When discussing my business venture with professionals in the field, are there general guidelines as to when I should use a Non Disclosure Agreement or Non Compete Agreement to protect my business concept?
A Non-Disclosure Agreement (NDA) is an agreement where the parties agree to maintain the information they obtain as a result of the relationship confidential from all others. It may even include a provision for monetary damages if that agreement is breached. NDA’s are commonly used in many relationships such as employment, when talking with potential purchasers of your business, or even investors.
A Non-Compete Agreement (NCA) is an agreement most commonly found in employment agreements with high-level employees. Generally, the employer wants to ensure that the employee will not open shop and compete against the employer using information that s/he obtained while working with the employer.
Depending on the nature of the discussions with other professionals and how detailed you will get, an NDA is a great idea. However, before you get so far as needing an NDA, be sure to properly vet the other professional to ensure they are not likely to breach it.
I need a new will that includes my kiddos! Currently everything goes to my brother. It's an old one. How does that work, when they're just so little?
In Oregon, you can disinherit your own children in a Will. So, if your Will says that everything goes to your brother, then it really will. On the other hand, you cannot completely disinherit a spouse unless there was a prenuptial agreement. In that case, if your Will gives all to your brother, your spouse will be able to make an election for his/her rightful share against your brother’s taking.
So what to do now? You probably want a new Will to ensure your children get what you want them to have and also to make provisions in case they are still minors when you die. Of course, a proper Will, customized to your situation and needs, may take a couple weeks to complete and execute. In the meantime, consider revoking your old Will so that your heirs inherit by Oregon’s default rules, which apply when you die without a Will.
If you die without a Will, this is called dying “intestate”. In Oregon, when you die intestate everything will pass either to your children or to your spouse if married. For example, if the children are born of your spouse and you, then your spouse takes all under the presumption that eventually your children will inherit from your spouse. If there are step-children involved, then your spouse will get a portion and the rest will pass directly to children that are only yours.
My client is going out of business and they still owe me for past services. How can I secure payment?
Depending on the business form the client operated under, it may be difficult to impossible to secure payment once its doors are shut if the business is insolvent.
For example, if the company was operating as a sole proprietor, then you will have a right of recovery against the individual. If the individual doesn’t pay, then you can go to small claims court and obtain a judgment to execute on the individuals assets, bank accounts, or wages.
On the other hand, if you were dealing with an insolvent LLC, then depending on your level of priority relative to other creditors, you may not ever get paid from the business. If that is the case, you can seek now a personal guaranty that you will always be able to enforce against the individual.
A personal guaranty may come in the form of a promissory note. A promissory note, signed by the individual in his or her own name, is a short and simple way to ensure that you may seek payment from the individual owner even after the business is dissolved.
If you are unable to get a signed promissory note, you may try re-negotiating for a lesser payment if paid in full, or request collateral to cover the debt. In the alternative, you may take the company to small claims court, but will need to do so before the business is dissolved.
When do I need to trademark a name or process I have created? How do I do this?
A trademark is a mark (name, word, phrase, symbol, etc) that is used to indicate that the associated product or service has originated from your company. Therefore, trademarks are critical components of any company’s brand. Once you begin using a given mark on your products or services you are creating your trademark and you will have certain limited rights to protect that mark. In order to broaden those rights and enhance your ability to protect your mark, you need to register it. You may register with either the state or federal government. Where you register depends upon the geographic expanse of your market. Click here for more information.
To register with the State, you will need to contact the Secretary of State and fill out an application and provide any supporting documentation requested. For Federal registration, you may begin the application process at www.uspto.gov.
When do I need to formally copyright something I've written? How do I do this?
Copyrights indicate a bundle of rights that give the owner the sole right to reproduce, copy, sell, or distribute a copyrighted work. You may have copyrights in any expression of an idea that you have recorded in some tangible format such as by writing it down, or recording your performance. You do not have to register your copyrights in order to have those rights. However, registration will enhance your ability to protect those rights. Click here for more information.
To register a copyright, visit the US Copyright Office at www.copyright.gov.