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Will You Add? - CONTRACTS THAT WORK! Representations, Warranties and Remedies
RSS and Atom files provide news updates from a website in a simple form for your computer. You read these files in a program called an aggregator, which collects news from various websites and provides it to you in a simple form.RSS feeds are typically used with news sites or blogs, although any website can use them to disseminate information. When an update is sent out, it includes a headline and a small amount of text, either a summary or the lead-in to the larger story.When you come across a website you would like to add to your aggregator, you can do so in one of two ways. Most sites that offer an RSS feed have an “RSS” or “XML” button on their homepage that you can click on and it will instantly add that feed to your aggregator. Depending on your aggregator, you may instead need to copy and paste the URL of the feed into the program.The terms of use?The RSS feeds are provided free of char
Or
➢ “Vendor warrants that the product will perform substantially in compliance with Vendor's published documentation for 120 days after delivery.”
This sentence has its own challenges. What does “substantially in compliance” mean? Does vendor have the right to change the performance standards by changing the documentation? These are questions for another time. For the moment, the question of interest is: “What happens if the product does not work?”
If the contract contains just this one sentence, and assuming there is no dispute that the product is defective, you have two options: Terminate the agreement and start over or live with the defective product.
REMEDIES
General contract law provides a standard set of remedies for contract disputes. These remedies are available if the contract itself does not provide an
Small business loans are available from a variety of sources. There are banks, savings and loans and lending companies in the private sector that make loans to small businesses. There are also some public entities that are involved in financing for small businesses. One such source is the Small Business Administration (SBA). The SBA is an independent federal agency that assists small businesses in various areas. One area of assistance is financial and as such it is a source of loan funds for small businesses. There are three different SBA loan programs geared toward different kinds of small businesses. Each functions in a different way but each provides a means of financial assistance for small businesses.The first program is the SBA's Business Loan program. SBA has various partners is the community known as Lenders, Community Development Organizations, and Microlending Organizations. The SBA defines the pa
REPRESENTATIONS
In legal-speak, a representation is a statement made to induce reliance or action: “Buy the new Acme carburetor because it will deliver 100 miles per gallon of water.” If the carburetor does not live up to that statement – to that representation – you have the right to return it and get your money back.
In the consumer world, the principal is straight forward. If a product does not “work,” you are free to return it for a replacement or a refund. The analysis becomes more complicated in the commercial world:
➢ Consumer protection laws generally do not apply;
➢ The terms of the contract may exclude consideration of any representations not set forth in the written document;
➢ Defining the meaning of “does not work” can be problematic;
➢ Determining which representations were “material” - which ones were relied upon when deciding to enter into the transaction – can be difficult;
➢ Even if the parties agree on, or the contract defines, the meaning of “work” or “does not work,” a question remains: Is the perceived defect “material?” Is it sufficient to set aside the contract?
Consider:
Assume the carburetor delivers only 90 miles per gallon, rather than 100. Is that a material defect? Did you decide to switch to the Acme carburetor because you wanted 100 mpg or because you believed running your car on water would cost less and cause less pollution than using gasoline?
➢ If you did expect 100 mpg, can you prove that claim was central to your decision?
➢ If your decision was based on what you regarded as the advantages of water over gasoline, would you have a claim if the carburetor actually used 100 gallons per mile?
➢ What if the carburetor only delivers the promised mileage when used with a little known and very expensive brand of imported water?
If the deal blows up, your attorney is sure to ask, or at least mutter: “If you wanted 100 mpg of tap water, why didn't you put that in writing?”
WARRANTIES
A warranty is generally a promise that the product or service will meet certain standards or do certain things, or the vendor will do something about it. Again the concept is familiar in the consumer world: “Try the Acme home nuclear reactor for thirty days. If you are not completely satisfied, return it for a full refund.” In the consumer world, such a solution is clean and simple, but it may not work in the commercial world:
➢ What if your company needs a reliable source of energy more than it needs the cash back?
➢ Will a simple cash refund make your company whole for the time lost testing, installing and then removing the Acme product?
➢ Who will bear the losses you will bear as the result of starting your search over?
➢ What if the Acme reactor does everything Acme promised, but you cannot connect it safely to your outdated infrastructure?
➢ What if the final product costs 10% more than Acme promised, and delivers only 75% of the energy you expected?
To further complicate matters, not all warranties are made the same:
➢ “Vendor warrants that it is duly organized and recognized in accordance with law and possesses all necessary and requisite legal and corporate authority necessary to enter into this agreement.”
While that sentence sounds impressive, it is short on substance. If vendor is not a legitimately organized business, or does not have the proper authority, you could be confronted with significant difficulties, and this sentence provides no meaningful tools to resolve them.
Or
➢ “Vendor warrants that the product will perform substantially in compliance with Vendor's published documentation for 120 days after delivery.”
This sentence has its own challenges. What does “substantially in compliance” mean? Does vendor have the right to change the performance standards by changing the documentation? These are questions for another time. For the moment, the question of interest is: “What happens if the product does not work?”
If the contract contains just this one sentence, and assuming there is no dispute that the product is defective, you have two options: Terminate the agreement and start over or live with the defective product.
REMEDIES
General contract law provides a standard set of remedies for contract disputes. These remedies are available if the contract itself does not provide any
One day, while Chicken Little was walking in the woods, an acorn fell and hit him on his head."Goodness gracious me!" said Chicken Little, "The sky is falling, the sky is falling. I must go warn everyone."We see this all the time. The stock market goes straight up for eight or nine months, and if there are 2 or 3 down days in a row, there is hand-wringing and the moaning all over the place.Who are these people that panic at the first sign of a downturn or with the slightest bit of profit taking?The first group are people who get in the near the top and are now worried that their small losses will turn into big losses. Also, people who haven't invested in the stock market are in this same box. For many, many years they were wrong to not have invested, but now that the market has declined very slightly for a few days they would like the point out how smart they are and how dumb everyone else is
➢ The terms of the contract may exclude consideration of any representations not set forth in the written document;
➢ Defining the meaning of “does not work” can be problematic;
➢ Determining which representations were “material” - which ones were relied upon when deciding to enter into the transaction – can be difficult;
➢ Even if the parties agree on, or the contract defines, the meaning of “work” or “does not work,” a question remains: Is the perceived defect “material?” Is it sufficient to set aside the contract?
Consider:
Assume the carburetor delivers only 90 miles per gallon, rather than 100. Is that a material defect? Did you decide to switch to the Acme carburetor because you wanted 100 mpg or because you believed running your car on water would cost less and cause less pollution than using gasoline?
➢ If you did expect 100 mpg, can you prove that claim was central to your decision?
➢ If your decision was based on what you regarded as the advantages of water over gasoline, would you have a claim if the carburetor actually used 100 gallons per mile?
➢ What if the carburetor only delivers the promised mileage when used with a little known and very expensive brand of imported water?
If the deal blows up, your attorney is sure to ask, or at least mutter: “If you wanted 100 mpg of tap water, why didn't you put that in writing?”
WARRANTIES
A warranty is generally a promise that the product or service will meet certain standards or do certain things, or the vendor will do something about it. Again the concept is familiar in the consumer world: “Try the Acme home nuclear reactor for thirty days. If you are not completely satisfied, return it for a full refund.” In the consumer world, such a solution is clean and simple, but it may not work in the commercial world:
➢ What if your company needs a reliable source of energy more than it needs the cash back?
➢ Will a simple cash refund make your company whole for the time lost testing, installing and then removing the Acme product?
➢ Who will bear the losses you will bear as the result of starting your search over?
➢ What if the Acme reactor does everything Acme promised, but you cannot connect it safely to your outdated infrastructure?
➢ What if the final product costs 10% more than Acme promised, and delivers only 75% of the energy you expected?
To further complicate matters, not all warranties are made the same:
➢ “Vendor warrants that it is duly organized and recognized in accordance with law and possesses all necessary and requisite legal and corporate authority necessary to enter into this agreement.”
While that sentence sounds impressive, it is short on substance. If vendor is not a legitimately organized business, or does not have the proper authority, you could be confronted with significant difficulties, and this sentence provides no meaningful tools to resolve them.
Or
➢ “Vendor warrants that the product will perform substantially in compliance with Vendor's published documentation for 120 days after delivery.”
This sentence has its own challenges. What does “substantially in compliance” mean? Does vendor have the right to change the performance standards by changing the documentation? These are questions for another time. For the moment, the question of interest is: “What happens if the product does not work?”
If the contract contains just this one sentence, and assuming there is no dispute that the product is defective, you have two options: Terminate the agreement and start over or live with the defective product.
REMEDIES
General contract law provides a standard set of remedies for contract disputes. These remedies are available if the contract itself does not provide an
Is owning an eBay store is worth the expense? I personally think any serious eBay seller must have an eBay store and in this article I will try to explain the benefits of owning an eBay store.1. Owning an eBay store gives you your own unique URL to promote.Having your own link to promote means you can promote your eBay store from your auctions, about me page, email signatures, forum signatures, blogs, articles, eBooks, newsletters etc etc.2. You look more professional.If you look like a professional seller you will sell more. Obviously a lot of factors count to looking professional such as excellent feedback but having an eBay store adds to the professional look. Also, a fully stocked eBay store gives you a professional look and with eBooks this is easily achieved at low cost.3. You can sell multiple store items for a few cents per month.That's right, you can list an eBook with a
➢ If your decision was based on what you regarded as the advantages of water over gasoline, would you have a claim if the carburetor actually used 100 gallons per mile?
➢ What if the carburetor only delivers the promised mileage when used with a little known and very expensive brand of imported water?
If the deal blows up, your attorney is sure to ask, or at least mutter: “If you wanted 100 mpg of tap water, why didn't you put that in writing?”
WARRANTIES
A warranty is generally a promise that the product or service will meet certain standards or do certain things, or the vendor will do something about it. Again the concept is familiar in the consumer world: “Try the Acme home nuclear reactor for thirty days. If you are not completely satisfied, return it for a full refund.” In the consumer world, such a solution is clean and simple, but it may not work in the commercial world:
➢ What if your company needs a reliable source of energy more than it needs the cash back?
➢ Will a simple cash refund make your company whole for the time lost testing, installing and then removing the Acme product?
➢ Who will bear the losses you will bear as the result of starting your search over?
➢ What if the Acme reactor does everything Acme promised, but you cannot connect it safely to your outdated infrastructure?
➢ What if the final product costs 10% more than Acme promised, and delivers only 75% of the energy you expected?
To further complicate matters, not all warranties are made the same:
➢ “Vendor warrants that it is duly organized and recognized in accordance with law and possesses all necessary and requisite legal and corporate authority necessary to enter into this agreement.”
While that sentence sounds impressive, it is short on substance. If vendor is not a legitimately organized business, or does not have the proper authority, you could be confronted with significant difficulties, and this sentence provides no meaningful tools to resolve them.
Or
➢ “Vendor warrants that the product will perform substantially in compliance with Vendor's published documentation for 120 days after delivery.”
This sentence has its own challenges. What does “substantially in compliance” mean? Does vendor have the right to change the performance standards by changing the documentation? These are questions for another time. For the moment, the question of interest is: “What happens if the product does not work?”
If the contract contains just this one sentence, and assuming there is no dispute that the product is defective, you have two options: Terminate the agreement and start over or live with the defective product.
REMEDIES
General contract law provides a standard set of remedies for contract disputes. These remedies are available if the contract itself does not provide an
When viewers associate a name, slogan or a design with a product/ service, it marks the formation of a brand. The degree of brand recognition being induced by such name/ mark henceforth determines the popularity of a brand. However, the transformation of a name/ mark to a brand takes time. Brand recognition is a process that is not built overnight. It is created with continued use of such products or services along with advertising and media promotions. A brand is a recognizable symbol that relates to a particular product/ service and creates a certain degree of anticipation around it. The representation of brand particularly plays a major role in defining its popularity.So, what represents a brand? A brand is represented by a name, term, sign, symbol, design or a combination of some of these. A logo by far plays a major role in the identification of a brand. Viewers relate a brand name through its logo. For insta
➢ Will a simple cash refund make your company whole for the time lost testing, installing and then removing the Acme product?
➢ Who will bear the losses you will bear as the result of starting your search over?
➢ What if the Acme reactor does everything Acme promised, but you cannot connect it safely to your outdated infrastructure?
➢ What if the final product costs 10% more than Acme promised, and delivers only 75% of the energy you expected?
To further complicate matters, not all warranties are made the same:
➢ “Vendor warrants that it is duly organized and recognized in accordance with law and possesses all necessary and requisite legal and corporate authority necessary to enter into this agreement.”
While that sentence sounds impressive, it is short on substance. If vendor is not a legitimately organized business, or does not have the proper authority, you could be confronted with significant difficulties, and this sentence provides no meaningful tools to resolve them.
Or
➢ “Vendor warrants that the product will perform substantially in compliance with Vendor's published documentation for 120 days after delivery.”
This sentence has its own challenges. What does “substantially in compliance” mean? Does vendor have the right to change the performance standards by changing the documentation? These are questions for another time. For the moment, the question of interest is: “What happens if the product does not work?”
If the contract contains just this one sentence, and assuming there is no dispute that the product is defective, you have two options: Terminate the agreement and start over or live with the defective product.
REMEDIES
General contract law provides a standard set of remedies for contract disputes. These remedies are available if the contract itself does not provide an
Choosing honeymoon rates means you are given an tempting introductory interest rate for around the first 6 to 12 months of your loan. Once the honeymoon duration is complete, your interest rate will usually revert to a variable rate.Just as you would get to know somebody really well before getting married to them, find as much as you can about your home loan before you invest. This is specially essential when you’re meditating on a loan that offers honeymoon rates.Honeymoon rates can also engage hefty exit penalties and precise limitations on the features of your home loan. Always make yourself familiar with the fine print before signing yourself up for something that may cause you a lot of stress and worry further down the track.The problem with this example of loan is that the variable rate can be higher than some of the lower normal loans on the market which means you could end up paying more over
Or
➢ “Vendor warrants that the product will perform substantially in compliance with Vendor's published documentation for 120 days after delivery.”
This sentence has its own challenges. What does “substantially in compliance” mean? Does vendor have the right to change the performance standards by changing the documentation? These are questions for another time. For the moment, the question of interest is: “What happens if the product does not work?”
If the contract contains just this one sentence, and assuming there is no dispute that the product is defective, you have two options: Terminate the agreement and start over or live with the defective product.
REMEDIES
General contract law provides a standard set of remedies for contract disputes. These remedies are available if the contract itself does not provide any other tools. Unfortunately, these default remedies may not meet your specific situation and most require the time and expense of litigation. However, these are only default remedies. Parties are, within limits, free to decide how they will resolve claims of defect, late performance or other disagreements.
For example:
➢ “Vendor warrants that the product will perform substantially in compliance with Vendor's published documentation for 120 days after delivery. In the event of non-compliance, Vendor will repair or replace the defective product within ten days of receipt of notice of defect.” Taking the time to ask one simple question - “What if?” - and to draft one short sentence yields a concrete remedy short of termination and litigation.
➢ “Acme warrants that its home reactor will produce no less than X kilowatt hours per day, 365 days per year, in normal operation. In the event power output is less than Y% of X, Acme shall provide a refund of Z% of the purchase price.”
“Pay first and get a refund of it doesn't work” is not an ideal remedy, but here it illustrates one way to resolve a potential dispute short of the courthouse. A better course would be to pay most of the money up front, and to tender the balance if and when the home reactor proves itself. What constitutes a good warranty? It protects the customer from defects or failures that would threaten the value of the contract to the customer. It is a mechanism to help ensure that customer gets what he or she is paying for.
What makes a good remedy? It must be mutually agreed and, to be practical and effective, must protect the interests of both parties. Customers want to ensure they receive true value for their money; vendors want to ensure that they make an appropriate profit.
Two points are central:
➢ If certain of vendor's claims are essential to your decision to enter into the agreement, spell that out in the contract. Asserting that “He/she told me X or Y or Z” after the signatures have dried is a long, expensive and often unsuccessful exercise.
➢ A warranty without a matching remedy is an incomplete mechanism. Taking the time to think through, and negotiate, acceptable solutions may seem tedious and unproductive. It is, however, far faster and efficient than heading to court fill in the blanks in the contract.
Copyright 2006, Thomas J. Hall. All rights reserved.
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