Michigan legislators: stupid is, as stupid does

Michigan, without fully appreciating the ramifications to small business, decided to recently join the growing list of states placing restrictions on gift certificates. The justification is always consumer protection. (See Gift Cards and Gift Certificates Statutes and Recent Legislation for more information about various state laws).

Both houses in the State of Michigan approved bills amending Michigan law to (1) limit expiration dates to five years or more, and (2) require unclaimed funds to escheat to the state. See the Senate version of the bills, Bill 387 (S-2) and Bill 388 (S-2), covering Michigan’s Consumer Protection Act and Uniform Unclaimed Property Act, respectively.

They were scheduled to take effect on April 1, 2008, but it doesn’t yet appear (as of the writing of this blog article) that they have been signed by the Governor.

What is truly mind-blowing, and shows the depth of ignorance of Michigan’s legislators, is the fiscal analysis performed. They actually say:

FISCAL IMPACT

Senate Bill 387 (S-2): Any additional costs associated with enforcing the Michigan Consumer Protection Act or promulgating any new rules to implement it due to this proposed change should be absorbable [sic] within the Office of Attorney General’s existing budget.

Senate Bill 388 (S-2): The bill would have no fiscal impact on State or local government.

No fiscal impact??!? From a state with the nation’s highest unemployment rate in 2007??!? They would have looked less stupid by saying “should not have any fiscal impact.” What they missed, is the impact to small business, and the further erosion of the economic viability of that tax base.

Michigan is a state that needs jobs. The residents are leaving in droves, with “the likely consequence of a moribund economy that has pushed thousands more people into poverty.” Consumer protection is always a laudable goal, but laws like this — with no rigor in the financial impact of their legislation — indicate that Michigan will experience a significant, long-term decline in its economic base. I can’t think of a better indicator for businesses and homeowners to sell!

I’m guessing that legislators like to look at the large companies, like Walmart, Best Buy, Circuit City, etc, when constructing consumer protection laws. The problem is, being able to sell, expire, recognize and keep the revenue from gift certificate sales are critical to many groups of small businesses. Their survival depends on it, and it’s the small business that pays an inordinate amount of local taxes and employs a large percentage of the population. It’s small business that struggles to survive, especially in the economically depressed State of Michigan.

A good employee is like a three-legged stool

You cannot beat three legs on a stool. Otherwise, it’s next to impossible to maintain the proper balance and center-of-gravity.

It’s useful to think of a three-legged stool, when thinking of employees. Like legs on a stool, each employee needs at least three high-level attributes to maintain the proper balance within a company and the right center-of-gravity. They are:

1. Hard skills - Those skills necessary to do the fundamental job hired for (i.e. answer the phone, analyze financials, run the computer, balance the books, etc).
2. Soft skills - The knack for friendliness and courtesy. Saying “hello, please, thank you and goodbye,” along with the ability to communicate well (i.e customer service skills).
3. Culture fit - Possessing the same work ethic and desire for growth as the company.

It’s easy to focus on hard skills only … “She is GREAT at doing what is needed!” We so appreciate when someone is an outstanding fit for what’s needed, that we forget about two other important features of what makes an employee great within a company: the soft skills and fit within the culture.

Soft skills are important. This is a no-brainer for those positions with customers interaction. Customer-facing employees must be friendly, courteous and represent the company in its best light with customers. After all, customers represent the life-blood of a company: revenue. However, if everyone — including the bookkeeper — maintains strong soft skills, you promote, propagate and maintain a fun, positive and healthy workplace environment, which makes it even easier for the customer-facing employees to maintain great relationships with the customers.

Soft skills include communication skills, and are often overlooked. If an employee cannot articulate him or herself clearly, they will experience difficulties with representing others and the company, problem solving and/or conveying information. They will delay or neglect filling paperwork, time sheets, follow-up cards, etc, if they have trouble writing.

When I see otherwise great companies with great products or services having trouble with customer retention, I almost always find companies whose employees have little or no soft skills. Customers like to be liked, and like to associate with others who are friendly, helpful and courteous. Unfriendly employees, who appear preoccupied or generally lack sincerity, will push customers away and they will never come back.

As it relates to culture fit, consider two different business owners: The first is an A-type personality, who works hard toward a 5 years exit strategy. The second owner could care less about making a profit, and cares dearly about promoting a healthy lifestyle. Is it possible for the same great employee to be successful in both companies?

If, as an owner or manager, you’re constantly working overtime, are you going to be okay with a nine-to-fiver? Or, do you need someone who is willing (without asking) to burn the midnight oil?

Individuals who bring a balanced mix of hard skills, soft skills and culture fit, will be far superior, happier and longer-lasting, than individuals who possess only outstanding hard skills, and lack in the other areas. A hard skills only employee will ultimately lead to frustration and a quick turnover–in that employee, as well as customers.

France hits E-Bay with steep penalty for contributory trademark infringement

The Wall Street Journal just posted an article entitled EBay Loses Suit Over Luxury Fakes. Apparently, a French court sided with LVMH Moët Hennessy Louis Vuitton and sister company Christian Dior SA, which had accused eBay of not taking the necessary steps to ensure that the accessories sold on its Web site were not counterfeit (despite the fact that E-Bay has a facility where trademark holders can report potential fakes to E-Bay to have the reported auctions shutdown).

The French court ordered eBay Inc. to pay Louis Vuitton and other luxury-goods brands 40 million euros ($63.1 million) in damages for fake goods sold through the online retailer. Givenchy perfumes was also a party to this case, and though the perfumes sold on eBay were legitimate, LVMH strictly limits their distribution to authorized dealers such as perfume chains and department stores.

There are two troubling aspects of this case, aside from the high damages awarded against E-Bay. First, is the increasing willingness to require companies to monitor the activities of their customers, and second, as it relates to the Givenchy perfumes on E-Bay, to hold e-commerce companies to an almost impossible standard for monitoring the “legitimacy” of third-party transactions.

Let me explain: As it relates to US Copyright law, our system has long held a distinction between a publisher and a distributor. A publisher, arguably, reviews their work and is deemed responsible for the works that reach the public. A distributor, by comparison, doesn’t read a magazine or newspaper, and simply delivers it to store shelves. Therefore, if there’s a copyright issue, the distributor is deemed to have no knowledge of (nor the capability to review) material being distributed. This makes sense, if you think about it, because a distributor probably distributes hundreds of magazines, and doesn’t have any subject matter experience in what they deliver to the stores.

In the Internet context, this works well for an Internet service provider (ISP) or web hosting company, because they have potentially thousands or millions of customers, and have absolutely no subject matter or domain expertise regarding their customer’s websites. The mere thought of having your ISP review your Internet traffic inspires Orwellian notions in all of us. The same argument can be made for E-Bay. Millions of transactions occur every day on E-Bay, and I suspect E-Bay doesn’t have a clue about the subject matter of those auctions.

Unfortunately, this publisher/distributor distinction in copyright law hasn’t made its way into trademark law, and this is where many e-commerce companies run into trouble. Trademarks are a completely different aspect of intellectual property, and are treated completely different. The main objective of trademark law is to protect the consumer, not the owner of the mark, from improperly marked products and services. Therefore, a completely different set of laws and risks exist, and if an e-commerce company tries to manage its risk against contributory trademark infringement using the notions of the publisher/distributor distinction in copyright law, they are bound to eventually find themselves in serious trouble.

For example, the safe harbor provisions of the Digital Millennium Copyright Act (DMCA) don’t apply to trademarks, only to claims of copyright infringement. If you don’t have strong procedures and mechanisms to respond to, and deal with, contributory trademark infringement claims, you run the risk of loosing a serious lawsuit. Such claims put the unfortunate e-commerce company or ISP in the role of a judge, trying to ascertain the legitimacy of a claim against one of its customers. Unfortunately, the way the law is written, you should almost always conduct your business assuming the complaining party is correct. In trademark law, e-commerce companies and ISP’s are at risk from the plaintiff of a contributory trademark infringement claim, not the defendant (i.e. their customer).

This E-Bay case ratchets up the risk even further for e-commerce companies and ISP’s, by presupposing E-Bay is somehow able to ascertain which of its customers has the legal right to sell Givenchy perfumes. Note that E-Bay’s Seller’s Rules contains a long-list of what’s acceptable and what’s not, and that it requires sellers to adhere to the intellectual property requirements (i.e. trademark) and restrictions of the products they sell. Therefore, a seller is already violating E-Bay’s terms of use when selling Givenchy perfumes. Apparently, E-Bay is somehow supposed to evaluate the validity of each seller’s licensing arrangement with each of its carried brands, and ascertain who is legally entitled to sell what at what given time.

Obviously, this is an absurd position for E-Bay and any other e-commerce company or ISP. There are ways of handling this, such as banning Givenchy and any other product that claims a right to sue for contributory trademark infringement. Such a heavy-handed approach could seriously undermine E-Bay’s value to consumers (i.e. shouldn’t I be able to sell my bottle of Givenchy perfume, if I purchased it for my wife who turned out not to like it?).

There are two recommendations I have, give this case:

For e-commerce companies and ISP’s: Review your policies and procedures for trademark infringement claims. Are they fundamentally different from copyright claims? If not, you need to change them, and you must unfortunately place a heavy burden on the defendant (i.e. your customer).

For the legal system: Confer some rules and safe harbors for e-commerce companies and ISP’s, regarding actions for contributory trademark infringement, possibly expanding the publisher/distributor distinction to online trademark cases.

It’s all a matter of prioritization

Many businesses — including some I’ve been involved with — suffer from endless firefighting. What gets worked on (i.e. fixed) is what is the most urgent at the time, usually associated with some serious customer complaining, or financial or legal risk. Ultimately, the business becomes a team of heroes, burning everyone out and not really making serious headway in what is really important: growing the business and its revenue base. The “hero model” is very dangerous for a business, because there is so much reliance on individuals. If a key individual gets sick or leaves, it creates serious disruption to the business.

I’ve found, whether we’re talking about the business priorities as a whole, or managing a software development team or project, it helps to identify priorities and focus on the highest priority issues first. By focusing on what’s important, you move the business forward and you will naturally move away from the hero model. By staying focused on the key drivers of your business (assuming you know what they truly are), your processes and systems should become more robust, fault tolerant and less reliant on key individuals.

There are many ways to devise a priority schedule, but here’s one I’ve found that is simple, easy to use and quite effective. It’s a simple “sev system” or severity scale.

How many people or businesses do you know, that have a tendency to focus on SEV3’s or SEV4’s? We get caught up on how things look, versus how they perform or what they mean to our business, our customers or our employees.

My advice is to create, revise and maintain a list of your business tasks and priorities. Everything on the list has an assigned SEV code, and you devise a corporate policy such as “No SEV1’s will be on the list for more than a week” and “We won’t work on lower SEV issues, when higher SEV issues exist.” Devise a system of accountability, and assign your heroes to the important SEV tasks.

One other suggestion is to keep a corporate journal, wiki or help system that serves to document all your processes, functionality and systems. Make updating this system one of the components of every task. Make sure a different employee or department “tests” the functionality or issue, before its removed from the task list.

By objectively tracking the severity of the issues in your business, you will add accountability and ensure the most important and strategic issues are confronted and resolved in your business, thereby helping to maximize revenues and contain costs within your business.

The new gold-rush: Top Level Domains (TLDs)

ICANN, the overseer of the domain registry system and top-level domains (i.e. .com, .net, .info, .cc, .us, etc) has approved a plan to sell unlimited top-level domains (TLDs) on the open market.

Conceivably, anyone can purchase a new TLD, provided they are willing to shell out the reported $100,000 to $500,000 per TLD.

This number may seem like an astronomical amount, but when one considers the marketing potential for the right TLD, $500,000 could seem like chump change. For example, .com is frequently mistyped by people as .cm or .cmo. Obtaining those two TLD’s could give the potential owner a great deal of leverage to convert the typo into the appropriate .com, but turning themselves into a referral source.

Alternatively, a company could create some serious leverage with branding and trademarking, creating highly desirable TLDs that have a specific connotation, such as:

• .secure - Which is carefully controlled by the TLD owner, and guarantees any .secure website is audited and “scam proof.”
• .bank, .doctor, .law - Just about any market or industry niche could use its own TLD, and could become highly desirable for members of that market.
• .kids, .singles - Just about any market segment, such as “certified kid friendly”.
• .comcast, .ibm, .aol - Companies, especially ISP’s and hosting companies, would definitely want to get on this bandwagon and support customer accounts on its TLD’s.

Without a doubt, the new policy for TLDs will represent a tremendous gold-rush for those companies willing to get in early, make effective use of their new TLDs, and market it properly to create demand and market awareness.

E-Commerce can create interesting sales tax liabilities

The Wall Street Journal has an interesting article about Amazon today, entitled Will Amazon Get a Visit From the Tax Man?.

It appears that Amazon has a number of large distribution warehouses in some states, such as Texas, Pennsylvania and Indiana, but doesn’t pay sales taxes in those states. Amazon is trying to skirt the issue by saying the distribution warehouses are wholly owned subsidiaries of Amazon. Amazon’s theory is: The subsidiaries don’t sell products to consumers, so they don’t need to pay sales tax, and since Amazon itself doesn’t own the warehouses (it’s subsidiaries do), it doesn’t need to pay sales tax either.

The article does a good job talking about the issue regarding Amazon, but could go into better detail on the tax issues an e-commerce company must deal with. My standard disclaimer: Please consult with a CPA or tax attorney, as what I am about to discuss may be incomplete or inaccurate for your particular situation.

Note that many e-commerce businesses don’t fully understand The Internet Tax Freedom Act, which doesn’t prohibit all taxing, per se. What it does is prohibit taxing Internet access, imposing discriminatory Internet-only taxes and multiple taxes on electronic commerce. Contrary to popular belief, it does not prohibit state sales or use tax.

Sales taxes can be somewhat complex, depending on the subject matter. The easiest case is a typical product, like a book or DVD. If a business has a “sufficient nexus” within a state, it generally has to collect sales tax from the residents in that state. The “sufficient nexus” requirement is met by physical presence (i.e. the business has an office or warehouse in the state), but “sufficient nexus” can also be met without physical presence. And, this is one area where things can become tricky. The “sufficient nexus” requirement could be met, if a business has a “close relationship” with third-party contractors.

Things become murkier still, regarding some products or services. Let’s look at services for a moment: Instant Gift Certificates are becoming a popular way for service-based businesses to “sell” their services on the Internet. Some states, like New Mexico, charge a “gross receipts tax” (or GRT) on services. If a business in New Mexico sells a dollar-based gift certificate (i.e. a $100 gift certificate), there is no tax to charge until the gift certificate is redeemed. However, if the business sells a service-based gift certificate (i.e. “one Swedish massage”), the purchaser should be charged GRT upon the sale of the gift certificate.

Worse still, some states (like New Jersey) charge a tax on just some services. So, for example, massages are taxed but facials are not (both facials and massages are typically provided by the same business). So, a business selling a service-based gift certificate needs to keep track of what services are taxed and which are not, and make sure the tax is properly applied at the time of sale.

For products, things become murky, depending on the subject matter and location of the consumer. As it relates to location, some major cities have different sales tax rates than the overall state (i.e. Chicago or New York). So, if a business has “sufficient nexus” in the State of New York, it must keep track of all the tax schedules within that state, and know exactly which tax schedule to apply to which consumer in that state. As it relates to subject matter, all sorts of products will suffer various restrictions or tax exceptions. For example:

• Gift cards and gift certificates have various restrictions on maintenance fees, expiration dates (depending on where the consumer sits) and escheatment (depending on where the business sits).
• Wine and other alcoholic beverages have restrictions or varying tax implications, depending on the state, county or city in which the consumer sits.
• Chemicals, paints and industrial solutions have many restrictions, permit requirements and tax implications.

The problem for an e-commerce company, is that it’s sometimes difficult to identify all the tax laws and burdens, create the programming logic to identify which products or services have a sales tax burden to which customer, and then keep the tax schedules (and treatment) up-to-date.

The trick is, to be careful on which state you create a “sufficient nexus” for sales tax purposes, and to do your research BEFORE you start selling your product or service on the Internet, because your business could be liable for back-taxes going back many years.

A Sample Mutual Non-Disclosure Statement (NDA)

This is perhaps one of the more useful documents in my collection: It’s the mutual non-disclosure statement, or NDA. It’s available here as a MS Word document, and I’ve included it below if you’d rather cut-and-paste from your browser.

I have some tips-and-tricks as it relates to NDA’s, that everyone should consider.

• If you’re thinking about signing someone else’s NDA, check for one key ingredient: Is it mutual??!? Mutual NDA’s basically define the parties at the top, then throughout the rest of the document, reference “disclosing party” and “receiving party.” Basically, it doesn’t specifically call-out one individual in the document. If it’s not mutual, my suggestion is to either hire an attorney to review the document for you or just flat-out refuse to sign it. The reason? Non-mutual NDA’s frequently (although not always) include other terms that could bind you, unrelated to disclosure, such as one-sided non-competition or non-solicitation clauses.
• Not sure about their NDA? Sign both! That is, have the opposing party sign your NDA, and you sign theirs. This is a great way to make sure you are both covered.

My attached NDA includes a paragraph regarding non-competition (i.e. neither party can compete against the other party, using the confidential information) and non-enticement (i.e. neither party can raid the employees of the other). Note that the paragraph numbers are auto-updating, if you’re using this in MS Word. If you’re not using in MS Word, and you add/remove a paragraph, you will need to manually update the paragraph numbers.

So, before using my sample NDA, please make sure to:

• Delete the non-compete (paragraph 7) and/or enticement (paragraph 8), if you feel they don’t apply to your situation.
• Do a global search/replace to insert your name. Find: “[Your-Company]”, replace it with your legal name.
• Do a global search/replace to insert your short name. Find: “[Your-Company-Short-Name]”, replace it with the short-name of your company. For example, if your legal name is “ACME Shoe Repair and Lacing, LLC”, but everyone knows you as “ACME Shoe”, search for “[Your-Company-Short-Name]” and replace it with “ACME Shoe”.
• Find “[Your-State]” in Paragraph 13, Governing Law, and put in the State you or your company resides in.

Good luck!

MUTUAL CONFIDENTIALITY AGREEMENT,
NON-COMPETE & NON-SOLICITATION

This Mutual Confidentiality, Non-Compete and Non-Solicitation Agreement (this “Agreement”) is made as of ________________, 20___ (the “Effective Date”), by and between [Your-Company] (“[Your-Company-Short-Name]”) and ______________________________ (“Discussion Party”). Your-Company-Short-Name and Discussion Party are each referred to herein as a “party” and together as the “parties”.

A. Your-Company-Short-Name and Discussion Party are considering entering into a business relationship and/or transaction with each other (the “Proposed Transactions”).

B. In connection with evaluating the Proposed Transaction, each of Your-Company-Short-Name and Discussion Party has and will be furnishing the other with certain trade secrets, technical data, marketing data, and other proprietary and nonpublic information. As a condition to each of Your-Company-Short-Name and Discussion Party furnishing such information to the other, each of the parties is requiring the other to agree to treat the Confidential Information (as defined below) confidentially and in all respects in accordance with this Agreement. For purposes hereof, the party disclosing its Confidential Information to the other shall be referred to as the “Disclosing Party” and the party receiving the Confidential Information of the other party shall, together with such recipient party’s subsidiaries and affiliates, be referred to as the “Receiving Party”.

NOW THEREFORE, in consideration of the foregoing Recitals and of the mutual promises and covenants set forth below, the parties agree as follows:

1. Confidential Information. The term “Confidential Information” includes all documents, materials and other information, whether in oral, written or electronic form, concerning the Disclosing Party that are furnished by or on behalf of the Disclosing Party and identified by the Disclosing Party either orally or in writing as confidential to the Receiving Party at the time of disclosure, and includes, without limitation, all notes, analyses, compilations, materials, products, product information, pricing information, and studies or other documents or materials prepared by the Receiving Party and its agents and employees which contain or reflect all or any portion of the originally disclosed materials. Notwithstanding the foregoing, Confidential Information does not include information that: (i) was or becomes generally available to the public other than as a result of a disclosure by the Receiving Party or its agents or representatives to one or more unauthorized parties; or (ii) becomes available to the Receiving Party on a nonconfidential basis from an independent source without breach of any confidentiality obligations.

2. Covenant of Confidentiality. The Receiving Party covenants and agrees to keep confidential all Confidential Information of the Disclosing Party confidential, with the same level of care accorded by the Receiving Party to its own proprietary information, and the Receiving Party further covenants and agrees not to disclose or otherwise convey any portion of such Confidential Information either within or outside the Receiving Party’s organization, except to those of the Receiving Party’s employees, accountants, attorneys, agents, representatives and advisers who need to know such information for the purpose of the Proposed Transaction (it being understood and agreed by the Receiving Party that such employees, agents, advisers and representatives shall be informed by the Receiving Party of the confidential nature of such information and the Receiving Party shall direct them to treat such information confidentially and to return such Confidential Information to the Receiving Party upon request in accordance with this Agreement). The Receiving Party further covenants and agrees to use the Confidential Information solely with respect to the Proposed Transaction and not to use the Confidential Information directly or indirectly for any other purpose; provided that if any definitive agreement governing the Proposed Transaction (a “Definitive Agreement”) shall permit broader use of any of the Confidential Information, the terms of such Definitive Agreement shall control. The obligations under this Section 2 shall continue for three years from the date of disclosure of the particular information.

3. Return of Materials. The Receiving Party will promptly (but in any event within ten (10) business days) after the written request of the Disclosing Party return to the Disclosing Party (or with the Disclosing Party’s permission, destroy) the Confidential Information (without retaining any copies thereof), together with any notes, discs, tapes and other writings and materials prepared by or on behalf of the Receiving Party based on the Confidential Information.

4. Confidentiality of the Proposed Transaction. The parties covenant and agree not to disclose to any person any terms or conditions, or the existence or status, of any Proposed Transaction except that disclosure of such information may be made when disclosure is required by law upon advice of legal counsel and except as may otherwise be permitted or required by any Definitive Agreement.

5. Permitted Disclosures. Notwithstanding the foregoing provisions, if any court, governmental agency or regulatory body requires that the Receiving Party disclose any of the Confidential Information of the Disclosing Party, the Receiving Party may disclose to such governmental authority that portion of the Confidential Information which the Receiving Party’s legal counsel advises it in writing must be disclosed. The Receiving Party shall, however, furnish the Disclosing Party with prompt written notice of such requests or demands as far in advance of such disclosure as reasonably practicable in order that the Disclosing Party may seek an appropriate protective order, and the Receiving Party shall cooperate with the Disclosing Party in seeking such an order.

6. No Implied License. Neither this Agreement nor the disclosure of the Confidential Information shall be construed as a legally binding obligation of the parties to consummate any Proposed Transaction. No license or right is granted or implied in favor of either party with respect to any intellectual property rights of the other party.

7. Non-Compete. Independent of any obligation under any other paragraph of this Agreement, for a period of one (1) year following Effective Date, neither party shall directly or indirectly, whether as an individual for its own account, or for or with any other person, firm, corporation, partnership, joint venture, association, or other entity whatsoever, which is or intends to be engaged in the same line of business as either party, or in such other business competitive with the other party, solicit, interfere with, or endeavor to entice away from the other party, any person, firm, corporation, partnership, or entity of any kind whatsoever, which was or is a client of the other party for the parties have become aware of as a result of this Agreement.

8. Enticement. Independent of any obligation under any other paragraph of this Agreement, for a period of one (1) year following Effective Date, neither party shall, directly or indirectly, whether individually for its own account or for or with any other person, firm, corporation, partnership, joint venture, association or other entity whatsoever, solicit, hire or endeavor to entice away from the other party any person who is employed or engaged by the other party in any managerial, technical, professional or advisory, without the express written permission of the other party.

9. Remedies. It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this Agreement and that the Disclosing Party shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach without the necessity of posting bond. Such remedies shall not be deemed to be the exclusive remedy for breach of this Agreement, but shall be in addition to all other remedies that may be available at law or equity. Each party agrees to be fully responsible to the other party for, and indemnify such other party against, any damage or harm (including without limitation the legal fees and other costs incurred in enforcing such other party’s rights hereunder) caused to such other party by any breach of this Agreement by itself, its employees, advisers, representatives or agents.

10. Waivers. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, and no single or partial exercise thereof shall preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.

11. Severability. In the event any provision of this Agreement is held to be unenforceable or contrary to law then the Agreement shall be interpreted, to the extent possible, without such provision.

12. Entire Agreement; Amendments. This Agreement contains the entire understanding between the parties relating to the subject matter hereof and supersedes all oral statements and prior writings with respect thereto. No modification or waiver of this Agreement or any provision hereof, nor consent to any departure therefrom shall in any event be effective, irrespective of any course of dealing between the parties, unless the same shall be in a writing executed by duly authorized officers of the party whose rights are being waived, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which it is given.

13. Governing Law. This Agreement shall be subject to and governed by the internal laws of the State of [Your-State], without giving effect to conflicts of law principles.

IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first set forth above.

     _______________________     [Your-Company]

By: _______________________ By: _______________________

Its: _______________________ Its: _______________________

The holidays are coming. Are you ready??!?

You: A merchant that sells services or other products that aren’t easily purchased over the Internet (i.e. pizzas).

The problem: How can you take advantage of the Internet to monetize web-based traffic, sell more of your services or products, and increase cash flow, especially during the holidays?

The answer: Use BoomTime to sell Instant Gift Certificates on your website!

Yes, I do feel a bit guilty for the shameless plug to one of my businesses. I lose the guilt though, when I think about the results. Let me explain: We went after spas and salons with our SpaBoom brand, and have almost 2,000 spas and salons signed up. (Don’t believe me? Check out our aggregating website, Spa Emergency!) We’ve learned something: That almost 50% of gift buyers wait until the last 48 hours of a holiday or event to make their gift purchase. These buyers are rushed, in a hurry and either don’t trust the mail service (i.e. US Post Office, FedEx, etc) or they have just plain run out of time and cannot mail it even if they wanted to.

So, our spa and salon customers are nearly doubling their gift certificate sales using our Instant Gift Certificate technology during the holidays. Over the span of a year, the results are pretty dramatic. They are seeing a 15% to 30% in overall gift certificate revenues.

So, check it out! If you’re a spa or salon, go to www.spaboom.com, otherwise check out www.boomtime.com and consider using us to drive Instant Gift Certificate sales. We use a “pay for performance” model, which is a fancy way of saying commission of 5% or less, depending on your volume of sales in a given month. The good news about this is it doesn’t cost you anything unless you start making money.

Good luck to you and have a happy (and prosperous) holiday season!

Radio Free David

Internet radio listening has never been more fun!

Radio Free David brings you the best music for your internet radio listening pleasure, from classic internet radio and the solid beats of yesterday to today’s cutting edge songs. He has assembled an awesome collection of songs, and although you might know the tune, you probably haven’t heard these versions before. Give them a listen on the Internet and you just might be surprised at the selection and variety of music they offer from their deep radio playlist. You can easily connect to them and listen to the music using your favorite player. You can also listen to them on your cell phone!

The Radio Free David Playlist

The Radio Free David playlist brings you the best possible songs and cuts of your favorite songs. Each and every tune has been hand-selected, considered, and placed into the rotation for your listening pleasure. They feature the less heard versions of songs, including live, acoustic and unplugged versions. They are very particular about what they play and they have to like it! Sit back, turn up the volume, and enjoy!

Request your favorite music

You can request and dedicate songs! Just visit the playlist and find your favorite tune, then click the “Request” link next to each song. You will even have the chance to dedicate the tune!

Objective, transparent decision making …

As an executive and consultant, I’ve run into many points in my life where I’ve had to make a complicated decision based on a number of competing objectives. In most instances, I can make a decision fairly quickly after doing my research or evaluating my options.

In some situations, a quick decision isn’t practical, possible or best. Have you ever had situations where:

• It’s not clear which option would be best?
• A decision is politically charged (i.e. Transparency is essential, because the stakes are high and everyone concerned wants to know the decision is fair)?
• Someone important — perhaps a family member or client — wants to know you’re being professional and being through in your decision (or recommendation)?

Well, I have just the thing! I call it a “Comparison-based Decision Matrix”. It’s a simple, great looking, spreadsheet that enables you to compare competing options on an apples-to-apples basis. The spreadsheet takes the difficulty out of making a decision, although creates a new difficulty: figuring out what the factors in your decision really are, and assigning weights to those factors.

Download the spreadsheet. It contains a simple decision as an example: “How should we process Credit Cards today?” It compares three possibilities.

How to use the Comparison-based Decision Matrix

1. What is the issue to be decided? Put this in B6. In my example, I have “How should we process Credit Cards today?”
2. What are the decision factors that influence your decision? Nothing is too small or unimportant. Put it all down. Insert additional lines, as you need them. In my example, I have “Best for Customer Satisfaction,” “Cheapest Long-Term” and “Cheapest Short-Term” amongst others.
3. Now comes the hard part: assign weights to each of your factors. Some are more important than others, so you need to weigh each factor against the others. Give each a weight, so that all your weights total up to 100. The spreadsheet will help you. If one factor is weighted 20 and another 10, the one weighted 20 is twice as important as the one weighing 10.
4. Put in the options. In my example, I have three. Replace those with your options. If you one have two options, ignore the third column of options. If you have more than three options, I’ve put instructions in the spreadsheet on how you can increase the number of options. (It requires you to insert a couple of columns and copy some formulas).
5. Rate each option against each other for each factor, with 3 being the best and 1 being the worst. In my example, let’s look at “Best for Customer Satisfaction”. Option A is the worst option, so it gets a “1″. Option C is the best options, so it gets a “3″.
6. Finally, look at the final score for each option. The one with the highest score wins!

It’s actually a lot easier than it sounds. Try it out, and see how it works.

Ideas for the Comparison-based Decision Matrix

This can be a tool for a number of really interesting decisions:

• Selecting the best candidate for an open employment position.
• Selecting the best political candidate, when trying to determine who to vote for.
• My personal favorite: I’d love, love, love to see a political figure (i.e. such as a senator, member of congress, or other legislator) use such a tool in determine what bills, statutes and other laws they vote on. If nothing else, to specifically enumerate what they stand for (i.e. what’s on the list of factors), and how those factors weighed into their decision on whether to support or reject a certain piece of legislation. Could you imagine such a world??!?
• Selecting whether to buy or lease your next vehicle, as well as what vehicle to select.
• Any decision you feel you run the risk of making a decision based on emotions.
• A career move.
• Selecting which university you wish to obtain your degree.
• And thousands of other decisions, when you have more than one or two factors, with multiple options.

Good luck to you and your decisions! If you hear of any politicians, whether they be Republican, Democrat or independent; conservative or liberal; at the federal, state or local level; that uses such a method to introduce transparency into their decision making, PLEASE let me know about it!