CHAPTER 15

Forms to Protect Your Business

SMALL BUSINESSES SEE THEIR FAIR SHARE OF legal action, whether it stems from employee matters, contractual agreements, or even website jargon. This chapter includes forms that can help small business owners better understand what’s legal and what’s not, and what to do should a small claims situation occur.

All employees come to a company looking for a job and many leave looking for a job. When an employee is terminated, make sure that all is in order before you part ways. The past few decades have witnessed a significant increase in litigation brought by former employees for wrongful termination. While some suits are valid, others are groundless and abusive and exploit poor recordkeeping by employers. Therefore, secure all documentation necessary to memorialize the separation, and you can more successfully defend a suit brought for wrongful termination.

If an employee chooses to leave voluntarily, have him or her execute the Voluntary Resignation Form. This form serves as a nearly indisputable record of the employee’s willing termination of employment. This form may also go a long way to extinguishing an employee’s right to charge your business’s unemployment insurance for unemployment benefits. The Employee’s Separation Checklist advises an employee of outstanding issues that must be resolved before separation. The Manager’s Pre-Dismissal Checklist ensures that all loose ends are well tied before an employee departs. Finally, the Employee Exit Interview helps the company and employee communicate their final thoughts before terminating the employment relationship.

With more than 50% of companies in the U.S. operating online in some capacity, it’s important to abide by the rules that govern the Web. The Website Terms of Service is a strongly worded legal disclaimer for any business that operates a website. In addition, two sample letters are included to use in regard to the Digital Millennium Copyright Act of 1998, which updates U.S. copyright law for the Internet. The act protects online service providers from civil and criminal liability for copyright infringement under some circumstances.

If a copyright holder discovers that his or her content appears on the Internet without proper authorization, the holder may take advantage of the act’s “notification and takedown” provisions to have the content removed from the Website where it appears. Those provisions govern the process of notification by copyright holders and the rights and responsibilities of online service providers once they receive notice of infringing material. The copyright owner would deliver to the online service provider the Notification of Infringement Letter Under the Digital Millennium Copyright Act. A subscriber who feels his or her material is not infringing then may deliver a Counter-Notification Letter Under the Digital Millennium Copyright Act to respond to the notice.

Your company may possess proprietary information or trade secrets that need to be kept confidential. This information may also be your company’s bread and butter, whether it includes business plans, marketing strategies, technology, and other information. To protect proprietary information internally and with potential business partners, refer to the Sample Mutual Nondisclosure Agreement, that serves to prevent multiple parties from revealing information that pertains to the other parties involved.

Use the Sample Cease and Desist Letter to demand in writing that the recipient refrain from a specific action that in a business situation can include debt collections, patent, copyright, or trademark infringement, libel or slander. A sample form of a Trademark Infringement Cease and Desist Letter (on the Web) shows how to draft a cease and desist letter for a specific violation, which in this case is when you feel that a party is using a trademark or service mark for which you have priority rights.

As a business owner, you may find yourself in small claims court either as a plaintiff or defendant. This chapter includes forms for both plaintiffs and defendants that help you file, dispute, and settle the matter in a legal framework. As a plaintiff, you may file small claims against the defendant who wrote your business a bad check or have an unpaid promissory note. Defendants can use the forms in this chapter to properly respond and even negotiate claims.

If you have case to state to an opponent or potential opponent, use the Sample Demand Letter (on the Web) to construct your argument(s) and send to the opponent before the demand is filed in court (unless your state does not require so).

As a defendant refer to the Sample Letter by Defendant to Plaintiff in a Collections Matter, which lays out reasons why the parties should compromise.

Refer to the Sample Settlement and Compromise Agreement as an example of how to format the binding agreement if you and the opponent agree on a preliminary settlement.

In the event you settled your claim and received a check that bounced, use the Bad Check Demand Letter (on the Web) to mandate proper monies be received within a specified time frame.

Should the need arise to take your case to a small claims court, as a plaintiff you would need to file a small claims complaint form that provides basic facts about your action. A sample California Small Claims Complaint Form is included in this chapter as a reference. These forms differ in each state.

Use the Sample Debtors Order of Examination (on the Web) to get the debtor to appear in court. The sample Judgment Debtor’s Exam Form (on the Web) allows a judgment creditor (anyone who is owed money by order of a court) to make the debtor answer questions about his or her assets, like jewelry, cars, stocks, bank accounts, valuable memorabilia, etc.

In some cases you may have need to command a witnesses’ testimony to support your case. To command a witness, a written subpoena is the written device used to compel the appearance of a third party at a small claims trial. The law and forms used for subpoenas vary widely from state to state. A Sample Connecticut Subpoena Form is included on the Web as a general reference.

If you’re a plaintiff and won a judgment, the next step is to collect on it. Depending on your state’s requirements, use a form similar to this chapter’s California Debtors Statement of Assets to inquire on the debtor’s personal property in the event he or she has not responded to your other collection efforts.

Depending on your state’s requirements, use a form similar to the Debtors Statement of Assets (California) to inquire on the debtor’s personal property in the event he or she has not responded to your other collection efforts. To garnish a debtor’s wages or other assets, refer to the sample Writ of Execution Form (on the Web) and the California Complaint Form, which you can present to a court clerk for approval and further direction.

As a plaintiff, the ultimate goal is to have your judgment satisfied. If finally the judgment is paid, the plaintiff files a Satisfaction of Judgment with the court. A sample California Satisfaction of Judgment is is on the Web as a reference.

166. Voluntary Resignation

167. Employee’s Separation Checklist

Employee Name

 

____________________________________________________________

 

Date of Termination

 

_________________________________________________________

 

The following items are to have been collected prior to your separation with the company. Please have all these below listed items returned to your manager prior to your separation date. Thank you.

❏ All keys returned.

❏ Company vehicle keys returned.

❏ Company vehicle returned.

❏ Company credit cards returned.

❏ Company phone credit cards returned.

❏ Company equipment (portable phones, beepers, PCs) returned.

❏ COBRA election forms signed and returned.

❏ 401(k) election forms signed and returned.

❏ Profit-sharing election forms signed and returned.

Your files, desk, and work area will be inventoried for all equipment and work utensils given to you by the company.

❏ Desk and working premises inventoried.

168. Manager’s Pre-Dismissal Checklist

Employee Name

 

___________________________________________________________

 

Date of Termination

 

_______________________________________________________

 

Collect the following items from the employee prior to separation from the company:

❏ All keys returned.

❏ Company vehicle keys returned.

❏ Company vehicle returned.

❏ Company credit cards returned.

❏ Company phone credit cards returned.

❏ Company equipment (e.g., portable phones, beepers, credit cards, laptop computers) returned.

❏ COBRA election forms signed and returned.

❏ 401(k) election forms signed and returned.

❏ Profit-sharing election forms signed and returned.

❏ Company documents and files inventoried.

❏ Desk and working premises inventoried.

❏ Personnel and Payroll Departments notified of departure.

❏ Final expense report received, reviewed, and approved; expense check prepared.

❏ Final check prepared (including all accrued vacation pay, sick pay, accrued wages, bonus, etc.).

❏ Exit interview prepared.

❏ Exit interview given.

❏ Final checks (payroll and expense) given to terminating employee.

All of the above duties have been completed in a satisfactory manner.

 

Company has no further liability with the terminating employee.

 

Manager Signature ____________________________________ Date ____________________________________

169. Employee Exit Interview

170. Web Site Terms of Service

Terms of Service

 

Some or all of the information on this Web site(s) is provided by ____________________________________ (“Company”) on one or more Company Web sites. The Company Web sites include the following Web sites: ____________________________________. Company provides this service to you, subject to the following Terms of Service (“TOS”), which may be updated by us anytime without notice to you. When using particular Company services, you shall be subject to any posted guidelines or rules applicable to such services that may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into the TOS. For specific services, Company also may put forth specific Terms of Service that differ from this TOS. It is your responsibility to periodically review the TOS. If you do not agree with or understand the TOS, do not use a Company site.

 

The TOS apply to both “Affiliates” (persons or entities that receive the Service, as defined below, for redistribution and/or republication on a non-Company Web site) and “Users” (all persons, including Affiliates, that make any use whatsoever of any Service, as defined below). Company currently provides Affiliates and Users with several resources, including news feeds, message boards, financial calculators, articles, and stock quotes (the “Service”). Unless expressly stated otherwise, new resources added to the current Service shall be subject to the TOS. You understand and agree that the Service is provided “as is” and that Company assumes no responsibility for the timeliness, deletion, misdelivery, or failure to store any user communications or personalization settings.

 

In consideration of your use of the Service, you agree to (a) provide true, accurate, current, and complete information about yourself as prompted by the Service’s registration form (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it truthful, accurate, current, and complete. If you provide any information that is untrue, inaccurate, not current, or incomplete, or Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, Company has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). You will receive a password and account designation upon completing the registration process for the use of some Services. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify Company of any unauthorized use of your password or account or any other breach of security and (b) ensure that you exit from your account at the end of each session. Company cannot and will not be liable for any loss or damage arising from your failure to comply with this Paragraph.

 

You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, or other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not Company, are entirely responsible for all Content that you upload, post, e-mail, or otherwise transmit via the Service. Company does not control the Content posted via the Service and thus does not guarantee its accuracy, integrity, or quality. By using the Service, you may be exposed to Content that is offensive, indecent, or objectionable. Under no circumstances will Company be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, e-mailed, or otherwise transmitted via the Service.

 

You agree to not use the Service to:

i. upload, post, e-mail, or otherwise transmit any Content that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable;

ii. impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;

iii. forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;

iv. upload, post, e-mail, or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships;

v. upload, post, e-mail, or otherwise transmit any Content that infringes on any patent, trademark, trade secret, copyright, or other proprietary rights (“Rights”) of any party;

vi. upload, post, e-mail, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, except in areas designated for such purpose;

vii. upload, post, e-mail, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;

viii. interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service;

ix. intentionally or unintentionally violate any applicable local, state, national, or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange, or the NASDAQ, and any regulations having the force of law; or

x. “stalk” or otherwise harass another or collect or store personal data about other Users.

You acknowledge that Company does not pre-screen Content, but that Company and its designees shall have the right (but not the obligation) in their sole discretion to refuse or move any Content that is available via the Service. Without limiting the foregoing, Company and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by Company or submitted to Company, including without limitation information in Company Message Boards and in all other parts of the Service.

 

You acknowledge and agree that Company may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) enforce the TOS; (c) respond to claims that any Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Company, its Users, and the public.

 

You understand that the technical processing and transmission of the Service, including your Content, may involve (a) transmissions over various networks and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

 

Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.

 

With respect to all Content you elect to post to other publicly accessible areas of the Service, you grant Company the royalty-free, perpetual, irrevocable, non-exclusive, and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display such Content (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed.

 

You agree to indemnify and hold Company and its subsidiaries, Affiliates, officers, agents, co-branders or other partners, and employees harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Content you submit, post to, or transmit through the Service, your use of the Service, your connection to the Service, your violation of the TOS, or your violation of any rights of another.

 

You agree not to reproduce, duplicate, copy, sell, resell, or exploit for any commercial purposes any portion of the Service, use of the Service, or access to the Service, except in accordance with the TOS.

 

You acknowledge that Company may establish general practices and limits concerning use of the Service, including without limitation the maximum number of days Content will be retained by the Service, the maximum number of messages that may be sent from or received by an account on the Service, the maximum size of any message that may be sent from or received by an account on the Service, the maximum disk space that will be allotted on Company’s servers on your behalf, and the maximum number of times and the maximum duration for which you may access the Service in a given period of time. You agree that Company has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Service. You acknowledge that Company reserves the right to log off accounts that are inactive for an extended period of time. You further acknowledge that Company reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.

 

Company reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof), with or without notice. You agree that Company shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service.

 

You agree that Company, in its sole discretion, may terminate your password, account (or any part thereof), or use of the Service and remove and discard any Content within the Service for any reason. Company may also, in its sole discretion and at any time, discontinue providing the Service, or any part thereof, or may change the price for the Service, all with or without notice. You agree that any termination of your access to the Service under any provision of this TOS may be affected without prior notice, and acknowledge and agree that Company may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Company shall not be liable to you or any third party for any termination of your access to the Service.

 

Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such advertiser. You agree that Company shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Service.

 

The Service or third parties may provide links to other World Wide Web sites or resources. Because Company has no control over such sites and resources, you acknowledge and agree that Company is not responsible for the availability of such external sites or resources and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods, or services available on or through any such site or resource.

 

You acknowledge and agree that the Service and any necessary software used in connection with the Service (the “Software”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in sponsor advertisements or information presented to you through the Service or advertisers is protected by copyrights, trademarks, service marks, patents, or other proprietary rights and laws. Except as expressly authorized by Company or advertisers, you agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Service or the Software, in whole or in part.

 

Company grants you a personal, non-transferable, and non-exclusive right and license to use the object code of its Software on a single computer, provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in, or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by Company for use in accessing the Service.

 

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

a. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

b. COMPANY MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.

c. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

d. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH OR FROM THE SERVICE, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.

 

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

 

THE SERVICE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND NO CONTENT INCLUDED IN THE SERVICE IS INTENDED FOR TRADING OR INVESTING PURPOSES. COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, USEFULNESS, OR AVAILABILITY OF ANY INFORMATION TRANSMITTED VIA THE SERVICE AND SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY TRADING OR INVESTMENT DECISIONS MADE BASED ON SUCH INFORMATION.

 

Company respects the intellectual property of others and we ask our Users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please contact Company:

The TOS constitute the entire agreement between you and Company and govern your use of the Service, superseding any prior agreements between you and Company. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software. The TOS and the relationship between you and Company shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and Company agree to submit to the personal and exclusive jurisdiction of the courts located within the county of ____________________________________, ____________________________________. The failure of Company to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision and that the other provisions of the TOS remain in full force and effect. You agree that, regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.

171. Notification of Infringement Letter Under the Digital Millennium Copyright Act

I am writing to you to avail myself of my rights under the Digital Millennium Copyright Act (DMCA). This letter is a Notice of Infringement as authorized in § 512(c) of the U.S. Copyright Law. I wish to report an instance or what I feel in good faith is an instance of copyright infringement. The infringing material appears on a service for which you are the designated agent.

 

You are registered with the U.S. Copyright Office as the Designated Service Provider Agent to receive notifications of alleged Copyright infringement with respect to users of the Service for which you are the Designated Agent.

1. The material that I contend belongs to me and that appears illegally on the service is the following: (describe the infringing material: e.g., “a song entitled “Legal Battle Blues” and a song entitled “A Little Litigation,” both performed by Lawyers in Love).

2. The material appears at the Web site address: (provide the full Web site address and a link to the page on which the material appears).

3. My contact information is as follows: (provide your name, address, telephone number, and e-mail address).

4. I have a good-faith belief that the use of the material that appears on the service is not authorized by the copyright owner, by its agent, or by operation of law.

5. The information in this notice is accurate and I am either the copyright owner or authorized to act on behalf of the copyright owner.

I declare under the perjury laws of the United States of America that this notification is true and correct.

172. Counter-Notification Letter Under the Digital Millennium Copyright Act

I am writing to you to avail myself of my rights under the Digital Millennium Copyright Act (DMCA). You recently provided me with a copy of Notice of Infringement from (Name the party who submitted the Notice of Infringement). This letter is a Counter-Notification as authorized in § 512(g) of the U.S. Copyright Law. I have a good-faith belief that the material that was removed or disabled as a result of the Notice of Infringement was removed or disabled as a result of mistake or misidentification of the material. I therefore request that the material be replaced and/or no longer disabled.

 

You are registered with the U.S. Copyright Office as the Designated Service Provider Agent to receive notifications of alleged copyright infringement with respect to users of the Service for which you are the Designated Agent.

1. The material in question formerly appeared at the Web site address: (provide the full Web site address and a link to the page on which the material appears).

2. My contact information is as follows: (provide your name, address, telephone number, and e-mail address).

3. I consent to the jurisdiction of the Federal District Court for the judicial district in which my address is located (solely for the purposes of the resolution of this dispute) and I agree to accept service of process from the person who provided the Notice of Infringement.

4. I have a good-faith belief that the material removed or disabled following the Notice of Infringement was removed or disabled because of mistake or misidentification of the material. I therefore request that the material be replaced and/or no longer disabled.

I declare under the perjury laws of the United States of America that this notification is true and correct.

173. Mutual Nondisclosure Agreement

 

This agreement is made effective on ____________ (date) by and between ___________________(first party) and ___________________________ (second party) (collectively, the “Parties”), to ensure the protection and preservation of the confidential and/or proprietary nature of information disclosed or made available or to be disclosed or made available to each other. For the purposes of this agreement, each Party shall be deemed to include any subsidiaries, internal divisions, agents, and employees. Any signing party shall refer to and bind the individual and the entity that he or she represents.

 

Whereas the Parties desire to ensure the confidential status of the information that may be disclosed to each other.

 

Now, therefore, in reliance upon and in consideration of the following undertakings, the Parties agree as follows:

1. Subject to limitations set forth in paragraph 2, all information disclosed to the other party shall be deemed to be “Proprietary Information.” In particular, Proprietary Information shall be deemed to include any information, marketing technique, publicity technique, public relations technique, process, technique, algorithm, program, design, drawing, mask work, formula, test data research project, work in progress, future development, engineering, manufacturing, marketing, servicing, financing, or personal matter relating to the disclosing party, its present or future products, sales, suppliers, clients, customers, employees, investors, or business, whether in oral, written, graphic, or electronic form.

2. The term “Proprietary Information” shall not be deemed to include information that (i) is now, or hereafter becomes, through no act or failure to act on the part of the receiving party, generally known or available information, (ii) is known by the receiving party at the time of receiving such information as evidenced by its records, (iii) is hereafter furnished to the receiving party by a third party, as a matter of right and without restriction on disclosure, (iv) is independently developed by the receiving party without reference to the information disclosed hereunder, or (v) is the subject of a written permission to disclose provided by the disclosing party.

Not withstanding any other provision of this Agreement, disclosure of Proprietary Information shall not be precluded if such disclosure:

a. is in response to a valid order of a court or other governmental body of the United States or any political subdivision thereof,

b. is otherwise required by law, or,

c. is otherwise necessary to establish rights or enforce obligations under this agreement, but only to the extent that any such disclosure is necessary.

In the event that the receiving party is requested in any proceedings before a court or any other governmental body to disclose Proprietary Information, it shall give the disclosing party prompt notice of such request so that the disclosing party may seek an appropriate protective order. If, in the absence of a protective order, the receiving party is nonetheless compelled to disclose Proprietary Information, the receiving party may disclose such information without liability hereunder, provided, however, that such party gives the disclosing party advance written notice of the information to be disclosed and, upon the request and at the expense of the disclosing party, uses its best efforts to obtain assurances that confidential treatment will be accorded to such information.

3. Each party shall maintain in trust and confidence and not disclose to any third party or use for any unauthorized purpose any Proprietary Information received from the other party. Each party may use such Proprietary Information in the extent required to accomplish the purpose of the discussions with respect to the subject. Proprietary Information shall not be used for any purpose or in any manner that would constitute a violation on law regulations, including without limitation the export control laws of the United States of America. No other rights or licenses to trademarks, inventions, copyrights, or patents are implied or granted under this Agreement.

4. Proprietary Information supplied shall not be reproduced in any form except as required to accomplish the intent of this Agreement.

5. The responsibilities of the Parties are limited to using their efforts to protect the Proprietary Information received with the same degree of care used to protect their own Proprietary Information from unauthorized use or disclosure. Both Parties shall advise their employees or agents who might have access to such Proprietary Information of the confidential nature thereof and that by receiving such information they are agreeing to be bound by this Agreement. No Proprietary Information shall be disclosed to any officer, employee, or agent of either party who does not have a need for such information for the purpose of the discussions with respect to the subject.

6. All Proprietary Information (including all copies thereof) shall remain the property of the disclosing party and shall be returned to the disclosing party after the receiving party’s need for it has expired, or upon request of the disclosing party, and in any event, upon completion or termination of this Agreement. The receiving party further agrees to destroy all notes and copies thereof made by its officers and employees containing or based on any Proprietary Information and to cause all agents and representatives to whom or to which Proprietary Information has been disclosed to destroy all notes and copies in their possession that contain Proprietary Information.

7. This Agreement shall survive any termination of the discussion with respect to the subject and shall continue in full force and effect until such time as Parties mutually agree to terminate it.

8. This Agreement shall be governed by the laws of the United States of America and as those laws that are applied to contracts entered into and to be performed in all states. Should any revision of this Agreement be determined to be void, invalid, or otherwise unenforceable by any court or tribunal of competent jurisdiction, such determination shall not affect the remaining provisions of this Agreement, which shall remain in full force and effect.

9. This Agreement contains final, complete, and exclusive agreement of the Parties relative to the subject matter hereof and supersedes any prior agreement of the Parties, whether oral or written. This Agreement may not be changed, modified, amended, or supplemented except by a written instrument signed by both Parties.

10. Each party hereby acknowledges and agrees that, in the event of any breach of this Agreement by the other party, including, without limitations, the actual or threatened disclosure of a disclosing party’s Proprietary Information without the prior express written consent of the disclosing party, the disclosing party will suffer an irreparable injury such that no remedy at law will afford it adequate protection against or appropriate compensation for such injury. Accordingly, each party hereby agrees that the other party shall be entitled to specific performance of a receiving party’s obligations under this Agreement as well as further injunctive relief as may be granted by a court of competent jurisdiction.

11. The term of this agreement is for two (2) years, commencing on the “Effective Date.”

174. Sample Cease and Desist Letter

Your Name

 

Address
City, State Zip

 

 

Debt Collector’s Name
Address
City, State Zip

 

Re: (account #)

 

Dear (Name of Debt Collection Company or Employee):

 

Pursuant to my rights under federal debt collection laws, I am requesting that you cease and desist communication with me, in addition to my family and friends. This request in response to the ____________________________________ (alleged debts) you claim I owe.

 

This letter servers as notification that should your and (insert name of debt collection company) not comply with this request, I will immediately file a complaint with the Federal Trade Commission and the [your state] Attorney General’s office. Civil and criminal claims will be pursued.

 

Sincerely,

 

 

(your name)

175. Sample Letter by Defendant to Plaintiff in a Collections Matter

December 1, 2010

 

Joe Plaintiff
Ace Collection Agency
1000 Collection Avenue
NY, NY 10001

 

Dear Joe,

 

I received your demand letter. While I sympathize with your position, I strongly suggest that you compromise this claim. Otherwise you are likely to receive nothing, even if you go to court. I am making this offer as a good-faith gesture to you.

 

I hope to spare us both the hassle and time of preparing paperwork, serving each other with papers, serving witnesses with subpoenas, going to court, and then the substantial efforts that you’ll need to expend to collect on any judgment you might get.

 

We have already talked about my defenses and counterclaims. But I wish to remind you that I am steadfast in pursuing my side of the case. Small claims decisions are not reliable, so really neither of us truly know what is going to happen in court. In light of all this risk, I hope you accept my offer.

 

But really the main point is that even if you win a judgment for the full amount that you are seeking, you’ll still need to expend a lot of effort to collect the debt. Unfortunately, I cannot and will not offer you my cooperation to collect on the judgment if you take me to court, but I do offer my cooperation to settle this case today. While I am now employed, I am considering leaving my job and moving out of state. If I do, you’ll need to take the judgment to my new home state to collect. As far as assets, I don’t have much, so I can’t offer you much.

 

In order to settle the case, and without admitting any fault or waiving any evidentiary objections, I will agree to settle this case for 25% of what you are seeking, or $250. This is the most I can afford to pay, so this is my final offer.

 

Please let me know within three days if you accept this offer of settlement.

 

Yours very truly,

 

 

John Debtor

176. Sample Settlement and Compromise Agreement

MUTUAL RELEASE AND WAIVER AGREEMENT

 

THIS MUTUAL WAIVER AGREEMENT AND MUTUAL RELEASE (“Agreement”) is entered into as of March ______________, 2008, by and between Muirfield Furniture Company, Inc. (“Debtor”) and Elizabeth Berkey, d/b/a Berkey Design (“Creditor”) (collectively “Parties or Party”). For the purposes of the Agreement, “Party” includes subsidiaries and parents of a Party and includes owners as well as individuals serving as directors, officers, employees, agents, consultants, and advisors to or of a Party.

A. BACKGROUND

1. Debtor and Creditor entered into an agreement or series of agreements (the “Contract”) whereby creditor provided graphic design, marketing, and other creative services to debtor.

2. Since the time of entering into the Contract, the Parties have determined that a settlement of the mutual obligations between them is appropriate and would best serve the interests of all of the Parties, and this Agreement is intended to express the Parties’ intent to equitably settle the obligations arising from or related to the Contract.

B. AGREEMENT

 

NOW, THEREFORE, IN CONSIDERATION OF THE FOLLOWING, THE FOREGOING, THE MUTUAL COVENANTS, PROMISES, AGREEMENTS, REPRESENTATIONS AND RELEASES CONTAINED HEREIN, AND IN EXCHANGE FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT, SUFFICIENCY AND ADEQUACY OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES HEREBY AGREE AS FOLLOWS:

1. Payment to Creditor.

a. Debtor shall pay $4,000.00 to Creditor, such payment to be made no later than 72 hours following the execution of this Agreement. Payment under this paragraph is a precondition to the effectiveness of this Agreement.

b. Debtor shall owe no further liability or obligation to Creditor in connection with any services.

2. No other Payments. No additional funds shall be required to be paid or transferred by Creditor to Debtor, or by Debtor to Creditor.

3. Nature and Effect of Agreement and Conditions Thereon. By executing this Agreement, the Parties intend to and do hereby extinguish the obligations heretofore existing between them and arising from the Contract.

4. Admissions. This Agreement is not, and shall not be treated as, an admission of liability by either Party for any purpose, and shall not be admissible as evidence before any tribunal or court.

5. Release and Discharge. The Parties hereby compromise and settle any and all past, present, or future claims, demands, obligations, or causes of action for compensatory or punitive damages, costs, losses, expenses, and compensation whether based on tort, contract, or other theories of recovery, which the Parties have or which may later accrue to or be acquired by one Party against the other, the other’s predecessors and successor in interest, heirs, and assigns, past present and future officers, directors, shareholders, agents, employees, parent and subsidiary organizations, affiliates, and partners, arising from the subject matter of the Contract.

6. Unknown Claims. The Parties acknowledge and agree that upon execution of the release, this Agreement applies to all claims for damages or losses either Party may have against the other whether those damages or losses are known or unknown, foreseen or unforeseen.

[Note: the remainder of Paragraph 6 is only for use in the State of California]

 

In the event that this Agreement is deemed executed in California, the Parties thereby waive application of California Civil Code Section 1542.

The Parties certify that each has read the following provisions of California Civil Code Section 1542:

 

“A general release does not extend to claims which the Debtor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

 

The Parties understand and acknowledge that the significance and consequence of this waiver of California Civil Code Section 1542 is that even if one Party should eventually suffer additional damages arising out of the facts referred to in Section A, above, it will not be able to make any claim for these damages. Furthermore, the Parties acknowledge that they intend these consequences even as to claims for damages that may exist as of the date of this release but which the damaged or harmed Party does not know exists, and which, if known, would materially affect that Party’s decision to execute this release, regardless of whether the damaged Party’s lack of knowledge is the result of ignorance, oversight, error, negligence, or any other cause.

7. Conditions of Execution. Each Party acknowledges and warrants that its execution of this compromise agreement and release is free and voluntary. All Parties and signatories to this Agreement acknowledge and agree that the terms of this Agreement are contractual and not mere recital, and all Parties and signatories represent and warrant that they have carefully read this Agreement, have fully reviewed its provisions with their attorneys and know and understand its contents. It is understood and agreed by all Parties and signatories to this Agreement that execution of this Agreement may affect rights and liabilities of substantial extent and degree and with the full understanding of that fact, they represent that the covenants and releases provided for in this Agreement are in their respective best interests.

8. Entire Agreement. This Agreement constitutes the entire agreement between the Parties and signatories and all prior and contemporaneous conversation, negotiations, possible and alleged agreements, and representations, covenants, and warranties, express or implied, or written, with respect to the subject matter hereof, are waived, merged herein and superseded hereby. There are no other agreements, representations, covenants or warranties not set forth herein. The terms of this Agreement may not be contradicted by evidence of any prior or contemporaneous agreement. The Parties further intend and agree that this Agreement constitutes the complete and exclusive statement of its terms and that no extrinsic evidence whatsoever may be introduced in any judicial or arbitration proceeding, if any, involving this Agreement. No part of this Agreement may be amended or modified in any way unless such amendment or modification is expressed in writing signed by all Parties to this Agreement.

9. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. When all of the Parties and signatories have executed any copy hereof, such execution shall constitute the execution of this Agreement, whereupon it shall become effective.

10. Governing Law. THIS AGREEMENT WILL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF CALIFORNIA AND THE UNITED STATES OF AMERICA, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. This Agreement shall not be strictly construed against any Party to this Agreement. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be resolved by arbitration administered under the rules of the American Arbitration Association in accordance with its applicable rules. Such arbitration shall take place within Marin County, California, and shall be binding upon all Parties, and any judgment upon or any an award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

IN WITNESS WHEREOF, the Parties and signatories execute this Agreement on the dates indicated.

177. California Complaint Form

179. Debtor’s Statement of Assets (California)