Are Your Emails Enforceable Contracts?

According to this article from Forbes, email promises are legal.  If your medical equipment salesperson promises something, you can use the email to enforce the delivery of the promise….  Pat

Many people consider email to be an informal form of communication. As a result, offers, counter-offers and terms of proposed agreements are frequently exchanged via email with the hope and expectation that they are for negotiation purposes only. The question is, could such email messages be deemed to be legal, valid and binding agreements that are enforceable against senders in accordance with their terms? The New York Appellate Division in the recent case of Forcelli v Gelco provides some important guidance regarding the answer to this question.

Appellate Division of the New York State Supre...New York Appellate Division  (Photo credit: Wikipedia)

Background

In November 2008, Steven Kuhn drove through a red light and struck a vehicle owned by Gelco Corporation. As a result of the impact, Gelco’s vehicle was thrust forward into a vehicle driven by John Forcelli. A month later, to recover damages for his injuries, Forcelli commenced litigation against Kuhn, Gelco and other related parties.

In May 2011, while the civil procedure of the litigation progressed, Brenda Greene, a representative of Gelco’s insurer, who previously told Forcelli’s counsel that she had authority to settle the case on behalf of Gelco, offered $230,000 to settle the case on behalf of Gelco. Forcelli’s counsel orally accepted the offer on behalf of Forcelli. That same day, Greene sent an email message to Forcelli’s counsel stating the following:

Per our phone conversation today, May 3, 2011, you accepted my offer of $230,000 to settle this case. Please have your client executed [sic] the attached Medicare form as no settlement check can be issued without this form. You also agreed to prepare the release. . .Please forward the release and dismissal for my review. Thanks Brenda Greene.

The next day, Forcelli signed a release, notarized by his counsel, stating that he was releasing Gelco from all actions involving the accident in exchange for $230,000. However, just a few days later, on May 10, 2011, the New York Supreme Court (i.e., the trial-level court) issued an order granting a motion for summary judgment in favor of Gelco and dismissing Forcelli’s complaint and all claims asserted against Gelco. Gelco tried to reject the settlement claiming the email message did not constitute a binding written settlement agreement. However, the Supreme Court ruled against Gelco and entered a judgment ordering Gelco to pay Forcelli $230,000. In response, Gelco appealed to the New York Appellate Division.

The Decision

The Appellate Division unanimously upheld the decision of the lower court noting that, in accordance with general contract law, Greene had apparent authority to settle the case on behalf of Gelco, and her email message set forth the material terms of the agreement, contained an expression of mutual assent and was not subject to any conditions such as the outcome of the summary judgment motion. As to whether the email was a subscribed writing sufficient to establish an enforceable settlement agreement, the Appellate Division stated: “given the now widespread use of email as a form of written communication in both personal and business affairs, it would be unreasonable to conclude that email messages are incapable of conforming to the criteria of [New York law] simply because they cannot be physically signed in a traditional fashion.” The Appellate Division focused on the sign-off “Thanks Brenda Greene” at the end of the email concluding it evidenced a “purposeful” signature of the message that is consistent with the reasoning and intent of New York’s Electronic Signatures and Records Act (i.e., the New York version of the Uniform Electronic Transactions Act which governs the validity of electronic contracts and signatures).

Elaine and Karen Mills at 2013 contract signingContract signing (Photo credit: AFGE)

The Lesson For Contracting Parties

This case is a wake-up call to contracting parties to avoid casually negotiating the terms of proposed agreements via email without taking appropriate precautions to avoid having messages unintentionally deemed enforceable and becoming bound by unwanted agreements. In particular, offers, counter-offers and terms of proposed agreements communicated via email should explicitly state that they are subject to any relevant conditions, as well as to the further review and comment of the sender’s clients and/or colleagues. Further, such communications should include appropriate disclaimers such as that the email is not an offer capable of acceptance, does not evidence an intention to enter into an agreement, has no operative effect until a definitive agreement is signed in writing by both parties, and that no party should act in reliance on the email or any representations of the sender until a definitive agreement is signed in writing by both parties. Doing so would help avoid having messages sent for negotiation purposes only unexpectedly become enforceable agreements.

Oliver Herzfeld is the Chief Legal Officer at Beanstalk, a leading global brand licensing agency and part of the Diversified Agency Services division of Omnicom Group.

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Zimmer to pay Stryker in Patent Infringment

Judge orders Zimmer to pay Stryker $228 million in patent case

By Jonathan Stempel

Thu Aug 8, 2013 6:56pm EDT

(Reuters) – A federal judge ordered Zimmer Holdings Inc to pay Stryker Corp more than $228 million for infringing its surgical irrigation patents, and in doing so tripled a damages award by a jury that found Zimmer’s conduct was willful.

U.S. District Judge Robert Jonker in Grand Rapids, Michigan, also issued a permanent injunction banning Zimmer from selling infringing products, including from its Pulsavac Plus line.

Zimmer said it plans to appeal Wednesday’s decision.

Stryker and Zimmer are large producers of orthopedic pulsed lavage devices, a combination spray gun and suction tube that is used to clean wounds and tissue during surgery.

In a 2010 lawsuit, Stryker contended that Pulsavac Plus lavage devices infringed three of its patents and caused it to lose market share.

A jury in February awarded Stryker $70 million of damages representing lost profits, and found that Zimmer’s infringing conduct was willful.

Zimmer tried to have the award thrown out.

But Jonker said there was substantial evidence to support the jury’s finding, including testimony that Zimmer “all but instructed” its design team to copy Stryker’s products.

He also noted that Zimmer’s recent annual profit has been more than 10 times the size of the verdict and that a $70 million award “may not be enough, without enhancement,” to deter infringements.

“Zimmer chose a high-risk/high-reward strategy of competing immediately and aggressively in the pulsed lavage market and opted to worry about the potential legal consequences later,” the judge wrote in a 58-page decision. “Ultimately, however, the trial proofs demonstrated that this was not a close case.”

The judge also said Stryker should recover more than $18 million in interest and other damages, bringing the total award to more than $228 million.

Monica Kendrick, a Zimmer spokeswoman, said on Thursday the Warsaw, Indiana-based company made changes to its Pulsavac Plus line after the jury verdict, and believes the products it now sells are “outside the scope” of the injunction.

“Zimmer plans to file an appeal challenging both the earlier jury verdict and the recent rulings by the judge,” she added.

Jo Johnson, a spokeswoman for Stryker, said the Kalamazoo, Michigan-based company is pleased with the decision.

In Thursday trading, Zimmer shares closed up 70 cents at $83.29, and Stryker shares rose 11 cents to $70.90.

The case is Stryker Corp et al v. Zimmer Inc et al, U.S. District Court, Western District of Michigan, No. 10-01223.

(Editing by John Wallace and Bob Burgdorfer)

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$25.00 for a shipping box!

From TechNation . . . .

Albert Hardy said 2 hours, 19 minutes ago:

AMPRONIX

So, I sent out a display for repair to Ampronix in the original Spacelabs/ELO box with all the correct foam, when I received the repair estimate it included SHIPPING MATERIALS. I decided to call and inquire and was told that I should have told them to save my box to ship my display back in or they throw it away and sell you one of their boxes for $25.

Sorry, but this is utterly ridiculous

 

Followup comment from the company:

Marketing Department replied to the forum topic “Wall of Shame Nomination” in the group “Wall of Shame”:

“This was a repair completed within 2 days and returned to customer on 08-02-13. The customer service representative had communicated with Mr. Hardy with regards of disposing his original box, unless we are instructed prior to servicing the unit, we discard the used / damaged / torn, etc. boxes for recycling. It was explained to him that our standard service process set by ISO standards (ISO9001:2008, ISO 13485:2003 & ESD20.20-2007) is to send the serviced unit back to the customer in a new, double walled, ESD pre-molded foam. This will eliminate any denied shipping claim by the carrier as well. We feel that $25.00 for the white Ampronix box, pre-molded ESD foam, ESD bag to protect the unit & labels is more than reasonable of a fee.

Failure to follow ISO standards will only jeopardize our company’s medical certifications, something that is very difficult to achieve. We also let him know that if he wishes for us to send his units back in the original received boxes; we can accommodate this as we do this for various contracted customers. We had no indication by him that this needed to be escalated further. We are more than willing to waive the $25.00 fee in this instant. An attempt to reach out to this customer is underway.”

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HP Fined $3 Million For Misleading Consumers About Their Rights

HP Fined $3 Million For Misleading Consumers About Their Rights

If any business thinks the Australian Competition and Consumer Commission (ACCC) doesn’t take Australian consumer protection seriously, take note of this: the regulator has just fined HP $3 million for misleading consumers over their warranty rights.

Money picture from Shutterstock

The ACCC announced today it had reached an agreed settlement with HP over the case, after launching legal action last October. The behaviour which HP admitted to included:

  • the remedies available to consumers were limited to the remedies available at HP’s discretion;
  • consumers were required to have their product repaired multiple times before they were entitled to a replacement;
  • the warranty period for HP products was limited to a specified express warranty period;
  • consumers were required to pay for remedies outside the express warranty period; and
  • products purchased online could only be returned to HP at HP’s sole discretion.

Under Australian law, all consumers have a right to choose the remedy they want (refund, repair or replacement) in the event of a major flaw, manufacturers can’t unreasonably limit the period a warranty applies for, and consumers don’t have to bear the cost of return if a warranty repair is required. Anyone selling stuff in Australia, take note.

HP issued an apology following the announcement:

We deeply regret that in the instances identified by the ACCC, HP fell short of our core commitment to high standards of service for Australian consumers who purchased our HP-branded desktop computers, notebooks/laptops and printers and of our duties under Australian consumer laws . . . We will provide customer support to assist consumers in resolving concerns with HP products in accordance with the Australian Consumer Law and have established a specific consumer redress program (involving a customer contact centre) to help with past concerns relating to HP-branded desktop computers, notebooks/laptops and printers.

Consumers who purchased goods from HP and feel their warranty rights were misrepresented should contact the company to seek compensation. (There’s also a special email address, consumerclaimsau@hp.com.)

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Gadgets Should Be Repaired, Not Replaced

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When Gadgets Should Be Repaired, Not Replaced

When I was 14, my stereo broke. Opening it up, I found a small piece of metal had been disconnected from the circuit board at the base. I grabbed a lighter and melted the piece back in place. I plugged the stereo back in and turned it on. It worked. It was the first time I actually got something I tried to fix working.

Picture: odomut/Flickr

The pure joy that follows when you fix a gadget that was once broken is hard to match, and it can become an addiction. However, as time goes on, gadgets have become smaller and harder to work on. They’re harder to fix, and most of us decide it’s easier to just buy a new one than to repair an old one.

But just because it’s easier to move on to a new gadget doesn’t mean we should. Last month, I had the misfortune of losing both a hard drive and a graphics card on a notoriously impossible to work on iMac. My first reaction was to just abandon it and move on, but my research showed that both of those parts were replaceable. The final cost of repair? About $400 and a lot of time. The cost of a new 27-inch iMac? At least $1999.

It’s not just the fact I saved a lot of money; it’s that I didn’t have to buy something new. I fixed the computer I already paid (too much) money for and breathed life back into it. When that startup chime rang again, it made my heart skip a beat.

The point is that a quick repair like this can get you something that more than meets your needs. When you’re done, you realise that the newest thing isn’t necessary. For me, that new iMac was shiny but totally unneeded. Once I was up and running again, I was happy with the old one. It’s not just about repairing, it’s about making what you already have work, even when you think it shouldn’t.

We talk a lot about the value of making things here and doing everything yourself. But as Wired pointed out recently, the maker movement is just half of the equation. We need a “fixer movement” too:

We need, in short, a fixer movement. This would be a huge cultural shift. In the 20th century, U.S. firms aggressively promoted planned obsolescence, designing things to break…

Today e-waste has become one of the fastest-growing categories of refuse. We chucked out 2.4 million tons of it in 2010 and recycled just 27 per cent. And “recycling” often means shipping electronics overseas, where the toxic parts pollute developing countries. It’s a mess. A fixer movement could break this century-old system.

One superb place to start is fixing computers — because these days old models perform nearly as well as new ones. As hardware hacker Andrew Huang has noted, cloud computing has artificially slowed Moore’s law: An older laptop runs a browser just fine. Plus, computers are often surprisingly fixable. Vincent Lai, a Fixer Collective volunteer, gets handed “dead” laptops — “and for $US20 I can fix it. It’s a user-replaceable part! For $US20 the user could have fixed it.”

And Wired’s totally right. Computers and laptops are deceptively easy to fix, and their lives are a heck of a lot longer than most of us give them credit for. I fixed and cleaned up my seven-year-old laptop to pass on to my dad a few months ago, and it’s still kicking just as strongly as it did the day I bought it. All it took was a few hours of work.

Of course, it’s not just about computers. It’s about every product we buy. From toasters to speakers, having the skill set (or the willingness to look online for repair guides), patience and ability to fix the stuff we pay for really matters. Unfortunately, it’s not always as easy as it should be.

In some cases, companies are just making their products smaller and less user-serviceable. But the other problem is that if you try to fix something yourself, you’re going to void the warranty. All of these issues have prompted sites like iFixit and Sugru to post their own “fixer manifestos”. Both boil down to a pretty simple set of ideas and rights, including:

  • The right to open and repair our things without voiding a warranty.
  • The right to choose your own repair technician.
  • The right to troubleshooting instructions and documentation.
  • The right to hardware that doesn’t require proprietary tools to repair.

While it would certainly be nice for companies to make repairs easier for us, it boils down to making the effort to fix and preserve things ourselves. The maker movement, and the idea of creating something from nothing, is a lot easier to sell than just fixing up that 30-year-old blender.

Seriously, from bikes, cars and chairs, to computers, repairs are surprisingly easy to do yourself. After all, when a broken gadget is brought back to life, you feel the same elation as powering something on for the first time.

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Are OEM Parts Better than Parts from Elsewhere?

A recent ad in 24×7 Magazine suggests that only Siemens sells real OEM (original equipment manufacturer) parts.   This ad (at the end of this article) is very misleading, as it is intended to be.  Everybody sells original OEM parts.  No one but the OEM make parts for medical equipment.  There is a thriving alternate source for medical equipment components, circuit boards and other parts that break.  The reason that this market exists is because other companies besides the original OEM can repair and resell parts much more inexpensively than the OEM can.

Oh, and another thing – many OEMs would have you believe that the parts they sell are brand new, unlike the old, traded-in parts that other companies would sell you.  Well, not true.  Why do you think that everybody (including the OEMs) require a trade-in of the broken part when you buy a replacement part?  It is so they can repair and resell it, just like the third party independents do.

I know of a hospital system in Milwaukee that tracked out-of-the-box failures of newly received medical parts.  The OEMs parts failed at a higher rate than those parts received from alternate sources.

And let me tell you about the claim of savings of “up to 40%”.  “Up to” means that all parts are not included at the maximum discount.   Additionally, the 40% refers to 40% from the original price of the part – the suggested retail price.  Every biomed and clinical engineer in the US knows that 40% off of list is nothing.  Real OEM parts can be found from many sources at discounts far exceeding the 40% advertised in this ad.

The real message here is that advertisements are full of misleading information.  You have to read everything with a skepticism born of experience.    Have a wonderful day.    Pat

Siemens Ad

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Frank’s Hospital Workshop – Free manuals and education

‘ In some developing countries, up to 50% of the medical equipment is unusable at any given time. In some hospitals, up to 80% of their medical equipment is inoperative… ‘
(World Health Organization, WHO)

Preface
The last ten years I have worked as a biomedical technician, consultant and trainer in five diverse developing countries. All these countries were very different, but the problems in the hospital workshops were similar:

 no spare parts for repairs and maintenance
 no technical manuals
 poorly or no trained biomedical technicians
 no (financial) support by the responsible authorities
 no technical support from the manufacturers
 lack of awareness of the advantages of preventive maintenance

Appropriate training for hospital technicians and simple equipment for hospital workshops would improve the situation easily. But unfortunately most countries still have not recognized the importance of the repair and preventive maintenance of hospital equipment.

I hope that this website can be a little support to all biomedical technicians in developing countries.
Here you find:

 all the documents about biomedical technology I have collected
 all the user and service manuals I have
 all training courses that I have developed and have held

About this site
http://www.frankshospitalworkshop.com is a private and noncommercial website which can be used for self-study. It is a collection of documents, experiences, best-practice procedures and teaching and learning materials about biomedical technology.

Acknowledgement and apologies
Thank you to all who actively support my website by providing documents and information. Special thanks to all the companies who allowed me to provide their equipment manuals. To those companies who do not want their documents to be made public I apologize and I will delete the material immediately upon request.

‘ On the average almost 80% of the medical equipment in government hospitals are not functioning and the number even reaches 98% in dispensaries in some regions. ‘

(Ministry of Health, Tanzania, 2008)

With greetings from Tanzania
Moshi, March 2013

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