[HCoop-Discuss] Insurance term

[Nathan Kennedy]

Sidney Fong wrote:
> Upon my reading of clause 19, it seems that it contains are _two_
> terms, the first is that the client must buy insurance, and the second
> is that the client will provide proof of such insurance on request. I
> think even if Woody's assertion is construed to be a waiver, it is
> possible that he would be deemed to have simply waived the second
> term, but the first term would still be effective and enforceable.
>
> Woody says they have never requested proof of insurance, but that does
> not necessarily mean that they do not (intend to) require clients to
> buy insurance. Actually, I'm not totally sure whether saying "we've
> never requested proof for the past 5 years" is a waiver, since failure
> to exercise a contractual right probably doesn't constitute a wavier.
> And also see 11.8.
You have some good points.  but two things:
1. There's not much of a difference between the two requirements there.  
I told him there was a problem because this was an unexpected, 
unreasonable and uncompetitive burden.  He responded by saying that many 
customers have this concern BUT they've never requested proof of 
insurance.  Clearly, since requiring insurance is of no use if people 
don't actually get it, he is saying that in fact they are not in fact 
requiring insurance, terms not withstanding.

2. I wasn't saying that Woody's statement was a waiver, so much as the 
course of dealing in not requesting proof or enforcing the term with any 
of their clients over the past years, and the (future) course of conduct 
in not requiring it from us.  There are, in fact, merger and "no waiver" 
clauses in this contract working against us.  These are definitely not 
air-tight, courts will often leave an out, but again, we never want it 
to get to that point anyway.

Anyway, what it comes down to is I think:
1. I should really try to negotiate that in exchange for accepting term 
19, a "no unreasonable denial of assignment" clause, which would make 
the whole thing more equitable because it would be easier for us to get 
out of the contract if it soured early on. and,
2. We expect to expand.  I believe once we get some history with them as 
a good and growing customer we would have much more leverage to 
negotiate the contract with them and get rid of term 19, with the option 
of growing our business elsewhere.  Right now as just new 
quarter-cabinet customers we don't give them much incentive to talk to 
their lawyers.  It's always hardest to get the first concession.

By the way, there is a tension between the transparency we are 
maintaining in doing this entire process and discussion with the 
membership at large (and archiving it on gmane, no less!) and 
effectively negotiating with providers, given that they have our URL and 
could easily be watching everything we say here.

-ntk