What are the 'nice to have' elements to consider for your trading terms? [Trading terms series - article #3] Yesterday I dealt with the 'must have' elements - but there are lots of other useful things to consider for your trading terms: * Product-specific terms. Some of your products / services may not follow the 'standard' rules. For example - you may supply most products on an order-by-order basis, but require a minimum volume (or term commitment) for certain products. You could have a whole set of new terms for those specific products, if that suits your business process - but it might be more efficient to enable specific Product Terms from within your main terms, then supply a 'here's what's different for this product' booklet. * PPS all assets. As well as the PMSI (mentioned in article #2), consider including a right to register an all assets PPS interest – if you want that right, then establish it in the trading terms (or credit application). Should you seek this and should you actually register it? This will depend on your customer profiles, your level of exposure to customers, the level of alternate security you have obtained etc. * Update process - it can be painful and time-consuming to update your trading terms with all of your customers, and that can deter businesses from doing it - even when they really need to. You can make the update process easier, by adding a more sensible and flexible process in your trading terms. * Retention of intellectual property rights - where this is appropriate because you need to re-use the work you've done. You do need to watch how you handle this issue, because you can easily end up with an unfair contract term here (see article #4 tomorrow). * Timeframes for delivery (and guidelines about when they will change, or not apply). Great for managing expectations. * Rates for ad hoc (casual) supply. How do you get paid for extra work, which you didn't quote for? A bit of careful design in your trading terms can cover this issue neatly. * Packaging (especially container / pallet) cost-recovery mechanisms. * 'Hands off' provisions for your staff. You will naturally put your staff in positions where they will form strong relationships with customers - consider protecting your investment in your staff, when that is appropriate for your industry and culture. * an ability to respond to increased credit risk (this may go into the credit application instead) -- possibly including extra powers. * details of voluntary warranties (these are often published separately, but you need to at least consider how well they integrate and where there are inconsistencies). This week, I'm writing all about trading terms, to help get business owners on the right track - to explore what trading terms are for, how to make them work, what to include, and what to leave out. Tomorrow it's time for: "what should you leave out"? #tradingterms #commerciallaw #QldLaw
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Someone had to do the tough job at the Salvos Red Shield Appeal launch! https://lnkd.in/g75J8MB5
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This week, I am speaking about 'Managing liability and risk for business owners' at the Australian Plumbing & Gas Conference 2024. I have strong views about this topic - I've seen too many suboptimal outcomes for business owners, over the years. In many cases I have thought: "What could have been done differently, to avoid this situation...?" Well, you can hear my views on this (focusing on terms + credit process) if you're attending. The headings for my slides will illustrate my themes nicely: - Common problems – terms & conditions - How should you approach terms & credit? - Know your customer - Practical stuff for your T&Cs - Common errors & technical problems - Communicating your terms (effectively) - Tools to assist - PPS registration - Accepting other terms – important tips This will be a practical presentation with plenty of opportunity for questions and discussion (and a panel following). I'd say "I'm looking forward to it"... but the truth is I'm a bit nervous about doing it - I'm more used to 'behind the scenes' work. Wish me luck!
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I'm concerned that the ACCC is engaging in a little 'misleading and deceptive' media releasing before Christmas (pun slightly intended) In my opinion, there is just too much 'spin' in their latest (Friday 15th) media release about unfair contract terms in franchise agts. The headline quote from an ACCC Deputy Chair is: “... franchisors are failing to grasp the importance of complying with the unfair contract terms provisions of the ACL. Every franchising agreement we reviewed contained potentially unfair contract terms". The word 'potentially' does a lot of work in that last sentence. Let's put this quote in context - it's based on a report analysing 10 franchise agreements, targeted for review by the ACCC. The report calls them "targeted franchising compliance checks". Despite choosing newer and smaller franchisors, the report concluded that: "We are pleased to report that the documents we assessed were largely compliant with the Franchising Code and we did not identify any systemic issues or concerns under the code." , but then goes on to infer that the ACCC might be inclined to take action on UCTs in the franchise agts anyway. The very headline of the media release conveys the threat: "Franchisors warned to remove unfair contract terms or risk legal action" I don't take issue with the importance of the UCT issue, nor with (some of) the substantive conclusions in the report - it's the tone and (lack of) efficacy of this media release which concerns me. Unfair contract terms (UCTs) are a serious and confronting issue for most businesses at the present time. We've done a lot of work on UCTs across a period of about 9 years - not just recently - and it is difficult, confusing stuff at times. There is a lack of clear case law and a lack of clear guidance about many issues and mature, thoughtful minds will differ on what is and isn't an unfair term. Listing 'potential' UCTs in most B2B contracts will take quite a long time.... In my experience, most franchisors already take their legal responsibilities really seriously and strive to comply with them. This media release (5 working days before Christmas) seems to me to be an unfair and unproductive pressure tactic by the ACCC - a hammer to crack an egg. There are far better targets around for the ACCC to advance its UCT agenda against than Australia's (already highly regulated) franchisors. The report itself (linked from the media release) is more illuminating ... except for the section on termination rights which genuinely baffled me ... and I will say some more about that in upcoming posts. Link to the media release is in the first comment. #unfairterms #franchising
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Heading to the year’s last business brekky this morning, and the local street trees are decorated for Christmas 😊
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This week you will face Important things (things which have to get done to achieve things, or avoid consequences). And you will face Urgent things (things which other people want done urgently before🎄) Make sure you remember and act on the difference between Important and Urgent - because it’s probably not humanly possible to do them all.
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Now this is the kind of pre-Christmas sale which gets me enthused 🙃 - 60% off selected commercial law texts! [As for the the rest of the leadup to Christmas - bah humbug...]
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It’s been a year filled with (good and …less good) change for me - but my commitment to Christmas Cards remains undimmed 😝
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Business development as a lawyer has never come naturally to me at all - I still find it challenging and often uncomfortable. What has made it easier, and more manageable, is to see BD as a series of practical skills and activities which can be improved through learning, effort and discipline (much like everything else in legal practice really!) Today, I am sharing some of the key resources and tools which help me - in case they might also help you. (To avoid this post becoming a link-fest, I will include links to the mentioned resources in the first comment.) The first helpful thing is to have the right mindset. You may be naturally good at some things and naturally poorer at others. (Side note: we're not as good at assessing our own skills and aptitudes as we might think). Maintaining a growth mindset - that our minds are 'learning engines' - we are not fixed in place or static; we are adaptable works-in-progress - has been a key aid for me. See the work of Carol Dweck (in the cover image, and linked below). How to feed that learning engine? Try the weekly email from Jay Harrington. It covers different topics, all in the ‘business development for law practices’ theme - it is free every week. Jay seems to be a great fan of Charlie Munger (of Berkshire Hathaway fame) and David Maister (foundational 1990's thinker in professional service firm management), but with modern twists. Though American, Jay's advice is virtually all relevant to Australian lawyers. The other (Australian) source I unreservedly recommend is Sue-Ella Prodonovich. I have heard Sue-Ella present in person (at a fairly tense session covering some difficult topics) and she was fantastic and intensely pragmatic – and again, she writes extremely practical and useful articles, worth fueling your learning engine with. I hope to hear her in person again in 2024! If you want to build your own business development skills in practical ways and / or encourage your staff to do so, then you cannot go wrong with these two sources. Now, a couple of practical tools which help me to manage - I use Buffer and Pipedrive. Buffer is a simple tool which helps with managing LinkedIn (or other social media) - with planning, scheduling, monitoring, re-use and so on. It has a very sensible price - and also, excellent support. Pipedrive is a new tool for me in 2023. It's marketed as 'Sales CRM & Pipeline Management Software'. I'm still learning it, only using a fraction of its capabilities, but it has already helped bring a lot of discipline and strategic thinking to my 'work pipeline management' habits. It's a fairly simple (but functional and elegant) tool. Worth investigating if you think your discipline or strategy around work 'leads' could be improved. To encourage new (or old) lawyers who feel daunted by business development - just break things down into practical chunks, and start doing something. It will get easier (though perhaps never easy) with practice.
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Who doesn’t like a party? We tried to do the first CL 🌲 in style.
We enjoyed our inaugural firm Christmas Party on Friday night at Aviary Terrace Bar then Bos Restaurant - it’s been a challenging but excellent first year, so thanks to Mitchell A., Blake Palmer, Glenda Robertson and other contributors. https://lnkd.in/gsQhsMb5
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I’m pretty terrible at following most of the suggestions in this article. It’s full of wise and valid points, so I recommend it to you! One of the trickiest things to manage when you’re busy is to keep the quality high and consistent for clients. Scheduling rest time so you can retain perspective and creativity is very important for that. I’m determined to be more disciplined about that from now on 🤞🏼- wish me luck!
The typical response to an overwhelming workload is to put in longer hours. Don't do that.
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