software non-disclosure netherlands
Forced to sign NDA or no notice period
<p>Context: I currently live in India and working remotely as a Software Engineer for a Dutch company since August 2018. I have got a residence permit for the Netherlands starting next month and was about to migrate for the company. During the last 4 months, I have been working over 60 hours a week and completed the must-have features of the product.</p>

<p>I had signed an employment contract that states:</p>

<blockquote>
  <p>Parties are free to terminate this agreement prematurely taking into
  account the statutory notice periods. Notice of termination will only
  be valid if it is in writing.</p>
  
  <ol start="5">
  <li><p>The term of notice of termination to be observed by the Employer is, when the employment agreement on the effective termination date
  has lasted: (a) shorter than five years: one month; (b) five years or
  longer, but shorter than ten years: two months; (c) ten years or
  longer, but shorter than fifteen years: three months; (d) fifteen
  years or longer: four months.</p></li>
  <li><p>The term of notice of termination to be observed by the Employee is one month.</p></li>
  </ol>
</blockquote>

<p>Further,
<strong>Article 15 - Governing law and jurisdiction</strong></p>

<blockquote>
  <ol>
  <li><p>This agreement, and all non-contractual rights and obligations arising thereto, are governed by and will be interpreted in accordance
  with the laws of The Netherlands.</p></li>
  <li><p>All disputes related to this agreement, or the agreements concluded in the performance of or in connection with this agreement, will be
  submitted exclusively to the competent court of Midden-Nederland.</p></li>
  </ol>
</blockquote>

<p>On the 3rd of December 2018, I have been verbally laid off and had been given a two months notice period to find a new job until 31st January 2019. Recently, my employer sent me an NDA with the clause below. He has provided me with no incentive to sign the NDA but he will end my work straight away without any notice period. This would hamper my chances of getting another job in the same field(AI &amp; Software) as the company has a very generic business description and a variety of products.</p>

<p><strong>Non-Competition</strong></p>

<blockquote>
  <p>Unless with the prior written consent of the Company (which shall not
  be withheld unreasonably), the Partner shall, for a period of 1 year
  following the last disclosure to it of Confidential Information not be
  directly or indirectly involved in any activity (aimed at) competing
  with the Business.</p>
</blockquote>

<p>What are my options here? Can I take legal action if he decides to let me go without notice if I refuse to sign the NDA? Further, no written notice has been given yet does that mean it is still not valid?</p>

<p>This is not an NDA (non-disclosure agreement), it is a non-compete agreement. An NDA would tell you that you cannot disclose anything you did or saw at your old employer's place. A non-compete agreement is what you have here, an agreement that limits your ability to get work. </p>

<p>If what you say is correct, then your employer is not exactly the brightest. You stay that you haven't been given a written notice, and your contract says that a "Notice of termination will only be valid if it is given in writing". So you haven't been given valid notice. </p>

<p>There is no reason why you would sign the non-compete agreement. If they plan to fire you without notice if you don't agree, they have a problem: Your contract doesn't allow them to do that. And they have apparently not given any written notice yet. </p>

<p>So what they can do is as soon as they decide that you are not signing, they can give you one month written notice. </p>

<p>For a general background on <a href="https://www.blenheim.nl/blogs/1454/contract-law-in-the-netherlands" rel="nofollow noreferrer">Dutch contract law</a> see here. <a href="https://dutch-law.com/acceptance-dutch-law.html" rel="nofollow noreferrer">This link</a> is particularly relevant to various aspects of your situation. </p>

<blockquote>
  <p>Can I take legal action if he decides to let me go without notice if I
  refuse to sign the NDA?</p>
</blockquote>

<p>Yes, as that would constitute breach of contract. Unless you failed the [contract law] covenant of <em>good faith and fair dealing</em>, the fact that the employer is the one deciding to terminate the employment relationship further weakens his "merits" as to constraining your career prospects elsewhere.</p>

<p>Although the non-compete or NDA clause is not really part of the contract you accepted/signed, you might want to make it clear to the employer that you reject the clause(s) he belatedly is trying to impose. See the 2nd-to-last paragraph of <a href="https://dutch-law.com/battle-of-forms-dutch-law.html" rel="nofollow noreferrer">this page</a>.</p>

<blockquote>
  <p>no written notice has been given yet does that mean it is still not
  valid?</p>
</blockquote>

<p><em>A priori</em>, yes, anything short of written notice is invalid. However, it is <a href="https://dutch-law.com/annulment.html" rel="nofollow noreferrer">noteworthy</a> that </p>

<blockquote>
  <p>Dutch law provides that null legal acts may later be validated. For
  example if the nullity resulted from the non-fulfilment of a legal
  conditions and these conditions are later fulfilled (article 3:58
  DCC).</p>
  
  <p>The validation of a legal act under Dutch law has retroactive effect.</p>
</blockquote>

<p>This suggests the possibility that the employer may cure his omission by giving you a written notice without having to reset the "countdown to termination".</p>

<p>In addition to the other answers, the NDA (which is really a non-compete agreement) is written in such a way that it is unenforceable. This is because it is unlimited geographically, unlimited in terms of work, poorly defined (when is consent withheld "unreasonably"?), violation impossible to prove (how to prove "aimed at"?), and employees would only ever agree to sign under duress due to the lack of explicit compensation.</p>

<p>While you could sign to avoid confrontation now, this would likely only delay the problem until the point when they try to enforce the non-compete. However, a delay may be exactly what you need because you need their references and recommendations looking for a new job.</p>

<p>If you can at all afford it, I'd recommend to consult a dutch lawyer about the specific situation, if only because that will give you the confidence needed to deal with their unjustified demands effectively.</p>
