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sberanek83
sberanek83, Attorney
Category: Business Law
Satisfied Customers: 18
Experience:  Extensive experience in representing and counseling small to mid-size businesses
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I would like my NDA to state something along the lines of: Faxed,

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I would like my NDA to state something along the lines of:

Faxed, scanned, emailed, and electronic signatures to this document shall have the same force and effect as original signatures.

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Does the following include all the possibilities listed above? It ends with facsimile…how can that be revised to make sure it includes all possibilities?

This Agreement may be executed in two or more counterparts (including without limitation, by facsimile or electronic counterparts) all of which together shall constitute one and the same Agreement. This Agreement is validly executed once signatures have been exchanged by facsimile.

Hello, and thank you for using this service.

To answer your question, "electronic counterparts" would include scanned, emailed and digital signatures, so the current language includes all the possibilities you want.

Let me know if you have any other questions.

Customer: replied 4 years ago.
Hi! Thank you for your answer. :) The paragraph ends with "This Agreement is validly executed once signatures have been exchanged by facsimile."

Why does it end with just "facsimile"? Can that be more general to include all possibilities?

Thank you again!
Yes, it can be worded more broadly. Besides, faxes are quickly becoming obsolete.

You could change the wording to be: "This Agreement is effective when each party has been provided with a copy of the Agreement executed by the other party." This wording would account for signing in counterparts (each party signing their copy of the Agreement) and exchanging signature copies as well as if both parties execute the same Agreement and each side gets a copy.

I hope this helps.

By the way, if the NDA you are using is something you found on the internet, be careful if you haven't had an attorney review it. In my experience, while finding a contract online can be helpful from an educational standpoint, often the contracts are not very good and may not really protect you.
Customer: replied 4 years ago.
Hi!

Thanks again! Last question. Would the following work without the last sentence that was originally there?


Entire Agreement. This Agreement constitutes the entire understanding between the parties hereto and replaces and supersedes any and all prior and contemporaneous agreements and understandings, whether oral or written, express or implied, between the parties with respect to the subject matter hereof. This Agreement may be executed in two or more counterparts (including without limitation, by facsimile or electronic counterparts) all of which together shall constitute one and the same Agreement. This Agreement is validly executed once signatures have been exchanged by facsimile.

Editorial Comment: The first sentence of that section is what we call a "merger" clause and is typically found in all contracts. It prevents a later claim that the written contract is only part of the deal and there is another verbal or written agreement that is part of the contract. The second and third sentences don't really belong in this section.

Answer: Considering the other questions you have posted about the
Agreement, you definitely need to remove the last sentence of that section. Because you are backdating the non-disclosure restrictions, you do not want any suggestion in the Agreement that they are not valid from the effective date of the Agreement. Therefore, remove the last sentence and do NOT replace it with the wording I provided in my last answer because that will also call into question exactly when the non-disclosure restriction become effective.
Customer: replied 4 years ago.
Thank you! :) Just to confirm, you would recommend the following? Is the last sentence here ok?

Entire Agreement. This Agreement constitutes the entire understanding between the parties hereto and replaces and supersedes any and all prior and contemporaneous agreements and understandings, whether oral or written, express or implied, between the parties with respect to the subject matter hereof. This Agreement may be executed in two or more counterparts (including without limitation, by facsimile or electronic counterparts) all of which together shall constitute one and the same Agreement.

Yes. That will work.

Good Luck!

Customer: replied 4 years ago.
Great, thank you so much for your help! Last question:

If the agreement is backdated with the date when conversations first began:

This Non-Disclosure Agreement (this “Agreement”) is made and entered into on ____________________, by and between...


1) This is completely legal right?

2) Is it still ok to send the document via Docusign for the Recipient to sign (even though the date at the beginning of the agreement is backdated as shown above)?

1. Yes, in this context it is ok to backdate the contract as long as both sides agree. The legal context is that both parties are acknowledging or ratifying the idea that the non-disclosure obligations existed from the first time you spoke. If the other party has a problem backdating the contract, it may mean that they have already disclosed the idea to someone else. If that is true, then you should try to find out the details and you can then decide how much of a potential problem the disclosure is.

2. It is OK to send the contract via Docusign. What matters is the date the contract becomes effective, not the date when it is signed. With that having been said, you could have the other party sign their initials near the effective date to highlight that they are aware of the effective date of their non-disclosure restrictions. This would effectively prevent any claim by the other party later on that they were unaware or misled as to at what point they were forbidden from discussing the idea.

Customer: replied 4 years ago.
Your responses are so helpful. :) The way the contract is written is with the date info at the beginning of the agreement (as I previously mentioned) and with a line for initials at the bottom of each page...is that enough?

Note: The last page has a signature and name line (but no date).

Thank you!

That should be enough because the idea of initialing each page is to show that you have actually read the page. Whether the person actually does or not is up to them.

One final piece of advice. When you present the NDA to the person, suggest that they have it reviewed by an attorney. This helps to cover you in two respects. First, the person cannot credibly claim later on that he was misled or defrauded by the contract if he has his own attorney review it for him. Second, even if he doesn't have an attorney review it for him you can defend (at least in part) some potential claims by showing that you were doing everything "above board." After all, a person who is trying to take advantage of someone else does not suggest the other person seek the advice of a lawyer.

Customer: replied 4 years ago.
Hi! Thank you again. With regards XXXXX XXXXX attorney review...can that be added in the contract? If so, what should be written and where? Would it be it's own clause (e.g. 2.8 ....)?
It should be its own section, such as:

______________ acknowledges and agrees that he has been advised to seek the advice of legal counsel with regard to the terms of this Agreement and that he has had sufficient time prior to executing this Agreement to obtain an attorney's advice should he have desired to do so.
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