Reviewers & Non-Disclosure Agreements

[Morrus]

Somebody must have already broken it, because it doesn't allow you to disclose its existence or terms!

(I suppose it could have been somebody who decided not to sign it).

 

[MGibster]

Somebody must have already broken it, because it doesn't allow you to disclose its existence or terms!

I don't typically follow online drama, but the person who allegedly leaked the NDA has had their identity revealed and they were already doxxed by a somewhat prominent Youtuber who primarily posts about Warhammer videos. I have never seen an NDA that included a non-competition clause. Not being familiar with English law, how strict are non-compete clauses over there?

 

[Morrus]

Not being familiar with English law, how strict are non-compete clauses over there?

I’m not a lawyer. Haven’t the foggiest!

 

[embee]

Well, pretty close. The NDA agreement GW put out includes a very broad non-competition clause and the agreement lasts for three years from the last date GW sent the influencer a product of some kind. Effectively this means GW can keep the NDA in effect forever and there's no provision for the influencer to leave on their own terms.


Over the last few years GW really made some strides in generating some goodwill with their customers but more recently they seem hellbent on pissing that away.


I think the nuance you're missing is that the two parties involved aren't on equal footing. GW has a team of experts who drafted an agreement that is entirely lopsided in their favor and send them to people who are unlikely to have a solid understanding of contracts or a team of experts to support them. And, yes, we can argue that people shouldn't sign things they don't really understand. But in cases like this I'm going to reserve my frowns for the large company with many resources rather than the little guy.



That's how I always thought of them. I remember signing up to playtest an RPG a few years ago and they asked me to sign an NDA saying I wouldn't talk about the system for a certain period of time. I thought this was completely reasonable but decided I didn't want to playtest for other reasons. When the GW NDA form was made public, I saw several people saying it was completely normal. But I've never seen an NDA with a non-compete and which seemed abnormal to me. At least here in the United States, non-compete clauses are very, very difficult to enforce. Judges are hesitant to enforce clauses that prevent someone from making a living in their profession.

A) Well yes and no.

There is, in contract law, a concept known as a "contract of adhesion." This refers to a "take-it-or-leave it" contract, usually for some necessary good or service, in which there is a gross imbalance of negotiating power and, almost always, the contract terms are non-negotiable. However, this is ordinarily limited to cases involving a company and a consumer. It usually does not involve contracts between two "businesses."

A classic example is a case I worked on years ago. UNCLE bought a car from a DEALERSHIP with a loan. As part of the loan, UNCLE agreed, in literal fine print (a 4 pt. font) printed on the back of the triplicate carbon-copy loan agreement, to indemnify (pay damages) and hold harmless (pay legal fees) for BANK. Sounds fairly innocuous but... UNCLE loaned his car to NEPHEW who took it to a car wash where ATTENDANT crashed into PEDESTRIAN, injuring them. Under the law, both the registered owner and title owner (like BANK) are strictly jointly liable for damages caused through permissive use by a driver. UNCLE loaned the car to NEPHEW who gave it to ATTENDANT to drive through the car wash. UNCLE would be strictly liable for the permissive use, as was BANK. BANK then sued UNCLE for damages under the indemnification agreement. The Court dismissed that claim, ruling that the indemnify and hold-harmless clause was a "contract of adhesion."

This probably isn't that. This is a business (GW) entering into another business (influencer). So agreements are presumed to be done "at arm's length" irrespective of imbalance.

B) My problem with this is Section 4, that says no disparaging GW or its products or otherwise harming GW's reputation. That's not a review. That's paid promotion.

The non-compete is limited to GW employees, clients, and companies doing business with GW. So let's say that you are an Influencer and you also have your own line of RPG products. You can't use GW's contacts. That's actually fairly standard. If I leave my firm, I can't use my Rolodex to poach clients.