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  1. #26
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    Quote Originally Posted by Corey Bryant
    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!

    I am from Ontario, Canada.

    Most lawyers I have seen so far are well over $400. I can afford half of that and not more.



    Quote Originally Posted by dreamscape
    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.

    I checked out the website looks good, how much do they charge monthly? I just took a quick look-see and I didn't see monthly/yearly pricing.




    on another note:
    I am interested in purchasing one (or a couple) if need be from: http://www.proposalkit.com/kits/pro.htm Could anyone tell me which one(s) I need?

  2. #27
    SitePoint Co-founder Matt Mickiewicz's Avatar
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    Quote Originally Posted by Elyme
    I am interested in purchasing one (or a couple) if need be from: http://www.proposalkit.com/kits/pro.htm Could anyone tell me which one(s) I need?
    This is the one:

    Proposal Kit Pro V10 includes over 120 contract documents for IT, web, software, hardware, photography and other technology businesses, plus over 140 business proposal templates, 20 sample proposals, project estimate spreadsheets, project planning worksheets, and much more for only $197.
    Matt Mickiewicz - Co-Founder
    SitePoint.com - Empowering Web Developers Since 1997
    Follow me on Twitter.

  3. #28
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    Quote Originally Posted by Matt Mickiewicz
    This is the one:

    Proposal Kit Pro V10 includes over 120 contract documents for IT, web, software, hardware, photography and other technology businesses, plus over 140 business proposal templates, 20 sample proposals, project estimate spreadsheets, project planning worksheets, and much more for only $197.
    How do I know the exact one I'm looking for is in there? I have no idea what I need myself

    They do sell individual ones...

  4. #29
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    OH!

    How can I prove the images I used on their design(s) are the ones they uploaded to my server? Should I wait before I make them sign the agreement until the work is done - and have something like this in it?

    "Finished works comply with the images I provided" - I told you I wasn't good at wording things

  5. #30
    SitePoint Wizard dreamscape's Avatar
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    Quote Originally Posted by Elyme
    I checked out the website looks good, how much do they charge monthly? I just took a quick look-see and I didn't see monthly/yearly pricing.
    There is a free trial. You can sign up and the 1st 3 documents are free. You have to contact them for pricing.
    <.smarter.web.development.>
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  6. #31
    Webwellwisher Robert Warren's Avatar
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    Quote Originally Posted by dreamscape
    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.
    Pot, kettle; kettle, pot.

    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.
    Groovy. So I could have linked a better article. Shoot me.

    Since you're obviously the local legal expert (I never claimed to be), you probably also know that E-Sign is a U.S. federal statute, created under the interstate commerce authority of the U.S. Constitution. That means it only has particular bearing over transactions that fall under that specific authority - i.e., across state or national lines. Otherwise, the federal government doesn't have legal jurisdiction to get involved, and E-Sign becomes a moot point. Transactions that don't involve "interstate or foreign commerce" remain the venue of individual states, not all of whom have signed on with the UETA (Uniform Electronic Transactions Act); New York hasn't, for example. Even the ones which have passed UETA have all passed their own specific versions of it.

    Contract law is typically chased down in state civil court, not federal. That means that each of our fifty states has a slightly different way of dealing with this issue, both in statute and local court precedent. The Florida statute (668.50, if you want to look it up), for example, was rephrased a few years ago to bring it generally in line with UETA wording; while it doesn't point-blank insist on "security procedures" (the term used in the statute), it does insist on the "act of the [signing] person" being "shown", giving strong language preference towards such procedures to demonstrate that.

    That's not an unusual position under U.S. law, as I understand it (and, again, I'm just some yahoo who reads too much) - much of our civil law, such as copyright, is designed to not get in the way of individual rights and future innovations. So, on paper, as long as you can "show" (i.e., verify, demonstrate, etc.) the "act of the person" (under Florida law, at least), a meeting of the minds exists and the contract is valid. If you can't, or if the best you have is a logged IP address and a typed name, and the other party denies doing it, prepare for a potentially expensive court tussle. That's why third-party authentication systems rely on security procedures, and why "just typing in your name" is a dangerous way to sign off contracts.

    But you know what? Physical signatures are long-settled precedent. Everywhere. No fuss, no muss, in every state and in most nations. (Or so the voices in my head tell me, anyway.)

    I agree entirely that a decent attorney should be answering these questions; been saying that all along, especially since it boils down to - at least - fifty local legal jurisdictions in addition to the federal level. Of course an attorney should be consulted if you're planning to rely on electronic signatures of any kind to secure your business deals. Sure beats taking anything one might read here as, oh, I dunno, a fact or anything.

    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
    Translation: "Click wrap agreements are enforceable in software licensing arrangements, but I don't have the slightest earthly idea how that bears on this discussion, or whether it even does."

    Thanks. Useful comment.

    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.
    Cool - new service to me. Thanks.

    Out of curiosity, ever read their TOS? In particular, "Enforceability of Electronic Signatures" ?

    Sertifi does not guarantee the enforceability of signatures obtained through the Sertifi system nor does Sertifi guarantee that its service complies with all laws governing electronic or original signatures inside or outside of the United States. User shall defend Sertifi against any third party claim, action, suit, or proceeding arising as a result of User’s use of service, including failure to comply laws, statues, and regulations that are now or hereafter be in effect relating to User’s use of Service, and shall pay and indemnify Sertifi for all losses, damages, expenses, and costs incurred by Sertifi (including reasonable attorney’s fees) as a result of any award, order or judgment entered against Sertifi in any such claim, action or proceeding.
    Sure makes me want to put my company in their hands. Yessiree Bob.

    Hey, gotta go - Springer's on!

  7. #32
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    Quote Originally Posted by Robert Warren
    Pot, kettle; kettle, pot.


    Groovy. So I could have linked a better article. Shoot me.

    Since you're obviously the local legal expert (I never claimed to be), you probably also know that E-Sign is a U.S. federal statute, created under the interstate commerce authority of the U.S. Constitution. That means it only has particular bearing over transactions that fall under that specific authority - i.e., across state or national lines. Otherwise, the federal government doesn't have legal jurisdiction to get involved, and E-Sign becomes a moot point. Transactions that don't involve "interstate or foreign commerce" remain the venue of individual states, not all of whom have signed on with the UETA (Uniform Electronic Transactions Act); New York hasn't, for example. Even the ones which have passed UETA have all passed their own specific versions of it.

    Contract law is typically chased down in state civil court, not federal. That means that each of our fifty states has a slightly different way of dealing with this issue, both in statute and local court precedent. The Florida statute (668.50, if you want to look it up), for example, was rephrased a few years ago to bring it generally in line with UETA wording; while it doesn't point-blank insist on "security procedures" (the term used in the statute), it does insist on the "act of the [signing] person" being "shown", giving strong language preference towards such procedures to demonstrate that.

    That's not an unusual position under U.S. law, as I understand it (and, again, I'm just some yahoo who reads too much) - much of our civil law, such as copyright, is designed to not get in the way of individual rights and future innovations. So, on paper, as long as you can "show" (i.e., verify, demonstrate, etc.) the "act of the person" (under Florida law, at least), a meeting of the minds exists and the contract is valid. If you can't, or if the best you have is a logged IP address and a typed name, and the other party denies doing it, prepare for a potentially expensive court tussle. That's why third-party authentication systems rely on security procedures, and why "just typing in your name" is a dangerous way to sign off contracts.

    But you know what? Physical signatures are long-settled precedent. Everywhere. No fuss, no muss, in every state and in most nations. (Or so the voices in my head tell me, anyway.)

    I agree entirely that a decent attorney should be answering these questions; been saying that all along, especially since it boils down to - at least - fifty local legal jurisdictions in addition to the federal level. Of course an attorney should be consulted if you're planning to rely on electronic signatures of any kind to secure your business deals. Sure beats taking anything one might read here as, oh, I dunno, a fact or anything.


    Translation: "Click wrap agreements are enforceable in software licensing arrangements, but I don't have the slightest earthly idea how that bears on this discussion, or whether it even does."

    Thanks. Useful comment.


    Cool - new service to me. Thanks.

    Out of curiosity, ever read their TOS? In particular, "Enforceability of Electronic Signatures" ?


    Sure makes me want to put my company in their hands. Yessiree Bob.

    Hey, gotta go - Springer's on!

    Haha, I never got the chance to read it! Now im not to sure about that.

    So, are signed documents (say through Adobe) legally binding?

    Are faxed signed documents legally binding?


    And yes guys - I know I should be contacting an attorney about this - as I said I cannot afford one. So everyones input is helping me decide what to do on my own..... I know no one in here is a lawyer, and that is fine with me.

    Your help is very much appreciated EVERYONE for their comments on this. If you feel this thread is wasting your time, please do not respond again and I will understand!


    Anyone know what I can do about this question I posted ^:
    Quote Originally Posted by Elyme
    OH!

    How can I prove the images I used on their design(s) are the ones they uploaded to my server? Should I wait before I make them sign the agreement until the work is done - and have something like this in it?

    "Finished works comply with the images I provided" - I told you I wasn't good at wording things

  8. #33
    Webwellwisher Robert Warren's Avatar
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    Quote Originally Posted by Elyme
    Haha, I never got the chance to read it! Now im not to sure about that.

    So, are signed documents (say through Adobe) legally binding?

    Are faxed signed documents legally binding?
    I've been assured by reasonably reliable sources that they are. Thousands of legally binding paper contracts are faxed every day.

    Anyone know what I can do about this question I posted ^:
    I answered your question early in this thread. Put a solid indemnity clause in your contract that clearly puts the responsibility for those issues on the client's head.

  9. #34
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    Quote Originally Posted by Robert Warren
    I've been assured by reasonably reliable sources that they are. Thousands of legally binding paper contracts are faxed every day.
    Thanks, that's reassuring.


    Quote Originally Posted by Robert Warren
    I answered your question early in this thread. Put a solid indemnity clause in your contract that clearly puts the responsibility for those issues on the client's head.
    Yes - but couldn't they say they didn't give me the pictures that I used on it?

    I was just thinking that *if* I did the celeb design - showed it to them and included somewhere in the document that they seen the design (only a poor resolution screenshot of course) and I only used pictures they gave me, then they signed it, faxed it back over to me once it was completed...?

  10. #35
    Webwellwisher Robert Warren's Avatar
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    Quote Originally Posted by Elyme
    Yes - but couldn't they say they didn't give me the pictures that I used on it?

    I was just thinking that *if* I did the celeb design - showed it to them and included somewhere in the document that they seen the design (only a poor resolution screenshot of course) and I only used pictures they gave me, then they signed it, faxed it back over to me once it was completed...?
    Okay, now that's a bit of a hassle, and probably unnecessary. (Besides, doesn't your process include a final client approval of your work anyway, via email if nothing else?)

    Assuming they're not uploading via anonymous FTP, only the client should have username/password access to that upload space; that alone should be enough to verify identity for indemnity purposes. If you're really worried about it, though, have them email you the images, and be sure to save all your emails for posterity. If they then want to say later that someone hacked their email/FTP access, then it's up to them to prove that - you're acting in good faith to meet your obligations under the indemnity clause. (The preponderance of evidence is more likely on your side.)

    On a side note, email archiving is a good idea, anyway. Few individuals do it. I've been archiving all of mine (sans spam) since '98 or so, and it's been a lifesaver more than a few times - never underestimate the value of a good record trail.

  11. #36
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    Quote Originally Posted by Robert Warren
    Okay, now that's a bit of a hassle, and probably unnecessary. (Besides, doesn't your process include a final client approval of your work anyway, via email if nothing else?)

    Assuming they're not uploading via anonymous FTP, only the client should have username/password access to that upload space; that alone should be enough to verify identity for indemnity purposes. If you're really worried about it, though, have them email you the images, and be sure to save all your emails for posterity. If they then want to say later that someone hacked their email/FTP access, then it's up to them to prove that - you're acting in good faith to meet your obligations under the indemnity clause. (The preponderance of evidence is more likely on your side.)

    On a side note, email archiving is a good idea, anyway. Few individuals do it. I've been archiving all of mine (sans spam) since '98 or so, and it's been a lifesaver more than a few times - never underestimate the value of a good record trail.
    But it would basically be the same steps? I think I may go this way, just in case... I have seen you cannot be to careful when dealing with celebrity related images
    I don't trust electronic databases, emails can always get deleted... system/server crashes and what not!

    1- Client would place the order via online form
    2- I would contact them with the order confirmation and also give them their login user/pass to upload images. At the same time, I would inform them about the "agreement" (whatever it's actually called ).
    3- I would create the design (show them it....) get approval and what not (at the same time getting approval for the images used).
    4- Get them to sign over the "agreement" which exempts me from anything to do with the pictures and that I only used the ones they provided etc, etc, etc.
    5- Send client a invoice via PayPal
    6- Client receives files


    Now, all I need find out is what individual contracts I need to buy from that online store (link is a few posts up) to make my own. Any suggestion on that?

  12. #37
    Webwellwisher Robert Warren's Avatar
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    Quote Originally Posted by Elyme
    I don't trust electronic databases, emails can always get deleted... system/server crashes and what not!
    You don't trust electronic databases, but you started this thread asking about an online clickthrough agreement process?

    Okay, I'm out of this discussion. Best wishes.

  13. #38
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    Quote Originally Posted by Robert Warren
    You don't trust electronic databases, but you started this thread asking about an online clickthrough agreement process?

    Okay, I'm out of this discussion. Best wishes.
    Yes I asked about it - I didn't know a THING...

    But that's fine! Thanks for your help this far.

  14. #39
    SitePoint Wizard dreamscape's Avatar
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    Quote Originally Posted by Robert Warren
    Pot, kettle; kettle, pot.
    There is a distinct difference between stating your opinion about the law as if it is fact, and stating publicly available facts about the law, such as portions of the law itself or court rulings.

    I simply have stated what the act states and what courts have said, which is all public information. Interpretation of that is up to you and your lawyer; but don't post your interpretation as fact.

    Quote Originally Posted by Robert Warren
    Out of curiosity, ever read their TOS? In particular, "Enforceability of Electronic Signatures" ?

    Sure makes me want to put my company in their hands. Yessiree Bob.
    Yes I have read the TOS. It's a standard indemnity clause, IMO. You're surprised they have one? Everyone has indemnity clauses these days.

    Frankly I'm a bit shocked that you'd find the indemnity clause so disheartening, when you are campaigning for indemnity clauses in our own agreements. It's quite hypocritical don't you think?

    The attitude that you're looking at their indemnity clause with is no different than if someone took one look at your development agreement, saw it had an indemnity clause, and decided to pass on the sole basis that because you had an indemnity clause you must either not be legit or planning on screwing them.
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  15. #40
    SitePoint Evangelist adesignrsa's Avatar
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    This is the clause we use in the contract:

    The Client unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Allchorn Design
    for inclusion in the Web Design Project are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements,
    and will hold harmless, protect, indemnify and defend Allchorn Design and its subcontractors from any liability (including attorney's fees and court
    costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by the Client.
    Ross Allchorn
    Web Consultant
    www.allchorn.com
    Twitter - @allchornr

  16. #41
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    Quote Originally Posted by adesignrsa
    This is the clause we use in the contract:
    THANK YOU! That is exactly what I was looking for... with some modifications of course

    Would you mind if I took a peek at your full contract? Then I can better understand which one I need to purchase.

  17. #42
    SitePoint Evangelist adesignrsa's Avatar
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    Sure, but rather email me - ross [at] adesign.co.za and I'll mail it to you...

    I recommend having an attorney look it over anyway, as this one is fine for us, but may not be as effective in your country of trade.

    I would recommend http://www.nicciferguson.com/ who, if they cannot help themselves, may assist you in choosing the right attorney closer to you.
    Ross Allchorn
    Web Consultant
    www.allchorn.com
    Twitter - @allchornr

  18. #43
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    Quote Originally Posted by adesignrsa
    Sure, but rather email me - ross [at] adesign.co.za and I'll mail it to you...

    I recommend having an attorney look it over anyway, as this one is fine for us, but may not be as effective in your country of trade.

    I would recommend http://www.nicciferguson.com/ who, if they cannot help themselves, may assist you in choosing the right attorney closer to you.

    Great, thanks I will email you shortly.

    I am going to purchase some "pre-made" contracts that have been looked at by lawyers so they should be good enough, and just make my own out of a combination of a couple.


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