Business Law 2016

Page 13



If you accept the idea of arbitration, do you want the contract to first provide for mediation, which is a more informal process and typically less expensive, but also not binding on the parties unless a mutual agreement is reached? The specific provisions of the arbitration clause are also important as they, to some extent, will govern the money and time expenditure, as well as the thoroughness of the proceeding. So, for a small contract, you might want one arbitration clause and for something more complex, you might want another.


Notices You might think that a simple notice provision does not deserve any attention beyond making certain the addresses of the parties are correct. However, it is important to look at the acceptable forms for delivering notices and think about which alternatives work best for your business. a)



Notices by U.S. mail − Is there someone in your office each business day to ensure legal notices are promptly discovered? Have you had any issues with unreliability of mail delivery in the past? Should you consider requiring certified mail, which adds to the time it takes to receive a notice but provides greater assurances that important items will not be missed? Notices by overnight courier service − If your office is not always staffed, courier services such as Federal Express might not be able to leave a delivery. Additionally, Federal Express will not deliver to a post office box, and requires a physical address. Notices by email or fax − Are you inundated with so many emails each day that it could be easy to miss an important one? How reliable is your email system? If you accept notices by fax, do you have a dedicated fax that is received in your


personal computer, or does your business use a common fax machine? It is quite easy for a one-page fax to be scooped up at the end of a prior longer fax and remain undiscovered until well after the deadline prescribed in the notice has passed. You might wish to allow notices by email or fax but require a confirming copy be sent via U.S. mail as a precaution to the person receiving the notice. Who gets the notice − Does the notice clause provide for notice to a specific person by name, or to a title, in other words, to “Jane Smith” or to “general manager”? Contracts potentially have a very long life, and the new employee who processes your mail might not know that Jane Smith, who has since retired, was the general manager at the time the contract was signed, and might dispose of the mail or return it to the sender.

Keep in mind that the boilerplate provisions of a contract have the same degree of validity and enforceability as any other provision in a contract. Also, just because a section is titled “Miscellaneous,” it does not mean that some crafty (or just disorganized) drafter has not put in a boilerplate provision one would not typically expect to see there. This could have significant impact on your bargaining. The good news is that it’s easy to protect yourself from boilerplate mishaps by simply reading each provision and giving consideration to provisions that best suit your circumstances. ●

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