Professionally Speaking
Professionally Speaking is a paid promotional spot in B2B.
Battle of the Forms: Practical Tactics to Minimize Risk in Day-to-Day Transactions by Aaron Hall of Davis & Kuelthau, s.c. Sales are negotiated between companies daily. In the rush to finalize the deal, companies often fail to adequately consider their contracting partner’s terms and conditions (TCs), or the applicability of their own TCs. A company may even neglect to provide their own TCs. What often transpires is that buyers and sellers exchange documents containing TCs that directly conflict. The parties’ TCs may also have conflicting provisions as to which state’s law would govern any dispute or the venue in which disputes are to be litigated. After a dispute arises and the parties find themselves in court, the question becomes, “Whose TCs control?” The resolution is resolved under the Uniform Commercial Code (UCC) section 2-207. Once a court concludes a contract was formed, the court determines which party’s TCs
414.225.1411 govern the transaction and any dispute arising thereunder. This is a fact-intensive inquiry that focuses on the actual documents exchanged, as well as the manner and order in which they were exchanged. There are many complex issues that can arise in battle of the forms scenarios. Far too many to list. However, there are a few important takeaways applicable for all companies regarding the purchase and sale of goods: s Draft and utilize TCs customized to your business. Boilerplate, form TCs may leave you vulnerable. s Assume your contracting partner’s TCs will not be favorable to you. s Provide your TCs to your contracting partner. s Have your contracting partner sign the form containing your TCs. s Do not sign your contracting partner’s forms containing its TCs.
s Position yourself as the initial offering party. s Make your offer expressly conditioned upon acceptance of your TCs. Include an affirmative rejection of any conflicting TCs. s As an offeree, make sure your acceptance is conditioned on the offeror’s agreeing to any different or additional TCs contained within the documents you provided. The ultimate goal is to entirely avoid getting into the battle of the forms. At minimum, companies must take the steps necessary to ensure that any conflicting provisions contained in their contracting partner’s TCs are “knocked out” and that the standard UCC gap-fillers are read into the contract. With a little planning on the front end, the risks can be mitigated. Aaron Hall is a shareholder with Davis & Kuelthau, s.c. in Milwaukee. Mr. Hall provides counsel on commercial litigation matters and may be reached at ahall@dkattorneys.com or 414.225.1411.
The Cost of Waiting to Invest by Jim Ziebarth of Fox Valley Savings Bank Time is your only ally when it comes to investing, especially for young professionals. In my almost 20 years as a financial advisor, I’ve noticed investors often don’t factor the cost of waiting into the risks of investing. Starting a long-term investment plan in your 20s will certainly put you in a better position to retire on your own terms, rather than waiting until you are in your 30s or 40s to start saving for retirement. Time is a good way to reduce risk. The longer you have to invest in your retirement fund, the less effect interim market fluctuations may have on the ultimate value of your portfolio and the more opportunity you have to grow your money. The differences between minimum and 40 | April 2016 | NNB2B
920.923.7776
maximum return diminish over the long term. If you only hold a stock for a year, it could be way up or way down. But if you hold it for 10 years, the spread between the expected minimum and the expected maximum decreases substantially. The further you are from needing to withdraw your money, the more ability you have to tolerate market risk and the more you should consider investing in stocks. Investing is an ongoing process. Make a commitment to remain active in managing your portfolio to maximize your returns. You should review your portfolio thoroughly every year or when you have a significant life change. Be willing to make changes, but remember to build an investment strategy for the long term. As a financial advisor at FVSB Financial Services, I can offer resources, expertise and tools to create a custom financial planning solution for all clients. In today’s
complicated world, a working relationship with a financial advisor can be beneficial. Call me at (920) 923-7776 to get started. Jim Ziebarth is the financial advisor for FVSB Financial Services, located at Fox Valley Savings Bank, with offices in Oshkosh, Fond du Lac and Waupun. Securities and investment advice are offered through Infinex Investments, Inc., a broker/dealer ~ investment advisor, member FINRA/SIPC. Fox Valley Savings Bank and Infinex Investments are not affiliated. It is important our customers understand products and services made available through Infinex Investments, Inc., are: Not a deposit Not FDIC insured Not insured by any federal government agency Not guaranteed by the bank May go down in value www.newnorthb2b.com