Don’t be an E-BAG

Are You a “Chatty Cathy” Via Email?

Do you remember back when businesses exchanged typewritten letters to one another and if some one wrote back to you within a weeks time that was considered very responsive? How about the days when people would actually pick up the phone or got together for a meeting to discuss important topics that would require a back and forth conversational dialog.  Where did that go?  Oh yeah…technology.

Many times I have said that technology is a blessing and a curse.  I have opined how technology has contributed to the loss of the human connection and manners.  One day I may even write about how I believe technology is actually creating more stress for people…because you are always tethered by it and are expected to be “on” all of the time.  It’s exhausting just thinking about it.  In that same vein comes this wonderful technology that we call “Email” which is becoming incredibly abused.  Rather than just using it to send legitimate “need to know” information, and keeping the communications on point, it seems that many are now using email to hold a conversation in lieu of picking up a phone or scheduling a meeting that would allow for regular dialog.  For comedy, and not with any ill intent, I like to refer to these types of people as E-Bags.

POINT OF REFERENCE:  Let’s be clear about the angle I am coming from.  As a lawyer and entrepreneur I maintain multiple e-mail accounts for business and receive hundreds of e-mails a day.  I want to ensure I am receiving all of the legitimate information that I need in the shortest amount of time possible.  This is why E-Bags are a personal pet peeve of mine.

Five reasons why using email for conversations, generally speaking, can be a bad idea:

  1. Time is money!  It takes a long time to write out paragraphs of information and if you go back and edit at all, you are looking at 30-45 minutes for something that could have been said in five minutes on the phone.  If you are business billing your customer/client for that time, maybe you don’t care…but if you are the customer/client, you could be paying someone to read emails about your whatever, off topic, conversation.  Seriously.  Think about that.
  2. Everyone’s time is valuable!  Chatty Cathy conversations, especially when there are more than two participants in an email string, do nothing by waste time and irritate people when they have to read through your messages to see if there is anything important that pertains to them directly.  When you start pissing people off, naturally, they aren’t going to pay much attention to your communications in the future.
  3. People get too many emails to keep up!  If you chat away via email you are running the strong possibility that your communications will get overlooked.  If you are a known chatter, even when you provide very important information or a request in your communication, it can be overlooked because the recipient may assume that you are just chatting again and won’t read your email or will, at best, merely skim it.  The chances of your important information getting lost increases dramatically.
  4. Conversation emails are like dumping trash on top of small presents in a bag.  When you use email as “chat” you are basically littering in your own inbox.  You are dumping “trash” on top of the important things which can make them harder to find.  This is especially true if you manage an email account that has a high volume of incoming email to begin with.
  5. The written word, especially when written in a hurry, can be perceived in many ways that was unintended.  When I present to students and adults I explain how one single sentence, with only seven words, can be interpreted seven different ways depending on the emphasis that the reader places on any particular word.  This can lead to a break down in communication and lead to more relationship and communication problems that could have been avoided through a phone call or a meeting.  Never underestimate the power of being able to hear voice tone, word inflection and/or pick up on body language.  You can’t get those things from the written word.

Three instances when engaging in conversation via email can be a good idea:

  1. When you are making introductions.  If you are making an introduction between your self and someone else, or maybe you are connecting two people who have never met before, conversational email communication is probably going to be expected.  You are trying to open a free flow of friendly dialog so that they can get to know one another.
  2. When your entire relationship is based upon email.  If you have never met a person, or perhaps have never even communicated with a person over the phone, then, in that case, being conversational is appropriate.  It can connect you and provide opportunity for dialog when other communication mediums are not available or appropriate (think an online forum for example).
  3. When your customer/client expects it and is willing to pay for your time.  Some customers/clients are just long winded, they have lost the human connection so they don’t like actual phone or in person conversations, and they EXPECT to communicate via email primarily.  In this case, if that is what your customer/client wants, then by all means…go for it.  Just be sure to let your customer/client know, up front, that they will be billed for such communications.  Again, time is money and your time is a valuable commodity that you cannot ever get back.

If this resonates with you (because maybe you are a conversational emailer) or maybe because you share the same frustration with conversational e-mailers, be sure to chime in with your #EBAG experience.  I’m only writing from what I see personally but am always open to other perspectives and learning.

Clicking the “I Have No Idea What This Says” Button

Understanding the basic differences between Browse-wrap and Click-wrap Agreements

Welcome to the age of technology…where everything you do is pretty much online!  You meet people online, you keep up with loved ones online, you post comments online, download software online, you purchase  online, etc.  For every website platform you interact with there should be some sort of Terms of Service (TOS) or Terms and Conditions (TAC) that you will have to agree to.

So yeah, that little box that you checked quickly so that you could move on and see more information, or download your favorite song, etc., that stuff is the important stuff that you just AGREED TO that NO ONE ever really reads.  Well, except for maybe a few of us contract lovers and people looking for the “easter egg” of comical interruption alleged to be contained within the long winded legal mumbojumbo.  Turns out, at least in my experience, those allegations are fake.  Rarely do I see any humor in contracts.  I know…so BORING!

There are typically two different types of agreements – the Browse-wrap and Click-wrap.

THE CLICK-WRAP AGREEMENT

The more common agreement, the click-wrap agreement (also referred to as a “clickthrough” agreement or a “clickwrap license”), is the one that I generally referenced above.  It’s the agreement that actually requires you to take some sort of action, like clicking on an unmarked box, to show that you agree to the terms set forth by the website or platform.  If you think about it, the website is literally placing the website’s TOS right into your hands (for reading) and asking you to acknowledge the agreement by “clicking the box” or whatever other form that assent may come in.  If you want to refuse the agreement (who does that?) then one would cancel or  close the window to the subject website.  Courts typically uphold these kinds of agreements so remember when you are clicking you are probably entering into a legally binding contract.

THE BROWSE-WRAP AGREEMENT

Your browse-wrap agreement (also called a browserwrap or a browse-wrap license) is the other version.  Generally your browse-wrap agreement is located somewhere on the website; usually seen as a hyperlink at the bottom of the page to the TOS or TAC.  There is no “clicking” to manifest their agreement to the website’s terms.  The idea behind this is that by a person’s mere use of the website they agree to the websites terms.  Courts have been reluctant to uphold these types of agreements UNLESS the user has agreed to the terms.

BELT AND SUSPENDERS

Most websites these days, especially where they are interactive, will have BOTH a click-wrap agreement and a browse-wrap agreement tied to their website.  This is done so that the website can inform users of their website’s TOS/TAC but also, for legal contracting purposes, to aid in enforce-ability of those terms.  Contracts, in order to be upheld, require mutual manifestation of assent.

If you are a website owner, you want to be sure that your agreements are protecting your interests and you should consider seeking legal counsel on the matter if you have any questions.  Beebe Law, PLLC is an Arizona based law firm representing clients in the state of Arizona.

 

 

Online Negativity: A Potential Pitfall to Your Otherwise Perfect New Business Name

For many entrepreneurs, coming up with the right business name can be hard.  After all, you want it to be catchy and tell people what your business is about.  You might want some eye catching creative logo to go with it too.  You also want to be able to link that business name and logo with the internet, i.e., domain names, social media, etc.  Equally important is making sure all of these creative things (name, logo, etc.) are unique to you and your company, otherwise you could face intellectual property challenges down the road.  No one wants to make that costly mistake!  Perhaps you even engage an attorney to help ensure that all of these things are set up right and check out just to be sure.  When all of these things are on track you might feel like you have got the green light and you are off to the races!  Or are you?

One of the pitfalls I see in business is people starting businesses with a GREAT business name only to later find out that somewhere someone else has (or had) a same or similar business name with a bunch of negative online articles or reviews about it!  As many of us are aware, stuff on the internet stays around for a long time…as in forever in some cases. Basically, even if the business has long since been done and gone, those articles and reviews may still be around…possibly at the top of search engine listings.  Even worse, people who don’t pay that close of attention, perhaps prospective customers, might think that the old business name (and crummy article or review) that had nothing to do with you are one in the same with your business!  This is true even if you have different locations, different logos, and do totally different types of business!  Yes, a few unfortunate issues with our society (generally, not all) are: 1) people don’t typically read (they skim at best); and 2) people sometimes think everything on the internet is the truth without second guessing the information or where it came from!  Yikes!  Talk about a bad combination and potential for an online reputation nightmare for your new business – especially if your prospective customer doesn’t play that close of attention to details…like the fact that you aren’t that other business with the old articles, etc!  To top it off, solutions aren’t as easy as writing the websites that are hosting the articles/reviews and asking them to take them off.  In most cases, that won’t work and, generally speaking, they don’t have to.

PRO TIP:  When doing your due diligence for your business name, in additional to all of the intellectual property considerations, you should also consider running searches on top search engines like Google to see what, if any, negative information you can find on the internet using the name of your company and names closely related to your company, e.g. Frosty Ice Cream vs. Frostys Ice Cream, etc.  Going in with your eyes wide open as to what problems are present, if any, will help you determine if you want to consider other business names OR maybe at least consider some social media campaigns or other options that will help educate and differentiate you from the other(s).

If you not sure how to go about these kinds of searches, you are encouraged to speak with a Business Attorney in your area who can assist you or perhaps a trusted Reputation Management consultant (though do your research before you hire anyone).  Anette Beebe is the managing member of Beebe Law, PLLC which is an Arizona based law firm representing clients in the state of Arizona.

 

 

Contracts: The Hidden/Overlooked Master Agreement

I have had more people come to me, explain a situation, and then ask me if they have to perform a certain task as part of some agreement or argue that they didn’t intend to be bound by the agreement.  My response:  Do you have a contract and what does it say?  It sounds pretty cut and dry, but for some, this is a real struggle and often times people will gloss over the agreement, and sign it, without really paying attention to the terms.  If this is you, don’t feel bad, you are not alone.  Countless times I have had clients bring me a Scope of Work or Purchase Order and tell me “this is the agreement” to which I ask, “Where is the rest of it?”  You can imagine people’s confusion when I ask this question, especially when they think THAT is all there is.  Unless you are dealing with someone that doesn’t understand contracting, chances are, there is more…you just may have overlooked it.

MASTER AGREEMENT:  A Master Agreement is the main portion of the Agreement that often outlines what some all the “boilerplate terms.”  Most people overlook this section and don’t negotiate the terms.  However, you should not overlook the “boilerplate terms” because they can be very important.  The “boilerplate terms” often outline payment terms, duration of agreement and renewals (like automatic ones), warranties, choice of law/jurisdiction, dispute resolution, damages for failure to adhere to the contract, intellectual property rights, etc.  A person’s failure to overlook these types of terms can be detrimental if not carefully reviewed and considered.  If you are curious about what kinds of issues can be present in “boiler plate” contract language, you can read my prior blog post Contract Terms: The Boilerplate Language IS Important.

ORDER FORM:  The Order Form is typically the portion of the agreement that outlines the client/customer specific information which are typically negotiated between the parties. This is typically why it receives the most attention.  These documents typically incorporate by reference the Master Agreement (which might be provided as a simply link to a URL online).

  • PURCHASE ORDER:  A Purchase Order (“PO”) is commonly used where the Master Agreement contemplates a purchase/sale of goods.  This will typically outline the types, quantities and agreed upon prices for products and/or services that may be associated, payment method and scheduling for the same and method of shipping, and includes any special requirements or other miscellaneous that the Master Agreement may not contemplate or you otherwise negotiate for (such as a change of a term under the Master Agreement).
  • STATEMENT OF WORK:  Statement of Work (“SOW”) is commonly where the Master Agreement contemplates services to be provided.  This will typically define the scope of the activities to be completed, the location of the work to be performed, period of performance, itemize deliverables and what timeline exists in connection with those deliverables, pricing, payment method and schedule for the same, any standard regulatory or governance terms and conditions, and includes any special requirements or other miscellaneous that the Master Agreement may not contemplate or you otherwise negotiate for (such as a change of a term under the Master Agreement).

Unless you are a contracts attorney who loves the fine print (and maybe we don’t even really love the fine print but at least we can understand it) you may be tempted to only focus your attention on the Order Form document, however, as discussed it is incredibly important that you read through all of the terms of any Master Agreement in connection with any Order Form to make sure you don’t get caught off-guard.  It’s always good practice to inquire about a Master Agreement when presented with nothing more than a Order Form…and keep the two documents together.  Don’t just rely on the information you can read in a URL link because you never know when the Master Agreement at that URL will change.  It’s better to trust your own records than to rely on someone else!

If you are unclear as to whether or not the boilerplate language is appropriate for your situation, and you want to work through the issues, you are encouraged to speak with a Contract Attorney in your area who can assist you.  Beebe Law, PLLC is an Arizona based law firm representing clients in the state of Arizona.

 

Your Social Media Could be Damaging to Your Professional Goals

Technology is all around us and chances are you probably have some level of interaction with Social Media.  For example, you might have a Facebook, Instagram, Twitter, Pinterest, Tumblr or some other online blog, etc.  Further, if you are the normal person, you probably post and interact freely without really considering consequences of those interactions and THAT is what I am discussing here.

I’d like to think that most people are pretty good at self policing and watching what they say online, however, as I have eluded to in my blog series “Fighting Fair on the Internet” that isn’t exactly the case.  Through my own personal and business experience I have come to find that people can be very dark and spiteful.  There is something about the internet that can bring out the worst in people…kind of like booze.  I believe there are a whole host of reasons for that, some of which I discuss in my blog series, however what remains true is that people are now, more than ever, being very “free” with their emotions (positive and negative) and their personally identifying information.  Not only does this behavior present some level of risk from a security standpoint, but also a risk to your professional goals.

Some studies suggest that 77% – 80% of employers will “Google” (meaning run a search using the popular search engine, Google) a perspective employee prior to a job interview.  Chances are, the statistic is probably similar for any person looking at anyone, for any position, in today’s market.  What is your name associated with?  Typically it will be associated with professional websites like LinkedIn and social media accounts such as Facebook where you place particular information out there for the public view.  In other instances it could be attached to anything else that you have been tagged in, had your name mentioned in, and/or your information has otherwise been placed in the public domain.  Do you know, for sure, what that information looks like? Does that information, to the eye of the most strict and ultra conservative individual, give a positive or negative impression of you?

If you feel like you are being turned down for opportunities and you aren’t sure why…maybe it’s time for “check up” on your personal social media presence.  The easiest way to do this is to simply run a search for your name, or names that you are known by, via a popular search engine like Google.  Another avenue would be to go to the particular social media outlets that you use and check to see what is visible to the public.  For example, on Facebook, you can (at least as of this writing) go to Settings, Followers, then “Want to know what followers can see?  View your public timeline.”  That should show you what people, who are part of the general public, can see about you.  Does it give out more information than you would want any perspective employer type person learning about you?  If you aren’t sure whether or not the information might be perceived poorly, ask a friend or family member.  If you (or your trusted friend) don’t like what you see, and you have control over the information*, start working on a social media clean up.  For a whole host of reasons, you will be glad that you did!  As my wise grandmother use to say, “it’s okay to maintain a little mystery.”

For those of you who read this and say “…but what about information that I don’t like that is outside of my control?” understand that topic is a whole other beast, reserved for a wholly separate set of blog postings, on a totally different day. 

 

We Rise by Lifting Others…

WE RISE BY LIFTING OTHERS…  It would be accurate to say that I have been a “gym rat” on and off since the late 90’s.  Accordingly, per my fairly typical routine, I got out of bed and drug my butt into the gym this morning to throw around some weights.  As you all are aware, the gym is a great way to keep physically and mentally healthy because of the ability to strengthen the body and release hormones that help reduce anxiety and stress…and I highly encourage everyone to exercise routinely…especially if you have a high stress job; but today I received a different kind of benefit that I often overlook.  Today I received the “warm fuzzy” from knowing that I was able to encourage and lift the spirits of a complete stranger.  I didn’t do anything special other than take the time to visit and share some insight and wisdom on a topic that this person was struggling with and, in return, I was rewarded with the opportunity to be genuinely thanked for my time and probably made a new friend.  This small interaction got me thinking:  It’s amazing how good it feels to rise because we were able to lift someone else up.

In today’s world where it seems that most relationships are based upon superficial communications through electronics, coupled with the accompanying demand for immediate attention and instant gratification in ways that most of us have obtained through learned behavior over the years, it’s important to stop and be remember to be human!  I mean REALLY human.  We all have the same basic needs.  We all have struggles that are often hidden.  It’s important to remember how to, and practice often, the seemingly lost art of actual, genuine, human interaction.  Take time to listen to someone, in person, and, if you are able, provide meaningful feedback.  The greatest gift you can give someone is your time because it is something you can never get back…and the greatest return is the feeling you receive from actually “being there” for someone which is a gift that no one can take away from you.

So in other words … #BEMOREHUMAN.  Practice this in your personal life with those you care about.  Practice this in your business life with the relationships that you value.  What you give out will come back to you so make it amazingly meaningful.

 

 

 

Contract Terms: The Boilerplate Language IS Important

Every day people and businesses enter into contracts for one reason or another.  If you are running a businesses you likely have contracts that you have your customers/clients sign which outline the obligations of each party.  Most people only really consider the “meat” of the contract…you know, the who, what, where and when; but what about all of that “lawyery stuff” at the end?  Many people will put boilerplate language into their agreements without knowing what implications those clauses will have on them if either party fails to live up to the terms of the agreement.  Similarly, people will sign a contract without paying attention to all that “lawyery stuff” at the end because…well, it’s boring and can be hard to understand.  Does all that boilerplate language really mean anything?  Yes!  Especially if the person drafting the contract may have just cut and paste clauses off of something they found on the internet without really understanding how those things would be applied when things fall apart.

Sure, it seems easy to just cut and paste and/or use prior agreements and roll them over into a new situation…but it may cost you more in the long run if and when something goes wrong.

The boilerplate language at the end of your contract are important for a few reasons:

  • They are real contractual terms that have to be understood
  • They impact your legal rights as to the agreement
  • They can actually control or limit the enforcement of your contractual rights
  • They can, perhaps unintentionally, void portions of your contract that you might have already negotiated in your contract

What are some of the “boilerplate clauses” that are typically at issue in a contract?  The following are a few clauses that are important to review:

  • Choice of Law and/or Choice of Forum Clauses
    • These can define the law that will govern the contract which can get sticky if your contract is contrary to this clause.
    • These can define the place that the contract can be enforced which may or may not be favorable to you.
    • These may limit your rights to sue in certain kinds of courts.
    • These may subject you to a certain jurisdiction regardless of whether or not you happen to live or have minimum contacts with that particular jurisdiction.
  • Arbitration Clause
    • This is primarily used to discourage litigation by limiting the right to a trial through a traditional court system.
    • This can be more cost effective way to resolve disputes than going through a full blown litigation.  This is not always the case.
    • These can describe the specific process for proceeding through to arbitration which can be very different that a traditional court proceeding.
  • Jury Trial Waivers
    • A person needs to understand what exactly is being waived in by the clause.
    • A person needs to understand whether or not the clause will be enforceable in the state that the agreement is to be determined under.  Not all states would enforce this kind of a clause.
  • Severability Clauses
    • These usually say, generally, that if one clause or portion of an agreement isn’t enforceable then it is eliminated and all the rest of the contract is still in tact but some states won’t enforce it and therefore the entire clause could be void.
    • Sometimes these issues can be carved out specifically to protect the rest of the agreement.
  • Cooperation Clauses
    • These usually state that the parties are suppose to cooperate, etc. and it seems like it could be a good idea, however, one person’s cooperation might be another person’s demand for additional terms that aren’t in the agreement in the first place.
    • Sometimes these issues can be spelled out so that there isn’t unintentional consequences in the future.
  • Integration/Merger Clauses
    • Think about all of the prior communications and documents that are related to the agreement…is everything necessary and material in the actual agreement?
    • Have all representations that have been made the parties, agents of the parties, etc., all been incorporated?
  • Warranties
    • Is everything listed in the clause true?
    • Are you sure what the implied and express warranties are?
    • Do you need to limit any certain warranties?
    • How does the governing law handle warranties?
  • Damages Clause
    • Do you have a situation where you want to limit the damages?
    • Does the state law governing the agreement refuse to enforce the kind of limit you are trying to provide for in the contract?
      • Estimated damages or liquidation clauses need to be supported.
      • Penalty clauses that appear to be purely punitive (as punishment) are not likely to be enforced.
  • Indemnification Clauses
    • These are good for situations where some third-party might sue one of the parties of the agreement and the other party doesn’t want liability.
    • These are good to have so long as they are tailored to fit the governing law of the contract; are tailored to spell out who is indemnifying who for what; and outlines the process for getting notice of the indemnification, etc.
    • Certain claims cannot be covered by an indemnification clause.

If you are unclear as to whether or not the boilerplate language is appropriate for your situation, and you want to work through the issues, you are encouraged to speak with a Contract Attorney in your area who can assist you.  Beebe Law, PLLC is an Arizona based law firm representing clients in the state of Arizona.

 

Smart people will, by default, never be “yes” men…

I see it all the time; business owners who hire professionals that turn around and try to tell them how to do their job.  Some call it micromanaging.  Others call it “big boss syndrome.”  What I know is this concept just doesn’t make sense.  Why would you do that?  Assuming that the quote “It doesn’t make sense to hire smart people and then tell them what to do; we hire smart people so they can tell us what to do.” was actually said by Steve Jobs…I think he had it right.

Smart people, by their very design and nature, will not automatically be “yes” men.  They will question, analyze and reason with any requests that are made of them and, if they disagree with your position, they are going to tell you so and they will not do what you ask them to do if they know it is wrong or is going to bring harm to you in the long run. Professionals are not going to tell you what you WANT to hear…they are going to tell you what you NEED to hear.

A wise colleague of mine once said that the best you can do is advise your client on the best/right choice to make and let your client take it from there.  In the legal world this is true…after all, if the client goofs things up, and you have to fix it, you can look at it as job security.  Right?  I think, however, in a business setting, and you are an employee who has been hired to do an important job, this can be an even harder pill to swallow.  I suppose this is because if the boss screws things up, it could mean that you end up out of a job, or worse, which will make that employee fight harder against “bad” decisions.

Bottom line, if you want a “yes” man all of the time…don’t hire a smart person.  It just won’t work.