Shopster Online Agreement, SURPRISE! Part 1.

It turns out that the What Did You Agree To? series has already helped someone. For those of you who have not read other articles of mine, I put forth a series of articles explaining common elements people agree to in a contract that they don't realize. Standard legal mumbo jumbo.

I received an email from Sandra, who wanted to start an eBay business. So she looked at a few different options and decided on going through a drop shipment company. She had read a couple of my blogs and decided she was going to take action, by reading the terms and conditions before she signed up to any store.

She went to a place called shopster.com, a Calgary based company that is a leader in the virtual store front and dropshipping market. For those who dont know, dropshipping is where Sandra would sell any item, lets say an iPod, and once she gets payment, she tells the dropshipper (in this case Shopster) to pick one of their shelf and mail it to the buyer. Sandra does not have to deal with any stock. Her price has a small markup to address her time, and her eBay or PayPal fees (I will be doing a 4 part series on the PayPal agreements in the next few weeks), and that is her business.

When she went to sign up at Shopster she was greeted by a 7 day free trial. I love free stuff, and I especially love free trials. So does Sandra. As she is punching in her info, tap tap tip tap, she sees at the bottom,

"I agree to the terms and conditions of the Retailer Agreement"



We have all seen this agreement box before. But Sandra knows that there are surprises from reading my articles. So she clicked on the agreement. SURPRISE!!

There opens a new window with the smallest font she has ever seen. So she thinks, I will just print it, and read it on paper. But there is no way to print. The new window has no menu bar or option to print. She immediately got suspicious.

POINT: If a Company makes it hard for you to read the terms, you need to be extra cautious.

A few tips if you are in this situation. When the new window is opened the link is listed at the top (sometimes). You can see this as an example with the image to the right. Alternatively you can copy and paste the document into your email and print from there.

So here is the agreement. Shopster Retail Agreement. Not only is the font small, but the contrast is very poor. It is impossible to read. Sandra asked for my help. So I copied the agreement into Word, and I scanned it. I literally took less then 60 seconds, and I spotted three major issues that Sandra needs to be concerned of.

1. Shopster say they may make Amendments at any time, by just making changes to this document. Right under the heading AMENDMENTS.

While this is common, it is appalling. Even more so Canadian courts have ruled that provided it is publicised, and that the changes are publicised, you are bound to them. Are you supposed to read the document every day to try to find if a change has been made? This is a dirty provision.

2. Shopster say you are 100% liable for anything you sell, YET you can not add to any description or warranty of any item sold. It is under YOUR SERVICES, last clause that says

"You shall not modify or add to any warranty of any product or service."

Now this is strange. How are you supposed to separate yourself from your competitors? What happens if you have used a product and want to write your own review. What if you are willing to add an extra warranty through Square Trade Warranty? Are you in breach then? Strange indeed, and something to be aware of.

3. This is the humdinger. Remember this is a TRIAL. You are testing the market place. So with that in mind look at this clause:

"Unless, you had a relationship with the supplier prior to using the Shopster Marketplace during the term of this Agreement and for a period of 1 year thereafter, you shall not establish or participate in a drop ship relationship outside of the Shopster Marketplace with any supplier that has listed products or services through the Shopster Marketplace."

They sell over one million products, and based on the above, if you don't like their services EVEN WITHIN THE TRIAL, you cant go to any other drop shipper for a period of one year. There may be some that say, "yeah but its obvious that does not apply it is only a trial". Let me put this another way.

The word TRIAL does not appear once in the agreement. Not once. The agreement does not distinguish what is a trial and what is not. The trail is a monetary issue, not a legal issue. According to the agreement you are still bound. So you try their service, and now you are locked in?

There is a reasonable chance that if they came after you, because you signed up for a competitor, after only using the trial, you would win. Those types of clauses can be toothless. They just don't have any bite. HOWEVER it is still a point of argument, and you want to try to avoid problems. Being aware is very important.

Do you see how ludicrous some of these agreements are? I am going to call them about and ask them a few questions about this agreement. It just makes no sense. What happened and what they said will be in Part 2.

Sandra, it was very wise not to click I agree until you read this. Good habits start early.

If you do have legal question about a contract like this, and need to speak to a lawyer, click HERE. Lawyers are online, and can answer your question within minutes for as little as $15

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Dog Bite!

As the morning due dances in the rising sun, you continue your brisk morning walk. Its so hard to get those feet on the floor out of bed.. until you get them moving. Up ahead is a medium aged man on a job with his dog. Looks like an sheppard/lab mix. Nice looking dog.

You know the rules with strange dogs. Keep an eye out, but ignore them. Show them too much attention and their can mistake your interest with negative energy. Calm and confident. You walk along, happy you watched that last episode of Cesar Milan's the Dog Whisperer
As you approach the dog, something about your shoes "tickles a nerve". He bolts after you. Attached to a retractable leash, the owner has no control over the distance.

CHOMP.

You let out a yelp, as you tumble to the ground, ankle bleeding from three teeth marks. On your way down you scrape your arm on the carpet of rocks on the pathway. Your stunned.What just happened.

Dog Bite.

Who's responsible?



Under the law the behavior of an animal is an extension of the human. Generally speaking a person will be liable for the injuries their animal inflicts on another. So in this circumstance the owner of the dog is liable.

That means you can be compensated for out of pocket expenses directly related, foreseeable costs, and sometimes pain and suffering. Because of the nature, and prevalence of dogs, dog bite attorneys argue very effectively at long term trauma associated with dog bites. But a dog bite is not a 'lottery". Very often you can only get your hospital bills/doctor bills, and lost work time back. Hardly a financial grand slam.

But what if the owner knew the dog has a history of biting?

In most areas, there is a "One Free Bite" rule. Dogs are not assumed to be aggressive unless they have bitten once before. Once a dog has bitten someone the owners are "On Notice" that their dog will bite. This has a huge impact on how a case is heard. If the dog owner is "On Notice" then they will need to show that there was no negligence in them handling the dog. In other words THEY have to prove they did not screw up causing the dog bit.

A retractable leash? That is negligent. If you have a dog that has bitten once before and you have a retractable leash, you are not in control. It is a sure way to be found liable for any injury the dog causes.

Lets say that "Fido" in this example was kept right next to the owner. Straight leash, no slack. For argument sake you loved the look of the dog and walked over, slouched down in front of him. The owner warns,

"He has been known to bite"

But with a floppy tongue, and face like a puppy you can't resist. Your dogs as a kid never bit you. You reach in for a head rub and

CHOMP

Right on the hand. Your career as a hand model is now threatened. Who's fault is it now?

We have the same two people, same location, same dog. Only a few difference in the circumstances. In the second case, the owner is in a great position to defend his claim. He was not negligent, by having tight control, and expressly warning you. Its your fault.

So if you have a dog, a few tips.

1. Always maintain full control. Retractable leashes, are a lawsuit waiting to happen. Plus most trainers will say they do more harm then good for control of your dog.

2. Always make sure your dog is right next to you if people approach. You need to have the speed of a ninja,and strength of a bull to ensure nothing happens.

3. If someone tries to pet your dog, ALWAYS warn that he "may bite". Even if 99% of the time he does not, you should warn. Why? Because in court a good dog bite attorney can always demonstrate you knew your dog could bite. Everyone is nipped by their dog at some point. 90% of the time, it is innocent playing. Try to get a fancy lawyer not to spin that the wrong way!

4. If you have known behavior issues with your dog, then get the proper training for him. I recommend Cesar Milan's books available here at amazon. Cesars Books, or Cesar Videos

5. If you have people over to your house as guests, you are 100% responsible for your dogs behavior. So keep them under close surveillance.

6. Be cautious in telling your neighbours what sort of 'antics" your dog gets up to. Those comments could come back to haunt you.

Finally if you do find your dog has bitten someone, or you have been bitten, first thing to do is get medical attention. Write down exactly what happened as soon as you can remember. If you cannot work it out between the two of you then you should talk to a lawyer.

If you do have have a dog bite question and need to speak to a lawyer, click HERE. Lawyers are online, and can answer your question within minutes for as little as $15.



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Authorized Signatures Only. Contract Execution.

We are going to put the What Did You Agree To? series on hold for a few weeks. I have received a number of requests that I wanted to make sure that I entertained.

Jim asked me about who is allowed to sign a contract for a company. This is a very important concept. You have to make sure that who ever signs it for the company is authorized to do so.

Accepting the terms of a contract and signing it is called execution. Accepting the terms of a contract and performing on it without signing can also be a form of execution. For the purposes of this article we will focus on the written execution.

At the bottom of the contract will be a place for signatures. This is where the two parties sign the agreement and date it. There may also be an area for witnesses..

One of the common pitfalls in a contract is when a company tries the “not authorized” argument. This is common in car agreements, which is discussed in the next part. Essentially in some contracts it states that only certain members of a company are authorized to sign the agreement.

The authorized individuals may be a “C” level (CEO, CFO etc), or it may say sale manager, or general manager. Regardless ONLY the people who are listed as authorized to sign the agreement on behalf of the company can sign.

KEY POINT: Make sure the people who sign a contract are authorized to do so.

You may ask, if an employee signs a contract for a company isn't that good enough?

If you agree with the above question, then you make perfect sense. Certainly a company cant later say “well she was not allowed to sign”, therefore we are not bound. However it is not that simple. There are two elements you need to look at.

The first is if the contract actually lists in advance who the authorized agents for the company are. If it lists those people then you may have problems if it is signed by someone else. So always ask who is signing, and if they are listed as an authorized person. Better yet, ask WHO those people are before you sign.

The second issue is if there has been “substantial performance”. That means how much of the work have the parties done on the contract. If you have relied on the agreement that was signed by someone who had no authority, and both you and the other company have performed substantially, then in the majority of circumstances you can still hold them to it.

If you sign an agreement in your home, i.e. via a door to door sales etc, then you may be protected from certain laws. You can review the Door to Door Sales Article released in early Feb 09 on this blog.

So the most important part of this step is to make sure you understand how to sign the document, if a witness is required, and who is allowed to sign for the other party. If the document says a certain job title must sign, then ASK before you sign. There is nothing wrong with highlighting the areas you need to sign.

To avoid arguments, you need to ask to make sure the person representing the company is authorized to sign the agreement. Don't be afraid to ask to talk to a Manager for confirmation.

If you do have legal question, and need to speak to a lawyer, click HERE. Lawyers are online, and can answer your question within minutes for as little as $15.



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What Did You Agree To? Terminating a Contract

I am asked at least 4 times a day, "How do I get out of this contract?" My first response is always the same.

"What does the contract say about termination?"

For most circumstances there is no 100% sure fire way to "get out of" a contract. Get out of usually means the person does not want to be liable for anything in the contract. The just want it to go away.

To terminate the contract you need to understand what your obligations are. Look the the contract for and keep an eye out for things like,

• TERM
• OBLIGATIONS
• TERMINATION
• TERMINATING
• CANCELING
• NOTICE
  

Those are headings that may give you an idea of what the contract rules for terminating are.

That gives you the basic idea of what the contract expects for termination, including notice periods, how to notify, what you need to do if you have a problem etc. Now we run into three potential problems.

1. You don't have the contract, or it is missing.

2. The termination rules don't work for your situation.

3. There is a law in your area that allows certain types of termination.

If the contract is missing, contact the company and ask them for a copy. You may need to jump through hoops. The easiest way to get what you want is to ask for the Customer Retention Department. Explain that in order to keep your business intact, you need a copy of the contract you signed. You can even give a lame excuse that you need it for tax, or accountant. If the company forwards you to generic rules/contract online, ask for them to confirm those are the terms you are bound by. Send them an email for a paper trail.

If the termination rules don't work for you, Negotiate. That's right you can negotiate. Remember a contract are the rules, but there is nothing that says you cant change those rules on the fly. Just make sure you get any negotiated agreement in writing. Companies don't want disputes, and you will find you can often negotiate something with them.

For companies that are not co-operative, it is time to get a lawyer to look at the termination provisions, and the type of contract. There may be a law in your area or issue that addresses your type of contract. Know this, most contracts have something that can be argued in them as discussed in previous posts. So it is worthwhile to show it to a lawyer if you are not able to negotiate your way out of it.

If you do have legal question, and need to speak to a lawyer, click HERE. Lawyers are online, and can answer your question within minutes for as little as $15.



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What Did You Agree To? Assignment

In this section of the What Did You Agree To? series, we are going to look at the concept of an assignment.

When a contract is signed, it is usually done between two "parties". Each side has obligations to the other. You pay money, they give goods, or services. For argument sake we will assume you are leasing a car. There is a year to go in your lease, and you just got a job out of State. You have to get rid of the lease, but how do you do that?

Here is where assignment kicks in.

When you get someone to take over all your responsibilities to a contract, you have assigned it. So you would need someone to agree to all the terms that you agreed to. Then you need to have the finance company, dealer, bank (banks don't lease cars in Canada), to agree to shift the responsibility.

This is a very common situation in leases, both residential and commercial. You want someone to move in because you need to leave early. Most people would think this is a "Sublet".

A SUBLET IS NOT AN ASSIGNMENT. The key difference, a sublet YOU are still responsible for contract. In an assignment the other person assumes responsibility and you are free and clear.

If you sublet the apartment to your friend Marwan, and he burns the carpets, you are on the hook to the landlord. If you assigned your lease to him, with the landlords consent, and he burns the carpet, he is responsible.

Collection Agencies are a great example of how assignments can work. A company is owed money, so they assign the receiving benefits to another company.

Why is this concept important to you? The contract may not allow assignments. Or if it does, then there may be specific rules that need to be followed.

Generally speaking there is a freedom to assign. This means that unless there is something in the contract that specifically sets rules for assigning, then an assignment is permitted. But if there is restrictive language against assignments then you may have to follow the terms in the contract.

If you are entering a long term agreement, such as a Lease, a Time Share, a Gym membership, it is strongly suggested you look at the assignment terms. Make sure you know the rules. If you need flexibility and assignments are not allowed, perhaps it is not the service for you.

Thinking about your long term flexibility will certainly help you spot areas where you feel you may be trapped. If you are a business owner, this is something you need to take into consideration as part of your negotiations.

I always suggest at a very minimum, get written notice of an assignment. Make sure you know where your obligations are going to, and coming from.

If you do have a question about a clause in a contract, and need to speak to a lawyer, click HERE. Lawyers are online, and can answer your question within minutes for as little as $15.


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What Did You Agree To? Warranty

Welcome Back.

In this next What Did You Agree To? series, we will be looking at Warranties. There are two type of contracts that warranties will apply to. The first is for goods, and the second is for services. This is a very important distinction. Many consumer protection laws, are based on this distinction.

Buy something in a store is usually a good. Hiring the neighbors kid to cut your lawn is a service. If something is custom made, often it is sold as a service, and not a good. So if you hired someone to make you a painting, although you have a tangible item (the painting) it is still a service. A wedding photographer provides a service, not a good.

In the Unites States, there as a federal law, which has been incorporated into all states in some way, called the Uniform Commercial Code. It specifically applies to the sale of goods. In Canada (Provinces), Australia (States)the UK and ROI (Republic of Ireland), each have some form of Sale of Goods Act.

The purpose of these laws is to provide a general framework for what a consumer can rely on from a merchant when they purchase goods. A store owner cant sell something in a manner that is misleading, broken, etc. But what about Services?



Because services are so variable., it is impossible to have a standard rule. Think of all the different type of services you can get and how different they are. The WARRANTY is the guarantee the service will perform as expected. You need to make sure you are specific in your warranty. Very often a service company will have a warranty provision in the contract. You MUST read this carefully

Now what did you agree to? Lets look at the Google Terms and Conditions. Google provides services. Searching, GMail, Maps etc. So what do they say about the warranty of their services?

Check Section 14. It basically says two things (which is a common approach).

1. There is no warranty on anything they or their companies or partners provide.

2. There may be a warranty BUT Only if a law in your jurisdiction prohibits the no warranty Google are claiming.

This is a very standard approach. A company will say;

"We are not responsible for anything at all, under any circumstances at all. Well except if the law forces us to be responsible."

I know I said that there is no single rule for warranties on services, however there maybe rules or laws for the industry of the service (such as getting your car fixed), going to the doctor, accountant etc. They can not under law say they are not responsible for any thing they provide that later breaks.

What does this mean to you? Read, Understand, Negotiate, Ask.

READ AND UNDERSTAND: When you are entering into a contract for either goods or services, look at the warranty. Be very careful when you see words like

"AS IS"
"AS PROVIDED"
"AS AVAILABLE"
"WITH ALL FAULTS".

Those are express waivers of warranty.

NEGOTIATE: Sometimes you are in a position to negotiate. If you don't like the language, or think something is not right, then negotiate. Ask for a more express warranty. Be very precise. The warranty must be clear in its writing. Avoid subjective phrases.

ASK: Talk to a lawyer. Ask what the impact of this warranty will have. This is the perfect type of question that can be answered online. You can use the link at the bottom here or, the window in the top right.

So that is a basic Warranty issue. Have a read through other agreements you are in, and you will be surprised how many times companies try to avoid responsibility.

If you do have legal question, and need to speak to a lawyer, click HERE. Lawyers are online, and can answer your question within minutes for as little as $15.

The next article we will look at ASSIGNMENTS.

Until Then.

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What Did You Agree To? Liability

In this part of the What Did You Agree To? series, the concept of liability will be looked at. Liability is often a word thrown around, without complete understanding. Effectively liability means level of responsibility or accountability. Should something happen you are responsible for it, or will be held accountable for it. That is Liability.

What happens if you don't want to be responsible for certain eventualities? That is called Limited Liability.

But why is this important in a contract? The contract is the source of the rules of the agreement. If someone agrees to do something or sell something, they may want to try to protect themselves by keeping their level of responsibility as low as possible.

If you have read my article Coat Check: General Disclaimer you will remember that Cindy left her coat at a coat check. the company had put up a sign saying "Not responsible for Lost or Stolen Goods." That is an attempt by the company to reduce is level of responsibility. It is Limiting its Liability.

When contracts address liability they are usually very heavily in favour of the company that wrote or presented the document. When a company tries to reduce their level of responsibility they usually do it through either

a) Express Disclaimers. i.e. The Coat Check.

b) Limited Liability Clauses.

c) Waivers

As this series is driven around paper contracts, we will stay focused on the Limited Liability Clauses, and Waivers.

Lets look at the Google Agreement we looked at in the second part of the series What Did You Agree To? Jurisdiction. In the event you did not read that article, the Terms and Conditions are the main governing rules for you using Goggles services. Section 15 talks about Goggles Liability. So we will use part of it as an example. Here is a piece of that section.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT GOOGLE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR:

The first thing you will notice is that it is all in capital letters. This is because the company want to limit arguments that you did not notice or did not understand the terms. Most mid to large sized companies will capitalize clauses that impact a persons rights. Its a great place to start when scanning a document. However not all do. So beware. Ideally you should be looking for key words.

You will notice the I have made the words EXPRESSLY and AGREE larger. This is because these words have been chosen specifically. In contract terms, the opposite to express, is implied. So Google did not want any confusion. They wanted it such that you openly accept, and AGREE to this limitation.

You will notice that the end of the sentence above says NOT BE LIABLE TO YOU FOR.

Now you know this is a list of things you Google say they are not responsible for. They are washing their hands of it. They are saying, if you relied heavily on the accuracy of an an advertisement, and that advertisement is inaccurate, you can not hold Google liable.

When you are looking at the agreement specifically look for these clauses. You will be amazed at what limits are imposed.

As a reasonable person, you know that any good relationship has boundaries. Clearly Google don't want to be on the hook for things not in their control. Trying to limit the liability is important is part of the ways to set up boundaries. But what happens when there is a loss, that is within their control, but the boundaries say it is not?

This is where things get a bit messy. Just because a company puts the clause in their agreement, does not mean they are allowed to rely on it. In actuality the law will step in. Sometimes there are particular laws for agreements in particular industry's. Insurance, Mortgages etc. Any industry that is regulated usually has regulations for the level of responsibility that must be honoured no matter what.

On that counter side there may be a section the describes the level of responsibility you have. Sometimes these provisions are not as obvious. In the Google Terms and Conditions here is the clause that sets the boundaries of your responsibilities.

5.6 You agree that you are solely responsible for (and that Google has no responsibility to you or to any third party for) any breach of your obligations under the Terms and for the consequences (including any loss or damage which Google may suffer) of any such breach.

Effectively if you breach the agreement, and Google suffers, they are saying you are responsible. Do you notice that the agreement uses the word responsible here, but liability or liable elsewhere? It is interesting, and very common in contracts. Sometimes the purpose is to make certain provisions clear, and other times it is to confuse.

Every agreement has boundaries of responsibility. The term liability is part of the responsibility boundaries. There are always two sides, so make sure you are aware of both sides.

If you are about to sign an agreement, and the liability clauses is confusing or does not make sense, you should get some legal advise. This is even more important when you are dealing with a regulated industry such as mortgages, investments etc. To speak to a lawyer, click HERE. Lawyers are online, and can answer your question within minutes for as little as $15.

The next article will be about Warranties.

Until then...


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What Did You Agree To? Confidentiality

This series is starting to gain popularity, so thank you to the readers who are subscribing. In this segment we are going to look at Confidentiality. This is of particular importance because this type of clause can be leveraged against someone, with serious consequences.

As you know when you agree to keep something confidential, you want talk to anyone about it. There are whole separate agreements called Non-Disclosure Agreements, or NDA's that revolve purely around confidentiality. NDA's are entered into by business, or individuals (like authors, artists, entrepreneurs ) who want to establish a confidential base before negotiating a contract.

It is very possible you have never signed an NDA. That's fine, but what you have signed is agreements about confidentiality. Can you think of one?

....... Your Work.

That's right, its your job. Virtually every single employment agreement, or contract has a confidentiality provision in it. Lets look at a part of one of those provisions in a contract.

The Employee acknowledges that, in the course of performing and fulfilling his duties hereunder, he may have access to and be entrusted with confidential information concerning the present and contemplated financial status and activities of the Employer, the disclosure of any of which confidential information to competitors of the Employer would be highly detrimental to the interests of the Employer.

That is just a part of one of the standard provisions, but now you get the idea. You are saying by signing the agreement that

1. You will come into contact with confidential information
2. That information is valuable to the company
3. If you close it, you agree that the company can come after you
4. You agree that the value is not always tangible, so they may get an injunction against you
5. You will not disclose such matters at any time to any person or entity, living or dead.

Companies need to protect themselves. They invest a lot into building market share, putting together customer lists, establishing products, etc. So they want to make sure that someone does not come in, nab all their secrets and disappears.

In addition they don't want to have to sit and wait for court to hear the issue, and it be too late because the damage is done. So the most important aspect is the ability to get an injunction.

An injunction is an order from the court to prevent you from doing something. They may apply to the court, at very short notice, and ask the judge issue an order forbidding the disclosure of the information until there is a court hearing.

That prevents damage from being done, and allows the business time to put their case against you together.

You need to be careful with confidentiality, because it is often used as an "excuse to fire". Some of the same items I discussed in my Article FIRED: Personal Email at Work, apply. That being said an ounce of prevention is a pound of cure. Do not give your employer a reason to terminate you, or a pick a fight. Understand what the confidentiality provision is, and how it relates. You would be surprised how often you talk about the "Jackson Account" to your significant other, and technically you are breaching your agreement.

If you do have a legal question, and need to speak to a lawyer, click HERE. Lawyers are online, and can answer your question within minutes for as little as $15.



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What Did You Agree To? Indemnity

In the third part of this What Did You Agree To? series, we are going to look at indemnity.

What in the hell is indemnity, and why is it in most contracts?

I have made it clear from the start of this blog, that I will do my best to refrain from using words or terms that are confusing or don't make sense. However there are times when we need to use these term, especially when they are common and prevalent.

Indemnity is a commitment that any future losses will be covered. Now in plain language.

If you indemnify someone, then you agree to cover their losses if there is a breach. A common for of indemnity is when you publish an article on the Internet. The website you publish on will have an indemnity provision that basically says if they get sued for having copyright content, you agree to cover their costs.

These terms or provisions can be nasty little surprises later on. Here is an example.

Kyra hires Joshua Tree Construction to build a deck for her. As part of the agreement, there is an indemnity clause. The clause basically says that Joshua Tree wont be responsible for incidental damage to the neighbors land through the building of the deck.

So if some Mensa member from Joshua Tree shreds the neighbors prize roses, Kyra could find herself on the hook. Or at the very least in the middle of a huge battle.

Another example is in credit agreements. You usually agree to indemnify or cover all collection costs of the company that is trying to collect.

Many locations have laws that restrict what can be included in an indemnity clause. Just like the "General Disclaimer" talked about in my article COAT CHECK, a provision that is "agreed" too does not make it legal or enforceable.

When you are reading contracts make sure you look at the indemnity clause. Try to understand what they are asking or insisting on. Knowing ahead of time helps prevent surprises.

If you find that you are being called on because of an indemnity clause, you need to speak to a lawyer right away. If you need to speak to a lawyer, click HERE. Lawyers are online, and can answer your question within minutes for as little as $15.

So remember to read the indemnity clauses. Just because there is one, does not mean it is legal, and if you find yourself in a battle over one, then speak to a lawyer as soon as possible.

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What did you Agree To? Jurisdiction.

In the second part of this series, we are going to look at an often overlooked part of a contract. The location or jurisdiction you agree to file any dispute in.

What am I talking about? Well in many contracts, especially those over the Internet, there is a little clause that says you agree to go to their state/province if you have a dispute.

Here is an example from GMail's Terms and Conditions;

" You and Google agree to submit to the exclusive jurisdiction of the courts located within the county of Santa Clara, California to resolve any legal matter arising from the Terms."

The actual phrase is called "Forum Selection". The contract selects a forum, or location for disputes to be heard. in this case it is Santa Clara California.

Let me put this another way. If Google do something to your GMail that you feel you can sue them over, you need to do it in California. If you try to sue them in any other location, they will simply argue the agreement is clear that these issue need to be addressed in California. The court will probably rule that Google are correct, and the court has no jurisdiction over the issue. It's thrown out.

What does this mean for you?

This means that when you are contracting with someone, the court or places you can go to lodge a complaint may be limited to their location. Sometimes it is at the location of the companies head office.

You need to understand that this may complicate you getting the issue resolved if it turns into a legal battle. These clauses can also apply to Arbitration and Mediation as I discussed in the last segment.

Let's say you hire a graphic and website design company from Salt Lake. You are located in Memphis. The company just does not live up to their promises, and you feel you are owed a refund. But they have a clause in the contract that says, you agree to file any disputes in Salt Lake.

Well now you are looking at additional costs, and headaches to try to fight it. This extra hassle may be enough for you to just brush it off.

THINGS YOU CAN DO:

If you are in this situation, then you can use the box at the top right, or link at the bottom to ask a lawyer online for their opinion on your situation. With that information you can then decide how to proceed. You can also send me a message, and I will push you in the right direction.

If you are about to enter a contract, with one of these clauses, make sure you pay with a credit card. Credit Cards have very robust consumer protection, and often a refund, or charge back can be processed without having to go to court.

There is nothing wrong with a Forum Selection clause. As a consultant I always recommend businesses have one in their contracts. It keeps frivolous claims down, and controls legal costs. However as a consumer you now have to fight uphill to get what is rightfully yours.

Do not become overly concerned with a Forum Selection clause. Just be aware of it. Try to use credit cards with good protection. If in doubt send me a message and I will try to lead you in the right direction.

In the next segment I will discuss what Indemnity is, and why it is important.

Until then.

PMAC

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What Did You Agree To? Mediation/Arbitration.

In the first segment of this series, I am going to explain what Mediation and Arbitration is and why it may be in contracts or agreements you have agreed to without knowing.

When there is a dispute with an agreement, there are a few ways to handle it. Most people would assume that court is the pinnacle of trying to come to a resolution. Court brings with it delays, complexity, and expense.

Alternative Dispute Resolution (ADR) is the term used for solving arguments without having to go through the traditional legal channels. They include.

• Negotiation
• Mediation
• Arbitration

Negotiation is essentially a commitment to sit down and try to hammer out a solution with fairness, and a desire to solve. In the coming weeks I will have a few articles on negotiation techniques, and methods.

Mediation is used when the two sides still want to solve the problem but are at an impasse. A third neutral party is brought in, and tries to bring the two sides together, by highlighting common elements, and making sure the dialogue is fair, and balanced. A mediator does NOT pass opinion. A mediator does not evaluate if the outcome is fair. They only facilitate the sides reaching an agreement. A mediator will draft that agreement for the two sides so they now have something moving forward.

Family mediators are specially trained at dealing with family dynamics, and mediate separation, divorce, and custody battles. Mediators are also used commonly in employment situations, unions, collective bargaining agreements, etc.

Arbitration is when a neutral third party adjudicates the problem. Essentially they are a judge. They listen to both sides and then they issue a ruling. In binding arbitration, that ruling is, well binding. Both parties must honour it. It is very difficult to get the courts to try to overturn a binding arbitration decision.

Sometimes arbitration is not binding. Both sides can take the issue to court after a decision. However the results of the arbitration will be a good indicator of the outcome in court. A perfect example of arbitration is Judge Judy, People's Court etc. Although the "judges" had worked as real judges in their career, they are effectively arbitrators. the "court rooms" are not part of the legal court system. It is effectively private court.

If you have agreed to resolve all disputes through Alternative Dispute Resolution, you can still use a lawyer. It is advised that you always speak to a lawyer prior to a Dispute Resolution. Lawyers are allowed to represent you in mediation and arbitration settings. Often the issue can be solved within months instead of years. The total cost is usually much less, primarily because of how quickly it can be resolved in.

However if you agree to ADR you may not be able to sue in court, until you go through the agreed resolution process.

A few things to watch out for, are the location of where the Arbitration will take place. Companies will try to use a location close to them, so make sure you are aware of this.

Here is an example clause that would bind you to Arbitration.

Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) shall be binding, and may be entered in any court having jurisdiction thereof.

Other things that may be included in such a clause would be the language, location, number of arbitrators, time period to resolve, and sometimes even what dispute resolution company may be used to provide the mediators or arbitrators.

If you are looking in a contract to see if there is an arbitration provision, search for Dispute Resolution. That is a very common header for such a clause.

While agreeing to ADR (mediation/arbitration) in on itself is not a negative, your rights for going to court, or how disputes will be addressed could be affected. So it is important you understand how a contract can be disputed prior to signing the bottom line.

Next part of the What Did You Agree To? series will be about selective jurisdiction clauses.

Until then...


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What Did You Agree To? Introduction..

Here at making Sense of It. Law and Life, I talk about issues in their isolation. Over the last few weeks a number of people have asked questions that relate, but cant be answered in the same segment.

I have decided to start my first article series. Over the next few articles we will discuss different things you as a general consumer and life liver, agree too without realising it.

The purpose of these articles is to show some of the surprising things you agree to when you sign the dotted line.

Do you know what binding arbitration is? What is indemnify mean? Why is liability limited to a strange amount like $25? What is a selective jurisdiction clause? What does assignment mean?

All these questions could have an impact on your contract decisions. But you don't really know what they mean. But when you agree to them, you are bound by them.

Here we will walk through them. A new one every day or so. Feel free to comment your own questions., and I will try to get to them.

All information will be generic common law. That means it applies conceptually to places like Australia, Canada, India, Ireland, Malaysia, New Zealand, South Africa, UK, and US.

Local law will and I can not emphasis this enough, it WILL have its own twists. But the concepts will help you start to think about the issue in the proper way.

Tomorrow I will talk about what arbitration is.

Until then I will leave you with a rhetorical question.

How many times have you actually asked a company what a provision in a contract meant?

Until Tomorrow.

PMAC!

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Bad Landlord and No Lease.

Andy rents a basement apartment. For the last two years things have started to fall apart, and the landlord is less and less responsive. Last week the dead bolt broke, and now Andy has no proper lock.

Among other things the furnace is on the blitz, and his electrical bills are much higher because he has to use a space heater. Andy is getting fed up and wants things solved.

The first place to look at a landlord tenant relationship is the lease. A lease is the written version of the contract of a tenancy. However in many circumstances there is no written lease, or the lease is a generic, simple, and free version available online. Often they are incomplete. So we will assume that for Andy his lease was generic, and did not really address this issue.

Not having a lease, or having an incomplete one does not change your rights. For the situation Andy is in, not having a lease is no problem. The best approach to dealing with a situation like this is:

a) Understand what your rights are.
b) Create a plan for enforcing your rights.

Without a lease, your rights are based on residential tenancy law, and what is generally accepted or expected in a landlord tenant relationship.

Regardless of what State, Province, or City you are in, there will be laws that state what a landlords basic obligations are.

In Andy's situation there may be something like this.

"A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards."

Andy has the right to have his unit maintained and safe. No functioning lock, and a dysfunctional furnace is clearly a safety problem. Regardless of if he has a written lease, the law would help.

If you are not sure of what law may help, contact your lock county housing board, or public health board. You can also email me with your location and I will tell you where to get the info needed.

So we have established that Andy has rights. And if you are in a situation where basic health, or maintenance is not being maintained you too could have rights. But what does he do about it?

He needs to have a plan. You need to have a plan.

I) Notify
II) Respond
II) Escalate

You need to notify your landlord that there is a problem. Be specific. It may be worth your while to read "Avoid Redirect" which discusses ways to ask problematic questions and not have them avoided.

Start with a phone call, and advise them that you will follow up with a letter for their records. In your letter be crisp clear and concise. But here is the key. make sure you give a deadline, and a consequence. See this example.

"As discussed on the phone on 7th Feb 2009, the main dead bolt is not functioning, and therefore leaving the premises unsafe. Please have it fixed by the 10th. Otherwise as you understand I will need to fix it myself and invoice you accordingly"

WORD OF CAUTION: MANY TENANCY LAWS DO NOT ALLOW A TENANT TO SELF HELP. DO NOT ASSUME YOU CAN DEDUCT THE AMOUNT FROM THE RENT.

If the landlord starts the repair, then make sure you respond by confirming it is complete, or highlighting what needs to be finished. Make sure you show gratitude for the work done thus far.

If the landlord has not done the work it is time to escalate. You can secure the services of a local locksmith, and invoice the landlord for the repairs. If they refuse to pay you, then it is time to escalate further.

By contacting your local housing board, or landlord tenant board they will tell you what steps you can take to get the rest of the repairs made and the money you have spent returned.

So even if you don't have a lease you have rights. If you are in doubt of what they are you can contact your local housing board or health board. Notify your landlord of the problems. Respond to their action or inaction. Finally escalate if needed.

If the issues are complex, or your landlord is threatening you with eviction because you are kicking up a storm, you should seriously consider talking to a lawyer.


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Avoid the "Redirect"

AVOID THE REDIRECT

How many times have you asked a question to a company, manager, coworker, only to find that the question gets redirected. It gets pushed aside, goes unanswered, and ignored. How do you avoid that?

There are a few tricks and techniques that can be used, but first we need to understand why this happens. There are three main reasons why this happens.

1. The question is not clear and concise.
2. The person being asked does not know the answer.
3. The answer could "open a can of worms"

If the question is not clear and concise, you will not get a clear and concise answer. In order to make your question clear and concise, know what type of answer you are looking for. Are you looking for a simple answer, or a commitment? Are you looking for an explanation, or an apology? Understand the relationship between your question being asked, and the answer you expect. Clean up your question so that the answer can only be as concise as possible.

People do not like feeling they do not know something. They don't like being put on the spot. So if you know ahead of time they may not know the answer, give them a way out. Tell them ahead of time that you know this might be tricky, or need some research. Allow the person the time to do the work needed to give a proper answer. Being demanding to people when they do not have knowledge or authority, will get you nowhere. Your question will go unanswered, or will be served with an order of bull.

Questions that look for someone to accept fault or blame can open a can of worms. Especially given times are tough, the CYA (Cover Your Ass) mentality is stronger then ever. Know what the impact of your question is. Is the company admitting there was fraud? is your co-worker admitting incompetence?

Solution... Give a way out.

As when people don't know something, opening a can of worms requires a delicate approach. You need to give a way out. Offer ways for the answer to be delivered in a way that will not implicate them, or open that can of worms. Saying things like.

• "I understand this may be a simple mistake"
• "I understand this was not intentional"
• "I understand this anomaly should be kept confidential"
• "I appreciate this may be complex, and will agree to keep this quiet."
• "I have no problem with an off the record answer"
  

Knowing what your objective in the question is will help you keep the question clear and concise. Your approach and anticipation will help comfort those to give you the answer you are looking for. The understanding builds rapport, and helps disarm defensive responses.

Trying to solve too much, and setting people up will leave your questions avoided or redirected. Being crisp, clear, concise, and understanding will lead to better responses, and help build your relationships.


Copyright © 2009 Peter MacSweeney. All rights reserved. Reproduction in whole or in part without the express written consent of the author is forbidden. Contact the author through the comment form for all inquiries, including media.

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FIRED. Personal email at work.

Diane is an administrator for a medium size insurance broker in Kitchener Ontario. She has a very good record at work. All three of her annual performance reviews reported exceeded expectations. The quality of her work has never been a question, nor her attendance, punctuality or attitude.

About three weeks ago, a new V.P. of Operations was hired. Very shortly thereafter a memo was sent to all staff announcing audits, and structural changes to help cut costs, and weather the financial storm. A few wondered if that was a warning for layoffs. Diane was not concerned.

On Friday Diane went to work as usual. At 10:30 she was asked by her manager to meet with her in the conference room. At 11:00 Diane entered the conference room to see her boss, the new VP of Operations. and the HR Manager. GULP.

Diane sat down, and was told by the VP of Operations that as part of their audit, they discovered that Diane had used the work computers for sending and receiving personal email. This was a violation of the network usage policy. As a result she is terminated immediately with cause. Diane's manager looked over at her with a compassionate sorry.

The HR Manager escorted her to her desk, handed her final pay, and by 11:18 Diane was sitting in her car, and then burst into tears. What the hell just happened? Was this legal? here we will look at if you can be fired for breaking a policy.

Employment law is an extension of contract law. You agree to work for your employer under certain rules, and they agree to pay you. The amount of payment, and the rules are part of your contract. But what about policies, Are they part of the rules?

Policies can be part of the rules, and therefor you can be fired for breaking them. However just because a policy exists does not mean that you can be fired for breaking it. To be fired for breaking a policy, a few things have to happen.

The first thing is that the policy must be part of your employment agreement. To be part of your employment agreement the policy must be:

a) Clear
b) Published
c) Enforced uniformly
d) Not against the law

The most common problem for an employer trying to us a policy to terminate, is...

c) Enforced uniformly.

It is very common for companies to have a policy saying do not use for personal purposes. However very few companies enforce this. How long was the policy in place before it was being enforced? Is there a proper procedure for determining a violation?

In the case of this insurance broker, if the VP wanted to resurrect this policy, the proper thing to do would be to inform everyone that this policy is going to start to be enforced. The general accepted practice of using the network for personal purposes is now no longer accepted.

They did not do this. For whatever reasons the VP had, they tried to use this policy as a "get out of jail free" card. Fire for a reason and not be liable for wrongful termination. Well it does not work that way. Based on the facts we see here, there is a serious case for an action for wrongful termination.

A few other things to look out for in a policy include

i) Are the consequences clear
ii) Is the policy consistent with other aspects of the job
iii) Is the enforcement consistent with their disciplinary procedures
iv) Is the policy an attempt to go around specific laws, such as confidentiality, discrimination etc.

So if you find yourself in the unfortunate circumstance as Diane, don't make a scene. Ask exactly why you have been terminated, under what policy you have been terminated under. Be polite, but specific.

In addition you should seriously consider talking to a local employment lawyer. In Ontario you can call the Lawyer referral Service, run by the Law Society.

1-900-565-4LRS.

It costs $6, and you will get a 30 minute conversation with a lawyer in your area, with that specialty for that $6.

Before you find yourself in this position, make sure you get a copy of the company policies, and you read them. Understand how they apply to the job. Understand how they are enforced. Most important ..

BECOME FAMILIAR WITH THE DISCIPLINE RULES OF YOUR COMPANY.

That means you learn what the process for warnings, probation, and termination is. Know the process, in the unlikely event you get caught up in it.

Knowing is protecting, and Diane, call the 1-900 number above, ask for an employment lawyer in the KW area. You most certainly have reason to contest.


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Door to Door Sales.

6:22pm. Ottawa Ontario, Canada. KNOCK KNOCK KNOCK.

Alf, the Jack Russel starts his signature barking. Amy looks at her dinner, and mumble "Who the hell is that?". As she sends the dog downstairs, she opens the front door to see a door to door sales rep.

"I am sorry to bother you mam. Just three minutes of your time can save you $20 a month on energy costs. Wouldn't you like to reduce your energy costs?"

And the salesmanship starts. Amy still wondering about her cooling pork chop is half listening. The sales rep is smooth and quick, and before you know it he has an "Application" form for services. Cindy has a quick look and signs the application. She goes back in, finishes her dinner and forgets about it.

Two days later while cleaning up, she finds the application. She starts to have a closer read.

She is shocked.

The "Application" looks like an actual agreement. And she has signed up for 5 years of energy from a particular company. After doing a small bit of math, she is actually going to SPEND $20 more a month not save. She is not impressed.

Cindy, there is no need to fear. In Ontario there is the Consumer Protection Act. 2002. This piece of legislation was enacted to protect you from this type of situation.

The law basically says that if a company signs a contract with you, outside of their normal place of business, and it is worth more the $50, then you as a consumer have an automatic 10 day "cooling off period". These agreements are called direct agreements.

In actuality you get 10 days from the time you receive a written copy of the agreement.

This cooling off period is absolute. You do not have to explain what or why. You can just cancel it. To cancel it you should send a letter in witting, via registered mail or fax. Anyway really that gives you a proof of delivery.

Your cancellation letter should have three parts. Description, Cancellation, Request for Confirmation.

DESCRIPTION: Make sure you describe the services, and the agreement you signed. Highlight it was at your home. If you have an application number, or an agent number refer to it. This letter needs to give enough information to the company so they can cancel your services. If you don't give them the proper details you may have a problem down the road.

CANCELLATION: In this paragraph you say you which to cancel the contract. You are exercising your rights, under the Consumer Protection Act, and cancelling within 10 days of receiving the written agreement. Do not feel you have to qualify. Do not give any room that you may be "talked back into it". Make it crisp and clean.

CONFIRMATION: In the last paragraph ask for written confirmation that the letter has been received, and your account has been cancelled accordingly. Make sure you give ways for them to contact you, other then by mail. Companies do not like confirming these things in writing.

Be polite, and confident in your writing style.

Most jurisdictions have some form of regulations for Door to Door sales, For example in some states, there are specific clauses that must be within a contract being sold door to door. If you need help researching your case, let me know. You can also contact your Attorney Generals Office, Consumer Protection Branch, or in Canada, your provincial Consumer Protection Branch.

Never feel pressured to sign at the door. If the deal is a one shot deal by committing right there and then, think long and hard. Your location may have a cooling off period for such agreements.


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Slip and Fall, Grocery Store.

Slipping and falling is a blooper reel norm. When the shock of seeing someone fall passes, and they appear O.K, the laughter usually follows. I don't know why people, myself included, find falling funny, but we do.

Sandy did not find it funny when she slipped and fell at a grocery store.

While passing through the second set of automatic doors, she slipped on what appeared to be melted snow. There was a carpet, however it was not at the door but about three feet past it. It was in that three feet that Sandy, a mother of two fell.

Poor Sandy landed on her wrist. Nothing appeared to break. Her wrist was sore, and she banged her elbow, but other then that everything appeared in order.

People rushed over to her and helped her get up. Someone commented on the pool of water. Another went and got a staff member, who in turn got the Manager.

So there is Sandy, bump on her elbow, wrist, and pride, about to talk to the Manager. What should she do?

Sandy, the number one problem with slip and fall cases, is not taking the proper steps at the time of the incident. To ensure you are compensated for any injury that you suffer as a result of the negligence of another, you need to line up your ducks.

WITNESSES, AREA, REPORT, FOLLOW-UP.

Witnesses. Look around to anyone who saw the fall. Ask them to stand by. Ask them specifically did you see what just happened? Ask them, Do you mind waiting for a minute and helping me fill out an incident report? If they are in a rush, then ask for their card to contact them. You can never have too may witnesses.

Area. Take a quick scan of the area. Look for what may have caused you to fall, any rugs, signs etc. Try to understand exactly what happened. It is difficult, especially after just having your bell rung, but you need to look for anything immediate around you. Ask your witnesses if they noticed anything about the area. Make a mental note.

Report. It is essential that you report the incident to the store staff immediately. Ask that an incident report be filled out. If your witness was co-operative, then they should fill out their own section of the report. When filling out the report, be specific, but concise. Do not dress it up. Stick to the points. Try to highlight the cause and effect. ALWAYS ALWAYS indicate you will be seeking medical attention.

While you are filling in the report, if they offer you ice, or pain medication, you are not obligated to take it. If you do not want to take their offer of meds, or ice, instruct them that you will wait till you talk with your doctor about what the appropriate course of action should be. As a mater of common sense, ice reduces swelling, and if applied early can reduce the recovery time. So be smart, rather then stubborn.

After you give the report, have the Manager sign it, and ask for a copy. Tell the Manager you will be in touch with them after you seek medical advise. Also specifically ask what the process for handling these types of incidents is. If it is a chain, they have a policy. If the manager does not know the process, ask him to call head office and find out.

Follow-up. Go to the doctor. Make sure you understand what the immediate and long term effects of the injury are. Once you have a complete understanding, you can either

a) Contact a lawyer
b) Contact the store directly.

It is always a good idea to talk with a lawyer experienced in slip and fall. However if you decide not too, then you can contact the store directly. Show them the doctors reports, and the invoices on your losses, and ask to be compensated. At that point they will probably assign it to their insurance team. Their insurance team will then try to settle with you.

A few words of caution.

1. Once you accept any settlement, the issue is most often closed. You can not re-open it. That is why you should always understand what the long term medical risks are.

2. Don't expect to get a million dollars from them. Your compensation is directly proportional to the injury and level of injury you sustained.

3. You may be partly responsible. For example if you brought the snow in with your boots, and slipped on it yourself. That is why witnesses are very important.

4. Be careful of the Statute of Limitations. There is usually a period of time for which you are supposed to start a lawsuit. If it is passed that time, you can not use the courts to collect. For a slip and fall it is anywhere from 1 - 3 years depending on your location (State/Province/Country).

5. If you are not sure, talk with a lawyer.

Slipping is horrible. But when you do the right things at the time, you improve your chances of being compensated. Be calm, and confident. Don't be forced into signing something. Finally, you should ALWAYS see your doctor after a fall, no matter how trivial you think it was.


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Managing Conflict with Choices.

I was at a pub the other day, enjoying a pint and pleasant conversation with my significant other. Two tables over sat an older couple, not looking very happy. In front of the gentlemen, lets call him Frank, looked to be a steak of some sort.

Frank clearly was not impressed by the steak presented to him. He was going to do something about it.

When the waitress asked him if everything was OK, Frank unloaded with a tsunami of abuse. The waitress appeared to handle the first onslaught well, and politely informed Frank she would talk to the kitchen staff and the manager.

Frank would not let up. He kept repeating that he had wasted his time, he did not want a new steak, he did not want to talk to the manager. He was angry, and wanted the entire place to know.

The waitress responded with the finest display of conflict management I have seen in a restaurant. Here is what she did.

Her first step was to lower her voice volume. This showed subconsciously that she is not trying to challenge him. Taking the competition out of the confrontation helps disarm.

She then spoke in a noticeably slower but very calm, and non condescending tone. By speaking slower, she reduces the confrontation energy that Frank is feeding off of.

She showed understanding, and related to Frank by listening to everything he had to say. She further went on to agree that she would be irritated as well. By showing she agreed, she is now showing she is an ally and not the enemy.

She then gave choices, in the form of a question. Her choices included a new steak, a free meal voucher, or a free bottle of wine with his next meal. By putting her choices in the form of a question, she forced Frank to go into his own problem solving mode. Questions are processed by the brain very different then statements. So when she put her options in the form of a question, Franks brain responded.

Frank opted for the meal voucher, and left looking a little embarrassed.

The waitress brushed this off as another day at work.

When dealing with an angry situation, you can have a significant impact on the outcome by taking a few quick steps.

Watching your volume, cadence, and energy, you can help take some of the fuel from the fire. Show understanding by listening and relating. Give choices in the form of questions, and be calm.


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