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Nicola-mod
Nicola-mod, Moderator
Category: Scots Law
Satisfied Customers: 11
Experience:  Moderator
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A client of mine sent me a contract (NDA) via email to sign

Customer Question

A client of mine sent me a contract (NDA) via email to sign and return, the contract was filled with spaces for me to include my name address etc. It also included a signature from the client, which was incorrectly positioned on the contract. I then edited the document, removing sections such as:


 


[IF PARTY 2 IS A COMPANY]


[IF PARTY 2 IS AN INDIVIDUAL]


[NAME 2]


 


and replacing with the relevant information within the body of the contract. I then printed the contract after moving the client's signature to the relevant place at the end of the document, signed it and emailed it back. The client then did not acknowledge it or return it signed.


 


In the court of session, I wish to prove that the contract is invalid and/or non-binding.


 


In your opinion are these valid arguments in Scots Law.


 


The first draft of the contract sent to me was not an 'offer of contract/agreement' and merely a draft as it did not contain my name or details, and by returning the contract altered (by deleting sections and inputting my details) this constituted the 'offer'. The client did not respond or signify agreement.


 


Alternatively, if the first draft is constituted as an offer, by changing the contract by removing and replacing sections, including my name etc, would this constitute a counter-offer (therefore rejecting the first).


 


In either event, the client never came back to me once I had signed the document saying that they agree to it. They had never signed the document once I had made changes.


 


The contract was a bi-lateral non-disclosure agreement, which (correct me if I am wrong) requires all parties to agree as it requires a mutual undertaking (to keep each others confidential information confidential).


 


Finally, to what extent could the following features of the NDA mean it would be unfair/invalid/unenforceable:


 


- No set term - the contract was forever or at least until both parties agreed to terminate it.


 


- No specific definition (very vague) of Confidential Information (pretty much everything) - 'all other information in any form or medium whether disclosed orally, in writing, in the form of machine readable code or embodied in hardware or any other physical medium, which is disclosed before or after the date of this Agreement...' -

Submitted: 3 years ago.
Category: Scots Law
Expert:  JGM replied 3 years ago.
Thank you for your question.

What is the court action about and what are the averments in relation to this agreement?
Customer: replied 3 years ago.

The court action is seeking damages for a breach of the agreement. My first argument is to dispute the validity of the contract.

Expert:  JGM replied 3 years ago.
We can safely say that the one you were sent by email was a draft which you revised, signed and sent back.

They may have then signed it; but you never saw a signed copy.

However you signed it. Even if they didn't, and a confidentiality agreement need not be signed by both parties, the fact that you signed it was at least a unilateral obligation on your part and they can rely on that. The converse is not the case if they didn't sign the revised agreement.

You won't get much sympathy from the court on their being no agreement by you not to breach their confidentiality just because they didn't sign the agreement. This is not missives for the sale of property; this is a commercial agreement and the courts will allow a degree of informality in that context.

As regards XXXXX XXXXX questions, it would be naive to assume that a confidentiality agreement would not last indefinitely. That is its purpose; to safeguard confidential information.

Likewise it could be assumed that everything in a private business is confidential to outsiders especially where you are placed in a position of trust to carry out work for them.

Happy to discuss further.
Customer: replied 3 years ago.
Relist: Inaccurate answer.
The answer included some assertions that are clearly not from a legally qualified 'lawyer'.

Including that an NDA should last indefinitely. An NDA should include an end date, specifying that the information should be destroyed.

The contract I talked about is a bi-lateral agreement. By having only one signature, this does not make it a unilateral agreement. It carried a mutual undertaking.

If you were to sign an agreement to sell land, and the buyer does not sign it. This does not mean that you have to handover the land without payment. The agreement is only valid with both signatures.
Expert:  JGM replied 3 years ago.
As I explained to you in my answer a commercial contract is dealt with entirely differently from an agreement for the sale of land and the execution requirements are different. I think you are aware that you have a problem here and insulting me won't help you.

1. I am a fully qualified lawyer and have been so for 30 years.

2. A confidentiality agreement can last indefinitely and need not have an end date.

3. A bilateral agreement can end up being a unilateral agreement quite easily in this type of situation. There were mutual and complimentary undertakings not a single mutual undertaking. As I told you this is a commercial situation and the rules are different from land contracts.

4. Even if there was no confidentiality agreement in writing at all, the company could still sue you for breach of confidentiality, passing off, breach of copyright, trademark and potentially a whole plethora of remedies. You are hanging your hat on this one agreement. That is a mistake.

You can treat my answer as inaccurate if you like. In actual fact it is entirely accurate. I wish you the best in your "defence" to this action and I truly hope you're not trying to defend yourself in the Court of Session. You will undoubtedly lose if you maintain your current stance.

I am opting out.
Customer: replied 3 years ago.
I am seeking to dispute the jurisdiction of the court, as the contract states we will submit to scottish law. My idea was to dispute that this agreement was made, and that the english courts have jurisdiction (since I am domiciled here).

Also, your profile on here states you have a degree in computing, and you are a researcher. Forgive me if this was inaccurate.
Customer: replied 3 years ago.

My apologies, your profile now shows law quals etc. How strange.


 


As I mentioned, I only wish to dispute the relevant jurisdiction the contract binds us to, not the NDA as a whole.

Expert:  Nicola-mod replied 3 years ago.
Hello,

It seems the professional has left this conversation. This happens occasionally, and it's usually because the professional thinks that someone else might be a better match for your question. I've been working hard to find a new professional to assist you with your question, but sometimes finding the right professional can take a little longer than expected.

I wonder whether you're OK with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!
Nicola
Customer: replied 3 years ago.

Hi Please just cancel the question and refund me.


 


Thanks,

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