Quote:Original post by CMD
Thanks for the replies. Does this means a "I agree checkbox" is legally binding?

@Yann

I'm in Germany.

Not a chance then. German courts are notorious about requiring everything in writing - and by writing I mean signed in ink on physical paper. Even faxes are not always accepted, since they are pretty easy to counterfeit using digital technology. There are some established (ie. historic but still valid) business procedures that are legally binding without a physical support (eg. "Handschlag"), but none is portable to a digital medium, because it requires the physical presence of both parties, and sometimes a third neutral one.

Now, digital signing procedures are currently being installed by the EU, and those will be legally binding. They require governmentally issued encryption keys, and a specific cryptographic signing process. AFAIK, there are no widespread solutions available yet though.

That said, clicking a box would be legally binding, if you could prove without a doubt that:

a) the document or data is only accessible through the NDA page, and that there is no other way. No direct link to the content bypassing the NDA, nothing. This can be very difficult to implement technically, and to prove to a technically incompetent judge.

b) you can guarantee the identity of the signing party. This is almost impossible in Germany, due to very strict privacy laws. You can record their IP, but you'll never be able to prove their identity through an ISP match, unless a crime is somehow involved.

And finally, be careful when copying American NDAs and/or EULAs available on the net. Often, 50% and more clauses typically found in American EULAs are invalid in EU countries, because they conflict with local law. This can render the entrie agreement null and void. Make sure to draft an agreement in accordance with local law.

Essentially, get a lawyer :)

Quote:Original post by CMD
Thanks for the replies.

A scanned NDA legally binding then? It counts as physical once I've printed it, doesn't it? Only the "transfer" would be electronic, i.e. 1st party: send via email > 2nd party: print > sign > scan > send back to 1st party > print. In essence, it's the same as the traditional NDA process, with the difference of being transfered with electronic mail instead of physical.

This would essentially be a fax, only less secure (since with a fax, you have a trace on the callers phone bill, and a trace of the connection on the phone company logs, both of which are very hard to manipulate). With email, the usual spoofing/manipulation rules apply, so this form of communication will probably be considered less secure than a fax by courts.

It's already lightyears ahead of a simple checkbox, of course. It should provide basic protection for low security projects. For critical projects, where an information leak can cost you a lot of money (or even ruin your business), you should definitely insist on a physical copy of the signed document though.

Microsoft has invested a lot of time and money into protecting it's products and rights. So if MS does it, it's legal in your country (if it detects your country or changes to your language, consider it legally binding and most likely tested in court (maybe not by MS themsleves)).

If you copy their format, yours should be binding also.

Legal advice should only be gotten from those who have a license to practice law in your jurisdiction.

What I've been told is that the DMCA may, in fact, make click-wrap licenses legally binding in the US, although I've also heard on the radio that a license that was too much legalese was held as non-binding when a guy didn't read it because he didn't understand it. So for any specific license and any specific circumstance, I think you really have to check with a licensed legal professional.

Laws in Germany are likely quite different from the US, btw.

Last, the golden rule always applies: he who has the gold, makes the rule. So if there's enough at stake, don't worry about whether the license is formally binding or not; worry about what the other party would do to you if you went against them! Licenses and agreements are intended to be vehicles for cooperation in mutual understanding, not arbitrary rule sets to be bent as far as you can take them.

Quote:Original post by Mike2343
Microsoft has invested a lot of time and money into protecting it's products and rights. So if MS does it, it's legal in your country (if it detects your country or changes to your language, consider it legally binding and most likely tested in court (maybe not by MS themsleves)).

If you copy their format, yours should be binding also.

I would strongly suggest not copying legal documents from other companies. EULAs, confidentiality agreements and other contracts are often specifically designed for a certain legal corporate structure and business models, that will most likely not match your own. As hplus0603 mentioned, get in touch with a lawyer and have him draft your legal documents specifically for you. He will also provide insurance against incorrect advice.

Most governments offer legal help to new companies, often free of charge. Many also offer standard legal documents to download, that are in accordance with national law.

Copying Microsoft EULAs is a particularily bad idea, actually. They are basically build on US law, and contain tons of 'patches' and conditional clauses in order to fit other jurisdictions. Also, MS often incorporates clauses that are known to be invalid in certain jurisdictions, as a psychological barrier. An example is the non-reverse engineering clause. Those can quickly backfire, if you don't know exactly what you're doing (MS does, but a copied patchwork document might not).

An EULA is not an NDA. An EULA is mearly a list of the terms underwhich a copyright owner will allow you to use their copyright material. The legal backing behind an EULA is ultimately copyright law.

You should always get an original signed copy of an NDA. Email it to the person, get them to print two copies, sign them and post them back. You sign both a post one back to them. If you are in a hurry then faxing a copy is legally acceptable in a lot of locations. I wouldn't trust any other digital copies without talking to a lawyer.

Apart from the validity issue of having a signed original, doing it this way ensures you have some valid contact address should problems occur.