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Non-Disclosure Agreement Question

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I am going to be aquiring a few developers for my game, but before I do so I want to make sure I do things right. I will have all developers sign a NDA (non disclosure agreement) but my question is: If a signature is typed onto the NDA, is it worth nothing? Does it have to be hand written? Are there ways around this? My second question is: Besides the NDA, what else should I have? A contract outlining what they can/cant do and terms of employment? Thank you, Mike

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I'm almost certain that you have to have their original signiture. As for your own, as long as you can trust yourself to assert that it is indeed your signiture I believe you're fine.


That said, I think you're being a little too stiff if this is a hobby project. If you're not paying these people (and I mean hourly, salary, etc... not promises of royalties) then an NDA is overkill. You might think you have a great idea for something, but ideas really are a dime a dozen. Even the ideas that truly are great aren't worth anything unless they are implimented well in a product.

Companies use NDAs because of things like corporate espionage and the fact that if don't take action to prevent information from falling into public knowlege they stand to loose their intellectual property rights and things of this nature. For example, if a programmer came up with a really great algorithm and posted it to his blog before the company has time to patent it. If they have an NDA on him they can say he had no right to post it and they can save it. If there's no contractual statement it could become public domain and they would loose all rights to it.

In any event, no one's going to steal your idea, then run away and code it all up themselves. I honestly wouldn't even speak to someone who wanted an NDA on a hobby project.

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Disclaimer - I am not a lawyer - you should talk to a lawyer

My first thought was that it must be hand written. Then I consulted a dictionary (for those youngsters here it is sort of a paper based Google where you look things up).

"The name of a person or a mark or sign representing his name, marked by himself or by an authorised deputy".

So I guess there are two questions:
1. Does typing count as "marking by yourself"? - I would have to say that it does in the same way that using a pen or pencil or a piece of chalk or even carving your mark in a piece of wood does.
2. How hard would it be to prove that a particular person typed the words, given that all computer output is generally the same? - The answer to that would be, "very difficult".

So it may be legally acceptable by not sensible as it will be hard to prove.

Of course there is a legal way to prove that someone typed something, which is actually also used when people sign by hand. That is the process of witnessing. A third party witnesses the act of signing and can be called to a court to give evidence in the event of a dispute.

However, there is another issue (isn't there always?) to consider. The law will accept a facsimile copy of a legal document (a fax) but as far as I am aware it has not been updated to accept an electronically transmitted document such as an email or a word document sent via email UNLESS it has been digitally signed. So even if it is witnessed it may not be legally binding if you only have an electronically transmitted copy, as opposed to a print out.

Bottom line - why not just print the document, post it to them and get them to sign it and return it. Even then I guess you don't know who actually signed it unless you are in the same room but it is the normal practice.

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I've dealt with NDA's lots and "YES" you will need the participants original signature. You will also need 2 copies signed, one for your documents and one for them to keep. Send them a copy of 2 NDA's with your signature, have them keep one and then send one back to you via. mail.

If anyone tells you that they will digitally sign or fax it etc.. don't hesitate not to proceed unless the NDA has been hand signed and returned.

You shouldn't need a lawyer involved with the signing of a NDA, but you should consult a lawyer before you or someone else signs any contract that discusses payment, royalties etc., as their are serious financial consequences if one side does not fulfill their end of the agreement.

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On a purely technical basis they could type their name (or more accurately send you an email) and it would be legal.

HOWEVER

Just because something meets the bare letter of the law doesn't mean it has any chance of standing up in court. A client would be wise to fire a lawyer who didn't try to challenge the "signatures" if they only existed as an electronic, typed message (if they didn't they would be incompetent) and unless there was some very strong supporting evidence (which I doubt you'd have) a judge would proceed to null the contracts.

The best way would be to send the NDA electronically and have them print it out, sign it, then mail the signed copy to you (or you could mail it to them with a prepaid envelope inside)

HOWEVER

Is this a payed or non-payed position (if it's "I pay them after the game is sold and we make a lot of money" or anything that doesn't involve money at a regular interval then it counts as not payed)?

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Guest Anonymous Poster
Quote:
Original post by Obscure
However, there is another issue (isn't there always?) to consider. The law will accept a facsimile copy of a legal document (a fax) but as far as I am aware it has not been updated to accept an electronically transmitted document such as an email or a word document sent via email UNLESS it has been digitally signed. So even if it is witnessed it may not be legally binding if you only have an electronically transmitted copy, as opposed to a print out.


Maybe in the US-of-backwards-law-A, but the EU made purely digital signatures and documents legally binding something like 4 years ago.

FWIW I know professional investors who do their NDA's purely by email. An NDA is practically unenforceable anyway :( (how do you remedy it?), it's just a promise

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Quote:
Original post by Anonymous Poster
Maybe in the US-of-backwards-law-A, but the EU made purely digital signatures and documents legally binding something like 4 years ago.

Are you talking about documents where someone just types or do you mean digitsally signed documents?

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Guest Anonymous Poster
Quote:
An NDA is practically unenforceable anyway :( (how do you remedy it?), it's just a promise


How? Put the penalties in the terms of the NDA. It is a legally binding contract and the penalty terms can be invoked. Big companies do it all the time. Some of the biggest companies (not game companies, but real money companies) will ask for a major cash deposit up front to ensure compliance.

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Original post by Anonymous Poster
Quote:

How? Put the penalties in the terms of the NDA. It is a legally binding contract and the penalty terms can be invoked. Big companies do it all the time. Some of the biggest companies (not game companies, but real money companies) will ask for a major cash deposit up front to ensure compliance.


I have never seen anything like that with an NDA; in general they're written in such a way that you're pretty much screwed if it goes to court anyway ("both parties agree that disclosure of said information shall constitute a material breach of contract", is one that springs to mind).

Anyways; we're talking about a guy that's wanting to enlist people to do this for free, so let's not give him any ideas. "Not only do I not pay you, but you have to give me a stash of cash in case you spill the beans on my revolutionary/innovative/totally original game idea".

If you ARE paying, the NDA is usually incorporated into the employment contract, together with the clauses that specify this as "work for hire", and as such excempt from original creator copyright.

Allan

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> Put the penalties in the terms of the NDA.

You cannot cap the liabilities or tie them to the value of the work or contract terms; most lawyers would readily object to such a clause. Nor can you include a clause that would automatically attribute remedies (+legal fees + representation fees + loss of business + ...) to one party if there is any breach in the contract.

> If a signature is typed onto the NDA, is it worth nothing?

Why go through this risk when you can have execution copies done the right way?

-cb

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