The BUSKLAW Newsletter

Organizers of the Embedded GR IT group invited me to attend their next meeting to discuss the legal aspects of folks working as independent contractors on IT engagements. Although my experience in this field has been on the "other side of the table" (i.e., representing businesses hiring these contractors), I do have some thoughts on what contractors should - from a legal view - NOT agree to.  Embedded GR is a group of engineers, hobbyists, students, and managers in the Grand Rapids, MI area. They discuss the development, tooling, and processes associated with the creation of embedded systems. I appreciate the opportunity to share my legal expertise with this group. Much of what I say will apply to all contractors working on projects for employers, regardless of whether their work relates to embedded systems. So if you are a contractor (doing work of any sort), you may want to attend to get my take on what you should avoid (or at least push back on) when signi...

Most of you are business professionals and thus are involved with contracts. Depending on the nature of your enterprise, you have various contracts in force, for example:  >sales agreements >purchase agreements >real estate leases >purchase order terms and conditions >software license and maintenance agreements >service agreements >equipment maintenance agreements >consulting agreements >contractor agreements >employment agreements >non-disclosure agreements >non-compete agreements >transportation or logistics agreements >financial institution agreements Perhaps you work with these documents on a regular basis and are familiar with their content. Or you pay a high-priced law firm to do that for you. More commonly, however, you keep these documents in a file cabinet, rarely review them, and only call your expensive big-firm lawyer when there are problems with the transaction. Whatever the case, consider the ...

In my October post , we talked about the peril of a buyer ignoring the seller's "terms and conditions" in a sale of defective blueberries from Michigan growers. I suggested that the buyer could have prepared a "sales acknowledgment" to send to the seller along with the signed offer acceptance. This approach could have negated the seller's terms and conditions that contained numerous risk-shifting provisions skewing the deal in seller's favor. These provisions included restrictions that limited buyer's remedies if seller breached (which happened), mandatory jurisdiction and venue in seller's home town, and the requirement that the losing party in any court dispute pay the winning party's actual attorney fees, a provision that resulted in the buyer's payment of big bucks to the seller's lawyers.    Lawyers have an ominous name for this scenario: the "battle of the forms."  Generally, this battle occurs when contracting pa...

( Author's Note: This post was first published in the 9/26/2016 edition of the Grand Rapids Business Journal  available here . But I've reproduced it for the sake of maintaining my newsletter's continuity and in case the link ever becomes unavailable. Also, the GRBJ didn't publish the neat wolfman graphic!) _______________________________ We all know that various beasties lurk about in October, the month of Halloween (Busklaw HQ is appropriately decorated), but beastly provisions can also lurk in contracts, ready to cause misery to the unwary. This is exactly what happened to a Massachusetts food distributor, Siegel Egg Company,  in a contract for the purchase of frozen blueberries from Naturipe Foods , the marketing arm of the Michigan Blueberry Growers, in a Kent County Circuit Court case (Naturipe Foods LLC v Siegel Egg Company, Inc).  In 2011, Naturipe submitted a written offer to sell a large quantity of frozen blueberries to Siegel in multiple shipment...

Forming (or not forming) a contract in the digital age can be a tricky business. Millennials in particular are more accustomed to negotiating deals not by exchanging offers, counteroffers, and acceptances as email attachments requiring signatures, but by emails, text messages, and social media exchanges. And each of these channels can easily include emojis :  those funny little pictographs that are fast becoming ubiquitous in our digital lives.   But this casual approach can lead to confusion in contract negotiations. Before we discuss how, let's review basic legal principles of forming a contract under Michigan (and many other jurisdictions') law:  Verbal Contracts . Verbal contracts are generally enforceable if their subject matter isn't real estate, or goods priced at $1,000 or more. (Note to my IT clients: software programs are not "goods," so beware informal statements that can be construed to form a license agreement.) But there are problems of provin...

In my experience, business professionals devote most of their energy in forming a new service agreement to the up-front stuff: the who, what, where, when, and why of deal. And the lawyers on both sides are prone to do the same, except for including typical term and termination for cause provisions. No one is particularly concerned with unwinding the business relationship after the contract terminates. This can result in frenzied activity and extra cost when either party finds loose business ends that the contract doesn't address, resulting in a poor transition to either a new service provider or to the customer if the customer decides to perform the services with its own personnel. So almost any service contract - technology or otherwise - can benefit from a carefully-worded transition - or disentanglement - provision. The content of a disentanglement provision depends on the facts of each deal, including the nature of the services, but here are the points usually covered: ...

A non-disparagement clause in a commercial contract discourages one party from saying bad things (whether or not true) about the other party. The clause is  common in litigation settlement agreements and employee termination agreements. In the latter, the purpose of a non-disparagement clause is to prevent the former employee from criticizing their former employer after the discontinuation of employment. In a litigation settlement agreement, this clause is included so that new customers (or vendors) won't be discouraged from doing business with the settling parties.  As a general rule, a non-disparagement provision in a non-consumer contract is valid and enforceable. But damages resulting from their breach may be difficult to prove, because what is your reputation worth before compared to after the provision has been breached? You would likely be forced to hire expert witnesses to testify about reputational damage substantiated by customer or social media surveys; in...