Legal Obligations – Performance Isn’t for Actors

Blank Polaroid photos hanging to dry

Spiral clock (c) FotoliaRoughly speaking, “performance” in relation to a business agreement, is how well the services are performed compared to a customer’s expectations. So why would performance matter in business copywriting, and online writing? Isn’t performance something for actors?

While I am neither an actor, or an attorney, I have had the real-life experience of working with clients, and my own company. I have written text that offered a level of service, or type of service that was later out-of-date, or the procedures changed.

For example, the issue arises out of a contest — where in the early stages of promotional planning, a business planned to draw entries randomly for a prize. After reviewing state lotteries rules, the client came to the conclusion that judging the entrants on creativity, would best meet the fairness guidelines across all of the states.

Here’s a few hints to fairness thresholds – the value of the prize(s), and how the winners are selected.

Facebook contest giving away money
Gorgeous graphics can advertise your contest, and become part of the legal contract with your contestants and winners

The problem is the writers delivered a completed set of promotional copy to the graphic artists, and application coders, prior to the change. The company hosting the contest updated the terms and conditions, but missed updating some of “the fine print” in some of the windows that the contest entrants use.

Most contest entrants don’t read, and remember the terms and conditions in full. However, many contestants whiz through the online entry forms, and submit their entry, only to complain later that the contest wasn’t performed per the fine print on the forms.

Legal Execution versus Legal Performance

Even those of us that have no intention of “getting litigious” are obligated to some minimal level of fair business practices. Some understanding of contract law, and business law, can save us from grave mistakes.

Speaking of grave, did you know there is a difference between contract “performance” and “execution”?

Box on the head - anatomy of a pitch
© ra2 studio –

Execution – how the contract is carried out, and nothing remains to be done to make a complete and effective contract

Performance – how well the contract works / performs, and how well the details of the contract were completed — even while the contract is open and the work is being carried out

When money is involved, it’s important to use some sort of legal review process. Your attorney won’t write your contest copy for your web coders, but he or she will review all of your finished documents.

It’s worth having 3 to 10 steps in place, in your project, to proof-read and review your various promotional pieces before sending the draft terms and conditions, and screen mock-ups for a quick legal review. Most of the time, the law is in your favour – and information in a contract should be written in a way that you and your customer first understand the agreement — without an attorney!

Legal Performance is Not Just for Contests

“A contract” can be in the form of verbal agreements by any of your employees, and contract staff acting on your behalf, a fundraiser, a contest, a purchase at an online store – or physical store.

Legal performance is for online stores, refunds and returns. It’s for what is said to your customer on the website, in email, on the phone, and in the store. Here’s the kicker – what’s in writing often trumps what’s spoken.

However, when the information is NOT in writing, or the written information is in conflict, the law may revert to what the customer said-you-said, and what you said-you-said … Complaints gets messy.

Fundraiser Terms and Conditions
Most of the clauses in terms and conditions are standard, and may be provided by government agencies, your bank, or your industry associations.

Action, Not Actors

What can you do if you don’t want to become a lawyer, but want more control over your business with your clients?

Businessman with suitcase looking over a golden, hazy city
Successful projects cannot be completed alone

I recommend taking an executive seminar class in contracts, like Murdoch University’s – 2-Day Contract Administration course. The Contract Administration course explained the sections of a contract, and gave very short business examples of the purpose, and risks that each section of the contract addressed. The course moved along quickly. The topics were prepared for business staff with no formal legal training.

Among the many enlightenments I had during the class, I found that backing up every verbal conversation with a written communication (usually an email) was a smart practice. I also discovered that an employee, contract staff member, or customer must communicate promptly when they think the promised work is not being delivered. No communication, and waiting, is a form of accepting the contract, and accepting the performance of the work!

As of December 2013, the upcoming Murdoch Executive Education – Contract Administration course details:

Signs, Signs — Everywhere Signs!

I’m a business writer, and a copywriter. In no way, am I legally accurate, but I take pride in getting a cohesive, understandable set of documents written. Consider options for which people are developing your web copy, online store, your contests, your fundraisers — and have a closing step where you have a quick, legal review of your text and screens before the copy goes live.

If you don’t know where to start, a lot of government agencies provide boilerplate policies that you must include, or at a minimum, explain the guidelines for your country, state, or industry. You can also look at larger companies in related industries, since these companies have legal departments. While you shouldn’t plagiarize terms and conditions, you can emulate the topics covered to fit your needs.

As a bit of a sign (or a disclaimer), I challenge you to review this article, and share your interpretations of how law affects everyday marketing, promotions, and communications with your customers. Where have you gone right? What risks have you overcome?