Except for Ads, or as otherwise noted, the entirety of the writings on this post © m. neco 2006 - 2018 under Creative Commons Attribution-ShareAlike 4.0 License (http://creativecommons.org/licenses/by-sa/4.0/)
with attribution to be “M. Neco - email: matt.neco.cc.by.sa.lic.1@gmail.com”
VERY IMPORTANT NOTICES
I'll say this right up front: Some of the stuff one needs to think about warning and disclaiming about is just plain silly, but that doesn't make any of it any less important. Overkill? Maybe. But there are enough cases and instances of people making silly claims, like, a responsive email or tweet that says "Done" possibly constituting contractual agreement when that was not intended by the sender, that have inspired me to go to these lengths.
The following are the policies, terms, agreements, understandings, and expressions of intent, governing e-mails, tweets, texts, FaceBook "likes" and "joins", LinkedIn posts, "endorsements," links, shares, thumbs-ups, emoticons, and other communications by me, for any electronic platform I use. This includes "confidential information" provided to me. Your receipt of e-mail and other communications from me, and your access to this posting, page, site, or blog are subject to the following notices, terms, conditions, policies, agreements, understandings, and expressions of intent ("notices and terms"). By alerting you to the existence of these notices and terms governing communications you agree that you are deemed to have read and agreed to same (similarly to a browse-wrap or click-wrap agreement). By accessing this posting, page, site, or blog, you acknowledge that you have read, and accept, and agree to, these notices and terms and conditions of use (similar to a click-wrap agreement). I reserve the right to change these notices and terms and conditions at anytime, effective immediately upon posting on this posting, page, site or blog. I will attempt to post the revision date, and you are always free to subscribe to this blog to receive updates of changes (http://mneco.blogspot.com/feeds/posts/default).
1. Disclaimer Regarding Opinions, Positions, and Postings
It should go without saying, but what may appear to be opinions or positions in a communication are my own, and not those of any client or employer, unless I clearly and unambiguously state that I am communicating on behalf of a client or employer. And sometimes I may communicate what might appear to be my opinion or position but I am merely attempting to stimulate conversation or thought, or trying to look at something from a different perspective. And my thinking might change, evolve or devolve. My participating in business and social media, including by joining, liking, becoming a member, tweeting, re-tweeting, "endorsing," etc., is not necessarily indicative of agreement, affiliation, support, sponsorship, endorsement, etc.
2. No Attorney-Client Relationship Formed, and no legal advice provided unless we have entered into a written (per below) engagement or employment agreement. If you are not a client be careful not to communicate information to me thinking it might be protected by the attorney-client privilege. I am licensed to practice law in California. Communications on social websites,and profiles or pages or accounts (e.g., LinkedIn, FaceBook, Google+, Twitter accounts, blogs, etc.) are not intended to constitute attorney advertisements, and "endorsements" (such as on LinkedIn), recommendations, "likes," comments, etc., about me are not testimonials. Past results do not guarantee future results. Potential clients should undertake their own investigations. Every legal matter is different. The outcome of each legal matter or case depends upon many factors, including the facts of the case, and no attorney can guarantee a positive result in any particular case or matter.
3. E-Signatures
This policy applies to all purported e-signatures and e-mails and other electronic communications (including Tweets, FaceBook, LinkedIn, Google+, blog postings) by me and are the conditions under which I (and any of my employees or agents) use electronic signatures.
NOT INTENDED AS A WRITING OR AS A SUBSTITUTE FOR A WRITING
Electronic communications, their contents, and any attachments, and any prior or subsequent communications including oral discussions or negotiations concerning some or all of the subject of an electronic communication, with or without this or a similar notice, are not intended to represent and do not reflect an offer or acceptance to enter into (or amend, modify, revise, terminate, abrogate, extend, waive a breach or damages of, etc.) a binding contract, transaction, or agreement, including an agreement or obligation to negotiate in good faith, and are not intended to and do not bind the sender, the entity that the sender works for, any of the sender’s clients, principals, or any other person or entity. I may determine that I wish to attempt to negotiate a written agreement that is binding, however, I intend and will continue to intend that there shall be no contract formations, waivers, modifications, abrogations, extensions, amendments, agreements or obligations to negotiate in good faith, etc., without one or more formal written documents executed non electronically but with holographic signatures by hand with ink pen on paper signed by a duly authorized representative of each of the parties (aka “wet signatures” or “pen on paper signatures”) or by means of formal, intentional, secure digital signature contract execution (such as by Docusign, or Adobe eSignature) (“secure digital signatures”), signed by duly authorized representative of each of the Parties. My closing an electronic communication with my name or initials is not a secure digital signature. Any communication to the contrary in the past, now or future, is not binding on me. Absent the written express statement to the contrary as set out below, it is my intention and the parties agree not to conduct any contract formation, modifying transaction, amend any agreement, abrogate any agreement, grant any extension, waive any right, or agree or be bound to negotiate in good faith, by electronic writing. Any alleged communication to the contrary is not binding on me.
The written express statement mentioned above ("electronic express statement") shall be the following, or that which substantially expresses the same intent as the following: “I expressly intend that this shall constitute an electronic signature to a writing thereby [forming, modifying, amending, abrogating, granting an extension in relations to, or waiving a breach to] a binding [contract or agreement].” For purposes of any agreement, a formal written document on paper with wet signatures (pen on paper signatures) or secure digital signatures and otherwise consistent with the requirements herein, which is transmitted by facsimile, the internet, or any cell/wireless/mobile telephone system, or the like, as an image or .pdf document is valid when signed by pen on paper, or secure digital signatures, by all Parties to be charged. I expressly state that Emails / texts / tweets / instant messages, etc., sent by me - even when there are multiples or combinations of these - do not include all of the essential or material terms required in order for there to be a contract between the Parties, and are ineffective for purposes of contract formation, modification, amendment, obligation to negotiate in good faith, etc., without the electronic express statement. No addition to or modification or consensual cancellation of this agreement, notice or statement shall be binding upon me unless made in one or more formal written documents consistent with the requirements herein (wet signature, secure digital signatures, or "electronic express statement"). Any purported communication to the contrary is not binding on me. No waiver of any breach of any provision of this agreement, notice or statement shall constitute a waiver of any prior, concurrent or subsequent breach of the same by me or any other provisions hereof, and no waiver shall be effective unless made in writing and wet signed by pen on paper, secure digital signature, or electronic express statement by me or my authorized representative as set out herein. This agreement, notice or statement is the sole expression of an intention not required to conform to the portions which are italicized (requiring wet signatures), and is, therefore effective.
(If you want to know some of the reasons why this is my policy: In today’s age of electronic communications, with emails, tweets, SMS text messages, instant messaging, and written chats flying about the ether at breakneck speed, and the expectation of quick responses, sometimes without adequate thought and consideration, it is too easy for one or more parties to accidentally form legally binding agreements or amendments, or waive breaches, or at least be accused of that and be brought to court, even when they didn't really intend to form a binding agreement. For this and other practical reasons, some formality in agreements and waivers is called for, because it causes people to really focus and think about what they wish to agree to.
This provision is intended to prevent the inadvertent
formation of agreements, inadvertent amendments, and inadvertent waivers of
breaches, for example, by requiring any of those to be put in writing on paper,
and signed by pen, or have secure digital signatures, or have the electronic express statement.
These cases illustrate problems that arose because of quick electronic communication: See, e.g.,
Lamle v. Mattel, Inc., 394 F. 3d 1355 - Court of
Appeals, Federal Circuit 2005 (http://scholar.google.com/scholar_case?q=lamle+v+mattel+inc&hl=en&as_sdt=2,5&case=5607112815760928119&scilh=0)
MVP ENTERTAINMENT, INC. v. Frost, 210 Cal. App. 4th
1333 - Cal: Court of Appeal, 2nd Appellate Dist., 8th Div. 2012, esp. FN 3. (http://scholar.google.com/scholar_case?q=210+Cal.+App.+4th+1333&hl=en&as_sdt=2,5&case=12814699603630443408&scilh=0) )
4. RESPONSES, REPLIES, MAY BE PARTIAL
If I respond or reply to a communication, whether in writing or orally, the reply or communication may be only a partial response or reply, and the failure to respond in whole or in part to any portion of your communication should not be interpreted to be an admission, including to the accuracy or validity of any characterization, contention or issue raised, does not serve as agreement or consent, and does not constitute waiver. All claims, defenses, rights and remedies are always reserved without waiver or prejudice, and no admissions, waivers, etc., are made, intended, or implied, in the past, now and in the future, without the need to say or write this again in the future.
5. YOUR DEADLINES
My failure or refusal to respond to deadlines you or your client create, at all, or with what you or your client(s) may demand, may not be assumed to be support for any assumptions you or your client(s) may wish to make.
6. SELF SERVING CONFIRMATIONS & COMMUNICATIONS
While I hope that you do not engage in practices some people engage in of sending self serving communications, supposed "this will confirm our discussion or understanding" communications, or communications that state something along the lines of "if you do not refute I will be entitled to assume that you agree," please be aware that my silence on any issue should never be construed as confirmation, agreement, consent or waiver. Though I am not always successful I tend to try to not be involuntarily drawn into back and forth missives, calls, voice-mails, flaming, etc. As a professional representing my own interests or the interests of my clients, I do so with reasonable diligence, yet I try to do so with the utmost courtesy and respect for other professionals, unless and until it is evident that courtesy and respect is not reciprocal. I also try to refrain from self serving communications, and from being too reactive to emails or other communications in this age of instant response. If I do not reply to a communication from you within a few business days, subject to the foregoing, I may try to do so when I am able, and after having adequate time to reflect, consider, and where applicable consult my client(s).
7. NOTICE
Unless contractually agreed in writing (by pen on paper, or secure digital signature, or "electronic express statement") I do not accept notice or service of process by electronic communication.
8. HAI
I have been told that in some cultures it is difficult or rude to say "no" and so "yes" does not always mean yes: it can mean no or maybe. I have been told that when Japanese say "Hai" that may mean "I hear you; I am listening; or I acknowledge your statement," not "I agree with your statement." (BTW, though I don't speak Japanese or understand the subtleties of the language - including the importance or meaning of body language or facial expression - I would venture to guess that sometimes when the Japanese say "Hai" they do, in fact, mean "I agree.") If I say I hear you, Ah-ha, or the like, that does not necessarily mean that I agree with what you are saying.
9. AUTHORITY
Not every employee or contractor of mine has authority to enter into or modify, etc. any binding agreements on my behalf (which must be by pen on paper, secure digital signature, or include the electronic express statement). As a matter of fact no employee or contractor has any express or implied authority. Please ascertain or confirm in writing with me whether a person has actual authority. No implied authority is or shall be granted. Likewise, do not assume that I have authority for anyone (person or entity). Please confirm with me or the person / entity you think I have authority for whether I do, in fact, have authority.
10. Confidential and Privileged Communications
Communications from me are intended only for the named addressee(s) and may contain information that is legally privileged, confidential information or exempt from disclosure. If you are not the intended recipient or the employee or agent responsible for delivering the message to the intended recipient of an e-mail message, any review, use, dissemination, distribution or copying of the e-mail message, and any attachments, is prohibited by a variety of laws (as well as common courtesy). If you have received an e-mail in error, and you have not done so already please do not read, open or save the attachments (if any). I would greatly appreciate it if you would please immediately notify me by email that you have received an email in error, and if you would please permanently delete the original and any copies of the email and attachments, and any prints thereof.
11. No Warranties
Information is provided "as-is" without any warranty, expressed or implied, including but not limited to, fitness for a particular purpose, non-infringement, and merchantability. I disclaim any warranty or representation that information is or will be always accurate, complete, or current.
12. Intellectual Property Rights
Most if not all materials in my writings, email, tweets, postings to social and professional sites such as Facebook and LinkedIn, tweets, blogs, web site, and communications, including but not limited to, text, images, designs, photographs, illustrations, and other materials, are protected by intellectual property laws and are the copyrights, trademarks, and other intellectual properties owned, controlled, or licensed by me, or used per fair use rights (e.g., Sec. 107). Except as provided herein, or within fair use rights (limited and complicated), none of the materials (works of authorship) may be copied, reproduced, distributed, downloaded, displayed or transmitted in any form or by any means without my prior written consent by wet signature, secure digital signature, or electronic express statement. I may enforce intellectual property rights to the full extent of the law.
Except for Ads, or as otherwise noted, the entirety of the writings on this post © m. neco 2006 - 2018 under Creative Commons Attribution-ShareAlike 4.0 License (http://creativecommons.org/licenses/by-sa/4.0/)
with attribution to be “M. Neco - email: matt.neco.cc.by.sa.lic.1@gmail.com”
13. Privacy Policy
If you choose to provide me with personal information about yourself, including by sending me e-mail or filling out a Web site form, I may collect and use that information in any way I please, including to contact you or to send you additional information. I may also collect information your browser provides regarding your use of the Web site, including time of visit, duration, and areas of interest. I do not guarantee that I will be able to protect against, and I expressly disclaim any liability for, any loss, misuse, or modification of your personal or confidential information.
14. Miscellaneous
By accessing the Blog/Page/Web site, you agree that any disputes or matters arising out of or related to any of the foregoing shall be governed by the laws of the State of California in the United States of America, except for federal matters such as Copyright, and any disputes will be resolved exclusively in the Courts of Los Angeles County, California, with the prevailing party entitled to reasonable attorneys’ fees and costs. You waive any and all objections to venue in those courts and hereby submit to the jurisdiction of those courts.
15. Severability; Waiver.
If any part of this Agreement is held by a court of competent jurisdiction to be illegal or contrary to public policy or otherwise unenforceable, such invalidity will not affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement will be deemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform or modify any and all terms or conditions to give them such effect, or if that is not possible eliminated to the extent which, in the court’s opinion, is necessary to make the remaining part(s) enforceable. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof. The waiver by a party of any right hereunder will not be considered a waiver thereof unless expressly waived in a writing signed by the waiving party. No single waiver will be considered a continuing or subsequent waiver.
If any part of this Agreement is held by a court of competent jurisdiction to be illegal or contrary to public policy or otherwise unenforceable, such invalidity will not affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement will be deemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform or modify any and all terms or conditions to give them such effect, or if that is not possible eliminated to the extent which, in the court’s opinion, is necessary to make the remaining part(s) enforceable. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof. The waiver by a party of any right hereunder will not be considered a waiver thereof unless expressly waived in a writing signed by the waiving party. No single waiver will be considered a continuing or subsequent waiver.
16. Equitable Remedies.
The parties agree that there is no adequate remedy at law for any breach of the obligations hereunder and upon any such breach or any threat thereof by either party the other shall be entitled to appropriate equitable relief, including immediate injunctive relief without the requirement of posting bond or any undertaking, in addition to whatever other legal remedies it might be entitled.
17. Integrated Agreement.
This is an integrated Agreement.
18. Oral agreements.
I don't enter into them
19. Non-Contractual, Not Binding Social Norm Request.
Please do not forward my emails unless you are certain I would not mind. I will attempt respect yours too.
20. "Telephone" Conversations.
Telephone conversations are deemed to include VOIP, video-conferences of any sort, including "Facetime," etc. California law prohibits the recording of in-person and telephone conversations unless all parties explicitly consent to allow recording. Further, unless I explicitly agree otherwise telephone conversations will only include people who have announced themselves at the commencement of the communication or when they join or are able to hear the communication, and there will be no other people listening in or otherwise monitoring or overhearing the conversation, including by speaker-phone. Excepted from this are open "group" type communications or conference calls where there is no reasonable expectation of privacy or confidentiality.
I expressly intend that this shall constitute an electronic signature to a writing thereby forming, modifying, or amending a binding contract.
/s/ /Matthew Neco/
The parties agree that there is no adequate remedy at law for any breach of the obligations hereunder and upon any such breach or any threat thereof by either party the other shall be entitled to appropriate equitable relief, including immediate injunctive relief without the requirement of posting bond or any undertaking, in addition to whatever other legal remedies it might be entitled.
17. Integrated Agreement.
This is an integrated Agreement.
18. Oral agreements.
I don't enter into them
19. Non-Contractual, Not Binding Social Norm Request.
Please do not forward my emails unless you are certain I would not mind. I will attempt respect yours too.
20. "Telephone" Conversations.
Telephone conversations are deemed to include VOIP, video-conferences of any sort, including "Facetime," etc. California law prohibits the recording of in-person and telephone conversations unless all parties explicitly consent to allow recording. Further, unless I explicitly agree otherwise telephone conversations will only include people who have announced themselves at the commencement of the communication or when they join or are able to hear the communication, and there will be no other people listening in or otherwise monitoring or overhearing the conversation, including by speaker-phone. Excepted from this are open "group" type communications or conference calls where there is no reasonable expectation of privacy or confidentiality.
I expressly intend that this shall constitute an electronic signature to a writing thereby forming, modifying, or amending a binding contract.
/s/ /Matthew Neco/
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