What you need to know before entering into a contract

by Fred Abramson on October 9, 2014 · 0 comments

 

Hope you are having a great Thursday afternoon. Today, Tesla and SpaceX C.E.O. Elon Musk said he was worried that people didn’t understand how fast artificial intelligence was progressing, and expressed his concern that, in a worst-case scenario, a “super-intelligent” machine might decide to destroy human life. I’m a big fan of Mr. Musk, but do you think he is right?

In similar news, nj.com wonders if computers will replace lawyers.  From registering a trademark to drafting a will, the Internet provides the tools to perform many legal tasks that were once reserved for attorneys like myself. Whether these internet tools actually do a good job is debatable, but there is no question that technology will play a significant role in the future of the legal industry.

Let me get this straight, first computers will take my job, then “super-intelligent” will take my life. Oy vey!

In the meantime, let me tell you what you should be on the lookout for when reading a contract. If you need any help reviewing a contact, feel free to call me, your lawyer, because that is what I do for a living and I’m super fantastic at it.

1.      Know the Other Party

Be sure that the business you are contracting with is registered to do business in the state in which you operate your business.  Should there be a problem later on, it will be much easier to institute a lawsuit as the states maintain addresses for service of process on registered corporations.  In addition, if the business is not properly registered in the state, there could be legal issues with your contract.  The business should also be licensed in the specific type of business it conducts, if this is required.

2.       Pricing Issues

If you are a buyer or a seller, know what you are paying or getting paid, when the money is due, how it is to be paid, where it is being paid to.

3.      What is the Exact Product or Service

While this may seem obvious there are thousands of lawsuits on just this issue.  Be sure you and the other party are on the same page, literally and figuratively.

4.      Delivery of the Goods or Services

Specify exact time frames for delivery of the product or service and when payment is due in relation to this time frame.

5.      Condition of the Product or Service

Are the items new or used?  If used, how much?  If new, in original packaging or repackaged?  If a service contract, specify who will be doing the service and his or her credentials?

6.      Warranties

What are the guaranties on the product or service?  What period of time do they cover?  What is the procedure for repairing or replacing an item or correcting a service mistake?

7.      Getting out of the Contract

While most contracts are made to avoid getting out of them, you can sometimes negotiate an “out” clause for poor performance or lack of proper delivery or other essential things.

8.      Renewal of the Contract

Is there an automatic renewal?  Is there any option to renew?

9.      Default

There are several ways to default on a contract. Two prevalent ways are non-payment and non-performance.  Non-payment can include not getting paid in full, on time or at all.  Non-performance can be not doing the job properly, in full, or not how you expected it to be done.  All of these can be combated with remedies in the contract.

10.  Remedies

Make sure the contract has a section dealing with remedies for defaults.  Remedies are compensation to the injured party for such defaults.  Outside of the contract there are other ways to be compensated for default in contracts, including state statutes, federal statutes like the UCC, fraud actions and illegality of the contract, dealing with minors, duress, undue influences, etc.

 

Creating a Successful SOW

by Fred Abramson on April 21, 2014 · 0 comments

Getting a statement of work (SOW) right is not simple. A properly drafted SOW is vital to the success of a project. If the statement of work is too ambiguous or overboard, it can leave room for various interpretations, which will lead to problems. 

In my experience, the failure to properly execute a statement of work is often the reason parties end up in a litigation. 

What is a SOW? A statement of work (SOW) is a formal document that captures and defines the work activities, deliverables, and timeline a vendor must execute in performance of specified work for a client. The SOW usually includes detailed requirements and pricing, with standard industry terms and conditions.

What should be included in a SOW?

  • Who pays each cost and the timeline of payment.
  • A description of all deliverables and when they’re expected.
  • The tasks that support the deliverables, as well as which side – the hiring company or the service provider – will perform those tasks.
  • The project’s governance process, along with how often governing committees will meet.
  • What resources are required for the project, what facilities will be used and whose equipment will be needed, as well as testing requirements.
  • A timetable covering when each deliverable should be completed. If you are delivering the work, I would recommend that the timetable to be flexible. On the other hand, if you are purchasing the services, a strict timetable could be best. I would also recommend a time for the work to be reviewed prior to it being delivered. 
How about payment? To keep the work moving forward, I would also recommend payment contingent on the successful completion of certain benchmarks. I would also advise that full payment should not be made until it is clear that everything works properly.
 
Be particular.  Be specific in describing the project’s scope and requirements. If you are not clear about the work being performed, it will be difficult to litigate if there is a breach. 
 
Keep the language simple. Believe it or not, it is the attorney’s job to keep the language of the SOW is simple as possible. Lots of a legalize is usually a sign of a poorly drafted SOW. Technical jargon should be avoided if possible. 

The task of writing a statement of work could fall to various players on a team working in conjunction with counsel.. The best approach is for team leaders to draft it and then work with the an attorney to perfect it.. After the SOW is completed, it is then sent to the vendor. If you follow these steps, you increase the likelihood of success dramatically.  

 
 Creating a Successful SOW

 What Should You Do About Shoulder Pain After A Car Accident?

It’s a sunny day and you are running errands in the neighborhood. You are driving straight and a car comes from your right and comes into contact with your passenger door.  From the impact, your left shoulder comes into contact with the side door.  You feel pain in your shoulder.  The impact of car accidents, even at a very slow speed, can easily result in severe physical problems to the shoulder and surrounding areas. What should you do?

  1. Remain at the scene and call the police and ambulance.
  2. Take photographs of the accident scene and the vehicles involved in the accident.

Many people with shoulder injuries don’t feel a tremendous amount of pain immediately after the accident. You may have a case even if you don’t immediately seek medical attention. The shoulder has three main bones: the clavicle, the humerus and the scapula. Any of these body parts may have been injured as a result of an accident.

HOW DO YOU YOU KNOW IF YOU HAVE A SHOULDER INJURY?

  • Painful, tender, stiff shoulder
  • Shoulder pain that increases at nighttime, interrupting sleep
  • Tingling, numbness, swelling, or weakness in or around the shoulder
  • Focused shoulder pain that worsens with activity
  • Difficulty with shoulder mobility
  • Discolored shoulder area
  • A “bump” above the shoulder bone where the shoulder may have separated

WHAT ARE THE MOST COMMON TYPES OF SHOULDER INJURIES AS A RESULT OF AN ACCIDENT?

  • Torn Rotator Cuff
  • Fractured bone
  • Contusions, Bruises, Strains & Sprains: Other injuries such as painful strains, swelling and bruising may occur after a crash due to the impact of the shoulder and another object.

WHAT TREATMENT OPTIONS ARE AVAILABLE? 

  • If you think that you have broken bone or tear resulting from your accident, seek medical attention immediately.
  • Go seek an orthopedic doctor. Diagnoses can be made through x-rays, CAT scans, MRIs, and clinical evaluations. Your doctor will assess your shoulder injury and prescribe treatment.
  • A torn ligament, tendon, or muscle may require immediate surgery, so don’t delay in visiting a doctor.
  • Pain may be stemming from elsewhere in the body (referred shoulder pain), so letting a medical doctor prescribe treatment is the best option.
  • Oftentimes, surgery and subsequent physical therapy are used to treat shoulder injuries stemming from accidents.

WHO PAYS FOR FOR YOUR SHOULDER SURGERY TREATMENT? 

  • Under New York Law, your no-fault carrier will likely pay for any treatment that you receive as a result of the accident.  No-fault shall pay for treatment even if you are at fault and  have no other insurance.

If your shoulder has been injured in an accident that was due to someone else’s negligence and fault, feel free to contact my office  at 212-233-0666 for a free consultation to determine the best course for obtaining the financial resources needed to pay for your lost wages and medical treatment.

 What Should You Do About Shoulder Pain After A Car Accident?

300px New York City Court The Five Most Common Civil Lawsuits in New York Supreme Court

 

As a civil litigation attorney located in New York City, I’ve seen my fair share of lawsuits. Since I’m in court nearly everyday, just sitting in the courtroom I get a sense of what type of cases are clogging up the courts. I also have my own caseload and handle court appearances for hundreds of other lawyers. I think I have a really good pulse for what type of cases are most frequently litigated.

Below is a list of the most common legal issues for New York civil court cases (which usually denote suing for money damages). Before deciding to sue, you should consider whether the facts of your case fit the requirements of at least one of them. Otherwise, don’t bother calling a lawyer.  Unfortunately, the mere fact that you have suffered something horrible by another person or company you are  not automatically entitled to a legal judgment. The law must support your contention that you have damages.

Below is a list of the most common lawsuits in New York civil court.

Breach of Contract.  Breach of contract occurs when a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party’s performance. If the party does not fulfill his contractual promise, or has given information to the other side that he will not perform his duty as mentioned in the contract or if by his action and conduct he seems to be unable to perform the contract, that party is said to breach the contract. If you suffered some harm or damage, you may be able to sue.

Lawsuits involving employees.  Employment law is a sub speciality within civil litigation. Usual law firms specialize only in employment litigation. Usual issues include:

  • Improper termination
  • Failure to place employment terms in writing.
  • Failure to run a proper background check on an employee. The employee then does some harm, like sexually harass another employee.

Defamation.  Lawsuits stemming from what reviewers are saying on online sites such as Yelp and Facebook are becoming more and more common.

Debt. Perhaps the most common type of lawsuit for businesses. One party owes money to the other, negotiations falter and a lawsuit commences.

Personal Injury. These type of cases are the  most lucrative for civil litigators in small firms. They are also the most difficult for the honest civil litigator to get, because so many lawyers do unethical things to obtain these types of cases. These type of cases involves injuries due to negligence.

The Law Office of Frederic R. Abramson practices civil litigation in New York. If you have any questions regarding civil litigation, feel free to contact me at 212-233-0666.

Ideas are power. With power comes money. We all have ideas and we usually share them with others. With the explosive growth of the internet, anyone with the ability to code can take an idea and make it into a huge business. When that happens, can you sue?

Entrepreneurs and owners of small businesses are often not aware that there are remedies in tort law that can help in the event that an idea has been stolen. Unless there is non-disclosure agreement or some other contract, tort causes of action are often overlooked. The two major causes of action are:

1. Misappropriation of Trade Secrets;
2. Tortious Interference with a Contract.

What is Misappropriation of Trade Secrets?

Generally, a trade secret is any information that can be used in the operation of a business and that is sufficiently valuable and secret to allow an actual or potential economic advantage over others. Be aware that the idea must be secret.

What Type of Trade Secrets can be Covered?

1. Marketing.
-Customer lists are covered, however, you must prove that the lists are secret.
-Wholesale lists. Not usually covered because they are not usually secret.
-Pricing models and purchasing information.
-Secret business plans and business strategies.
-Data on how customers are payed.
2. Product Designs.
3. Production and Operations. Generally, information on how to make and produce a product is protected.
4. Research and development.
5. Secret compilation of facts that are known to the public.

What should you do to make sure that your ideas are secret?

1. Reduce all ideas to writing.
2. Make sure no one in your company disseminates the information to the pubic.
3. Have all employees sign an confidentiality agreement.
4. Make sure that all the information is secure.

Tortious Interference with a contract

What happens if one of your employees who has knowledge of your company’s ideas and trade secrets is hired by a competitor and the competitor uses your ideas for competitive advantage? You can sue for tortious interference with a contract. You may have a case if:

1. There is a existing contract that is subject to interference.
2. The third party (in the example of above, the new employer) has knowledge or should have knowledge of the contract.
3. Intentionally interfered with the contract.

If you have a question regarding theft of ideas in New York, call the Law Office of Frederic R. Abramson at 212-233-0666

 Idea Litigation: When Can You Sue For Theft Of A Trade Secret?

Can You Be Held Responsible for an Agreement Without Reading It?

August 15, 2013

Admit it, we have all been in situations where we sign a contact without reading it. This happens online, when we click to agree to the terms of usage for a website. It occurs offline as well. Clients regularly contact my office after they have been sued and have asked me if they are bound [...]

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What Damages Can You Obtain for Breach of Contract to Make Structural Repairs?

August 14, 2013

Let’s say that you own a business such as a bar or restaurant. You notice that there are leaks coming from the ceiling. You are forced to close your restaurant as a result of the water damage. Six months later, the landlord finally replaces the roof. Unfortunately, your business goes under in the meantime because [...]

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NY Business and Law Must-Reads — Wed, August 7: What you should read today about #smallbiz.

August 7, 2013

Tech News:

Bezos Brings Promise of Innovation to Washington Post, New York Times: Technology, August 7, 2013
Snoopify, an app themed around the rapper Snoop Lion, is selling a virtual sticker for $99.99, Wall Street Journal: Digits, August 6, 2013
Cooking website @Food52 launches an online marketplace for home chefs. Business Insider, August 6, 2013
Tech Magnates Bet on [...]

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What you need to know about Buying an Existing Business in New York

August 5, 2013

 
When you buy a business, you purchase what is not known about the company.

Has the business ever been involved in any lawsuits?
Does the business from really have a good reputation or do they use unethical methods to obtain business?
Is the business making a profit or are they cooking the books?
How much inventory will you [...]

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How Do You Know if your New York Contract is Valid?

August 1, 2013

If you run a  business, you may enter into contracts more often than they may expect. Whenever you or your company agree to take some action or make a payment in exchange for anything of value, a legal contract has been created.
How do you know if the agreement that you entered into is a valid [...]

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