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]
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...' -