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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.
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.
Yes. That will work.
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.
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.
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