Archive for August, 2011
Exculpatory Agreements: How to Avoid Some Causes of Liability
Of course, a manufacturer or retailer can find ways to avoid liability, and contractual law is the perfect tool for such instances. One can include an exculpatory agreement clause on the service providing contract, or in the sales contract.
The aim of exculpatory agreements is to set concrete limits regarding the liability of a service provider, in turn shifting the burden of possible risks to the customer. By signing the contract, the client accepts all the risks that the activity may result in.
This practice was being overruled by courts since legal institutions understand that the clients are greatly disadvantaged when compared to the service providers. Under exculpatory agreements, the manufacturer or retailer controls which party assumes which risks. For this purpose, the courts have constructed some guidelines to determinate when such a clause might be considered unacceptable. These factors are called Tunkl factors. If they are present, the courts would not enforce the agreement. For instance, see the following examples:
- When one is in dealings with a business that is subject to special regulations, usually applicable in very technical situations, which would make it complicated for a regular individual to prove a claim.
- Service is of great importance to the public or is a matter of public necessity. The rationale behind this factor incorporates the idea that certain categories are too essential for the community, and for that reason, a service provider cannot delegate the risks to the consumer.
- The service provider has superior bargaining power or the agreement is a contract of adhesion; the victim had no opportunity to bargain for protection from the risk. Under this kind of contract, the consumer can only choose to sign the contract or not have access to the service since all the clauses are dictated by the service provider.
Because the consumer cannot have any bargaining power to modify the conditions, it is advisable to omit exculpatory agreements whenever possible. Such contracts are inequitable and otherwise unfair to the consumer.
Is there any defense for manufacturers when the court refuses to enforce an exculpatory agreement? Yes, a company can argue that the client assumed the risk at the moment the contract was signed and made effective.
There are times when individuals knowingly engage in reasonably dangerous activities offered by a third party. If a consumer is harmed, he or she has to endure that injury as a result of the activity that he or she took part in. This is the case for most sports. For instance, we cannot imagine a football player filing a lawsuit against the opposing team for a knee injury. The same is true regarding other injuries suffered by the consumer that are an inherent risk to the activity, and that were not provoked by a special, negligent action performed by the service provider. For example, if a customer of a skiing establishment gets hurt while skiing, one cannot sue the resort unless the reason for the accident was the lack of a proper sign, warning that the trail is ending.
Recruiters, Headhunters and HR Professionals: Social Marketing and Social Networking Experts
I often get questions about social network marketing, and about social marketing in general. “Does it really work?” “Do you get results?” Nobody knows the value of social marketing—whether old-school networking or via tools that have recently entered the scene such are Facebook and LinkedIn—better than the human resources or recruiting marketing professional. In this profession, marketers have always relied on social networks in the past, often participating in recruitment fairs, professional conferences for the industry in which they recruit, or by simply putting the word out there in the relevant industry with the knowledge that people who work in a certain industry know others who have similar backgrounds and educations.
With the tools available to the marketing branch of a headhunting or recruiting firm, the importance of this sort of marketing has grown exponentially. Today, a single LinkedIn or Facebook post to the right person or group will get the word out about your headhunting or recruiting firm to a potentially global network in absolutely no time. When you speak to marketing professionals from the HR industry about social network marketing, it seems they are some of the most excited about it amongst us (that is, amongst marketing professionals in general). That is in large part because they are the ones who already intuitively know how to use it best, having always relied heavily on social and professional networks long before they became digitized.
What can we learn from our marketing colleagues whose job it is, in fact, to market a professional network? Here are the Top 10 Tips of Professional & Social Network Marketing as I have understood them from conversations our marketing colleagues in the recruitment industry:
- Identify your champions. Champions are clients or customers who would give you a 9 or 10 out of 10 when asked to rate you, and from whom you are likely to receive referrals.
- Identify your champion’s social and professional networks, including contacts and friends. Send information to your champion and encourage him to share with said networks.
- Allow your champions and other satisfied customers to build your social network channels for you. While you may provide them with the “hardware” in the form of discussion groups, boards, etc., encourage them and allow them to take the lead. Encourage them to answer other’s questions, engage with potential customers, etc.
- Be active online. Give your customers things to “like.”
- Be active in promoting your specific needs online and off. Looking for a group of biostatisticians to whom to market your recruiting company? Or a group of people who love scrapbooking? Get in touch with biostatisticians you’ve placed in the past, or get all the moms at the local elementary school to “like” you or review you on Yelp. Whatever works.
- Determine if you need to focus locally or globally to make most effective use of your social marketing efforts. Note the contrast in the examples above involving a recruiting firm focused on bringing in the best global talent in the biotechnology industry, and a shop/studio that fulfill all a scrapbook fanatic’s dreams. In the former, you want to target a global network. In the latter, you want to target a local network.
- If targeting global networks, make sure you: target several champions globally to help you get the word out; social and professional networking websites are a highly efficient way to target global networks.
- If targeting a local network, along with local advertisement and the internet, you have the benefit of easy word-of-mouth marketing and the ability to find clusters (literally) of your potential customers. Figure out where people with your customer profile hand out and go there. In the scrapbook example, one might target people with children (schools, ice cream shops, toy stores), and people who are interested in crafts (post ads near the local craft store, make friends with your local flower arrangement teacher, etc.)
- Provide high quality information that is likely to be of interest to your networks to make them feel that they get some sort of privilege by being networked with you. For example, employment statistics for a specific industry are very likely to interest people in any position in the industry, while if you only share and distribute job openings, marketing information about your firm, etc., there will likely be people in or near your network who will lose interest.
- Never bash the competition is the social or professional networking environment. This includes online networks, professional conferences, etc. If you must resort to such tactics, be discreet, don’t Tweet. Or let your champions take care of that for you.
