Contracts Lawyers for South Dakota

Your concern about the arbitration agreement in your employment contract is understandable. This situation raises important questions about contract formation and the enforceability of arbitration clauses. Generally, for an arbitration agreement to be enforceable, it must meet certain criteria: 1. Mutual assent: Both parties must agree to the terms. 2. Consideration: Something of value must be exchanged. 3. Conspicuousness: The clause should not be hidden or buried in fine print. 4. Fairness: The terms should not be unconscionable or overly one-sided. The fact that you were unaware of the arbitration clause and didn't have an opportunity to review it could potentially impact its enforceability. However, the specific circumstances of how the contract was presented and signed are crucial in determining whether the agreement is binding. Key factors to consider: 1. How the contract was presented to you 2. Whether you had a reasonable opportunity to review the entire contract 3. If there were any representations made about the contract's contents 4. Your state's specific laws regarding arbitration agreements in employment contracts It's important to note that many courts have upheld arbitration agreements in employment contracts, even when employees claim they were unaware of them. However, there are exceptions, and the enforceability can vary based on state laws and specific circumstances. Given the complexity of this issue and its potential impact on your rights as an employee, it would be advisable to have a thorough review of your specific situation. As an experienced employment law attorney, I could: 1. Review your employment contract and the arbitration clause 2. Assess the circumstances under which you signed the contract 3. Evaluate the enforceability of the arbitration agreement under applicable state and federal laws 4. Advise you on potential options for challenging the agreement, if appropriate 5. Guide you on how to proceed in addressing any workplace disputes Would you like to discuss your situation in more detail to better understand your rights and explore the best course of action regarding this arbitration agreement?

Depends. It must be in writing unless specified in the agreement otherwise. Further, do both party mutually agree or does the original contract all for a unilateral change, per its terms.

Lessor’s Early Termination of Equipment Lease: Legal Rights and Lessee’s Options Scenario: You have a 3-year equipment lease for machinery, and the lessor (equipment owner) now wants to end the lease early due to their own financial troubles. You’re worried how this will affect your business and finances. The key questions are: (1) Can the lessor legally terminate the lease before the term ends? (2) What options or remedies do you have if they attempt this? Lessor’s Right to Terminate an Equipment Lease Early In general, a lease is a binding contract that both parties must honor for the full term. A lessor cannot simply cancel an equipment lease early without a valid contractual or legal basis. Unless the lease agreement explicitly gives the lessor an early termination right (or the lessee breaches the agreement), the lessor is expected to “respect the contract term” and cannot terminate early at will . Financial difficulties of the lessor alone are not usually a lawful excuse to break the contract. In fact, U.S. law emphasizes that a landlord/lessor can only break a fixed-term lease early if there is “good reason” – typically meaning the lessee violated the lease or a termination clause was agreed to in the contract . • Contract Clauses: Check your lease for any early termination clause or lessor termination option. It’s uncommon for equipment leases to let the lessor cancel early for convenience, but some contracts might allow it under specific conditions (e.g. with notice or a buyout payment). For example, a clause might say the lessor can end the lease early if they give 60 days’ notice and refund certain fees – but such provisions have to be written in the contract and agreed by you. If your contract has no such clause, the default rule is that the lessor must continue the lease until term-end as long as you (the lessee) are not in default . • Lessee’s Breach or Misconduct: The usual grounds for a lessor to terminate early is if you, the lessee, violated the lease terms. For instance, if a lessee stops paying, causes serious damage, or uses the equipment illegally, those would typically allow the lessor to cancel the lease for breach. In fact, many equipment leases specify that the lessor can repossess or terminate only if the lessee defaults or engages in prohibited conduct . By contrast, the lessor’s own financial problems are not a default by you and don’t automatically give them termination rights. • No Unilateral Termination for Hardship: Simply put, financial difficulty is not a legally valid reason for a lessor to walk away from a fixed-term lease. There is no automatic “hardship” loophole that lets the owner cancel because their business is struggling. Unless your contract contains a force majeure or similar clause that explicitly covers the lessor’s financial distress (highly unlikely), the lessor can’t invoke hardship to cancel. One legal commentary on leases notes that a landlord cannot just evict or end a lease “on a whim” – any early termination must follow the lease terms or a tenant breach . The same principle applies to equipment leases: both parties assumed the risk when signing the 3-year term, so the lessor can’t just change their mind mid-way without consequence. Bottom line: If your lease contract does not give the lessor an early termination right (and you haven’t breached the agreement), the lessor has no legal right to terminate early. Doing so would put the lessor in breach of contract. You would be within your rights to refuse or to seek remedies for an unauthorized termination. On the other hand, if your lease does contain a clause allowing the lessor to end it early (or if you mutually agree to end it), then an early termination can be done lawfully by following the contract’s requirements. Below, we consider both scenarios – one where the lessor is acting within their rights, and one where they are not. Scenario 1: Contractual or Lawful Early Termination by Lessor When It Applies: This scenario is if your lease explicitly permits the lessor to terminate early under certain conditions, or if you and the lessor mutually agree to end the lease. It could also cover rare cases like the lessor entering bankruptcy proceedings and legally rejecting the lease (under court supervision). Assuming such a clause or legal basis exists, the lessor may have a contractual right to terminate before the 3 years. Lessor’s Obligations: Even when a lessor has a termination option, they must strictly follow the contract terms for early termination. This usually includes giving you proper advance notice (e.g. 30 or 60 days written notice) and possibly paying a penalty or compensation if required. For example, some leases with termination clauses require the terminating party to pay an “early termination fee” or to refund deposits/prepaid rent . Ensure the lessor is complying with any such requirements. If the lease requires a notice period or a buy-out payment and the lessor fails to honor those, then their termination may not be valid. Your Rights & Options in This Scenario: • Review the Clause: Carefully review the lease’s termination clause (if one exists) to confirm the lessor indeed has the right they claim. Check what conditions or procedures it specifies. If the lessor’s reason (financial trouble) isn’t one of the allowed reasons, or if they’re not following the proper steps, you could challenge the termination as improper. • Negotiate a Solution: If the contract does allow the lessor to end the lease, you might try to negotiate with them for a better outcome. For instance, you could request additional time to transition or ask if they are willing to assign the lease or equipment to another company instead of outright termination. Sometimes a lessor in financial distress might agree to let a third party (or even the lessee) buy the equipment or take over the lease. This could keep the machinery in place for you while relieving the lessor’s burden. Negotiation is key – since the lessor wants out, you have some leverage to request concessions. They might agree to cover some of your switching costs or refund any advance payments to avoid a dispute. • Plan for Replacement: Start preparing for an alternative equipment solution as soon as possible. Even if the termination is legal, you’ll need to replace that machinery to avoid business downtime. Begin researching new leasing companies or consider purchasing equipment if feasible. The lessor’s early exit doesn’t leave you empty-handed legally (you may have claims for costs), but your priority is keeping your business running. Use the notice period (if any) to secure replacement equipment so you don’t have a gap when the lessor takes their machinery back. • Ensure Return of Deposits/Prepaids: If you paid a security deposit or any prepaid rent, the contract likely obligates the lessor to return the unused portion if they terminate early without cause. Make sure to demand the return of any such funds. For example, under general contract principles, when a lease is ended early by the lessor (and not due to your breach), you should get back any rent paid for periods after termination and your security deposit, since the lessor is the one ending the deal . Don’t overlook this – those funds can help offset costs of finding new equipment. • Document Everything: Should the termination go forward, get all communications in writing. Confirm the lessor’s reasons and the effective termination date in writing. This protects you if there’s later a dispute about whether the termination was proper. Written evidence will be valuable if you need to seek damages or enforce any part of the agreement. Overall, in a scenario where the lessor is legally within their rights to terminate, your focus should be on mitigating the impact on your business. You may not be able to stop the termination if it’s contractually allowed, but you can negotiate and ensure the lessor fulfills any obligations (notice, compensation). Also, use this opportunity to possibly negotiate a buyout – for example, if the lessor is desperate to end the lease, you might propose that you will agree to let them off the hook if they, say, cover the cost difference for you to lease elsewhere, or sell you the equipment at a favorable price. A mutually agreed termination can include any terms both sides find acceptable, so don’t hesitate to propose creative solutions. Scenario 2: No Right to Terminate (Lessor in Breach of Contract) When It Applies: This is the likely scenario if your lease has no early termination clause for the lessor, and you have been complying with the lease (no defaults on your end). In this case, the lessor’s attempt to cut the lease short is unauthorized. Legally, that constitutes a breach of contract by the lessor. The law treats a lessor’s unjustified refusal to continue the lease as a default, giving you (the lessee) certain remedies  . According to the Uniform Commercial Code (which Texas and most states follow for equipment leases), if a lessor “fails to deliver the goods… or repudiates the lease contract,” then the lessor is in default and the lessee can pursue remedies . In plain terms, the lessor cannot just pull out; if they do, you are entitled to relief for their breach. Here are your options in this scenario: Your Rights & Remedies: • Refuse Early Termination: You can take the position that the lease is still in force and refuse to acquiesce to the lessor’s unilateral termination. Communicate (in writing) that you do not consent to ending the lease early and expect the lessor to honor the agreement. Sometimes, this firm stance may make the lessor reconsider, especially if they have no legal leg to stand on. They might then seek an alternative like negotiating with you instead of risking legal liability. • Legal Remedies for Breach: If the lessor persists in terminating or stops performing (e.g., demands the equipment back or ceases maintenance/support), you have the right to seek damages and other legal remedies. Specifically, you can **“cancel the lease contract” and recover damages for the loss . Damages would typically include the extra costs you incur due to the breach. For example, if you have to lease replacement equipment from another provider at a higher price, the difference in cost is part of your damages. You may also claim any other reasonable costs caused by the sudden termination (such as installation costs for new machinery, downtime losses, etc.), subject to what your jurisdiction allows. • Cover (Find Replacement and Sue): One practical step is to go out and “cover” – i.e., obtain alternative equipment as a replacement – and then seek compensation from the original lessor for the cost difference  . Under UCC Article 2A, after a lessor’s repudiation, the lessee may cover by leasing similar goods elsewhere and then recover from the breaching lessor any excess cost or damages resulting from the switch . This allows your business to keep operating (with the new equipment) while holding the lessor accountable financially for their breach. • Specific Performance (if applicable): In some cases, you might be able to ask a court for specific performance – essentially a court order forcing the lessor to honor the lease or allow you continued use of the equipment . Specific performance is not always granted, usually only if the equipment is unique or it’s very difficult to obtain a substitute. But if, say, the machinery is specialized and your operations would be irreparably harmed by losing it, a court might order that the lessor must continue to lease it to you (or at least not repossess it) despite their financial issues. This is a complex remedy (and if the lessor is truly insolvent, it may not be practical), but it’s worth discussing with a lawyer if keeping that exact equipment is critical for you. • Retention of Equipment: If you currently have possession of the equipment, note that you have some leverage. Unless a court orders you to return it, the lessor can’t just show up and take it back without due process. You could legally refuse to surrender the equipment on the grounds that you have a valid lease for it. In fact, the UCC provides that a lessee who rightfully holds the goods after the lessor’s default has a security interest in the equipment for any rent paid or expenses incurred . This means you might be justified in holding the equipment as security until the dispute is resolved or you’re reimbursed. However, be cautious and get legal advice before withholding equipment – you must not be in breach yourself (e.g., continue making your rent payments into an escrow, perhaps) while asserting this right. • Claim Security and Prepaid Sums: If the lessor breaches, you are typically entitled to recover any rent or security deposit you’ve paid for the period that you won’t get the equipment . Demand the return of your security deposit and a pro-rata refund of any prepaid lease payments covering after the termination date. The law explicitly allows a lessee to recover “so much of the rent and security as has been paid and is just under the circumstances” when the lessor defaults . This ensures you’re not out-of-pocket for services you won’t receive. • Consider Legal Action: If the financial stakes are high and the lessor is uncooperative, you may need to file a lawsuit for breach of contract. A court can award you monetary damages for the costs and losses caused by the wrongful termination. Keep records of all related expenses and losses (quotes for new leases, downtime, etc.) to substantiate your claim. Often, the mere threat of a well-supported legal claim might push the lessor to negotiate a settlement (especially if they are trying to avoid bankruptcy or further liabilities). • Mitigate Your Losses: Importantly, even though the lessor is in breach, you have a duty to mitigate damages. This means you should make reasonable efforts to reduce the harm (for example, don’t let the machine sit idle – promptly seek a replacement or workaround to keep your business running). Courts expect you to try limiting the financial damage. The good news is that any reasonable costs of mitigation (like emergency rental of another machine) would be added to your claim against the lessor. Just avoid unnecessary delay or expense that could have been avoided. • Monitor Lessor’s Solvency: If the lessor’s financial troubles are severe, watch for any signs of bankruptcy or receivership. If the lessor files for bankruptcy, different rules apply (the lease could be “rejected” by the bankruptcy trustee, effectively ending it, but you’d then become a creditor in the bankruptcy case for your damages)  . In bankruptcy, recovering full damages might be difficult, so it may be wiser to reach a settlement beforehand if possible. Consult an attorney quickly if bankruptcy seems likely – there may be steps to protect your rights (like filing as a creditor or seeking relief from the automatic stay to reclaim any of your property, etc.). Note: Pursuing legal remedies doesn’t always mean you’ll end up in court. Often, once you present the legal reality to the lessor (that they have no right to terminate and will owe you damages if they do), they may opt to negotiate a mutually agreeable exit. For example, they might offer a termination payment or help find you a substitute equipment lease with another company to avoid a lawsuit. Be open to a settlement if it adequately protects your business – sometimes that can resolve matters faster and more certainly than litigation. Practical Tips Going Forward 1. Communicate and Document: Open a line of communication with the lessor. Politely but firmly let them know you are aware of your contractual rights. Ask for clarification on why they believe they can terminate. It’s possible this is a negotiation tactic on their part to modify terms; clear communication can lead to a solution. In all cases, document everything in writing (emails, letters) so there’s a record. 2. Consult Legal Counsel: It’s wise to consult a business or contracts attorney, especially since lease agreements can have nuanced clauses. A lawyer can review your contract’s fine print to confirm the lessor’s rights (or lack thereof) and can draft a strong response letter. Sometimes a letter from an attorney asserting your rights and potential claims will dissuade the lessor from taking unlawful action. 3. Business Continuity Plan: Start working on a contingency plan to keep your operations running. Identify other suppliers or rental companies for the equipment in case you need a fast replacement. Being prepared will reduce downtime if the lease does end abruptly. Even as you fight to enforce your rights, you don’t want to be left without the machinery your business needs. 4. Financial Impact Assessment: Analyze the financial impact if the lease ends now. Calculate the cost of new equipment lease or purchase, installation, and any productivity loss. This will not only inform your decision-making (e.g., maybe purchasing the equipment is cheaper in the long run if the lessor is exiting) but also serve as evidence of damages if you need to claim costs from the lessor. 5. Maintain Lease Payments (if applicable): If the dispute is ongoing, continue to honor your side of the contract (e.g., making timely payments) until an official termination or court release occurs. This prevents the lessor from turning around and accusing you of breaching. Paying into an escrow account could be an option if you fear the lessor will take the money and run – seek legal advice on the safest approach. The key is to avoid giving the lessor any excuse to blame you. Conclusion Can the lessor terminate early due to their financial problems? Usually no – not unless your contract explicitly allows it or you’ve breached the agreement. A fixed-term equipment lease generally locks both parties in for the duration, and the lessor cannot unilaterally end it because it becomes inconvenient or difficult for them . If they attempt to do so without legal cause, they would be violating the contract, entitling you to relief. What are your options? You have a range of legal and practical options. First, review the contract and assert your rights. In a best-case scenario, if there is a lawful termination clause, ensure it’s followed and negotiate the best possible terms for an early end (time to transition, cost sharing, etc.). In the more likely case that the lessor has no right to cut the lease short, you can stand your ground: refuse improper termination, demand compliance, or seek damages for any breach. Law is on your side here – you can claim compensation for losses and even potentially get a court order to keep the equipment or equivalent if necessary  . Finally, remain practical. Protect your business from disruption by lining up alternative solutions in parallel. While you have every right to hold the lessor accountable, your priority is keeping your operations running smoothly. By combining a firm legal stance with proactive business planning, you’ll be best positioned to handle this situation. If needed, don’t hesitate to get professional legal advice to enforce your rights or negotiate an outcome. Your goal is to either keep the lease intact or secure a fair resolution that leaves you whole despite the lessor’s difficulties.

To whom it may concern, I would love to assist you and your company. Based on my experience, skills, knowledge and experience in Corporate, Business, Transactional, Real Estate and Intellectual Property Law, I am confident in my ability to assist you with this Upwork contract. I currently am employed full-time as General Counsel for a Bioengineering Company called Fusion Orthopedics. I handle all of the Company’s legal issues, from Mergers and Acquisitions, Corporate Structure, and Breach of Contract suits, to Employment Contracts, FDA compliance, Real Estate Transactions, CC&R creation and compliance and Intellectual Property. That being said, I will need to make sure there is no conflict of interest with the company (I anticipate there being none). I can write the letter for a flat fee of $400. I am eager to learn more about this job and the opportunity to help you. Thank you in advance for your time. Please do not hesitate to contact me if you have any questions. Sincerely, Samuel Rocereta, Esq.

You're correct that your agreement should be fair and beneficial to both parties involved. Often, however, when an independent contractor receives an agreement from a company, that proposed agreement has been drafted to be favorable to the company, because that's the company's primary interest. In order to ensure the agreement is fair and equitable, you'd need to identify the business and legal provisions that are drafted in a way that protects the company but not you, and either strike those provisions entirely (if the terms are unreasonable), or suggest they be written in a mutual form. Some common examples of these provisions are warranty disclaimers, indemnity, limitation of liability, and exclusivity.