How to Make an Enforceable Contract – Guest Post

Guest Post by CoWork Springfield Member, Denise Presley, Attorney

Fair AND Enforceable

I’ve been a commercial arbitrator for 15 years. Simply put, my job is to hear both sides of a dispute between two parties to a contract and decide which side wins. Sadly, I often have to rule in favor of the party who behaved badly because they had the law on their side.  The purpose of this article is to help you understand how to ensure that any contracts you sign are not only fair, but enforceable under the law.

 

Let’s start with the basic elements of an enforceable contract.

  1. The parties must be competent and have the capacity to make a contract.
  2. The parties must be named, and they must all sign the contract.
  3. The terms of the contract must be clear. In other words, what are the parties promising to do for each other, and by what date?
  4. Is there legal “consideration”? You’d be surprised how many contracts are ruled invalid because they lack adequate consideration (usually $) to prove that the parties intended to bind themselves to perform per the terms of the contract. More on that later.
  5. Some contracts must be in writing.

 

Who’s competent and has the capacity to contract?

In Massachusetts, you must be 18, you must be of sound mind and capable of understanding and agreeing the terms of the contract. In other words, it’ll be tough to enforce a contract made by a 15 yr old … or a person that’s too sick to actually bargain for the terms in the contract.

The latter is important. There are certain contractual provisions that under the law are against public policy. For example, our Supreme Judicial Court has ruled that contracts that name a state other than Massachusetts as the place where lawsuits must be filed will be against public policy if having to take the dispute to another  state would be unreasonable or unjust.  So let’s say you sign a two year maintenance agreement to have your high speed printer/copier serviced for $79/ month, but the contract says all disputes under the agreement shall be heard by a court of competent jurisdiction in North Dakota. You can likely challenge an action on the basis of forum non conveniens, but call a lawyer immediately so s(he) can file an answer the complaint in such a way that protects your rights.

 

Naming the Parties to the Contract

Include the name, state of incorporation (if applicable), and the mailing address of the parties to the contract. Generally, only the parties named and signing the contract can be bound. If your business is incorporated, a limited liability company, or a limited partnership ALWAYS sign in the name of the entity, i.e., THE ABC GROUP, a Massachusetts corporation, By Its President, Mary Jones. This way, the debt belongs to the corporation- not you personally.  Some companies will ask the officer of a corporation to personally guarantee the debt. Actually, the better your credit history is, the more likely you can avoid providing a personal guarantee. You might also try to offer prepayment of the 1st year, which is plenty of security.

BTW, never contract to perform work that you are not legally allowed to do. I’ve been disappointed by having to rule in favor of a party that avoids paying a contractor because s(he) was not licensed to perform the work. But it happens all the time. In those cases, the only thing the contractor can recover is the cost of any goods and services provided. Happily, the law doesn’t allow the other party to be unjustly enriched.

 

Contract Terms

At a minimum, the contract must clearly set forth the names of the parties, what each party is agreeing to do, and by when. However, the level of detail depends on the complexity of the contract i.e., what’s reasonable and customary in a particular industry.  John Doe agrees to pay Landlord Holyoke, Inc., $500/ month, payable in US dollars on the first day of the month to rent office number 110a for a term of one year. Once both parties sign the written agreement, they have an enforceable contract. But few office leases are that simple. Forty five page documents governing the details of the relationship are not unusual. Before you sign the contract, always read each provision, think about what can go wrong, and agree on how the parties will handle problems- in writing.

 

Consideration

In short, Consideration is the inducement for the parties to enter into the contract and evidences their agreement to incur a legal obligation to one another. For example, Sally Davis agrees to pay Charles Barker to replace the tile in her 80 sq ft kitchen, labor and materials included for $1,600. Here, the consideration is $1,600 in exchange for the replacing tile. Once Mr. Barker replaces 80sf of tile in Ms. Davis’ kitchen, she has a legal obligation to pay him $1,600.  Obviously, there’s a few details missing (i.e., the actual size of the kitchen, what kind of materials, start/finish dates) but this is only an example of consideration. When a contract lacks ‘consideration’ the contract will not be enforced.

Also, the parties must agree that the consideration is adequate. Normally, the contract will contain words like: “$1,600, the adequacy of which is acceptable’ … or, ‘the parties agree the consideration will be $1,600”. Moral consideration is not adequate. For example, while installing the tile Mr. Barker noticed a minor leak in Ms. Davis’ kitchen and fixed it. Morally, most people would think Ms. Davis would be required to pay him more money. After all, if he had stopped and called a plumber to fix the leak she would have paid hundreds more. But he’s only entitled to $1,600 unless he can show that Ms. Davis was unjustly enriched by his efforts and he couldn’t have delivered on his promise to install the tile properly without fixing the leak.

 

The Statute of Frauds

Oral contracts are valid, but they can be hard to enforce. It’s always better to put contracts in writing to ensure there’s no misunderstanding between the parties. In fact, in Massachusetts, some contracts must be in writing. They include (i) contracts to sell goods and services in excess of $500, (ii) a promise to pay the debts of another, (iii) a promise to do something based on a promise of marriage, (iv) agreements to sell-lease-license real estate, (v) contracts that involve performance that won’t be completed for more than a year, or (vi) getting an executor- administrator- or assignee to pay for a breach of contract out of his or her own pocket. I’ve had arbitrations where there was a clear breach by a party who said ‘yeah, I breached, so what’. If you breach a contract, the first thing your lawyer will do is ensure that it’s even enforceable.

 

Five Simple Rules:

Contract law is complicated, but you can save yourself a lot of grief if you remember this:
  1. If you’re handed a contract that has writing on the front and back … read the back. That’s where the risky provisions are. [These are called ‘adhesion contracts’.]
  2. Never sign a contract without knowing what it’ll cost if you can’t honor it (breach or default).
  3. The non-breaching party has a duty to mitigate his/her damages. In other words, s(he) has to try to find someone to take on your responsibilities. The contract must contain this provision.
  4. If there’s a mandatory arbitration clause, agree on who pays the costs. You might have a great case, but if you can’t afford to file a claim, you’re SOL.
  5. Can you assign the contract and what’s involved in doing so? Let’s say you’re a sole proprietor and you get sick, but a friend or relative is willing to take over the business. Can you assign the contract?
Okay, 6 rules … know who you’re doing business with. Check with the Better Business Bureau for complaints, local court filings, Yelp and any other sites that might give you a sense of who you’re dealing with.

If you’d like help with your own contracts, you can reach Denise here.

 

 

Insights from a Customer Service Agent

5 Things I learned about working in Customer Service at a Grocery Store

Working in customer service is no easy task, and making sure the customers always leave happy is much harder. When I started as a customer service representative 3 years ago, I was told to just smile and be polite and everything should pan out with every customer. But that’s not always the case. Here are the 5 things I learned from working customer service at my local grocery store.

1. Know your Company’s Policies:

You should never go into customer service expecting to just wing it. Every company, no matter what it is, has its sets of policies to abide by. Those policies help keep the company’s mission, vision and values while still aiming towards satisfying its customers. Not all policies are strict rules, some policies help guide us on how to leave the customer feeling like they were treated fairly even though they may not leave happy.

2. Be prepared for Anything:

When you realize that every day will be different, your day will go smoothly. As I said earlier, working customer service is no simple task. You will deal with different people with many different personalities. Over the years I’ve had some of the nicest customers but then there are those who will yell at you because they are not getting what they want. I’m certain that not all customer service jobs will have the same types of encounters but it is always best to keep an open mind and be prepared for just about anything. Always remember that you are there to serve the customer!

3. Ask For Clarification:

Most people come to customer service knowing what the problem was and knowing what they want to gain from the call or visit to the customer service desk. You can’t always assume that you know the best way to take care of a customer because every customer has different needs and ways to ask for what they need. Sometimes asking questions is the best way to go but sometimes asking too many questions may irritate an already upset customer. So, just get a feel for what the customer wants and try to take care of the issue while still following your stores policies and procedures.

4. Be clear with the Customer:

Not only is asking for clarification from the customer important but also being clear with them is an essential part of customer service. It is always a good idea to repeat the problem back to the customer. That way the customers feel like they are being heard and you know exactly what you are dealing with in order to take the necessary steps to solve the issue. Another thing to remember is that you do not want to leave the customer wondering about what is going on. Keeping the customer informed through the process improves the overall customer experience.

5. Know when to Apologize:

It’s important to understand we are representing the company, what it stands for, and that customer satisfaction is the goal. When I first started working customer service, I took every problem that the customers had as a personal issue. I would get irritated whenever a customer came to me upset about a certain issue because that often meant that I had to apologize to the customer for any inconvenience that they may have experienced. The customer’s anger may not necessarily be caused by us but it is our job to deescalate the situation and help to the best of our ability.  An apology may not entirely solve the issue but it will give the customer a sense that they are being understood and that you will try your best to help.

Final Thoughts

Over the years of working in customer service, I have learned many concepts that can be applied to my personal life. Not only have I gained some insight on effectively dealing with the public but also how to interact, communicate and deal with all sorts of people outside of work including those closest to me.

3 Things To Know When Buying a Used Smartphone, Guest Post

Guest Post by Frank Tate of PHYX iPhone Repair. Frank repairs and sells iPhones and Androids and is a wiz at fixing broken screens!

 

3 Things To Know When Buying a Used Smartphone

Our electronic internet devices are seemingly indispensable. They’ve become everyday tools that hold a similar value to that of cars and other modern utilities. The basic concept when buying a mobile device is similar to that of buying a car: you need to get a task done, and you need a good and working machine to do it. But you need to acquire this machine in the most financially responsible way. The same economic ideas apply in purchasing a new device: it will immediately depreciate after first opening/use, the unit will eventually need repairs and some upkeep, and the unit will eventually (and sooner than your average car) be obsolete. Based on these three concepts, it’s strategically better to buy a good used mobile device.

Do Your Homework

The used device business is a multi billion dollar industry, and is super popular around the world. In America, there’s a stigma attached to used electronics. This is not only because of our throwaway culture, but also because many people aren’t educated about the benefits of actually buying used. Since a phone or tablet is simply just a tool, consumers need to find appropriate tools that will enable them to accomplish what they need to do. That means going to a *reputable reseller* and picking out something that’s in good working condition and has no underlying issues that will affect the future usage of said device.

This is where the hard part begins, as you have to make sure your purchase is solid. The one advantage of buying new from a major retailer is that there is no question about the functionality or integrity of device, as it is fresh out of the box. Some people enjoy the feeling of buying new things, but it’s not the smartest choice.

Don’t Pay MRSP

A new iPhone 6s from the Apple Store or from any major carrier might cost about $600-$650 plus tax if you were to pay in full (and the majority of people don’t/can’t pay the MSRP upfront). Buying the same unit in a similar like-new condition might run about $400-450. That’s an instant savings of $200, and there are no taxes. You have the same device, you support local business, the unit is unlocked for any carrier, and you own the device. And there is no need to worry about financing options.

My advice is never pay MSRP for a device. You will always lose on that deal. And with the financing option, you’re locked in to paying unnecessarily high priced service plans for 24 months, plus the cost of the device with interest. Payment plans on a device — which is essentially a utility — is just about the worst financial decision you can make. After fees, insurance, taxes, interest, etc, you obviously end up paying a lot more than the value of the device. And by the time you actually own the phone, it’s not even current anymore. Even with these facts, millions of people subscribe to this option. Fundamentally, the idea behind all of this is to always buy a used device that you can afford upfront.

Choose The Carrier That’s Best for You

Major carrier rates are skyrocketing. When you elect to purchase a used device, you give power to yourself. You can decide your carrier, you can pay as you go, decide your plan, and basically do whatever you like with the device. And since you have already put equity into it, that equity is still yours, and therefore, you can sell the device for its current market value if you so choose. None of this can be done with a phone that’s being financed by a bank. Just like a car. Why? Because technically the phone isn’t yours. You are making payments and you are locked in to what your contract says. Read your contract.

Just remember to make the best financial decision for yourself. Is your current device able to do everything that you are asking it to do? If not, perhaps it’s time for an upgrade. If your device is functional or if you simply want to move up, the upgrade needs to be paid for in full, whether it’s a tablet, camera, phone, or any other similar consumer electronic device.

 

 

5 Ways To Set and Achieve Your Goals

Setting, and achieving goals is a big part of your business. Without goals you’re left to wander about constantly wondering if what you’re doing is working. Here are five ways to successfully reach the goals you set for your business.

 

GET REAL WITH YOURSELF

Have a little heart-to-heart with yourself, or a trusted business advisor. Spend some time thinking about what you’ve accomplished over the last year. What went right? What did you think you’d achieve, but didn’t? Be honest about why some goals didn’t happen. Were you trying to take on too much or did your business change in some way? The key here is to be mindful about what worked and what didn’t.

Now that you’ve spent time thinking about the successes (and failures) of last year, you can be more clear about your goals for the upcoming year. This isn’t to say you’re going to set easier goals. It just means that you’re being more mindful about the direction your business is heading.

PRO TIP:  Include at least one goal that would be a total stretch, but would be absolutely amazing if you achieved it.

 

WRITE IT DOWN

We’re sure you’ve heard this one before, but you’re going to hear it again. There’ve been studies done about goal setting. Consistently, we see when people write down their goals they are 70% more likely to achieve them.

The best place to start is to brainstorm. Take a big piece of paper and start writing down all the things you want to accomplish by the end of the year. Once you have this random collection of intentions, start breaking them down into categories.

 

CATEGORIES

If you haven’t heard of the book The One Thing by Gary Keller and Jay Papasan, you should check it out. There are so many great lessons about achieving goals in the book.  One of the points that made an impact on me, is to choose ONE THING each day that will get you closer to what you want in your life.

Essentially, create categories for each of the things you want to accomplish. And not just for business either. Maybe one of your goals is to have a better relationship with your spouse. The advice from the book suggests that you choose just one thing each day that will support that desire. It doesn’t have to be sweeping gesture. Just one thing, like sending a text letting him or her know how much you appreciate them.

Creating categories for your goals can help you to prioritize what is most important. It can also be a way to see if you’re trying to take on too much. Here are some examples of categories for your business: blogging, client work, speaking, people you want to meet, financial goals, books you want to read. You get the idea.

 

BREAK IT DOWN

Now that you have your categories you can organize your goals. I like to color code mine on big post-it notes, but you might prefer a spreadsheet. Use whatever method works best for you. Take a look at each of your goals. Can you break them down into actionable steps? Maybe you have a goal of incorporating content marketing over the next 12 months. That’s pretty broad and it would also be difficult to measure. Instead, create specific steps to make your goal easier to reach.

Goal: Incorporate Content Marketing

–  Post one article to Facebook every day

–  Share content from other sources twice per week

–  Create exclusive content once per week

Now apply the concept of One Thing. You can find one thing each day to work toward each of your goals. This makes it much less overwhelming.

 

ACCOUNTABILITY

Without accountability, most of us fail. It’s so much easier to brush off tasks and goals when there is no one to hold us responsible. If you work alone, this can be a little more challenging, but chances are you know at least one other person who works alone too.

Find someone you respect and ask him or her to be your accountability buddy. Check in with each other once a week and state what you’re working on and what you plan to accomplish. If you’re a little more competitive, you can make a game out of it by seeing who got more done on their to-do list. A good reward is lunch for the winner.

You could also form a mastermind group where you meet other business owners once a month to talk about goals. This can be especially helpful if you work alone.

 

FINAL THOUGHTS

Whether you’re the CEO of a 500 person company or you’re an empire of one, the success of your business depends upon your ability to set and achieve goals. Find the method that works best for you and your business, and then hold yourself accountable.

 

 

Two Must-Have Areas of Excellence for Budding Entrepreneurs

Back to Basics:  Two Must-Have Areas of Excellence for Budding Entrepreneurs

By Guest Author, La’Wana Harris

 

The world of entrepreneurship is one of constant change, risk and opportunity. We brave the tides of customer trends, innovation and market place conditions— and we love it. However, the opportunity to succeed as an entrepreneur doesn’t come easy. There are conditions that apply to small, emerging businesses that don’t apply to other sectors in the business world. There are a few “musts” that entrepreneurs are required to practice to stay float amongst the odds.

 

Let’s review a familiar scenario. You’re on the phone with a specialist who doesn’t know what they are doing. After being transferred multiple times you finally request the manager. You’re excited to resolve your issue when the manager says, “I’m sorry, I need to transfer you to the department that handles these requests.” We’ve all been there.

 

As entrepreneurs, most of our customer interactions are first impressions for our brand. We don’t have the luxury of having a preceding reputation that can withstand an interaction like the one described above. We must deliver every time we have the chance. Here are two ways to ensure that you always deliver excellence.

 

1. Whatever you do, do it well

This is Business 101 right?  It should be. Yet many entrepreneurs on their quest for the “next big thing” fall into the trap of pursuing speed to market and low cost instead of value.  You don’t have to be an expert in everything—just the thing that you are doing.

 

As entrepreneurs, we must ensure that everyone who represents or supports our brand is well trained and fully competent.  No doubt all organizations strive for the same result, but we don’t have to look far to see that many are failing miserably.  In an environment where excellence in execution and delivery is often the exception, we as entrepreneurs can establish a competitive advantage by simply taking the time to ensure that our brand is associated with knowledgeable, competent professionals.

 

Excellence begins with you.  You are leading from the front as an entrepreneur and this requires a commitment to two key competencies: self-awareness and self- development.

 

Self-awareness:  There are really good options available to learn about yourself and how you “show up.”  It really doesn’t matter if you choose a tried and true tool like Meyers-Briggs or one of the more recent assessments like Insights.  The impact is the same.  You get to learn about yourself, your preferences and most importantly your potential blind spots.

 

The insights you gain about yourself and your preferences allow you to improve your ability to adapt and connect with others.  You will also acquire valuable feedback that will help you flex your communication style resulting in improved interpersonal skills.  Finally, the application of the key insights and enhanced interpersonal skills will lead to strong relationships with your employees and customers.

 

Self-development: Staying abreast of industry changes, market trends and the latest technological advances seems almost impossible in the current era of information overload.  However, we can overcome this seemingly impossible task by adopting a few simple best practices.  Our credibility and impact will soar as we dedicate time for ongoing training and development.

 

As entrepreneurs we are accustomed to operating in “get it done” mode.  This natural propensity fuels our success as a business owner and it can also hinder our ability to slow down.  One best practice that works well for me is my commitment to the “Sacred 20.”  Block 20 minutes on your calendar everyday to learn and grow your capabilities.  You may review something that you have done in the past to refresh your knowledge or explore something totally new.  Either way it will be time well spent!

 

2. Excellence in customer service must be resurrected

How many times a day to you find yourself interacting with people who appear to be stuck in jobs that they hate?  There seems to be a secret training class on how to not deliver good customer service based on the high number of customers who report being surprised when they receive good service.

 

In fact, there’s a whole litany of sidesplitting examples of poor customer service. Many of which have contributed to some of the most famous satire.  Real life experiences with inept employees or business owners are usually not funny at all and result in loss customers.

 

We also have an amplifying factor in the importance of resurrecting customer service.  Social media outlets have given customers an immediate platform for voicing their opinions—and the world is listening.  Many businesses have found themselves in crisis mode following a bad review going viral.

 

Who could ever forget the scene in Pretty Woman when Vivian (Julia Roberts) strolled into a posh Rodeo Drive boutique in search for some “appropriate” attire?  Vivian points to an outfit on the mannequin and asks, “How much is this?” The sales woman replies, “I don’t think this would fit you.” “Well,” Vivian says, “I didn’t ask if it would fit. I asked how much it was.”

 

The clerk even went as far as saying, “I don’t think we have anything for you.  You’re obviously in the wrong place.”  The looks Vivian received as she asked about the cost of the outfit coupled with the condescending tone in the store clerk’s response resulted in the loss of a huge sale.  This spelled bad news for the boutique’s bottom line.

 

Vivian’s story, while fictional, is not a far stretch from many real-life customer experiences. The good news is that entrepreneurs can set the stage for resurrecting customer service within our respective industries.  Cloud Cherry shared some great tips to help you along the path to excellence in their  “Top 11 customer experience resolutions you need to make for 2017” infographic.

 

There are many more keys to success as an entrepreneur.  Focusing the fundamentals such as doing what you do extremely well and establishing a service culture will help you develop a sustainable competitive advantage in the increasing demanding entrepreneurial marketplace.

 

To learn more about La’Wana, visit lawanaharris.com