Contract Law. Terms of Use.

Share
Terms of Use. Terms and Conditions.

Terms of Use.

Enforceable Contract

Everyday in the news we read or hear about privacy on the Internet.  On any given day, someone files a lawsuit against Facebook, YouTube, Google, LinkedIn, Pinterest, or some other social networking site.  And almost always, the lawsuit is in some way connected to the interpretation of, enforcement of, and/or coverage of the site’s Terms of Use.  Everyone talks about Terms of Use (sometimes called Terms of Service), but few know what they are or understand their importance.

Here  are some  important things you should know about Terms of Use:

  1. Terms of Use do not exist to protect your rights – Contrary to popular belief, TOU are not there for your benefit. Whether on a website, a blog, or a social networking venue site, TOU are not designed to protect you and your rights. They are there purely for the benefit of the website owner or Internet service provider.
  2. User gives away a lot. When you click on “accept” you give away many personal rights.  You should at least read the TOU, so you are aware what rights you are relinquishing or affirmatively giving away.
  3. TOU should be read & understood.  Sometimes because of government pressure, customer insurgence, or just a change in heart, social networking sites modify their TOU.  While the law may require that they notify you of such changes, it’s up to you to read the notices when you receive them.  Reading the TOU keeps you aware of the changes that impact you and your rights.
  4. Courts uphold TOU – More and more courts are upholding TOU, much to the surprise of many Facebook, Twitter, and other social networking users.  So long as the TOU adhere to a number of requirements set forth by the court, the website owner gets a free pass. With that in mind, it’s up to you to protect yourself and your pocketbook.
  5. They create a binding & enforceable contract. Many of the sites never expressly state that when you accept TOU you enter into a contractual relationship. There are a few, however, such as Twitter and LinkedIn, which come right out and tell you by accepting their terms, you enter into a binding Agreement, and when  you “ACCEPT”, you agree to be bound. Here is an example of language from Twitter’s TOU:

It’s a Binding & Enforceable Contract

“…  Your access to and use of [Twitter’s] Services is conditioned on your acceptance of and compliance with these Terms. By accessing or using the Services you agree to be bound by these Terms….”  “You may use the Services only if you can form a binding contract with Twitter and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. …”

Okay that’s it for today.  Our world is quickly changing, but contract law is still contract law. And as long as you adhere to the simple rules, you’ll not get into trouble.

Until next time, I’m Attorney Francine Ward helping you protect what’s yours. Join my conversation on FacebookTwitter, or in one of my LinkedIn groupsGoogle+ Circles. Feel free to subscribe to my newsletter.

Signing a Publishing Agreement

Share

Book Deals. Publishing.

Publishing. Author.

Publishing. Author.

All book deals are NOT created equal.  This is the first of a 2-part blog post on publishing deals.  One will offer my perspective as a published author, who received a 6-figure book deal from Random House for my first book.  The second, will be my perspective as an attorney, who represents authors.

There are many factors, which went into me getting such an amazing publishing deal, despite the fact that I am not a celebrity, and had never been published before.   People will often try to discourage you by saying, “it’s so hard to get a book deal, so don’t even try.”   My two cents is, while the publishing industry has definitely changed with the increasing presence and power of the Internet, there are still opportunites to get published by a main stream, New York publisher.

By the way, despite what people told me, not only did I get a deal, but my book went to auction, where 4 publishers entered into a bidding war for Esteemable Acts.

While getting published by a Random House or Penguin is not guaranteed, here are 6 of the most important factors that worked in my favor:

  1. Understanding that Publishing is a Business — Like it or not, it’s the BUSINESS of publishing.  Publishers are not in it to hold your hand or make you a star, they are in it to make $$$ for themselves.  In most case, your interests are diametrically opposed to theirs.  So in looking at any contract that a publisher gives you,  just know that it is in their favor from the get-go!
  2. Get a great agent. Some people like working with agents, and some don’t.  For me, the smartest move I made was to get an agent.  My definition of a good is someone who is skilled, connected in the industry, passionate about your project, and hungry–willing to work hard for you. It’s also important that you find someone who is willing to make time for you.  I’ve known of, too many, situations where an author had a big named agent, whom they never saw or spoke with.
  3. Have a large platform.  Publishers want someone who is willing to do the work to promote their book. Some say it’s a partnership, but in truth, you are expected to do the work. Therefore, the larger your platform, the greater your chances of getting a book deal, because you can demonstrate that you are willing and able to sell your book.  As well as a lawyer, I’m a professional speaker and could prove it, by the size of my platform.  A speaking calendar, which consisted of 40-50 talks a year, made me a bankable commodity.   In this age of the Internet, a platform could come from a large database, a Blog, speaking, writing articles, or being a media personality.  The key is you must show that you have a ready-made audience in which to sell your book.
  4. Write a good book proposal. There are many great books on how to write a book proposal, such as “How to Write a Book Proposal”, by Michael Larsen, “10 Book Proposals that Sold”, by Jeff Herman, and many others that you’ll find on www.amazon.com. Check them out. Most, if not all, nonfiction book agents will require a book proposal. Learn how to draft a good one!
  5. Have a Marketable Expertise.  All that means is know what you are talking about.  Other than celebrities, you will be expected to have some knowledge about your topic.   There are any number of ways you can get it: education, degrees, licenses, certifications, through business experience, and/or through a personal experience.  I’m not a therapist, so before I got a deal, I was rejected by countless agents.  It was perceived that anyone writing about self esteem had to be a therapist.  Fortunately for me I didn’t give up, and eventually found an agent who understood what gave me the credibilty to write Esteemable Acts was my personal story of change and redemption.
  6. Which takes me to the last point I’d like to share–DON’T GIVE UP, especially in the face of rejection.  Not everyone gets what they want right away.  But in my experience, if you stay the course, and figure out what your next right action is to be, you can get to that finish line that you desire.

Okay, that’s it from the author perspective.  While there are many other factors that went into me getting that book deal, these 6 stand out.  Let’s turn our attention to the contract itself, and what provisions you should pay close attention to.

New Business. Contracts. Business Formations

Share

Global Business TechnologyStarting or expanding a business can be an exciting time, but it can also be extremely stressful as well. Many people invest their life’s savings to pursue their dreams of starting a business. Many people also seek out financing through banks, and even through friends and family. Of course, these funds need to be paid back. So doing things right from the start can literally be the difference between success or failure. Recently a client came to me and asked, “Should I incorporate, remain a sole proprietor, or form an LLC?” She said, “I’m even wondering if I should form a hybrid company, like that new benefit corporation I read about.”

Wondering what type of business entity is right for you is a critical first step in becoming a smart business owner. In making that decision there are many factors to take into account, e.g., type of business you want to have, your short and long term goals, the costs attendant to starting the business, the required formalities for forming the business, the formalities for maintaining it, protection from liability, tax implications, and management & control issues, to name a few. These are just some of the questions you will need to decide before answering the question, What type of entity should I form?

There are many types of business entities to choose from. Not all entities are created equal. Among your choices are:

Other Questions to Consider: Once you decide what type of business to form, you must turn your attention to where.

  • In what state should you form your business?
  • How much does it cost, and what filings do I need to make?
  • Will there be other owners besides me?
  • Do I want a board of directorss, members, or possibly both?

These may seem like simple questions, but in fact, they require careful consideration by business owners, taking into account the specific facts of each start-up’s particular situation. Then of course, after you form your entity, you need an assortment of contracts to get you going and which are best for YOUR needs. What tasks do you need to perform to get started? Here is a checklist with some useful first steps.

Business Law Help is Available: There can be consequences for not making the right choice. The stakes are just too high to go it alone – but you don’t have to! This is why it is extremely wise to get the best help you can when you most need it – in the beginning. There are lots of resources for new businesses, e.g., The Small Business Administration (SBA), SCORECoachella Valley Women’s Business Center, and so many more. Every state has programs and organizations designed to help you get started turning your wonderful business idea into a money-maker, from providing business plan assistance, to financial guidance, to workshops on all topics.

On the otherhand, you may prefer to have a lawyer on your team. An attorney you can count on and speak to when you need her. A competent expert, who understands the ins and outs of business and intellectual property law issues. Make no mistake about it, ALL businesses have intellectual property law issues, from protecting your content, products, articles, videos, website content, photos; to protecting your brand name, logo, business slogans; to ensuring that your contracts are current and enforceable; to making sure you are up-to-date when it comes to legal issues (e.g., social media law, defamation law, privacy law).

Why you need to hire a lawyer to create your contract

Share
Contracts. Agreements.

Contracts. Agreements.

Lawsuits are tedious, costly and can damage a small business beyond repair. This is why it is worth the time to negotiate contracts through the proper procedures. A competent intellectual property lawyer or business attorney can help you navigate through contracts to ensure that they are skillfully drafted and executed. As an online business owner, it is likely you will have multiple contracts and here are some key reasons why you should have an attorney review them before you sign on the dotted line:

  • Negotiations: Many online business owners tend to simply sign off on an agreement with another party such as a vendor, assuming that there is no room for negotiations to sweeten the deal on their part. Sometimes it is possible to compromise which is why it is a good idea to do a contract review with your attorney.  Your attorney will translate the legal terms and find places where you can negotiate in your favor.
  • Predicting the Future: An eCommerce attorney can review the terms of the contract and identify what terms may cause you difficulty in the future.  By using an eCommerce attorney for contract review, you can avoid a potentially litigious situation down the road and save legal costs in the process.  It will also buy you time to think about the terms with your attorney and discuss potential problems.
  • The Fine Details: Many contractual agreements end in discord because the terms of the contract are too ambiguous. Having your attorney do a contract review will help you to place every detail in writing including specifications like time, dates, and the detailed responsibilities of each party in the agreement.
  • Illegal Terms: During a contract review, your eCommerce attorney can easily identify any terms of the contract that are in conflict with the law.

Until next time, I’m Attorney Francine Ward helping you protect what’s yours. Join my conversation on FacebookTwitter, or in one of my LinkedIn groupsGoogle+ Circles. Feel free to subscribe to my newsletter.

Contracts. Doing Business.

Share

Common Mistakes.

contract imageContracts and agreements are an important part of doing business. One common mistake small business owners and business entrepreneurs make is to sign agreements (or any document), without first reading it carefully. The second big mistake is, even if they read the contract, often times they don’t understand what they’ve read, YET, still sign it. Is that crazy! Signing  something that you are liable for, without knowing exactly what you are liable for? With just one click of a mouse, you can sign away your valuable intellectual property rights and never even know you did it.

Another mistake often made is using contract templates without having a competent lawyer review them. It’s easy to download a contract from the Internet or “cut and paste” an agreement together without understanding the legal implications of your seemingly simple act. It’s harder to clean up the mess after you’ve done it! Investing in a competent legal expert to review your agreement and explain what it means is well worth the money you pay. Making sure your contract protects you in the way you think it does is essential. Make no mistake about it, I understand why this sometimes happens.  Lawyers are expensive and it is easier to just download a document from the Internet or use contracts and agreements that your friends have used. The problem with that flawed thinking is that not all contracts and agreements are created equal, and things are not always as they appear.

Lastly another mistake is using old and outdated agreements, year, after year, after year. Like software and computers, contracts become outdated and unenforceable. As the law changes, so does the need for a new, updated, and customized agreement. Consider a yearly IP checkup, just as you would your annual physical checkup.