a fair financial shake, then you shouldn't deal with him. However, the contract is very good, regardless of the dumbass who wants you to sign it. A good and respectable employer would give you this kind of employment contract too, is what I'm saying.
Oh I have no doubt in that.. I wouldn't doubt that he copied the contacts that he had to sign from a previous employer in the past.
Old 10-26-04, 12:16 AM
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Originally posted by DVD Polizei
A good and respectable employer would give you this kind of employment contract too, is what I'm saying.
However this isn't his full-time employer.
Old 10-26-04, 12:19 AM
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Originally posted by X
However this isn't his full-time employer.
Exactly... I also want to make sure anything I sign doesn't cause any problems with my full-time employer.
Old 10-26-04, 12:19 AM
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Originally posted by Ben732
Exactly... I also want to make sure anything I sign doesn't cause any problems with my full-time employer.
Or potential future full-time employer.
Old 10-26-04, 12:21 AM
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Originally posted by X
Or potential future full-time employer.
You've read my mind!

The IT job industry is so bad right now that if something happens with my current full time employer, I don't need something interfering with getting another job down the road.

*Knock on wood* that i don't need to worry about that anytime soon!
Old 10-26-04, 12:24 AM
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Screw him.

If you're really pressed, say you'll sign an agreement not to pursue business for some period of time with any of the clients you're working with through him. That's it. Or he can give you a guaranteed full-time job.

Of course I'm not a lawyer, I just saying what I would do.
Old 10-26-04, 12:29 AM
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Ben732,

Well, the only thing in it for you, is the money.

So, what you should do, is negotiate a larger portion of the funds coming to you, IF you sign the contract. Tell the guy you do most of the work (I'm a little confuses on who gets the clients--you do?) so you need 65% of the profits.

The non-compete agreement, while appearing overwhelming, has to be reasonable. If this idiot took you to court for competing with him, he better have a damn good idea of what he's talking about because you are trained in the same field. What are you supposed to do, sell shoes from now on? Of course not. And the courts know this. So, there's a balancing act between protecting the company's secrets and trade, and your own.

For example, if you quit an IT job, and then start your own IT business, this would not be breach of contract (BOC). You are trained in this field, and that's your specialty. However, if it can be proven you stole clients from your previous business by lying and defaming the company, you would lose in court. However, if your new client decided they liked you more and wanted to business with you because you did better work--and they testified to this-- you would probably win in court. Typically, a court is not going to rule in favor of the plaintiff IF you left your job due to no fault of your own. However, if you were fired for something related to what you're being sued for now, then yes, you will have a problem.

I hope I'm making some sense here. It's a very fine line with corporate lawsuits and these enforcements of agreements.

Now here is what might be beneficial for you. If parts of the contract are contradicting NJ state law, then the entire contract might be thrown out altogether. Another possibility is the contract will only have some parts valid, as ruled by the judge.

So, what I'm saying is, just because you sign this document, does not make it official unless the state laws support this. More than likely, if it appears to be very unreasonable, then a judge will notice this as well, and you would have to do some damage to the company which could be proven, in order to have a ruling against you.

Last edited by DVD Polizei; 10-26-04 at 12:33 AM.
Old 10-26-04, 12:30 AM
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Originally posted by X
Screw him.

If you're really pressed, say you'll sign an agreement not to pursue business for some period of time with any of the clients you're working with through him. That's it. Or he can give you a guaranteed full-time job.
That's the other thing my friend said.. is he going to guarantee me income for the next 5 years if these agreements keep me from keeping or getting a new full time job.

He told me he could have his lawyer re-write the non-compete agreement, but his lawyer would charge me to do so. So if thats the case, it's not worth my time or money.

See the other thing is, he doesn't have that many PC Savvy people working for him. Basically it's me, and my coworker who have been working for him, so if he looses me, he's screwed because I know my coworker has already told him to forget it.

As soon as my coworker heard the word Taxes he said "I'm out!" He pays child support for his daughter and anything that affects his taxable income affects that and he doesn't want to rock the boat.

I'm starting to think the same thing... It's probably better to just say no and move on...
Old 10-26-04, 12:34 AM
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Originally posted by DVD Polizei
Ben732,

Well, the only thing in it for you, is the money.

So, what you should do, is negotiate a larger portion of the funds coming to you, IF you sign the contract. Tell the guy you do most of the work (I'm a little confuses on who gets the clients--you do?) so you need 65% of the profits.

The non-compete agreement, while appearing overwhelming, has to be reasonable. If this idiot took you to court for competing with him, he better have a damn good idea of what he's talking about because you are trained in the same field. What are you supposed to do, sell shoes from now on? Of course not. And the courts know this. So, there's a balancing act between protecting the company's secrets and trade, and your own.

For example, if you quit an IT job, and then start your own IT business, this would not be breach of contract (BOC). You are trained in this field, and that's your specialty. However, if it can be proven you stole clients from your previous business by lying and defaming the company, you would lose in court. However, if your new client decided they liked you more and wanted to business with you because you did better work--and they testified to this-- you would probably win in court. Typically, a court is not going to rule in favor of the plaintiff IF you left your job due to no fault of your own. However, if you were fired for something related to what you're being sued for now, then yes, you will have a problem.

I hope I'm making some sense here. It's a very fine line with corporate lawsuits and these enforcements of agreements.
That's funny because I tried today to negociate a better rate from him. He told me that he pays everyone 50% of what he gets from his customers. I asked for more to cover having to pay taxes that I previously thought wouldn't be part of the equation. He said he can't pay me any more than he's already paying me.

He's not willing to do anything to compensate for the signing of these forms.

He's telling me that the non-compete means I can't compete with his business so if he has a doctor's office as a client, then I can't do work for any doctor's offices if I did decide to start my own business. And while I'm not thinking of incorporating anytime soon, I have thought about starting a small business on the side to help bring in some added income. And small doctor's offices are great for this type of work...
Old 10-26-04, 12:37 AM
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There are a lot of times I think this guy is full of shit. He has 2-3 clients now but he's always talking about new ones. He has a doctor's practice with a few offices and a construction company right now but he's talking about picking up a retail store and something else on wall street in NY. He's also been mumbling about writing a search engine?

This company isn't even this guy's full time gig... He's a consultant for another company and gets sent all over the country doing work for them.
Old 10-26-04, 12:39 AM
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Well, if he's not going to raise your earnings, then don't sign this contract. Apparently he doesn't want to retain a good business relationship, and could be looking for a quick lawsuit against you because he knows you do a better job than he does. He might be waiting for you take his clients.

Tell this moron idiot dumbass that you could in fact work for a doctor's office and you could even start one, because that's your line of work, and he better think about his current attorney, because his current attorney is either bluffing, or is a major idiot as well.

Ok, on second thought, don't sign the contract.

Here's a link for you:

http://www.dol.gov/esa/contacts/state%5Fof.htm

NJ Dept Of Labor.

Last edited by DVD Polizei; 10-26-04 at 12:44 AM.
Old 10-26-04, 12:45 AM
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Originally posted by DVD Polizei
Well, if he's not going to raise your earnings, then don't sign this contract. Apparently he doesn't want to retain a good business relationship, and could be looking for a quick lawsuit against you because he knows you do a better job than he does. He might be waiting for you take his clients.

Tell this moron idiot dumbass that you could in fact work for a doctor's office and you could even start one, because that's your line of work, and he better think about his current attorney, because his current attorney is either bluffing, or is a major idiot as well.

Ok, on second thought, don't sign the contract.
He keeps telling me that on future projects he can give me more money, but not a higher precentage, but that he'll charge is future clients more so then he can pay me more (so the percentage stays at 50%.) But the current client of his he's already negociated the rate and he can't pay me more because he won't be able to afford his insurance, etc...

I think he's doing everything he can to try and talk me into signing these contracts because he knows if he looses me, he's screwed. The client i've been working with for him for the last 2 months just bought 3 new PC's and the client wants this guy to send me back to set them up... But I'm telling him it's not worth it for me to do it for what he's paying.

I tried telling him earlier that I'm not going to sign, and he just kept saying, "show it to a lawyer" ... "they'll tell you there isn't anything wrong with them." But he's just not grasping the fact that I want more money if I'm going to sign them.
Old 10-26-04, 12:50 AM
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Definitely not a good deal--or even a fair deal--for you. The more you post about this guy, the more I have doubts about his good intentions.

To protect your ass, find out what company he consults for, because he may have taken clients from them without their knowing and underbid, which is why you are only getting 50% off his profits. I bet he's probably in BOC just from his own dealings. If he ever tries anything smart with you, it would be interesting if you could say, "Well, that's funny, because I contacted Company X and they had some of the same clients as you did. Maybe I should inform their legal dept. about you?"

Anyway, you can't beat a hard worker, and it seems as if clients like you, so good for you. Keep it up.

Last edited by DVD Polizei; 10-26-04 at 12:54 AM.
Old 10-26-04, 12:54 AM
  #25  
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Originally posted by DVD Polizei
Definitely not a good deal--or even a fair deal--for you. The more you post about this guy, the more I have doubts about his good intentions.
Yeah, I knew this guy was kinda shady when I started working for him, and I should have known it would come and bite me in the ass one day...

Oh well... Thanks everyone for your recommendations... I'll check this thread again in the morning...

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