I recently signed and faxed a non-disclosure agreement in order to become an independent sales rep for a company. Before a Sales Rep agreement was signed, they decided we were not a good match at the last moment. I have yet to receive back the NDA with their signature. I did not receive any proprietary information from them - just marketing material. How do I go about cancelling the NDA? In other words, how do I prevent them from signing it, sending it back, and calling it binding?
David Blake NewdorfLitigation LawyerSan Francisco, CA ·
In many circumstances -- and this may be one of them -- a contract that you signed can be enforced against you -- even if you don't have a signature from the other side. The bargain in a non-disclosure agreement is: I will provide you information if you agree not to disclose it. It sounds like the Company relied on the NDA that you signed in sending you information, some of which the Company may deem proprietary. You did not describe the information in detail, but if the the "marketing material" included a sales rep manual, the Company probably considers that proprietary.
But so long as you don't use or disclose the information, the NDA should not be a burden to you. You haven't identified your specific concern with being bound by the Agreement. But you'd be well-advised to consult a business attorney before affiliating with a competing outfit. I'd recommend an attorney with experience litigating trade secret, unfair competition and business tort matters.
Since you were the one who was obligated not to disclose anything, it could be that you are still bound by the agreement you signed even if the other side did not sign it. The NDA may not have even obligated the other side to sign in order to make you bound, or they may have signed it and just not sent the countersigned agreement back to you.
It's unclear why you would want to cancel the NDA anyway, if you got no proprietary information of theirs to disclose.
Oral contracts are as enforceable as written contracts, although they are harder to prove. In California you have 4 years from the date of breach to sue on a written contract, but only 2 years on an oral one. Without a contract in writing, you will have to prove the contract and the breach through your testimony, other witnesses to the deal, if there are any, confirming e-mails or other correspondece that mentions your deal, etc.
Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.
