Electronic Counterparts
NDA
Table of Contents:
Recognition and Acceptance of Electronic Signatures
Delivery by Electronic Means
Electronic Counterparts
The electronic execution and delivery of NDAs is now commonplace and widely accepted due largely to the simplicity and convenience that they introduce to the contracting process. Signing an NDA electronically on a computer using an accepted application is easier than printing out hard paper copies and physically signing with a pen. Sending a signed copy via email is easier than having to send it by courier. Nevertheless, to avoid any misunderstanding, the parties to an NDA may desire to address this understanding in writing. For a discussion on the use of electronic commercial agreements, please see the section entitled “Electronic Documents”.
Recognition and Acceptance of Electronic Signatures
The following exemplars acknowledge the acceptance of signatures printed or otherwise depicted electronically in lieu of original “wet” signatures:
Exemplar N10-1
The undersigned are duly authorized to execute this Agreement on behalf of COMPANY and CONTRACTOR. This Agreement will be considered signed when the signature of a party is delivered by facsimile transmission, by scanned image (e.g., .pdf file extension) as an attachment to e-mail, or by any other electronic means. Each party agrees that any electronic signatures of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record, including, but not limited to, facsimile, typed signatures, or e-mail electronic signatures.
Exemplar N10-2
The Parties may execute this Agreement in counterparts, each of which is deemed an original, but all of which together constitute one and the same agreement. This Agreement may be delivered by electronic mail communications in pdf format, and pdf copies of executed signature pages shall be binding as originals. Each Party to this Agreement agrees to use electronic signatures; and be subject to the provisions of the U.S. E-SIGN Act (i.e., the Electronic Signatures in Global and National Commerce Act (ESIGN, Pub.L. 106-229, 14 Stat. 464, enacted June 30, 2000, 15 U.S.C. ch.96).
Exemplar N10-3
Each party intends that a facsimile of its signature printed by a receiving fax machine be regarded as an original signature and agrees that this Agreement can be executed in any number of counterparts, each of which shall be effective only upon delivery and thereafter shall be deemed an original, and all of which shall be taken to be one and the same instrument, for the same effect as if all parties hereto had signed the same signature page. Any signature page of this Agreement may be detached from any counterpart of this Agreement without impairing the legal effect of any signatures thereon and may be attached to another counterpart of this Agreement identical in form hereto but having attached to it one or more additional signature pages.
Although it is becoming increasingly rare for parties to require the use of paper versions with “wet” signatures due to the extra administrative steps involved, there are still a few companies (usually foreign) that will insist on paper documents signed by hand. In such a case, the parties may be inclined to accept both modalities, i.e., the parties can sign both electronic and paper documents.
Exemplar N10-4
Each party accepts, on behalf of its Enterprise, the terms of this Agreement by signing this Agreement (or another document that incorporates it by reference) by hand or electronically. Once signed, i) any reproduction of this Agreement, an Attachment, or Transaction Document made by reliable means (for example, electronic image, photocopy or facsimile) is considered an original and ii) all Products and Services ordered under this Agreement are subject to it.
Delivery by Electronic Means
Acceptance of electronic copies of signed NDAs is de rigueur, as such electronic copies are now widely regarded as equivalent to an original document under most rules of evidence.
Exemplar N10-5
Original signatures transmitted and received via facsimile or other electronic transmission of a scanned document, (e.g., .pdf or similar format) are true and valid signatures for all purposes hereunder and shall bind the parties to the same extent as that of an original signature. This Agreement may be executed in multiple counterparts, each of which shall be deemed to constitute an original but all of which together shall constitute only one document.
Exemplar N10-6
This Agreement may be executed in any number of counterparts. Each counterpart is an original and all of which when taken together constitute one and the same instrument. One or more counterparts of this Agreement may be delivered via telecopier or electronically in PDF format; these formats have the same effect as an original executed counterpart.
Exemplar N10-7
This Agreement may be executed in counterparts, and all such counterparts, taken together, shall constitute a single agreement. For purposes hereof, counterpart signature pages may be validly delivered by facsimile or by electronic mail in PDF format, and such signature pages shall have the same effect as originals.
Exemplar N10-8
This Agreement may be executed in counterpart and such counterparts together will constitute a single instrument. Delivery of an executed counterpart of this Agreement by electronic means, including by facsimile transmission or by electronic delivery in portable document format (“.pdf”), will be equally effective as delivery of a manually executed counterpart hereof. The parties acknowledge and agree that in any legal proceedings between them respecting or in any way relating to this Agreement, each waives the right to raise any defense based on the execution hereof in counterparts or the delivery of such executed counterparts by electronic means.
Exemplar N10-9
This Agreement may be executed in two or more identical counterparts, facsimile counterparts or electronic counterparts, each of which when executed by a Party shall be deemed to be an original and such counterparts shall together constitute one and the same Agreement. The transmission of executed counterpart signature pages to this Agreement by facsimile or electronic mail in “portable document format” or “pdf”, or by any other electronic means intended to preserve the original graphic and visual appearance of the original document, will have the same effect as physical delivery of the paper document bearing an original signature.