Be smart but don’t cheat…

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There is a reason why mega successful businesses spend thousands, sometimes millions of pounds/dollars on legal advice. I cannot tell you the number of times that I have almost cried because a client has brought me a problem that could have easily been avoided IF legal advice had been sought in the first place. In the long term, getting proper legal advice could save you so much MONEY and isn’t that what it’s all about – MONEY? You know that saying, what’s worth doing at all is worth doing well…it’s said for a reason! I don’t feel good billing you for my time when it’s for an issue that really shouldn’t have ever become an issue!

Think of it this way, when you have a tooth ache you go to a dentist -you don’t pull out the tooth yourself. When you feel sick you go to a doctor you don’t diagnose yourself. SO, if you need a contract drafted, guess what, you DON’T do it yourself. You go to your lawyer! You should be focusing all your energy into your product/service/idea not struggling to draft a 30 page contract or represent yourself at Court.

So what am I saying? I’m saying be smart BUT don’t cheat.

I am a lawyer and it took me 6 years of training to qualify to be one (a 3 year degree, a 1 year professional practice qualification and a 2 year training contract at an international law firm in the City). You cannot read this blog and become a lawyer BUT you CAN read this blog and become legally smart so that when you seek proper legal advice you are not doing so blindly. You are firing out questions and demanding the best service possible!

It’s quite simple, do things properly at the outset and you will reap the rewards.

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Cut it out: the beauty of a severance clause.

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It is said that the law is the fabric of society, without it we would have nothing but unruly human beasts roaming the earth’s surface. However in business, sometimes the law actually gets in the way. Yes you read that right. English law believes in freedom of contract, however there is always a risk that a contractual clause may be invalid or illegal – e.g. it offends against public policy or competition law – often this is the case with non-compete clauses and restrictive covenants (clauses that tell a party what they cannot do). This is why clever lawyers make use of “severance clauses” when drafting contracts.

A severance clause (or severability clause) tries to mitigate the damage that may be caused by the interference of the law in a contract. How does it do this? It ensures that a contract will continue to be enforceable even if one of its terms is found to be illegal, invalid or unenforceable. Severance clauses assist in helping a contract to SURVIVE. Pretty cool right? For example, if a contract for the sale and purchase of various vegetables is suddenly subject to a new law stating that no one can sell or purchase carrots (ridiculous but it’s an example), why should the contract die just because the sale and purchase of carrots is illegal? A severance clause would carve out or sever the ILLEGAL part of the contract and require the parties to continue to perform the remaining LEGAL part of the contract i.e. the selling and purchasing of courgettes (zucchinis), potatoes, aubergines (eggplants), peas and so forth. In other words, business shouldn’t stop if it doesn’t have to stop. This is why a severance clause is simply beautiful.

Let’s look at an example of a basic severance clause:

If a Clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of this Agreement will continue in effect.

The above clause severs the illegal part of the contract. BETTER versions of a severance clause will try to sever as little of the illegal clause as possible. Here is an example:

If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).

Even BETTER severance clauses will give the parties the option to modify or correct the would be severed clause, in order to make it legal. Here is an example:

If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.

If  any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

Severance clauses are usually included in any contract as a boilerplate (standard) clause – however don’t take that for granted. Go check your contracts and flag this magical clause with your lawyer. Get your lawyer to advise you – could your severance clause be better? Do not rely/use the examples in this post, they are EXAMPLES. Your lawyer will draft a robust severance clause tailored to YOU.

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3 things you should be happy about before you hire a lawyer.

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Hiring a lawyer is a big, BIG deal. As I’ve said before, a great lawyer will facilitate your business and help you get to the next level, a bad lawyer will leave you feeling frustrated, perplexed and out of pocket. So when you decide to give some of your hard earned profits to a lawyer, you need to make sure that you get it right. Here are 3 things you should satisfy yourself of before you sign that retainer!

  1. Do you believe them? Lawyers are great talkers AND charmers. As soon as you tell them what you need help with, they will tell you that that specific thing is their particular expertise (sorry fellow lawyers). I’ve seen it done many times. A prospective client asks for help contracting with aliens on Mars and suddenly that lawyer has not only done some similar work in the past, they’ve been to Mars and had dinner with those very aliens! Don’t get me wrong, lawyers are excellent at coming up to speed on any issue, even if they’ve only remotely come across it before however you should still make them prove themselves! So the questions you have to ask are why can they do the job and will they do the job? The answers will help you to decide whether to believe them. WHY – ask for their qualifications and their actual experience. Ask them questions about your business and your industry – do they really know what they’re talking about? WILL – as you already know, in business, execution is key. You need to be confident that your lawyer will actually do what they say they will and that you won’t be chasing for updates. Do they have the relevant resources? In respect of bigger instructions, do they have a team to carry out the work? If they prove that they can do the work and will do the work in good time, then you can believe them. Stay away from the lawyers that reel off their client list to try and impress you….you could end up being the back of the queue.
  2. How do they help their community? Good old corporate responsibility! Do not over look this. Lawyers will flatter you to high heaven and impress you with their catalogue of work BUT a good way to tell if they really CARE is by assessing their charity. The best law firms know this and have a glossy pro bono team offering free legal services to those unable to afford legal representation. They also send their lawyers out to lecture, teach or tutor in their spare time. If you hear about a law firm or lawyer working in the community, that’s usually a sign that they have a soul and really will do what they say they will do. Ask the prospective lawyer what they do outside of work in their wider community?  What are their interests? This will also help you to get to know their personality and decide whether you  actually LIKE them.
  3. Meet everyone! In most cases your lawyer will be supported by a team of junior lawyers which they may head up and those junior lawyers will be the ones doing the work.  Ask to meet those people so that you can assess their personality and their experience. Are they bright? Do they know about your business or will they just be taking orders? How does the team function? It is important to feel confident that you will be looked after and that everyone who handles your work will give it the same level of care and attention. Also, meeting the team will inspire them. If that junior lawyer can out a face to the email address, they’ll work harder!

Ok so those are my 3 things to be happy  about before you hire a lawyer. It is well known that legal fees are not cheap BUT that doesn’t mean that you should part with your money just like that. You need to make sure that you’re in good hands. It’s not just about getting the work done. Engage a lawyer that you would want to hire as an employee in your business. The lawyer/client relationship is one that is built up and developed over years, so get it right!

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Show me the MONEY!

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When you are starting a business, you need MONEY. When you are growing a business you need MONEY. Most businesses do not make it off the ground because of cash flow issues. They have no money to invest in their product/service. NOW, I know that financially smart people avoid debt and credit cards etc BUT when it comes to business, debt is your FRIEND.

Debt is cheaper than equity because the lender faces less risk than a shareholder would, and also because the debt interest is tax deductible in the UK (and most other countries too). Debt gives you the means to make a profit. Your profit pays off the debt AND reinvests in your business producing more profit. So, hopefully you can see how you should not be afraid of debt when it comes to your business. Let’s look at some different types of lending.

Line-of-credit loans: These are short-term loans. They allow you to access a specified amount of money that is deposited into your business  account on an as-needed basis. You will only pay interest on the amount that is actually loaned to you. Line-of-credit loans can be used to buy inventory and pay operating costs for working capital, among other things, but usually not to buy real estate or equipment. For example, you have a line-of-credit loan of £3,000. You want to draw down £1,500 to purchase some fresh lobster for your restaurant. So, you provide your bank with evidence of the cost for the lobster and your bank, satisfied with your evidence, approves the the draw down of £1,500. You only pay interest on £1,500.

Overdrafts: Overdrafts are very flexible. They are easy to set up with your bank and you can usually pay back the overdraft, quickly and informally if your company can afford to do so. However, overdrafts are so informal that a bank can usually withdraw an overdraft facility at any time, which could leave a company in financial trouble. Overdrafts are good safety nets for if you come across unexpected liabilities. Every business should have one…in my opinion.

Revolving lines of credit: This loan offers you a certain amount of money in a specified period of time, and allows that certain amount of money to be borrowed again upon repayment within that specified period of time. For example, say you take out a one year loan of £50,000 on 1 January. You draw down the full amount of the loan on 2 January and subsequently pay off the full amount in May. You can then, if you wish, draw down the full amount of £50,000 again, at any time within the life of the loan. You can keep repaying and drawing down up to £50,000 until the end of the loan. This type of loan is great if you want to draw down monies on an as needed basis BUT you also want security that such monies will be available to you unlike with an overdraft or a line-of-credit. You will usually have to pay a commitment fee for the unused part of the loan. The commitment fee is generally specified as a fixed percentage of the unused loan amount.

Bullet loan: A bullet loan is a loan where a payment of the entire principal  (fancy way of saying the “amount”) of the loan, is due at the end of the loan term. For example, if you take out a one year bullet loan of £50,000, the loan repayment is due at the end of that one year term, in one swift BULLET payment. Under these loans, you usually have to draw down the full amount of the loan immediately and you do not have the option of repaying it and drawing it down again. Interest can be paid periodically within the term of the loan OR it can be paid with the principal, in a bullet payment at the end of the term of the loan.

Angel investment:  There is also the option of getting a loan from an angel investor. These investors are usually experienced entrepreneurs looking for the next big thing; they’re in it to win it. Therefore, angel investors typically demand three things: a) equity, b) a high return on investment and c) a well-defined five-year plan in return. If you want a better idea of angel investors, watch the BBC’s The Dragon’s Den.

So these are the ways in which you can assist cash flow for your business. These are very, very BASIC definitions and as always, lawyers are key in looking over the detail so that you are protected. Also, debt has its draw backs too, for example it shows up on your accounting books as a liability and it comes with unavoidable interest charges. There may also be restrictions imposed on your business whilst it is a borrower of a bank. For example, most banks will require a right to possess and sell your business property if you fail to pay back the loan, or to seize your inventory. Again, this is why you need a lawyer. Think about what type of debt your business needs at the moment and then ask your lawyer to look at your bank’s paper work.

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HOW TO… be an entrepreneur in your day job.

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Some of us are not quite at the point of saying goodbye to the salary and entering the world of risk and unpredictability. However, guess what? You don’t have to kick the day job in order to start honing the skills of an entrepreneur. Whilst you are planning your future business, you can start to test your entrepreneurial ability now, at your desk, under the nose of your boss.

  1. Respond to a request with a suggestion – If you are planning on leaving your day job, it is often because there is something about it, maybe how it is run or what it actually does, that you do not like. SO since you’re planning your exit, why not challenge some of those things that drive you nuts. When asked to negotiate that sale or purchase on the usual terms, suggest a different tactic. If you are asked to, yet again, make that same salad for the Monday customers, suggest changing the ingredients a bit, for example adding a bit of chilli? If you are asked to do the rota for whatever, suggest a change that makes that rota better. Start to challenge the norm. That’s what you do as an entrepreneur right? You see what others do not and you push the boundaries.
  2. Be yourself – This one is difficult in an office environment or a store where you are reminded daily that it is better to conform than to be yourself. But hey, you’re about to go it alone so you may as well shine and encourage others to shine too. I have a few clients who are unapologetically themselves. They ask you the most direct questions or they decline to come to an event you’re hosting because they, in their words “can’t be bothered with that sort of thing”; I respect these clients. Try to be the person you want to be and see how people respond. Do those under you work harder for you? Do those above you listen more? You can then get a feel for how you will be perceived by others when you are running your own business.
  3. Get to know everyone – When you eventually go it alone, you’ll need to be a people person. You will need to let everyone know who you are, where you are and what you’re up to. You will need to market yourself. So why not start now? Start marketing who you are. If you’re in a big organisation, go and talk to other teams; pop up to the third floor and say hello to the person you email in accounts every Monday. Basically, start honing your networking skills.
  4. Say yes – If you are asked to do something new, do not shy away. If it is out of your comfort zone, step up and take the challenge. Sink or swim that’s what you’ll be doing as your own boss with no one to delegate to. You’ll be doing new things daily, from attending events to speaking at events, from negotiating contracts to drafting strategies. Just do it and get used to a) the initial fear and b) the adrenaline once you realise that, whether you’re doing it well or not so well, you are trying and you are learning.
  5. Ask for help – When you set up on your own it is all about resources. You will be calling in favours and hiring professionals at a competitive price. SO whilst you are still in a day job, get used to asking for help from the people who know how to do what you can’t. If you don’t really know how to use your computer, ask IT for help. If you’ve never been part of a pitch and want to learn, ask a colleague who has done one before. Get used to asking for help, NOW.

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Do you need a break?

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When you’re running an up and coming business, costs are always on your mind. The less costs you have, the more profit you can make. So what do you do? You look for savings, HOWEVER, one of the biggest overheads of any business, often gets overlooked; RENT. In the UK most businesses rent their premises from a landlord as tenants under a lease. When the market was booming (pre-credit crunch) landlords had the upper hand setting high rents and long leases however in today’s challenging economic climate, landlords and tenants have found that long leases and high rents are no longer sustainable; there needs to be a compromise. This is why most commercial leases contain a BREAK clause which enables either the landlord or the tenant or BOTH to end the lease early and seek better terms elsewhere.

How does it work?

Say for example, you own a restaurant. You have a three year lease. In year one, business is booming however in year two, it’s not doing so well because the government has got rid of a big housing estate next door causing footfall to significantly decrease. You still have to pay your rent which in year one, was a piece of cake but now in year two, is a massive burden. You review your lease agreement but ALAS you’re locked in until the end of year 3. You go to the bank to apply for a loan. Whilst doing this you spot a great  empty space in a shopping centre round the corner. You know that your business would thrive there. You review your lease again, alas,  NOTHING HAS CHANGED, you’re STILL locked in until the end of year 3.

In the above scenario, not having a break clause in your lease prohibits you from getting out of a high rent deal in a poor area for your business. Your overheads increase and your profits decrease. Let’s look at this scenario WITH a break clause.

You have a three year lease. As soon as business starts to fail in year two you begin to review your options. You look closely at your lease agreement and to your joy you see that you have a break clause that kicks in after 18 months. You serve a notice to your landlord in accordance with the lease agreement, notifying him that you want to end your lease early. Your landlord accepts and at 18 months you move out of the premises and into the space that you spotted in the shopping centre. HAPPY DAYS.

Can you see the benefits for your business in having a break clause? It gives you some leeway to reassess one of your business’ biggest expenditures. In some circumstances where the location and premises still suit your business needs but the rent is just too high notifying your landlord that you are thinking of sending a notice to activate your break clause could help to bring your landlord to the negotiation table and agree a more sustainable rent. Landlords are business people too and what they value more than anything else is reliable tenants. However, as with everything in law (and that’s why you need a lawyer) there is more to it than just having a break clause and sending a notice. Here are a few considerations to bear in mind:

  1. Form and Service of Notice – You must comply exactly with method and form of service of a notice to exercise a break clause. Also once the notice has been served, it cannot be withdrawn. If the notice complies, you WILL be moving out so consider it seriously.
  2. Timing – It is important when drafting and negotiating the break clause that it is clear when the break date is and what the required notice period is. A break clause may occur on one or more specified dates or be exercisable after a specific period of time has elapsed. Your lawyer can help you work out what works for your business. Landlords usually never want to lose a tenant so they will hold you to strict compliance with the break clause notice provisions; the best thing is to diarise them so that you always have them on your radar and  consider them well in advance.
  3. Break conditions – These conditions must be strictly adhered to. If these pre-conditions are not complied with, your break notice may not be accepted. The most common pre-condition is that all rents due under the lease must have been paid. You must make sure that your lawyer negotiates this condition carefully. A lot of money is wasted in court where it is not clear whether a tenant has to pay a full quarter’s rent or just the apportioned rent up to the date of the break clause. There have been instances where a tenant has had to pay the full rent with no refund. Another pre-condition is that the tenant must give up vacant possession meaning the premises should be EMPTY. Take all your stuff and go.

So do you need a break? Yes! Make sure that you are always giving your business options and do NOT forget to use them.

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What UK Apprentice 2015 winner, Joseph Valente, taught us.

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I’m going to be honest and say that this year’s UK Apprentice crop were not the best. My guilty pleasure, I was hooked from the start but I struggled to get behind one of the candidates and cheer them on. HOWEVER, a late bloomer but still a bloomer, Joseph Valente came to the forefront. With his comic moustache (which he later shaved), baby face and cheeky grin it was initially easy to dismiss him as someone contending for the “experience” but he soon proved us all wrong. Joseph had something that guarantees success in one form or another; Joseph had PASSION.

I’m not a plumber (I’m a lawyer as you may have guessed) but Joseph made me WANT to be a plumber! He made me believe that plumbing was the future, the only future. I began to think “hey maybe I could get a van and set up a plumbing business using his business model”. THAT is the POWER of passion. If you are passionate about your business you are always winning. You win investors, you win employees, you win customers, you WIN!

You also develop and push boundaries. Joseph grew his business over ten years, straight out of secondary school. Stopping and starting in reaction to every closed door and new direction. His passion gave him persistence to keep going, to keep trying  and eventually to succeed. But what is success when you have PASSION? Joseph was continuously being told that he already had a successful business so why did he need Lord Sugar’s investment? Joseph answered them with “I just want the world and everything in it”. What Joseph taught us is that success continuously changes when you have passion because as you begin to achieve your goals, your passion drives you forward to create and achieve new goals. It’s remarkable. Passion drives you to 1) achieve; 2) learn; and 3) grow continuously.

If you haven’t watched the UK Apprentice, just watch the penultimate episode in which Lord Sugar’s pals interrogate the candidates. What do you notice? Joseph isn’t scared and Joseph doesn’t have to lie. He knows his business inside out. Even when weaknesses are highlighted, he still leaves every interviewer BELIEVING in him. Whilst the other candidates appear flushed and annoyed, Joseph is EXCITED!

Now I’m not saying that the other candidates did not have passion, they did BUT it was not nearly as convincing as Joseph’s and that’s why he won!

So this was a different but essential post. As business owners you need to keep the fire burning. YOU are the fuel for the whole thing. It’s that age old saying, “if you don’t believe in yourself, no one will.” As a lawyer, I can tell you that it is so EASY working for the passionate ones. Often more demanding and involved they INSPIRE me and bring out some of my BEST work. Have you noticed what I’m passionate about? Read the “About” page.

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HOW TO…reduce your legal bill!

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A legally smart business woman asked me to write a post about how to reduce her legal bill. As a City lawyer, here are my best tips on how to get the most out of your lawyer for less!

  1. Give legally smart instructions – Of course I would start with this one! The smarter your instructions the sooner your lawyer can get to work; they don’t have to waste billable time trying to figure out what you want. For example compare “Hey Cara please can you draft us a contract to buy apples from Fruit Ltd on a weekly basis” to “Hey Cara please can you draft us a contract to buy apples from Fruit Ltd on a weekly basis for X amount per box. In each box there will be X apples. We want the contract to last for a year with a right of renewal and we want it to be governed by English law and the English courts have jurisdiction. We also need a clause that states we have a right to terminate if the apples are Y. Delivery should be on Y of each week….” The former encourages a huge bill, the latter demands an efficient bill.
  2. Ask a junior lawyer to do it – Unless you are giving a complex instruction there is no reason why a junior lawyer should not be doing the bulk of the work. A senior lawyer only needs to give it a once over to make sure there are no glaring mistakes. When you give a standard instruction request for a junior lawyer to do the work in the first instance, if the law firm insists that a more senior lawyer is needed ask WHY and make them JUSTIFY the senior lawyer’s input BEFORE any work is carried out. You may just find that they back down.
  3. Request to see the narratives – Lawyers bill by an hourly rate. As part of that billing structure we are required to write narratives. If your lawyer has spent 7 hours reviewing a contract, ask to see the narratives. They should be detailed enough for you to say “fair enough” BUT if the narratives do not convince you, challenge the bill! This will either a) get you a discount on that very same bill or b) get you a fairer bill next time because that lawyer, terrified, will work as efficiently as possible for you. Most lawyers get annoyed when a client asks to see the narratives BUT its YOUR money and when you’re a growing business every penny counts!
  4. Agree a fixed fee structure – If you prefer predictability, agree a fixed fee arrangement! This means that, unless something unexpected pops up in the process, you know exactly how much you are paying each time. For example, if you have a standard sale contract that your lawyer reviews every time you engage with a new customer, agree a fixed fee for this repeat review i.e £50 per contract. You can also agree a fixed fee for a one off instruction. For example, if you need a lawyer to attend a negotiation with you, ask them to do it for X amount and not by an hourly rate. Hint to the lawyer that if they agree to this, you will send other work their way and watch your proposal be snapped up! Lawyers care more about a longterm business relationship in which they receive frequent work than being able to bill full rates on a single occasion.

Now go read “5 ways to spot a bad lawyer” and “3 ways to get the most out of your lawyer” to learn how to get even more out of your lawyer!

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HOW TO…negotiate.

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In business, negotiation is a very important skill. You negotiate practically every day! From getting better wholesale deals to giving a pay rise. We are surrounded by negotiation. Negotiation leads to improvement and progress so it is important that you know HOW to negotiate effectively! Here are some tips from my experience as a city lawyer!

  1. Do your homework – You know that saying fail to prepare, prepare to fail, that basically sums up negotiation. You cannot just turn up and blurt out what you want. You need to know a) who you are going up against and b) what they want. This is the only way that you can determine a best case (your dream outcome)/worst case (your bottom line) position for yourself. Study your opposition’s motivations, obstacles and goals. Research them and ASK questions in the negotiation, ask and listen and think about how you can manipulate that information to get what you want. FOR EXAMPLE, Bob is negotiating better wholesale prices from his fish supplier for his restaurant. Dave, the supplier, cares about getting rid of his entire catch of the day on the same day. Bob knows this having done his homework and so agrees a 30% discount on prices if Bob buys the remainder of the catch of the day at the end of the day.
  2. Don’t be afraid to ask for what you want – If you don’t ask you don’t get, simple. That’s not to say that your requests should be outrageous. They should be considered requests based on doing your homework above. Start by listing what you want from the negotiation and why. For example, following on from our example above, Bob may have listed that he wants cheaper prices for the fish that he buys so that he can offer cheaper prices to customers and attract more business. Dave may have listed the fact that he no longer wants to have to chuck away leftover stock at the end of each day. When an opportunity arises to discuss anything on your list of wants, leap in and talk about it. The trick is to always go in with your best position; start with your hopes and dreams then work down to your bottom line (but this is still better than where you are).
  3. Persuade them – So following on from the above, you have your list of wants but how can you get the other side to buy in to them. You present them as a solution or a benefit. Think of everything you want out of the negotiation and how it can actually help the other side. Having done your homework, you should always try to present your wants in the best possible light, not as things that the other side is giving away but as things that HELP them. HOWEVER this will not always be possible. Some things you want are just things you want BUT you can attach them to other potential benefits for the other side. For example, Bob might decide that he doesn’t need all types of fish in Dave’s catch of the day. He may only need Cod and Plaice so that’s what he bargains for. Dave is annoyed because ideally he wants a guaranteed buyer for all of the remainder of the catch of the day. Dave is losing out with this proposition. He may have a catch of the day that is all Cod or that is Cod, Haddock and Mackerel, he still faces wasting produce and losing money. Bob addresses this concern by saying “hey, you’re still getting a guaranteed buyer for Cod and Plaice which you catch REGULARLY.
  4. Don’t be in a hurry – The reality is that some negotiations take longer than others. Some issues are more complex. Some concerns affect more than the parties negotiating. If you face such a negotiation, you won’t get anywhere rushing the process. You have to go in at a realistic pace. Rome wasn’t built in a day and a sensitive negotiation can’t be agreed in a day. If you push too hard you could chase the other side away leaving you at square one. It is ok and a smart move to suggest “some time to think about it“. This shows the other side that you really want THEM to consider YOUR WANTS because you are serious or that YOU really want to consider THEIR WANTS because you are serious. You  can suggest a night, a couple of days or even a week to “think about it“. The amount of time will depend on the issues being negotiated.
  5. Keep your cool – DO NOT under any circumstances rise to negativity from the other side. Keep your cool! It will intimidate them. If you’re met with a stone wall or ridiculous counter arguments, take a minute and think about what the other side is saying. Then make them defend themselves. Ask them WHY they take a position. What’s their rationale? In most cases they can’t do this and hey presto, you’ve shifted the balance of power in making them realise that they can’t defend their ridiculous idea. In exposing the fact that they cannot actually defend their position, you then have the opportunity to launch into what you want, eloquently explaining your rationale and persuading the other side as to why they should agree.
  6. Stay flexible – Do not LIMIT yourself to a single strategy. You should have done your homework so well that you give yourself different ways to get to a solution. If you are met with heavy resistance to one option, build in the next and work on that. If the other party makes a demand, ask them to explain the reasoning behind that demand then brainstorm. Think – how can I get there another way?

Ultimately the worst negotiators are those who never move from their best case or shout down the other side instead of listening. Just remember that negotiation should lead to progress, negotiation is successful when a compromise is reached. HOWEVER there will be circumstances where it just won’t work, the parties interests are just not aligned. This is when you 7. WALK AWAY. Never ever force it. Good negotiators know when to cut their losses and walk away. In my opinion such negotiators have still won as they have been able to definitively rule out a business relationship thus freeing them to focus on another.

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Essential Contracts: An Overview

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Right so you’ve set up a business. Great! HOWEVER, don’t pat yourself on the back just yet. You need to ensure that you are legally ready to actually start FUNCTIONING as a business. So what am I talking about? I’m talking about those ESSENTIAL CONTRACTS that you should have READY at your fingertips so that you don’t a) look like an amateur (even though you may actually be an amateur) b) fall prey to the lawyers for the other side (if they present you with their standard contracts first, they MAY get the upper hand…depends on whether you’re legally smart or not) or C) miss out on fantastic opportunities because you don’t have the necessary documents ready and rearing to go.

There are many standard contracts a company should have depending on the industry within which the company operates. However here is a list of contracts that are applicable to all industries.

1. Shareholder Agreements

In the UK, if you are setting up a limited company, you will need a Shareholder Agreement. This contract regulates the dealings between the shareholders of the company. It sets out who owns what and who can vote and make decisions on what. It also sets out what particular shareholders cannot do. It effectively contains the framework for operating the company. This document should be drafted and agreed by all shareholders of a company at the outset. NEVER assume that just because you are friends or respectable members of society that things will not, one day, get ugly (this is business we’re talking about). A shareholder agreement protects every one.

2. Investor Agreements

Money, money, money…MONEY! If somebody is investing or loaning money to your company they will want to see the terms written down….SIMPLE. If you don’t have a standard form of this document ready for negotiation, you could run the risk of not being taken seriously and missing out on a great opportunity to gain capital for your business. An investor will want to know specific things and they will want to see these specific things neatly set out in concrete. What shares do they get? What is the value of those shares? Will those shares get diluted if more money comes in? What control do they get? What are the procedures for running the company? What is an exit for the investor if they want out? Setting these terms out clearly also protects YOU.

3. Website Terms and Conditions

Do you have a website? Of course you DO. You’re not living in the stone age BUT did you know that you cannot just have a website, you need a collection of documents covering the way that the website is run. Consumers/clients/customers need to see your policies on data, privacy, cookies and cancellation. Make sure you draft Terms and Conditions that are bespoke to your company. DO NOT copy and paste from another company’s Terms and Conditions – something in the small print WILL come back to bite you later. Instead, think about what terms you need in place that are relevant to what you offer and to how you run your business for example “this company operates on a 12 day cooling off period, if you change your mind within 12 days of ordering, we will cancel the contract, no strings attached” or “bookings are only confirmed upon receipt of a confirmation email from our head office”.

4. Non-Disclosure Agreements

Your business is your secret. Everything from your trademarks, patents, copyright, software, recipes, formulas, processes, financial information and so forth is your business IDENTITY. Don’t make it easy for people to steal your identity. This is what makes you unique – McDonalds, Apple, Nintendo! Before prospective investors, trade partners and purchasers will deal with you, they often need to know more about you – a Non-Disclosure Agreement offers you some protection in relation to the information that you disclose. It is a deterrent against breach of confidentiality by the other party. If they breach it, you can take them to court and sue them for virtually all damage ensuing from that breach…the price to pay could be very costly, consequently, they won’t want to breach it and your business identity is SAFE.

5. Employment or Consulting Agreements

If you have employees or consultants, you need a document that clearly sets out your relationship. There are many considerations that you as an employer will need to consider and set out clearly in line with the law. For example the process of terminating the contract, dealing with employee data, dealing with disciplinary matters, and (currently at the fore front in the UK) employee pension rights. Additionally, considerations such as wages, bonuses, working hours, holiday, sick pay, shares etc. all need to be addressed and codified somewhere clearly. This is where you really need a lawyer. There are some benefits to engaging contractors over employees (basically that you are not responsible for them) BUT just because you label someone a contractor does NOT mean that they are LEGALLY a CONTRACTOR. If they are working full time and only for you, tax and the law may classify them as an employee. So again YOU NEED A LAWYER HERE.

So there you have it. This is NOT a comprehensive list BUT it is a very good start. If you operate in another jurisdiction, such as the USA or Singapore or Dubai, the above themes and considerations are pretty universal save for any legal particulars. So go and put your house in order. You can actually buy most of the templates to the above agreements online HOWEVER whilst you can certainly make a start on them ALWAYS get a lawyer to give them at LEAST the once over, remember these documents are ESSENTIAL so you kind of want to get them right.

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