Business Counseling

I’ve seen an increasing number of “DIY” contracts come across my desk lately. I don’t know if it’s because of the increasing regulations surrounding small businesses, or if folks are finally starting to realize the importance of contractual agreements. And while having some form of written agreement in place is usually better than having nothing (note: use of the term “usually”), Franken-contracts pieced together over the years can create a huge headache. Here are a few reasons I always recommend clients don’t use “found-it-on-the-internet” or “got-it-from-a-friend” contracts:

When you need review, DIY contracts are more expensive

Often, people want to “send me a contract” they found so I don’t have to draft one “from scratch.” However, this often takes longer than starting fresh.  When you send us a piecemeal agreement you’ve gotten off the internet/ from a colleague/ edited bit by bit as issues arise, we have no idea what is in that document.  It might be a great contract! However, we still have to go through, clause by clause, and dissect it. It’s not just proofreading; we have to make sure clauses “play well together.” I tend to visually map out the sections to make sure clauses don’t conflict or cancel each other out (discussed below).

It is almost guaranteed that any practicing attorney has a stash of shell agreements that we’ve drafted and redrafted to cover our client’s needs.  We know exactly what is in that agreement, how the sections work together, and where we need to edit and add in clauses to protect your business to the fullest extent possible.  I can practically recite my photographer’s agreement by heart at this point.  I’ll be able to get in, change a few things, and get out in much less time than with a document requiring a total overhaul.

Your state’s rules might not be considered

In addition to our Federal laws, each state has its own set of laws and judicial interpretations applicable within its borders. This means that what is contractually enforceable in one state may not be enforceable in another.  Some states recognize certain judicial interpretations, others may ignore them entirely.  And guess what?  State laws are always changing!  

In fact, the inclusion of certain clauses can completely invalidate an agreement in certain states that refuse to “blue pencil” (a term that means “go through and modify the document comply with the laws”)—Virginia being one of them.  Which brings me to….

Your agreement might invalidate itself

That’s right folks.  Your agreement might cancel itself out.  

It can do this in one of two ways:

1. First, and in a continuation of the thought above, a state in which a court refuses to blue pencil contracts, inclusion of clauses that aren’t enforceable can cause the entire document to be thrown out. In those situations, a court refuses redraft your poorly-drawn contract, and instead tosses it completely. We see this quite frequently in independent contractor agreements and non-competition agreements.  If these agreements are included as part of an entire employment agreement, guess what?  The whole agreement can be invalid.
   
2. A second way an agreement might invalidate itself occurs when two clauses contradict each other.  If clause A states, “The widgets will be red” and clause B states, “All widgets will be a mix of green and blue,” you’ve got a problem. What color are the widgets supposed to be?  This causes confusion.  And if there is confusion in a document, it is construed against the “drafter”—which, as a business, is probably you.  While this is a simplified example, consider a contract that includes an arbitration provision, which is followed by a mediation provision, which is followed by a jurisdiction and venue provision.  Are you supposed to arbitrate? Mediate? Or can you sue to enforce the agreement?  The answer: no one knows, because this agreement is all kinds of messy.

You just might not know what you’re agreeing to

You know how you sometimes sign things that you really don’t understand?  For example, the waiver at the trampoline park, the fine print on a credit card application, or a lease for an apartment?  That can’t happen when you run a business.  You MUST know what you’re signing, and what you’re asking clients to sign.  Not knowing is like throwing a bunch of ingredients together, cooking them for an unspecified amount of time, and forcing people to eat the mess that comes out of the oven.  It’s a bad idea!

You may be agreeing to terms that aren’t a good fit for your business  

For example, if you’re a service-based business providing a long-term deliverable, (shout out to all my wedding planners, photographers, and designers) you may have a payment structure that doesn’t ensure you get paid in the event of a cancellation.  We would draft your contracts to provide for incremental liquidated damages to compensate you for all the time you spend over a period of months or years, instead of an 50/50 payment structure.  Another example is an arbitration clause.  For small businesses, arbitration can be even more expensive than just filing a warrant in debt in court.   Arbitration, with its rules and procedures, can be even more expensive than simple litigation!  Unless you’re in a place where arbitration makes sense, we’re going to draft alternative methods to deal with conflict.

Beginning December 1, 2016, there are new rules in effect for websites claiming Digital Millennium Copyright Act (“DMCA”) Safe Harbor protections.  The nearly 20-year-old system got a facelift when the outdated paper system was finally replaced by a digitized procedure.

Originally enacted in 1998, 17 U.S.C. §512 (c) of the DMCA offered Safe Harbor Protections to certain websites (certain types of “service providers” hosting content) from liability for third-party copyright infringement posted on their sites. An example of such infringement would be a Youtube user uploading a song without a license or a guest blogger uploading a photo to which he or she does not have a license or copyright. One requirement to invoke Safe Harbor Provisions included designating an “agent” to whom copyright infringement claims could be directed, who then would provide notice to the third party poster and take down the offending material if the poster failed to submit a valid counter-claimed for it to remain. These online service providers designated their agents using paper forms, which the Copyright Office scanned and made available on the Office’s website. The online service providers must also post their agents’ contact information on their websites.

As of December 1, hosts now will be able to register DMCA agents online for a reduced $6 fee, (down from $105+) making registrations cheaper and easier. While the ease of registration is a welcome surprise, additional rules potentially expose previously “safe” websites to new liability.

First, all existing registrations will be deleted. All sites with previously registered agents must RE-register by December 31, 2017 to continue to invoke the Safe Harbor protections.

Second, the new regulations require a new registration every three years. Previously, a registration was valid indefinitely so long as contact information was valid. In an attempt to ensure all DMCA contact data is up-to-date, the Copyright Office now requires sites to re-register and re-enter agent contact information. Sites will be allowed to renew lapsed registrations, but the Copyright Office will not retroactively date renewals. This means that during the period a registration may have lapsed, the site is open to DMCA claims and cannot invoke the Safe Harbor Protections during that time.

So, what’s a website operator to do?

• register your DMCA agent now — it’s a miminal $6 fee and can save you a great deal of money and heartache in the instance of a third-party’s copyright infringement
• add recurring reminders to your digital calendars in the months leading up to renewals
• keep paper reminders in corporate records just in case; utilize any system that will keep you up-to-date
• ensure your DMCA agent’s updated contact information is posted on your website

If you have any questions about how this new regulation will affect you or your business, don’t hesitate to reach out. We are ready and able to help. And don’t delay—the clock is ticking!

Beware of the noncompetition agreement whose only purpose is to neutralize you. An out-of-state employer can put a restriction in your noncompete contract that wouldn’t be enforceable under Virginia law, but that is perfectly enforceable under the law of the other state.

If the contract chooses the law of that other state, and if you sign the contract, then a Virginia court will apply the law of the other state.

Please visit the latest issue of Valley Business Front November [PDF link] for a case study on this topic.

And if you’re interested in learning more about your noncompete, join us at our next round of Shark Bites this month.