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Website Development Contracts, Part 5: Mediating Disputes

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By Peter S. Vogel and Chelsea Hilliard
Jul 28, 2020 4:00 AM PT

Contract disputes do arise from time to time. Whether the issue is early termination, delay of deliverables, breach of performance, or the like, it is best to plan for the worst and hope for the best.

When there is a dispute, whether the contract contemplates this or not, either party should consider a legal process called mediation to avoid the time and cost of fighting in court (litigation) or in arbitration, both of which are the subject of Part 6 of the series, so we will keep those topics to a minimum here.


This is Part 5 of a series providing advice to e-commerce businesses on key provisions and considerations for website development contracts. Also see:

Part 1: How to Avoid Major Disasters
Part 2: Who Owns the IP on Your Site?
Part 3: Important Cloud and SLA Considerations
Part 4: Indemnification


What is Mediation?

The mediation process varies around the U.S., but generally the Mediator and the parties work together to figure ways to end the dispute by reaching a written settlement agreement.

As a general rule and by state laws, the Mediator is not allowed to testify in court or at an arbitration about the mediation since everything related to the mediation process is confidential, unless the parties agree otherwise.

Often times the Mediator will have private telephone conversations with the parties and their attorneys to discuss the details of the dispute, which generally leads to a face-to-face or Zoom mediation conference.

However, before there is a face-to-face mediation conference the parties and their lawyers often submit confidential mediation statements (that is, position papers), or exchange non-confidential mediation statements so that they tell the opposing party what they think.

When the parties and their lawyers attend the mediation conference, they generally they are separated in different rooms (or Zoom rooms) to avoid conflict and encourage the parties to share the confidential details about the dispute with the mediator. In these separate meetings, referred to as caucuses, the Mediator discusses the issues in dispute with the intention of being honest and candid about the issues.

Also, the Mediator also discusses the likelihood of success in litigation or arbitration since if there is no settlement, the parties may end up spend lots of money and time fighting in litigation or arbitration.

What if the Contract Requires Mediation?

If the parties agree by contract to a mediation, most courts and arbitrators will require that the parties actually complete a mediation before moving forward to litigation or arbitration.

Regardless, the parties can always agree to mediate if a conflict develops even if there is no contractual requirement. Sometimes contracts require the use of third party services such as the American Arbitration Association (AAA) or JAMS shall manage the mediation as part of the alternative dispute resolution (ADR) services.

Notwithstanding the AAA and JAMS, there are thousands of professional mediators around the U.S. who make themselves available to help resolve disputes, so you should be able to find a mediator in your location.

How is a Mediator Selected?

Mediations tend to be more successful if the parties and their lawyers have trust and confidence in the mediator.

Normally there is a vetting process where the AAA or JAMS recommends a list of local mediators and then the parties conduct their own research to find the right person to serve as the mediator.

Part of the vetting process is to make sure that the mediator is not biased one way or the other, so it is important to ask the right questions find the right mediator.

Notwithstanding anything else about the mediation process, if a party and their lawyer make settlement offers during the mediation process that does not mean that the offers can be used as evidence in a subsequent lawsuit or arbitration because of Rule 408 of the Rules of Evidence:

Rule 408. Compromise Offers and Negotiations

(a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Rule 408 encourages parties to make settlement offers since those offers cannot be used in litigation or arbitration, so it is essential that lawyers clearly mark all settlement offers under Rule 408 to protect the offer.

Conclusion

If the parties can resolve their disputes in a mediation and avoid the cost and time in litigation or arbitration, that can be a win-win, not to mention to allow the parties to get on with business.

The next part in this series which will describe litigation and arbitration if the mediation is not part of the contract, or the parties are unable to settle their disputes in the mediation.


Peter Vogel Peter Vogel has been an ECT News Network columnist since 2010. His focus is on technology and the law. Vogel is Of Counsel at Foley & Lardner LLP, and focuses on cybersecurity, privacy and information management. He tries lawsuits and negotiates cloud contracts dealing with e-commerce, ERP and the Internet. Before practicing law, he received a master’s in computer science and was a mainframe programmer. His
blog covers IT and Internet topics.
Email Peter.

Chelsea Hilliard Chelsea Hilliard has been an ECT News Network columnist since 2019. As an associate at Foley & Lardner LLP, she focuses her business
litigation practice on trade secret noncompetition and securities enforcement. She also helps clients with complex electronic discovery disputes and has been recognized as Texas Rising Star attorney by Texas Monthly, and a Top Lawyer under 40 by D Magazine. Email Chelsea.

Source: http://www.ecommercetimes.com/story/86773.html?rss=1

Ecommerce

transcosmos becomes a certified “Lazada” partner,…

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Lazada

Lazada

Since 2015, transcosmos has been highly recognized by Lazada for its localized e-commerce support services respecting cultures and commercial practices of ASEAN countries and cross-border e-commerce operations based on each specific logistics situation, law, regulation, etc.

transcosmos inc. is proud to announce that the company has become a certified partner of “Lazada,” a leading e-commerce platform in ASEAN. transcosmos delivers clients’ superior products into the hands of ASEAN consumers by enhancing its cross-border e-commerce services building on its bases in ASEAN countries and its e-commerce and distribution network.

Lazada certifies companies that show excellence in e-commerce store operations, and who deliver timely and effective operations and high-quality customer services, serve brands in expanding their e-commerce eco-systems, and over-achieve standard requirements as a partner. As Lazada strengthens its focus on the Japanese market, the company has launched its certification program in Japan, and recognized transcosmos as one of its first four partners. transcosmos initiated its services for Lazada in Thailand in 2015. Since then, the company has been highly recognized by Lazada for its localized e-commerce support services respecting cultures and commercial practices of each ASEAN country, and cross-border e-commerce operations that take into consideration each country’s specific logistics situation, laws and regulations, and other factors.

In the ASEAN market, transcosmos not only sells its clients’ products on local e-commerce shopping malls and assists their cross-border businesses, but also offers services that integrate online, offline and digital marketing. The integrated services help clients drive their Online-Merge-Offline (OMO) initiatives by connecting their online stores with physical stores in the market, succeed in in-flight duty free channel, and execute social media marketing. With such services, transcosmos serves clients in boosting their brand recognition and expanding sales. As a Lazada partner, transcosmos will further drive e-commerce and retail businesses in the ASEAN market.

● About Lazada Group

Founded in 2012, Lazada Group is Southeast Asia’s leading eCommerce platform. With a presence in six countries – Indonesia, Malaysia, the Philippines, Singapore, Thailand and Vietnam – we connect this vast and diverse region through our technology, logistics and payments capabilities. Today, we have the largest selection of brands and sellers, and by 2030, we aim to serve 300 million customers. In 2016, Lazada became the regional flagship of the Alibaba Group, and is backed by Alibaba’s best-in-class technology infrastructure.

With its operations bases in Vietnam, the Philippines, Thailand, Malaysia and Indonesia, transcosmos offers a variety of localized services including contact centers, digital marketing and e-commerce one-stop services. Its e-commerce support services tailored for each client based on their phase of globalization and local market strategies help clients expand their businesses in each local market. More specifically, clients have the option to choose cross-border e-commerce services including test marketing that let them quick start a new business channel, distributor services where transcosmos acts as an importer and a seller in the local market, and e-commerce one-stop services for clients who already have e-commerce channel in the local market. Through such services, transcosmos provides clients with end-to-end support to help them succeed in each market.

transcosmos’s cross-border e-commerce services include flagship store opening, shipment to ASEAN countries, sales management and customer services all at one-stop. All clients need do is deliver their products to transcosmos.

transcosmos offers e-commerce one-stop services that fit clients’ e-commerce business and brand strategies across 48 countries including Japan, Europe and the United States, China, Taiwan, South Korea, ASEAN, India and Latin America. With the aim of contributing to clients in enhancing brand value and expanding sales, transcosmos will continue to deliver the best services to each country in this fast-changing e-commerce market.

  • transcosmos is a trademark or registered trademark of transcosmos inc. In Japan and other countries.
  • Other company names and product or services names used here are trademarks or registered trademarks of respective companies.

About transcosmos inc.

transcosmos launched its operations in 1966. Since then, we have combined superior “people” with up-to-date “technology” to enhance the competitive strength of our clients by providing them with superior and valuable services. transcosmos currently offers services that support clients’ business processes focusing on both sales expansion and cost optimization through our 168 bases across 30 countries/regions with a focus on Asia, while continuously pursuing Operational Excellence. Furthermore, following the expansion of e-commerce market on the global scale, transcosmos provides a comprehensive One-Stop Global E-Commerce services to deliver our clients’ excellent products and services in 48 countries/regions around the globe. transcosmos aims to be the “Global Digital Transformation Partner” of our clients, supporting the clients’ transformation by leveraging digital technology, responding to the ever-changing business environment.

https://www.trans-cosmos.co.jp/english/

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Source: https://www.prweb.com/releases/transcosmos_becomes_a_certified_lazada_partner_asean_s_leading_e_commerce_platform/prweb17492359.htm

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Ecommerce

Unique OPPtoberfest Virtual Conference Focuses on Sales Development…

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qualifiedMEETINGS today announced its partnership with ZoomInfo to present a unique virtual conference taking place on October 27, 11am – 4pm EDT, that looks at how sales development strategies can help drive close-of-year business while setting companies with a strong Q1 2021 pipeline. With a keynote address by ZoomInfo CEO, Henry Schuck, the conference looks at the changing 2020 sales environment and how to use innovations in SDR team tactics and methodologies in today’s new business environment to drive 2021 sales.

Henry Schuck, CEO ZoomInfo, states, “I’m pleased to be joining qualifiedMEETINGS’ OPPtoberfest virtual conference as a keynote speaker. The conference focuses on the critical role data-driven sales development programs play in any organization’s sales success. My keynote will focus on the impact SDR teams have felt this year, and look forward to strategies to deal with our new normal in 2021. qualifiedMEETINGS has put together an exciting program.”

The conference brings together a host of sales and marketing industry leaders in panel discussions, presentations, and workshop formats, including:

  • Keynote Address: Henry Schuck, CEO, ZoomInfo
  • Strategies, Stats and The State of Inside Sales: Trish Bertuzzi, Founder & CEO, The Bridge Group and Bob Perkins, President, AA-ISP
  • After the Meeting: When Setting Meetings isn’t Enough: Matthew Glaser, VP Sales, Sophos, Dan Koehn, CXO, qualifiedMEETINGS
  • New Innovations in Establishing a New Baseline, Morgan Ingram, Director of Execution & Evolution, JB Sales and Steve Richard, Founder, ExecVision
  • Zoominfo: Building the SDR Program: Steve Bryerton, VP Sales, ZoomInfo

“We are offering OPPtoberfest in Q4, a time when organizations are pushing to close sales by end-of-year. We’ve designed the program to offer sales and marketing professionals involved with the SDR effort real-world, actionable strategies that will drive qualified sales opportunities that make an immediate difference, helping to increase their SDR program ROI.” explains Matt Wheeler, CEO, qualifiedMEETINGS.

The virtual conference is free of charge. It is presented by qualifiedMEETINGS, with ZoomInfo as the platinum sponsor and Sendoso as the Gold Sponsor. For more information and to register visit OPPtoberfest.com

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Source: https://www.prweb.com/releases/unique_opptoberfest_virtual_conference_focuses_on_sales_development_strategies/prweb17487935.htm

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Ecommerce

LaserShip Announces Its Time Of Need Philanthropic Program

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LaserShip Delivers Meals for Food for Others

LaserShip Delivers Meals for Food for Others

From helping deliver food and medical supplies to supporting cities and towns recovering from natural disasters, LaserShip is fully committed to helping during the most critical of times,” said Josh Dinneen, Chief Commercial Officer of LaserShip.

LaserShip, the leader in last-mile delivery and largest regional e-commerce parcel carrier in the US, today announced its new philanthropic program called Time of Need to actively support communities it serves through initiatives focused on hunger relief, health improvement and disaster response.

LaserShip has more than three decades of delivery experience and has a history of providing critical support through in-kind delivery services, logistics and transportation consulting, volunteering time, and financial contributions. Given the increased need in recent months due to the COVID-19 crisis, LaserShip decided to formalize this commitment to the community by establishing the Time of Need program.

LaserShip is uniquely positioned to leverage its infrastructure, delivery network, and expertise to support communities in the following key areas:

  • Hunger relief: LaserShip has developed partnerships with local food banks to help through grants, volunteer events and transportation support.
  • Health improvement: LaserShip is an official member of the Workplace Partnership For Life which works to help increase organ donation awareness. Earlier this year during the COVID-19 pandemic, the team also facilitated daily deliveries of medical supplies and PPE for Inova, a Virginia hospital system and nonprofit healthcare provider.
  • Disaster response: Given its infrastructure and geographical network, LaserShip can help deliver emergency goods like water, food and clothing to areas affected by natural disasters.

“We have a responsibility to serve the communities in which we operate in. From helping deliver food and medical supplies to supporting cities and towns recovering from natural disasters, LaserShip is fully committed to helping during the most critical of times,” said Josh Dinneen, Chief Commercial Officer of LaserShip. “We’re very proud to launch the Time of Need program and look forward to increasing our involvement to deliver a difference.”

LaserShip launched the program with a $10,000 charitable donation to Food for Others, a hunger relief organization in northern Virginia. As part of the commitment, LaserShip is providing delivery services to help Food for Others transport food from its warehouse to a distribution center in Annandale, Virginia. Food for Others feeds over 2,600 local families each week.

“We’re thankful to LaserShip for their support and being there for the community during its time of need the past few months,” said Annie Turner, executive director for Food for Others. “Without companies like LaserShip, we wouldn’t be able to serve people during this time of increased demand.”

For more information or to schedule an interview, please contact Isabel Canto, pr@lasership.com, or Suzanne Pace, suzanne@rocketsocialimpact.com.

About LaserShip, Inc.:

LaserShip is the leader in last-mile delivery for retailers and shippers that desire reduced transit times and increased flexibility within their supply chain. Founded in 1986, LaserShip has evolved into the leading provider of same-day and next-day delivery services in the Eastern and Midwest U.S. for premier e-commerce and product-supply businesses, including five of the largest retailers in the U.S. For more information, visit https://lasership.com.

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Source: https://www.prweb.com/releases/lasership_announces_its_time_of_need_philanthropic_program/prweb17487488.htm

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