NDA without a defined maximum liability amount I would like to ask if it is normal (standard situation) for an NDA to not define the maximum liability amount. Someone can hack my computer or data storage and I inadvertently access confidential information. I see this as too great a risk. I also don't understand the following wording: breach of this Agreement may cause irreparable harm to XXXXXX. Therefore, in addition to any other remedies available to XXXXXX, XXXXXX may obtain injunctive relief in the event of any breach or alleged breach of this Agreement without proving actual damages.
There is no &quot;normal&quot; or &quot;standard situation&quot;. The parties are free to negotiate whatever terms they like within any limitations imposed by law. If you're unhappy with the proposed terms then you should either negotiate to include a liability limitation clause, refuse to agree the NDA, or consider whether the benefits of signing it outweigh your concerns. If you are entering into the NDA as a consumer and with a trader, then in england-and-wales, you might have some protection from Section 62 of the Consumer Rights Act 2015 which provides: (1) An unfair term of a consumer contract is not binding on the consumer. (4) A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer. For example, a contract which imposes unlimited liability on a consumer, while capping the liability of the trader, could be unfair. This will very much depend on all the circumstances and what the contract as a whole says: (5) Whether a term is fair is to be determined — (a) taking into account the nature of the subject matter of the contract, and (b) by reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depends. A term also can't be assessed for fairness if it specifies the main subject matter of the contract (which arguably a liability clause in a NDA does) and the term is transparent and prominent (see Section 64). &quot;I also don't understand the following wording: ...breach of this Agreement may cause irreparable harm to XXXXXX. Therefore, in addition to any other remedies available to XXXXXX, XXXXXX may obtain injunctive relief in the event of any breach or alleged breach of this Agreement without proving actual damages.&quot; What this is saying is that, in addition to all the usual actions that the other party could take against you for breaching the NDA (e.g. suing you for damages in the event that they suffer a loss from your breach), they can also apply to a court for an injunction without needing to prove that your breach caused them any loss. An injunction in this case would be a court order requiring you to stop breaching the NDA (e.g. to stop divulging information subject to the NDA).
Does the original 'No Problem' good will waiver from Party B holds in court? Generally speaking, yes. Party B cannot undo his waiver unless (1) it was induced fraudulently, or (2) the contract supports striking that kind of waivers. There might be other scenarios entitling B to undo his waiver, but all of them are exceptional and don't differ that much from these two alternative conditions. That being said, the evidence (such as the recording) should make it clear that party B waived enforcement of the timeliness of payments, not his entitlement to payments themselves. In the event that party A has already made the payments he missed and scenario (1) or (2) applies, party B's remedies are limited to the concrete losses he incurred as a result of party A's belatedness. The principle is that remedies be available to the extent necessary to avoid injustice, as is frequently contemplated in the Restatement (Second) of Contracts.
Contracts are subordinate to the law Any clause in a contract that is unlawful is void. So, if the law compels you to disclose information then even if a contract prohibits it, disclosure is not a breach. However, in most circumstances, law enforcement officers have no power to compel disclosure - you have a right to remain silent. As such disclosure when it was requested but not required would be an actionable breach of contract. On the other hand, a judge can most certainly compel disclosure.
Sorry, what did I agree to? NDA means New Drug Application, right? Or is it Notre Dame Academy? Maybe it's Nebraska Dressage Association - don't want to cross those guys, their horses are mean. When you are trying to form a contract with someone, it's very important that you and they are talking about the same thing. What can't I disclose? That I had a phone call? What I said? What you said? Only the confidential bits? If so, what are they? Can I tell my business partner? My lawyer? My secretary? The IRS? Another important thing about making a contract is to agree on the terms. Post-facto contracts are not a thing After you paint my fence, you can't demand payment. We have to enter into a contract before the thing that happened happens. Elements of the call might be confidential anyway I am bound to respect confidences that were entrusted to me where a) the information is confidential b) it was imparted to me in a situation of confidence and c) disclosing it would cause harm. We don't need a Non-Destructive Analysis to document that.
Such use might well be illegal, and subject the user to tort liability, or possibly even criminal liability. Parties For this discussion let us call the person or company that developed and wants to protect the information D, the person or company that downloaded and wants to use the information U, and the person who placed the information on the server P. Trade Secret One possible source of liability is if D considers the information to be a trade-secret. The law on trade secrets varies to some extent in different countries, although there is a general similarity. Since no jurisdiction is specified in the question, I am going to look at the united-states law. Definition The LII page on &quot;Trade Secrets defines a trade secret under the US Uniform Trade Secrets Act (&quot;UTSA&quot;) as: &quot;information, including a formula, pattern, compilation, program, device, method, technique, or process that: Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. A similar definition is given by the USPTO page on &quot;trade secret policy&quot;. Prior to the USTA, and still in those US states that have not adopted the USTA, trade secrets were/are protected under the common law. The LII page lists the common law factors, as given by the Restatement of Torts (1939) § 757, comment b: The extent to which the information is known outside the claimant's business The extent to which it is known by employees and others involved in the business The extent of measures taken by the claimant to guard the secrecy of the information The value of the information to the business and its competitors The amount of effort or money expended by the business in developing the information The ease or difficulty with which the information could be properly acquired or duplicated by others These factors may apply in other common-law countries. In either case, one must consider how the would-be user came to acquire the information, and thus how it came to be on the server from which it was downloaded. One must also consider whether it was the subject of &quot;reasonable efforts&quot; to protect its secrecy, under the circumstances. Circumstances If P was violating an obligation of confidentiality, such as an NDA or a duty as part of an employment relationship, then the placement of the info on the server was improper. In such a case its acquisition by another, such as U might constitute misappropriation. The same would be true if a person under an obligation of confidentiality arranged for the server to be indexed by a search engine, when it should not have been. The case for misappropriation would be stronger if U knew that the information was considered confidential by D, and also if P had informed U about where to find the info, or what search terms would uncover it. If P was acting with the permission of D, and P or someone else at D simply failed to realize that the server was, or might become, indexed, then the question is whether the steps taken by D to keep the info secret were reasonable. If this a case of &quot;inadvertent disclosure resulting from the trade secret holder's failure to take reasonable protective measures&quot; then there is no misappropriation, and the actions of U are lawful. That will depend of a judgement of whether D's actions were reasonable in light of the value of the info and the overall circumstances. If the placement of the info on the server is considered to constitute &quot;general publication&quot; of the info, so that it is no longer secret in any meaningful sense, then D may have a claim against P, but not against U unless U acted in collaboration with P. Copyright Law The documents downloaded from the4 server are almost surely protected by copyright. Directly incorporating them into an open source project without permission from the copyright holder would be copyright infringement, and would subject U to a suit for infringement. However, copyright does not protect ideas, methods, or facts. If U learns a method or idea from the document, and uses that knowledge without directly copying or closely paraphrasing the document, there is no copyright infringement and no claim under copyright law. Patent Law The question does not mention any patents. It is possible that D has patented the method describe in the downloaded documents. If so, and if the patent is valid, any use by U would be patent infringement, and the question of how U learned the info becomes irrelevant. However, most software developments such as data structures are not patented, so this is a somewhat unlikely, albeit possible, case. Notre that if the information is covered by a patent is is by definition not secret, as all patents must be openly disclosed. But they may not be widely publicized, and if U does not make a patent search, U may not realize that the document includes patented technology. This possibility is largely incompatible with the trade secret possibility, althogh it is possible to use trade secrets in connection with patented tech. Conclusion In short whether U may lawfully use then info, or is subject to a tort claim by D, or even criminal action, depend on the details of the overall facts. U would do well to take legal advice on the matter before proceeding to use the info.
We cannot dispense personalized legal advice: that is what your attorney is for. However, I agree with your analysis that this is most likely covered by fair use, and indeed it is not obvious that you have taken anything that is protected. There is no creativity behind a number such as entries in the &quot;I did N pushups&quot; column. The arrangement of data into a web page passes the smidgen of creativity test, but &quot;210&quot; is not a creative number. The terms of service of a website cannot negate your right to use the website however you want in a non-infringing way. If your use is &quot;fair use&quot;, then they can't tell you that you can't use it. In case it turns out that &quot;fair use&quot; fails, the matter would hinge on what exactly the TOS says. They may have granted you permission to make use of their &quot;information&quot;. So there are three positive avenues for you to consider: not protected, fair use, and permitted. A practical difficulty is that a university lawyer is only interested in the interests of the university, and they are as likely to say &quot;don't do that&quot; or &quot;get permission&quot; as they are to say &quot;that is fair use&quot;. You can hire a lawyer who is paid to care about your interest, though there is never a guarantee that the lawyer's advice is correct. I think it is likely that the lawyer will tell you to not say anything until legally forced to, given the apparent rebuff of your request for special permission.
You are suggesting strict liability for software bugs. You haven't tried to show any negligence or incompetence on Microsoft's part, but just appear to have assumed that the existence of a bug that causes harm should create liability. Strict liability is rare, at least in the US, and does not in general apply to software. Given strict adherence to the best practice in developing software, there will be bugs, so a bug is not itself evidence of any sort of wrongdoing on Microsoft's part. In real life, if there was strict liability for software bugs, nobody and no business would write software for the use of others, because of the ever-present potential of being wiped out by lawsuits despite all they could do.
Every software is potentially vulnerable, unless it runs on an air-gapped computer with sealed data ports. How vulnerability fixes are prioritized against other goals is usually a business decision, legitimately made by the management. There are some jurisdictions and issues where the law requires them to act, but again there is usually a judgement call involved. For example, the GDPR talks about due regard to the state of the art. What you describe seems to be a difference in opinion about the importance of the fix. Ask about that at Workplace SE, not here. There are ways for software developers to influence their management, but ultimately the management is responsible for the outcomes and gets to decide. You can inform your superiors, in writing. If you are in a large company, there may be a legal or compliance department. Inform them if you have a reason to distrust your superiors. In most jurisdictions, you cannot simply talk to the press, either now or later. If you believe that your company is acting criminally, talk to a lawyer.