Going to Contract: How to Avoid Legal Pitfalls When Working With Brands & Bloggers


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Speaker: Deborah Gonzalez, Esq

This session will provide an overview of contract concepts and special considerations to keep in mind when creating agreements with bloggers and brands. Topics include: components of a contract, myths of contracts, contract clauses of interest, breach of contracts, remedies and tips on negotiating.

Know what makes a contract valid.
Understand important contract clauses and how they relate to liability and performance.
Have a toolkit of strategic negotiating tips.

Published in: Career, Business
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Going to Contract: How to Avoid Legal Pitfalls When Working With Brands & Bloggers

  1. 1. Going to Contract: How to Avoid Legal Pitfalls When Working with Brands & Bloggers Deborah Gonzalez, Esq. BarkWorld 2013
  2. 2. DISCLAIMER This presentation is for educational purposes only and does not constitute legal advice. It is recommended that you seek legal counsel for specific matters. Images belong to their owners and are used under the Fair Use doctrine for educational purposes.
  3. 3. OVERVIEW • Introduction • What is a Contract? • Myths of Contracts • Contract Clauses of Interest • Breach of Contracts • Remedies • Negotiating • Q&A
  4. 4. WHAT IS A CONTRACT? A legally binding agreement between two or more competent parties.
  5. 5. MYTHS OF CONTRACTS All contracts are written. They should be, but you have heard of “oral contracts.” Oral contracts are difficult to prove and as one of my colleagues stated, “not worth the paper they are not written on.” Written, signed, and preserved are the best contracts for enforcing your rights.
  6. 6. MYTHS OF CONTRACTS • All contracts are long. Not necessarily so. Contracts MUST meet certain requirements and contain certain terms so there is no vagueness as to what each party must do. But a contract can be a simple 1- page letter or a 90-page treatise. One of these requirements is what lawyers call “consideration” – each party agrees to give something or forego something of value to the other party.
  7. 7. MYTHS OF CONTRACTS • All contracts are valid. Contracts are only valid if they are for a legal purpose. So you can’t sign a freelance contract to defame (falsely make a statement) someone in your blog or webcast.
  8. 8. MYTHS OF CONTRACTS • All contracts are “as is.” The first contract should be looked at as an invitation for discussion or what we call “negotiation.” Read the entire contract, seek legal review, and if something stands out to you or you feel is missing, start to negotiate. The worse that can happen is you actually get what you want, so make sure you want it. Also keep in mind you have the most leverage BEFORE you sign – so don’t sign until you are absolutely ready.
  9. 9. CONTRACT REQUIREMENTS • Specifics • Consideration • Capacity • Legal • Proper Form
  10. 10. CONTRACT REQUIREMENTS • Offer • Acceptance • Rejection • Counter-offer
  11. 11. CONTRACT CLAUSES OF INTEREST • Who are the Parties? • Scope of the Agreement (goals) • Compensation/Deliverables (SOW) • Work for Hire/Independent Contractors • Term of the Agreement
  12. 12. POINTS OF INTEREST • Exclusivity Clauses • Intellectual Property Clauses • Disclosure Requirements • Indemnity Clauses
  13. 13. POINTS OF INTEREST • Warranties • Assignments • Termination • State Law Jurisdiction
  14. 14. BREACH OF CONTRACTS • Performance Specifics • Due Dates • Parole Evidence Rule • Ambiguity
  15. 15. REMEDIES • Specific Performance • Reformation • Rescission • Restitution • Damages
  16. 16. NEGOTIATION 5 Negotiation Styles: • Avoider: Hate conflicts and avoid them at all costs. • Compromiser: Their priority is to maintain a productive relationship. • Accommodator: They like to resolve conflict by solving the other person’s problems.
  17. 17. NEGOTIATION 5 Negotiation Styles: • Competitor: They like to win and be in control of the situation. They believe if they win, you lose. • Problem Solver: The most imaginative thinkers who think about fair “win/win” solutions. http://www.madridteacher.com/business/negotiation- style.htm
  18. 18. NEGOTIATION • Prepare: Have clear objectives. • The importance of presence before, during and after the negotiation • The importance of knowing who the other party is you are negotiating with and what their authority level is • Do not let the other party junior you • Observe, Question, Listen, Respond
  19. 19. NEGOTIATION • Body Language – Nonverbal Communication • Listen and be reasonable and flexible • Keep the personal and the emotional out of it • When should you engage an attorney • Ask or you will never get
  20. 20. NEGOTIATION • Make sure that the contract you are finally sent is the correct one with all the items you negotiated • Nothing is a “standard deal” everything can be negotiated • So much depends on what leverage you have going into the negotiation; relative bargaining power
  21. 21. NEGOTIATION • Is signing the contract the end or the beginning of the relationship? • Every negotiator has a style – what’s yours? What’s theirs? • You have to understand negotiation is a process, you need patience but it is important to go through it
  22. 22. Thank you! Deborah Gonzalez, Esq. deborah@law2sm.com www.law2sm.com 404-857-1331