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  1. #1
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    How to make a "agreement" legally binding online?

    I want to make a "agreement" for my webdesign company.
    My designs are half celebrity related half commercial. For awhile I was using free images from sxc.hu etc, for the commercial sites, and was letting the celeb site buyers find them on their own - and was uploading via a login pass/email with a script to my server.

    I want to clear myself (hopefully) of any copyright infringements the celeb site buyers may come into - in the future - by using the images.

    It would basically say something close to (obviously this is far from done..):

    1. All images/content uploaded and/or otherwise provided to the site owner/operators or their agents for design purposes is to the best of my knowledge permissible by law to be distributed and/or I have the legal permission to use. The content is in conformance with any and all US and International Copyright Laws, and does not violate the intellectual property rights of the owner.
    2. The site owner/operators or their agents are not held responsible for the content uploaded by me to use on the design and I accept to be responsible for any and all legal proceedings brought upon the site due to this content.
    3. At the moment of transfer I hereby relieve the site owner of any legal liability and fully accept the transfer of the website. At that point I will become the owner of the site, thus taking upon the responsibility that is advanced with that.
    4. At close of sale I understand that all sales are final due to the nature of the product. Unless a technical problem arises, which will be dealt with on a case by case basis, absolutely no refunds, returns, or exchanges will be issued.

    Is that sufficient? Or should I add/remove something? If so - What?

    Also - I am looking for a way to make it LEGALLY BINDING online. I know about them sending me a fax/letter back with a signed agreement but most people I know won't go for that.

    What other alternatives are there to make this legally binding? Say on hotmail, youtube etc - when you sign up you have to check a box saying you agree to their terms etc etc... would that work for me as well? Is that legally binding?


    Any and all help is appreciated! Thanks very much in advance.

    Regards,
    Linda.

  2. #2
    In memoriam gold trophysilver trophybronze trophy Dan Schulz's Avatar
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    Hello Linda.

    If you can, send the contract over to them via PDF, have them print it out, sign it, and then have them fax over to you a copy of the last page (where the contract is signed), and then fax a copy of that over to them once you sign it. Make sure you both keep the contract with your records.

    It'll help avoid any conflicts.

    Though the best way is to mail a copy of the contract to them via certified mail with a return receipt (make sure you restrict delivery to the decision maker). And then have them sign it (enclose a second copy and have them sign that too), and return it to you the same way.

  3. #3
    Webwellwisher Robert Warren's Avatar
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    Quote Originally Posted by Dan Schulz
    If you can, send the contract over to them via PDF, have them print it out, sign it, and then have them fax over to you a copy of the last page (where the contract is signed), and then fax a copy of that over to them once you sign it. Make sure you both keep the contract with your records.
    This is exactly what I do, and it works fine for me - I've never had a complaint. What makes this even better is using an Internet fax service like eFax; you can then set the faxes to come through to you as emailed PDF's themselves. Great for storing away on a hard drive or CD.

    And don't forget, OpenOffice now produces PDF natively. So you don't need to use Acrobat or any other third party tools to do the job - just type it up and print it to file.

  4. #4
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    Thanks guys,
    As I said in my first post - I would like to have alternate ways besides fax/mail.

    I have actually asked a couple of my clients, they said they wouldn't want to spend the time having to fax it to me, etc. There are always people willing to do this without all those complications - and most of my business would go to them if I made them go through that process.

  5. #5
    In memoriam gold trophysilver trophybronze trophy Dan Schulz's Avatar
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    So even e-mail and electronic facsimile (e-fax) is out of the question?

  6. #6
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    Quote Originally Posted by Dan Schulz
    So even e-mail and electronic facsimile (e-fax) is out of the question?
    Most likely, that would require them to have access to a printer & fax or printer and scanner would it not?

    More time then most of my clients are willing to waste.


    So yes - I am looking for alternatives.

    Are the "I agree to blah blah" check boxes legally binding? Does anyone know?

  7. #7
    Webwellwisher Robert Warren's Avatar
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    Quote Originally Posted by Elyme
    I have actually asked a couple of my clients, they said they wouldn't want to spend the time having to fax it to me, etc. There are always people willing to do this without all those complications - and most of my business would go to them if I made them go through that process.
    Ohferdaluvagawd.

    This is the point where you have to decide who you are as a businessperson - because what they're really balking at is having to sign a legally binding contract. And yes, there are plenty of folks willing to work without one. Hell, there are plenty of people willing to work at a tenth of your price. Doesn't mean you should be slicing your prices to make deals happen. Neither should you be this accommodating about a signed contract.

    The question is, do you want to stay in business long term or not? I ask, because if you can't insist on protecting your interests during contract negotiation, it's only a matter of time before something big and ugly hits you. Believe it.

    In my years working freelance, I've only had a prospect/client be unwilling to "go through that process" a few times. In every case, I held them to it, and they ultimately signed.. and then they tried to screw me (as no doubt they'd successfully done to others who fell for the "too much hassle" line). Those signed contracts got me paid and prevented court appearances in each case. One of those clients was a woman who was used to working with "gentlemen's agreements" (i.e., verbal only) until I forced her to paper; she found herself at ground zero of a serious IP legal action as a result of her lax attitude. As for me, I was free and clear - because my contract said so. Had that not been the case, I might not be in business today.. just as she isn't.

    I've never once had a screw attempt or a legal threat happen from a client who didn't first try to get around signing a contract. The ones who sign are great to work with. The ones who actually negotiate terms honestly and respectfully are the best. Simply the best. Good contracts make good clients.

    Contract negotiation is a normal part of business, and if you're willing to work without one, you're not in business: you're doing favors for promises. You're a hobbyist, and you're setting yourself up. My advice is to raise your rates immediately, tell them that a signed contract is mandatory, make the process as streamlined as you can (while still protecting yourself), and then work on your marketing. You need better clients.

    And as far as clickthrough contracts go, no, they're not. Far too hard to verify the basic standards of contract law (i.e., meeting of the minds).

  8. #8
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    Quote Originally Posted by Robert Warren
    Ohferdaluvagawd.

    This is the point where you have to decide who you are as a businessperson - because what they're really balking at is having to sign a legally binding contract. And yes, there are plenty of folks willing to work without one. Hell, there are plenty of people willing to work at a tenth of your price. Doesn't mean you should be slicing your prices to make deals happen. Neither should you be this accommodating about a signed contract.

    The question is, do you want to stay in business long term or not? I ask, because if you can't insist on protecting your interests during contract negotiation, it's only a matter of time before something big and ugly hits you. Believe it.

    In my years working freelance, I've only had a prospect/client be unwilling to "go through that process" a few times. In every case, I held them to it, and they ultimately signed.. and then they tried to screw me (as no doubt they'd successfully done to others who fell for the "too much hassle" line). Those signed contracts got me paid and prevented court appearances in each case. One of those clients was a woman who was used to working with "gentlemen's agreements" (i.e., verbal only) until I forced her to paper; she found herself at ground zero of a serious IP legal action as a result of her lax attitude. As for me, I was free and clear - because my contract said so. Had that not been the case, I might not be in business today.. just as she isn't.

    I've never once had a screw attempt or a legal threat happen from a client who didn't first try to get around signing a contract. The ones who sign are great to work with. The ones who actually negotiate terms honestly and respectfully are the best. Simply the best. Good contracts make good clients.

    Contract negotiation is a normal part of business, and if you're willing to work without one, you're not in business: you're doing favors for promises. You're a hobbyist, and you're setting yourself up. My advice is to raise your rates immediately, tell them that a signed contract is mandatory, make the process as streamlined as you can (while still protecting yourself), and then work on your marketing. You need better clients.

    And as far as clickthrough contracts go, no, they're not. Far too hard to verify the basic standards of contract law (i.e., meeting of the minds).
    fair enough, Your point does make sense....

    To another Q:
    Do you think what I have so far in the agreement is good enough? I know dealing with celebrity images are getting more and more costly.

    And.. yet another question =) ...
    As far as uploading the images to my server - how could I prove they uploaded the images for me to use? Again.. I know using celebrity images have started to be costly (to the site owner) and I make them upload the images to my server - in the agreement it's going to say something close to that the images you are getting me to use you either a) they are freely available to use b) I (the buyer) have permission to use them or c) I (the buyer) am the original copyright holder.

    And lastly, are you in the market of writing agreements to such as what I am looking for? I am not very good at wording things, and wouldn't mind paying someone to do it.. (I noticed in your signature you are a copywriter.. so just asking)

  9. #9
    Webwellwisher Robert Warren's Avatar
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    Quote Originally Posted by Elyme
    fair enough, Your point does make sense....

    To another Q:
    Do you think what I have so far in the agreement is good enough? I know dealing with celebrity images are getting more and more costly.
    Can't help you there. (Actually, I probably could, but it would constitute providing legal advice and I'm not an attorney.)

    As a layman, though, I can see that you're confusing a TOS (Terms Of Service) with a contract - you have a TOS here. A contract contains a lot more, and is based on different legal reasoning. What you've posted above doesn't nearly cover the bases of a good contract.

    And.. yet another question =) ...
    As far as uploading the images to my server - how could I prove they uploaded the images for me to use? Again.. I know using celebrity images have started to be costly (to the site owner) and I make them upload the images to my server - in the agreement it's going to say something close to that the images you are getting me to use you either a) they are freely available to use b) I (the buyer) have permission to use them or c) I (the buyer) am the original copyright holder.
    It's called an indemnity clause. Another reason to have a signed contract - it's the clause towards the end that spells out in clear English that this isn't your problem, that the client assumes full legal responsibility for materials and instructions provided to you in good faith. You can then offer good advice and all, but at the same time not be in a position where you can get dinged on the client's lack of copyright knowledge.

    And lastly, are you in the market of writing agreements to such as what I am looking for? I am not very good at wording things, and wouldn't mind paying someone to do it.. (I noticed in your signature you are a copywriter.. so just asking)
    I am a copywriter, in that I write copy; "copyright" and "copywriting" are two completely different things. Only an attorney can legally draft a contract for you - otherwise, we're back to practicing law without a license again. If an attorney is even an option for you right now, take it.

    If not, you'll have to write your own. Do some searches here on contracts - lots of talk happens, and we post clauses from time to time. Also, work to educate yourself on the subject. You can start with the following websites:

    http://law.freeadvice.com/general_pr.../contract_law/
    http://smallbusiness.findlaw.com/bus...acts-overview/

    Happy to answer specific questions about your contract, but keep in mind that IANAL (I Am Not A Lawyer). We're just a bunch of nitwits (some better read than others) sitting around chatting. So always do your own due diligence and understand that nothing here should be construed as real legal advice.

  10. #10
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    That is great thanks a lot for the help
    I will take a look at those links.

    One last question - are there any online lawyers I can contact to get this wrote up?
    I have done a couple Google searches and haven't turned up anything I would go with.

    If not can you recommend any I go talk to over the phone for a reasonable price? I am a stay at home mother on a tight budget!

    Perhaps there are even some on here? *hoping* lol

  11. #11
    Webwellwisher Robert Warren's Avatar
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    Quote Originally Posted by Elyme
    That is great thanks a lot for the help
    I will take a look at those links.

    One last question - are there any online lawyers I can contact to get this wrote up?
    I have done a couple Google searches and haven't turned up anything I would go with.
    I can't recommend any to you at the moment (at least, not within your price range - good lawyers are expensive), but it's not uncommon for freelancers to write their own and learn as they go. The trick is to think paranoid, realize that every word has a meaning, keep your language clear, and to always be on the lookout for weaknesses or vulnerabilities in your paper - and ways to fix them.

    There are many good books about contracts and contract law. Search Amazon. Also, here's another good do-it-yourself legal source, Nolo:

    http://www.nolo.com/resource.cfm/cat...E/111/277/257/

    Good stuff, not just for contracts but for legal work in general. Read those articles, and ask yourself, what problems could you find yourself facing somewhere down the road? How can your contract help you in cases where you find out later that you can't trust the other party? How could you be burned? How can a few well-placed words avoid it?

    Again, if you have more specific concerns about individual contract issues, feel free to ask here. I'm sure someone here can point you in the right direction.

  12. #12
    In memoriam gold trophysilver trophybronze trophy Dan Schulz's Avatar
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    If you do decide to enlist the services of an attorney, find one that practices business and intellectual property law. Heck, you don't even have to find a single attorney to do it, the best thing to do is find a FIRM that handles business law. There's a law firm here in Aurora, IL that specializes in business law, and just about everything that falls under it - employment, litigation, small business, intellectual property. I haven't hired them yet (starts whining about how broke I am), but they are on my short list of law firms to interview though.

    And yes, I did say interview. You're going to want to decide based on what the firm can offer you in terms of service and quality. Don't choose based on price or prestige. A cheap lawyer is just that. CHEAP. A prestigious law firm will also be far more likely to be lobbying down at the state capital or in Washington, DC (or your provincal/national capital if outside the USA) than meeting your needs.

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    Texan at Heart Corey Bryant's Avatar
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    You also ask them to type in their name as their "signature". Maybe even initial by a few paragraphs, but I would have the wording and everything reviewed by an attorney who specializes in these matters. That way, if anything did happen, you have a relationship with such attorney and he will be able to handle anything for you.

    I would hope that "if you choose" would not even be an option, especially in this day and age when so many people will take you to court for the most smallest thing. Yes, it might be expensive, but if you are serious about the business and want to succeed, you do need the proper advice from legal counsel, not from a forum. (And I am not saying these guys and gals have not given you great advice, but what happens when you are sued? You can't come back here and tell the poster whose idea you used to come out to such-such state and represent you in court.)

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    Webwellwisher Robert Warren's Avatar
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    Quote Originally Posted by Corey Bryant
    You also ask them to type in their name as their "signature". Maybe even initial by a few paragraphs
    Doesn't work. Anyone could type that. You need either a physical signature or a true digital signature.

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    I wouldn't mind paying a lawyer - but there's none around here I would have to travel at least and hour - and I do not drive. Also - I am a stay at home mother and my funds are low. If anyone on here is willing to write one up for me, please let me know.

    EDIT: and yes I will pay you - although your price must be reasonable! I'm only looking for a page or so, nothing to long.

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    In memoriam gold trophysilver trophybronze trophy Dan Schulz's Avatar
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    Unfortunatley we're really not allowed to do that.

    However, what we can do is suggest some books on the matter, such as The Internet Legal Guide by Dennis Powers, or some of the law books by Sphinx Publishing and Nolo. All should be available at your local public library.

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    Quote Originally Posted by Dan Schulz
    Unfortunatley we're really not allowed to do that.

    However, what we can do is suggest some books on the matter, such as The Internet Legal Guide by Dennis Powers, or some of the law books by Sphinx Publishing and Nolo. All should be available at your local public library.
    I don't see why your not allowed to do it? You would be doing me a service? :s Anyways, I'll post in a new thread what I want and also on DP - I am sure someone will be willing to do it.

  18. #18
    In memoriam gold trophysilver trophybronze trophy Dan Schulz's Avatar
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    What I meant is we can't do it in the main forum. If you want to hire a person to write something for you, you have to post a listing in the Looking to Hire board.

    And as far as contracts go, it'll be suicidal to have a third party who is not a licensed practicing attorney write one for you.

  19. #19
    Webwellwisher Robert Warren's Avatar
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    Quote Originally Posted by Elyme
    I don't see why your not allowed to do it? You would be doing me a service? :s Anyways, I'll post in a new thread what I want and also on DP - I am sure someone will be willing to do it.
    Via con diablos.

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    Quote Originally Posted by Dan Schulz
    What I meant is we can't do it in the main forum. If you want to hire a person to write something for you, you have to post a listing in the Looking to Hire board.

    And as far as contracts go, it'll be suicidal to have a third party who is not a licensed practicing attorney write one for you.
    So - I should write it myself *me knowing NOTHING about it*? I don't think so lol I would rather have someone who knows more about it then me do it - even if they are not a lawyer - as I have said I cannot find one and I doubt I could ever afford one.

  21. #21
    SitePoint Co-founder Matt Mickiewicz's Avatar
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    Having a 1-page contract written by a non-lawyer is very dangerous and will do you very little good.

    You'd be better off buying a templated, lawyer-reviewed, contract for $197:
    www.proposalkit.com/kits/pro.htm
    Matt Mickiewicz - Co-Founder
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  22. #22
    In memoriam gold trophysilver trophybronze trophy Dan Schulz's Avatar
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    I also recommended some books and publishers who publish books who can teach you the basics of contract law as well. You would do well to look into them.

  23. #23
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    Quote Originally Posted by Matt Mickiewicz
    Having a 1-page contract written by a non-lawyer is very dangerous and will do you very little good.

    You'd be better off buying a templated, lawyer-reviewed, contract for $197:
    www.proposalkit.com/kits/pro.htm

    Yes now we are talking! I would rather have that of course.

    if im not wasting your time - if you have read my thread - could you tell me which on of those I am looking for? (some are as low as $12...)

  24. #24
    Texan at Heart Corey Bryant's Avatar
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    Exactly where are you? You might check out www.keen.com to see if there are attorneys that will talk to you via the phone at least.

    But at least my point was proven - be very careful and get someone who is skilled in these matters. Good luck with everything!

  25. #25
    SitePoint Wizard dreamscape's Avatar
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    Quote Originally Posted by Robert Warren
    Doesn't work. Anyone could type that. You need either a physical signature or a true digital signature.
    Are you talking about in the United States? As you said you are not a lawyer, so please stop stating your legal opinion as legal fact, and stick to the facts.

    FACT: The ESIGN act is technology neutral and does not require the use of one technology or another in an "electronic signature". It defines an electronic signature as any "electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or accepted by a person with the intent to sign the record."

    In no way, shape, or form does the act state a signature must be a "true digital signature" or utilize cryptography or any other specific technology.

    The enforceability of one signature method over another, only a lawyer can comment on, and only a judge or jury can ultimately decide on.

    Here are a few articles from lawyers or law associations on ESIGN:

    http://www.nolo.com/article.cfm/Obje...1/277/167/ART/
    http://www.legalmatch.com/law-librar...t-lawyers.html
    http://www.connellfoley.com/articles/oneclick.html

    Another FACT: Courts have help up that click wrap agreements are enforceable. See I. Lan Systems v. Netscout Service Level --or-- Moore v. Microsoft for two such cases. These cases deal with software & software agreements, so how they impact other contracts & agreements I don't know and can't even begin to comment on. Ask a lawyer


    Elyme, I now do all my contracts electronically. I use Sertifi, which gives the client the option to sign electronically with Adobe Acrobat or to print out, sign by hand, and fax it in. Sertifi handles everything automatically, and I personally have never had a problem with them.
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