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Contact: Andrew Comer, [email protected] 027 513 7593 The outbreak of COVID-19 (i.e. the . . . Coronavirus) – now officially a pandemic – is posing significant challenges for governments and the private sector, around the globe. We are being bombarded with news stories about rising rates of infection, state-imposed geographic quarantines, stock market volatility and the disruption COVID-19 is causing to industry sectors, supply and demand chains, and global trade and commerce. We are being bombarded with news stories about rising rates of infection, state-imposed geographic quarantines, stock market volatility and the disruption COVID-19 is causing to industry sectors, supply and demand chains, and global trade and commerce. With growing uncertainty around the financial and economic impact of COVID-19, parties to commercial contracts could foreseeably argue the outbreak gives them the right to avoid further performance under the contract. In this article, we look at the key legal bases for arguing COVID-19 excuses a contracting party’s non-performance. We also set out other legal risks presented by COVID-19, and some general recommendations, in relation to commercial contracts. Legal bases for arguing COVID-19 excuses non-performance 1. Force majeure A “Force majeure” clause will generally excuse a party from continued performance under a contract when a “force majeure” event occurs. In some cases, it will give a party the right to cancel the contract. The contract itself will define what is (and isn’t) a “force majeure” event. It is typically an event beyond a party’s control or contemplation that prevents that party from performing its contractual obligations – common examples include an “Act of God”, “natural disaster”, “terrorism” and “war”. With COVID-19, an affected party would need to show that the outbreak qualifies as a “force majeure” event under the contract and that it made continued performance impracticable or impossible. Whether COVID-19 amounts to a “force majeure” event depends on the wording of the contract. For example, an affected party might have arguable grounds for non-performance if “force majeure” includes the terms ‘epidemic’, ‘disease’, ‘quarantine situation’, a ‘public health emergency’ or ‘biological contamination’. Separately, if “force majeure” includes the term ‘act of government’, a geographic lockdown would arguably be covered and excuse non-performance. However, consider the scenario where “force majeure” is defined simply as “an event beyond the parties’ control or contemplation” – if affected parties entered into a contract after COVID-19 hit the mainstream media, can they justifiably say that COVID-19 was beyond their contemplation? 2. Frustration If a contract doesn’t contain a “force majeure” clause, or if the “force majeure” clause itself isn’t broad enough to cover COVID-19, an affected party could argue that the contract has become “frustrated”. “Frustration” is a common law principle that excuses non-performance. In general terms, the affected party must show that a reasonably unforeseeable event has occurred, which significantly changes the relationship between the parties, and which makes continued performance under the contract more onerous or impossible. Arguable grounds for a “frustration” claim might exist if a party can show that COVID-19 compromised a specific or essential element of the contract (e.g. quarantine restrictions have made a unique performance method or performance at a specific time impossible; a key person becomes unavailable due to COVID-19-induced sickness). Temporary changes are unlikely to amount to the contract becoming “frustrated”, even in the context of an epidemic – for example, in 2004 a Hong Kong court ruled that a 24-month lease wasn’t “frustrated” when a mandatory, 10-day SARS-related isolation order was imposed on the tenant. Note that a separate basis for a “frustration” claim might exist where a change in law occurs, making the contract illegal (e.g. a prohibition on manufacturing operations in a specific geographic area). 3. Material adverse change / event Contracts with “material adverse change” or “material adverse event” (“MAC”) clauses in them typically also provide suspension or termination rights. Broadly speaking, a “MAC” is any event that could reasonably be expected to have a material adverse impact on a party’s continued performance under a contract or on that party’s financial performance or position. Whether or not COVID-19 amounts to a “MAC”, excusing non-performance, again depends on the wording of the contract. Other legal risks that COVID-19 presents for commercial contracts COVID-19 presents a number of other legal risks for commercial contracts. A high-level overview of these risks is set out below. We recommend you review your commercial contracts to assess these risks: • Event of default: Is non-performance under the contract an “event of default”? “Event of default” clauses typically give a party enforceable rights against the other party, if an “event of default” occurs that affects that other party (e.g. the right for a shareholder, under a shareholders’ agreement, to buy the shares of another insolvent shareholder; the right for a bank, under a facility agreement, to require accelerated repayments if the borrower continually misses scheduled payments). The contract itself will define what is (and isn’t) an “event of default”. With COVID-19, an interesting question is whether self-imposed isolation, preventing further performance, would be an “event of default” under a contract. • Notices: Does the contract require notice(s) to be given and, if yes, what is the required content of the notice(s), who must the notice(s) be given to and by when? For example, most “force majeure” or “MAC” clauses require an affected party to follow strict notice requirements. Failure to do so could invalidate an affected party’s claim. • Guarantees, indemnities: Is there a risk that any guarantee or indemnity could be enforced by the other party(ies) and, if yes, what are the financial implications of that? • Warranties, representations, undertakings, covenants: What is the risk of any of these forms of contractual promise becoming untrue or incapable of performance, due to COVID-19? What are the financial implications? • Termination rights: Does the outbreak trigger any termination rights for the parties under the contract? • Insurance: Does your insurance provide adequate cover for losses, arising out of non-performance, due to COVID-19? We recommend you check the timeframes within with any claims must be made and that you consult your insurance broker in this regard. General recommendations regarding commercial contracts We also make the following general recommendations regarding your commercial contracts: • Communication: Maintain open lines of communication with your contractual counterparties, to manage expectations and reach agreed compromises around ongoing performance. • Awareness of governmental decisions, administrative actions: Stay up-to-date with any government decisions or administrative actions that might affect your business and the industry in which it operates. • Contract negotiations: With any contracts you are negotiating, now and in the future, include express reference to such terms as ‘infection’, ‘disease’, ‘pandemic’, ‘epidemic’ etc in “force majeure” clauses. • Mitigation of losses: If you are seeking to rely on “force majeure” or “MAC” clauses in your contracts, ensure you are taking appropriate steps to mitigate your losses from the impact of COVID-19. • Legal advice: Seek specialist legal advice to help you determine your rights and obligations under your commercial contracts. The above overview has been provided for general information purposes only. It is not, nor is it intended to be treated as, legal advice, an exhaustive list of all possible legal bases to excuse non-performance under a commercial contract or an exhaustive list of all legal risks COVID-19 presents for commercial contracts, and is subject to change without notice.
This is a podcast recording – Please Follow this link for the full podcast. Show Notes: To reduce . . . the risk presented by the spread of Covid-19, companies have asked their employees to work remotely. While many of us already works from home at least part of the time, the new policies leave whole teamss — and their managers — working separate from each other for the first time with no certainty as to how long for. There is plenty of advice on how to work remotely, but how do you lead in this situation? You trust your team, but how do you keep across what they are doing without micromanaging? You want to be approachable, but how you maintain an open door policy without burning yourself out There is information coming from everywhere, how can you ensure they aen’t What about the team member who’s main source of social contact is the office And above all, how do you make sure that they stop! About the Speaker My guest today is Gail Page from Positive Pathways. An expert in addressing conflict in the business, Gail helps leaders and teams to build healthier workplace relationships. This leads to psychological safety becoming part of a company’s DNA and paves the way to realising the individual and collective potential of the team and the business. In this episode we explore how to lead remote teams in a crisis Note This episode was recorded on March 23. We make reference to events related to the Coronavirus based on what was happening at that time. The situation is fluid and has changed significantly since then, please refer to accredited medical and news sites for the most recent updates.
At 11:59 pm on Wednesday 25 March 2020, the New Zealand COVID-19-alert level will move to its . . . highest level – level 4. From then on, New Zealand will go into an unprecedented, military-style lockdown for at least one month. Mandatory self-isolation will apply. Educational facilities and all non-essential businesses and services will close. Only air travel, and public travel, for essential businesses and services will be allowed. At this stage the net effect on the New Zealand economy, of COVID-19 and the Government’s attempts (social and economic) to quell the outbreak, remains unclear. Boards of directors across the country are now more critical than ever to ensuring their companies’ continued survival. Calm heads, and measured approaches, are what is required. In this article, we take a quick look at some of the key considerations for boards in this time of crisis. KEY CONSIDERATIONS FOR BOARDS OF DIRECTORS 1. COMMUNICATION Ongoing, open and honest communication is critical: Management: The board of directors (‘Board’) needs to work closely with, and support, management. Management will be under significant pressure at this time, and so engagement with management needs to be pragmatic but empathetic. The Board’s expectations should also be reasonable in the circumstances and clearly communicated. General manager/CEO: The Board should require rolling operational and financial updates from the general manager/CEO. The situation is evolving quickly, to the point where New Zealand will soon be in lockdown – timely reports will allow the Board to understand what effect COVID-19 is having on the company and what strategic actions need to be taken and when. Employees, financiers, contracting parties: Boards should be telling management to keep the company’s various stakeholder groups (i.e. employees, financiers, contracting parties) up to date with developments. External communications need to be transparent and factual. Internal communications, with employees, need to be sensitive but realistic. 2. GOVERNMENT STIMULUS PACKAGE – WAGE SUBSIDIES FOR BUSINESS Boards should be applying for relief under the wage subsidy and Business Finance Guarantee Scheme components of the Government’s COVID-19 economic response package: Wage subsidies Wage subsidies: Conditional wage subsidies are available for all businesses/employers that are significantly impacted by COVID-19 and are struggling to retain employees as a result. Amount: At the time of writing, the subsidy is $585.80 per week for a full-time employee (20 hrs or more) or $350.00 per week for a part-time employee (less than 20 hrs). The payment is made as a lump sum for a period covering 12 weeks. There is no maximum amount of assistance a business can receive. Applications for the subsidy can be made until approximately mid-June 2020. How to apply: Applications can be made through an online portal on the “Work and Income” website www.workandincome.govt.nz. The Ministry of Social Development will aim to make first payments no later than five working days from when applications are received. Business Finance Guarantee Scheme At the time of writing, the Government has just announced a $6.25b “Business Finance Guarantee Scheme”. It will provide short-term credit to solvent small and medium-sized firms affected by the outbreak. The package will include a six-month principal and interest payment holiday for SME customers whose incomes have been affected. The scheme will include a limit of $500,000 per loan and will apply to firms with a turnover of between $250,000 and $80 million per annum. The loans will be for a maximum of three years. Specific details of the scheme are still being finalised. 3. BUSINESS CONTINUITY AND CRISIS MANAGEMENT Business continuity and crisis management: The Board and management should be reviewing and actioning the company’s business continuity and crisis management plans, and continually assessing whether the plans are adequate, given the circumstances. All available third party sources of assistance should be contacted, including government (as mentioned above), shareholders and the wider stakeholder pool. Also, crisis-response roles for directors and management are critical – the Board should be sharing these with management, now. Areas of investigation/analysis: Management should be taking steps to manage COVID-19-related risk to the business’ operations, and either the Board (or the company’s audit or risk committee) should be monitoring those steps. This requires a constant re-assessment and analysis of risk and respective processes and controls. Key areas to focus on and address include: the company’s liquidity and financing needs, immediately and in the long-term; the extent of risk exposure under current financing covenants; impact of employee disruption and absence from work, and remote staffing needs; impact on compliance requirements, IT systems and cybersecurity; impact of supply chain disruption on operations and office/plant closures; supply chain resilience and the scope of alternative customer and supplier pools; exposure to liability under commercial contracts and review of key terms, including ‘force majeure’, ‘event of default’ and ‘termination’; and emergency succession planning to address general manager/CEO replacement, board continuity and quorum contingencies. 4. HEALTH AND SAFETY Health and Safety at Work Act: Directors and management have health and safety obligations to staff under the Health and Safety at Work Act 2015. Directors can be held personally liable if they fail to ensure the company is complying with those obligations. Compliance is critical. The Board should seek legal advice on the company’s health and safety obligations, particularly in the context of COVID-19. Employee well-being: Employee well-being, in the context of COVID-19, is paramount. Once the lockdown ends, the Board needs management to keep it up-to-date with all steps being taken to minimise the risk of transmission and preserve employees’ health and safety. Also, employees will want to know that their work environment is safe and that they’re being cared for – once the lockdown is over, the Board should require management to let all staff know what protective measures are being taken to ensure their safety. 5. FORECASTS, FINANCIAL POSITION AND STRUCTURE Short-term forecasts: The Board should ensure management are preparing ‘good-case’/’bad-case’, short-term (i.e. quarterly) business forecasts and an action plan for each forecast. Performance should be tracked closely against forecasts, so the Board can decide what strategic action is needed. Debt and creditors: Many companies will face liquidity challenges as a result of COVID-19 – declining revenues and cashflows will make it harder to meet debt covenant obligations. In these circumstances, the focus of directors’ duties quickly shifts to the duty to act in the best interests of creditors (discussed below). The Board should be engaging with creditors (e.g. financiers, landlords) with a view to obtaining relief from strict repayment obligations. Restructuring: If funding, or funding relief, isn’t readily available, and the threat of insolvency is real, the Board (in conjunction with management and shareholders) should consider whether a restructuring of the business’s capital structure or operations might help stem losses. Converting business debt to equity, segregating business divisions, selling distressed assets, implementing redundancy programmes, instigating other OPEX-reducing measures, or winding up divisions or subsidiaries, are some possible courses of action which could improve cash flow and/or deliver cost savings. Placing the company into voluntary administration or liquidation should also be considered. The Board should ensure financial, tax, legal and restructuring advisors are engaged early to advise. 6. OPPORTUNITY FROM ADVERSITY Acquisition opportunities: COVID-19 might create investment opportunities for companies with targeted acquisition strategies and readily accessible funding. Motivated buyers might take advantage of distressed companies that are offloading assets or divisions. Financially hampered “Code companies” (i.e. companies that are either listed on the stock exchange or have 50 or more shareholders and at least $30m in assets or $15m in revenue) might become attractive takeover targets under the Takeovers Code. Advisors and strategies: The Board should ensure it has a trusted group of financial and legal advisors and maintains frequent contact with primary shareholders and stakeholders. It should also be continually assessing strategies (from how to respond to a formal takeover offer to deciding whether to pursue acquisition opportunities). 7. DIRECTORS’ DUTIES Directors need to be mindful of their ongoing statutory duties under the Companies Act 1993. Breach of these duties can result in personal liability for directors: Reckless trading: With COVID-19, the key duty for directors will be ensuring the company doesn’t carry on in a manner likely to create a substantial risk of loss to the company’s creditors – that is, directors don’t allow the company to trade recklessly. Directors of companies that have been financially impacted by COVID-19 run the risk of breaching this duty. Board members should also be mindful of their duty not to allow the company to incur obligations they don’t reasonably believe the company can perform. Active engagement: It is critical for the Board to remain fully engaged and to maintain oversight of business operations during the COVID-19 crisis. The Board should naturally be questioning management’s decisions and taking advice from advisors. This approach should hopefully allow the Board to gauge whether they are properly discharging their statutory duties. 8. MEETINGS Virtual meetings: With the Government-imposed lockdown, the Board must consider whether all board and shareholder meetings, for the foreseeable future, can be either delayed or held virtually (or virtually and in person, if required). The Board should check: (i) that the company’s constitution permits virtual meetings and, if not, recommend an appropriate amendment be made; and (ii) that the company has the technological capabilities available to it to facilitate virtual meetings. Electronic signatures: The Board also needs to be mindful of laws concerning the use of electronic signatures. The Companies Office, for example, has rejected documents where electronic signatures don’t comply with legal requirements under the Contract and Commercial Law Act 2017 (see https://companies-register.companiesoffice.govt.nz/help-centre/managing-your-online-account/filing-documents-with-electronic-signatures/). We recommend Boards seek legal advice in this regard. Specific “e-signing” software may be required. 9. POST-SCRIPT Post-COVID-19 analysis: Once the dust has settled, and the fallout from COVID-19 is clearer, the Board and management should assess what key lessons have been learned from COVID-19 and whether any change in work policies or approaches adopted during the outbreak (e.g. work-from-home policies) might lead to operational efficiencies in the future. The Board should also be involved in an appraisal of the way in which the crisis was handled, by the Board and by management.
COVID-19: IMPLICATIONS FOR PRIVATE M&A It’s still too early to predict the full extent of New . . . Zealand’s economic downturn, as a result of COVID-19 and the lockdown. With only essential services currently allowed to operate, many industries across the country are under extreme pressure, and will be for some time. Already we are witnessing the impact, with companies implementing OPEX-reducing measures, redundancy programmes, distressed sales, and in some cases winding up divisions, in an attempt to stem losses and improve cash flow. For parties involved in corporate transactions, including M&A, the outbreak has a number of implications. In this article, we take a quick look at some of the key issues COVID-19 presents for private M&A. IMPLICATIONS FOR PRIVATE M&A 1. MATERIAL ADVERSE CHANGE The “material adverse change” (MAC) clause is receiving increased attention. Moving forward, it’s likely to become a more prominent feature of NZ’s private M&A landscape: MAC: In broad terms, a MAC clause allows a buyer to avoid settlement if an event occurs, after the agreement date, which negatively impacts the target’s business. In many cases, an objective threshold must be met in order for the change to be ‘adverse’ for the purposes of the clause (e.g. a specific percentage or dollar decline in the target’s earnings or net asset value must have occurred). MAC clauses will also generally spell out certain excluded trigger events (e.g. changes in economic conditions, events affecting an industry generally, natural disasters, national emergencies, matters the buyer was aware of etc). A matter of contract: Whether COVID-19 (or the lockdown) triggers a MAC will depend on the context and wording of the MAC clause itself. Looking ahead: Parties who are negotiating MAC clauses should consider how COVID-19-related risk is allocated between them. A buyer will now likely want the MAC clause to give the buyer a termination right if the target suffers a MAC due to COVID-19 or a similar event. A seller, on the other hand, will now likely require the MAC clause to expressly exclude COVID-19 or a similar event from the scope of triggering events (e.g. the MAC clause associated with Morgan Stanley’s recent acquisition of E*Trade Financial Corp., albeit in the public M&A context). A possible middle-ground might be for parties to agree on minimum time and financial-based thresholds above which COVID-19 or a similar event will trigger their MAC clause. 2. DUE DILIGENCE Comprehensive due diligence (i.e. financial, commercial and legal investigations into a target business) is all the more critical in the context of COVID-19: COVID-19-related risk: A buyer’s investigations will now likely focus on the extent to which the target is exposed to COVID-19-related risk and what mitigation steps have been adopted by the seller. Targeted review: A buyer may now wish to canvass the following areas in its due diligence: the target business’s financial condition and solvency risk; eligibility for the Government’s COVID-19 economic package; remote-workforce capabilities; data security and privacy; employee entitlements; exposure to company, industry and regulatory (i.e. ‘change in law’) risk; crisis management processes; COVID-19 contingency, business continuity and mitigation plans; supply chain resilience; durability of customer and supply contracts; ‘force majeure’, suspension and termination rights under commercial contracts; existing insurance and business interruption policies; business health and safety measures and compliance; forecast CAPEX and OPEX; and status and location of leased or owned premises. Medical: Anecdotally, some buyers have expressed an interest in engaging health professionals to conduct medical due diligence on the target’s staff. 3. FINANCING COVID-19 presents financing-related issues for buyers and sellers in the private M&A context: Buyers: The impact of COVID-19 on solvency and revenues may affect the liquidity of many buyers and their ability to obtain acquisition financing. Lenders are now likely to impose more stringent covenants when offering new facilities. Buyers should carefully review the terms of their financing arrangements, in particular around the risk of “continuing obligations” under the sale agreement and the loan agreement, if one agreement should remain in force and the other is terminated. Sellers: A financially impacted buyer presents a credit risk to the seller. To address this risk, it’s foreseeable that sellers will undertake more in-depth ‘reverse’ due diligence, on the buyers’ solvency and ability to secure funding. A seller may now also consider additional protective measures, such as the purchase price being paid into escrow, having a guarantor of the purchaser’s obligations in the sale agreement, or termination fees being payable by the purchaser. 4. PURCHASE PRICE ADJUSTMENTS AND DEFERRED CONSIDERATION The traditional fixed pricing approach for deals, in this climate, is likely to carry more risk for buyers: Post-settlement purchase price adjustments: Post-settlement purchase price adjustments may now be a more attractive option, as they can account for a target’s deterioration prior to settlement and the state of the business at settlement. However, price adjustments aren’t immune to COVID-19 – the historically-calculated average ‘peg’ or ‘target, upon which working capital adjustments are typically based, for example, is now not likely to be appropriate. Adjustments based on revenue or earnings may be more appropriate. Deferred or contingent consideration: Deferred or contingent consideration mechanics, whereby all or a portion of the purchase price is determined by reference to the business’s future performance (e.g. an earnout), may grow in popularity. They are widely recognised as being a useful tool to help bridge the valuation gap, and allocate risk, between parties. 5. UNDERTAKINGS, REPRESENTATIONS AND WARRANTIES Both sides will need to consider carefully the undertakings, representations and warranties being provided: Buyers: Buyers will understandably seek increased warranty protection around the target’s financial performance and position, and its ability to service debt and collect debtors. They may also seek additional warranties in relation to the status of key supplier and customer contracts (and, in particular, the counterparties’ termination rights, particularly due to ‘force and majeure’) and the extent of COVID-19’s impact on the target’s business. Sellers: With COVID-19, the seller’s ability to give certain warranties and undertakings may now be compromised (e.g. efficacy of the supply chain; compliance with privacy laws and data security policies (in circumstances where the target’s workforce is working remotely); running the business in the ordinary course (i.e. in circumstances where the seller is likely taking active steps to manage the business’s working capital, maintain liquidity and (if required) refinance debt) – perhaps this is now the ‘ordinary course’?! A seller may try and avoid giving warranties at settlement and look to qualify warranties by materiality thresholds and the extent of its actual knowledge. In addition, it’s foreseeable that a seller will insist on a general COVID-19-related exclusion of liability. A possible middle-ground might be for parties to agree on a targeted, COVID-19-related indemnity for specific, identified risk. 6. WARRANTY & INDEMNITY INSURANCE Exclusion of COVID-19-related losses: Anecdotally, warranty & indemnity insurers are taking steps to exclude COVID-19-related losses from their W&I policies, on the basis that it is a known risk. This makes the allocation of risk between parties all the more critical. Without insurance cover for these exclusions under the W&I policy, buyers may conceivably push for a reduced purchase price or targeted indemnities from the seller. 7. GENERAL Buyer caution: Many buyers are citing COVID-19 and the lockdown as justification to end further negotiations altogether. In other circumstances, buyers are adopting a cautionary ‘wait and see’ attitude and buyer boards and shareholders are holding off from giving final transaction approval – current circumstances are being used as leverage to put negotiations ‘on ice’ in the hope a more favourable purchase price can be obtained once conditions settle. Valuation and strategy: Current volatility is creating valuation and strategic issues for buyers. For deals priced on revenue or earnings expectations, a buyer’s ability to run reliable financial models and valuations is now compromised – buyers will understandably want to re-assess the methodology used to value a target. The current environment is also giving buyers pause to re-assess their acquisition strategy. Partial (as opposed to 100%) acquisitions may now be preferable, and sellers may well be wise to remain open to such alternatives. Logistical challenges: The lockdown presents a raft of logistical challenges for parties and advisory teams, and will undoubtedly impact timing on all key areas of private M&A (i.e. due diligence, financing, securing third party consents and regulatory approvals, management and stakeholder meetings, site visits, negotiations and settlement). Open lines of communication, and pragmatic expectations, across parties and advisory teams are critical. Dates: Deal teams and advisors will need to carefully assess transaction milestone dates. It is likely that condition and settlement dates will need to be pushed out. Technology: Technology is now needed more than ever to help facilitate continued deal flow. Parties and advisory teams will derive obvious benefits, and experience reduced disruption, with capabilities such as extranet or portal functionality (e.g. Dropbox), remote conferencing facilities (e.g. Zoom, Teams, Skype etc), document collaboration software, virtual data rooms, transaction management software and electronic signature (e-signing) software. We recommend you seek specialist legal advice, as soon as possible, in relation to your private M&A deal. The above overview has been provided for general information purposes only. It is not, nor is it intended to be treated as, legal advice and is subject to change without notice.
Is it still ok to promote my business? There is no one-sized fits all answer to this. However, in . . . general, I would say YES. If you can still solve a problem for people right now, then there is no reason to stop solving that problem. What does need to change though is your approach. You may also need to come up with a new compelling offer. Last week I put together a guide on my blog which will help you with all your marketing questions and will answer this question more fully. Click here to read: How to Market Your Business in a Relevant Way in 2020 How can I make sure my business stays profitable? There is also no one-sized fits all answer to this either. However, for most businesses, this means looking at a) Your Outgoings This is to ensure you have cut all unused or unnecessary expenses. I am always shocked at how many clients that are paying waaaay too much for unused subscriptions when we start working together. If you haven’t yet reviewed your outgoings, I encourage you to prioritise that ASAP! You may like to read my blog article: 5 Things You Can Do in Your Business to Save Money b) Your Sales Plan COVID-19 is forcing many of us to go back to basics and really review our business models and how we operate over all areas of our business. This is often something that we need to get outside help with because it’s hard to look at our own business objectively without guidance.
About OFX Who we are • Founded in 1998 in Sydney • Expanded to New Zealand in 2001 • ASX listed, . . . since 2013 • 420+ employees across 7 global offices; Sydney, Auckland, Hong Kong, Singapore, London, Toronto and San Francisco • Servicing Consumers ~50%, Corporates ~45% and Enterprise* ~5% • Currency experts offer 24/7 global support Help reduce your FX risk We offer expert currency advice to help protect and grow your bottom line. Mitigation of currency Greater certainty of future Protect cost level from Reduction of transaction costs risk exposure cash flows market volatility with consistent and transparent pricing. Corporate account benefits What you get Preferential, fixed exchange rates and $0 OFX fees* Same-business-day transfers** No minimum or maximum transfer amounts Risk management products and tools: Limit orders, rate alerts Multi-user access Dedicated and locally-knowledgeable currency specialists 24/7 customer service^ Register & transfer online, over the phone or through the OFX app *Intermediary fees may apply from individual’s bank. **Timing based on receipt of funds and only applicable to major currencies ^English language available 24/7 What it means Transparent and competitive costings Move money faster Flexible to suit different transfer needs Protect your company against currency rate fluctuations Easy collaboration giving individuals varying levels of access Easy communication in your preferred language Available on the phone or via email when you need us Money transfer at your fingertips anywhere, anytime
The three most important tools that a business can have in its toolbox are Business Plan, Cashflow . . . Forecast and Management Accounts. “No” I hear you scream, marketing and sales are what keeps a company alive! That is true but without the first three you can’t have the last two. Click the Graphic on the right to instant-download the full toolbox (pdf). Replay Geoff’s recent Livestream presentation for the BSN Community on using these tools in business.
Contact tracing is a vital part of our fight against Covid-19. To operate in Level 2 all businesses . . . and workplaces need to keep contact-tracing records of anyone who will access or use your premises (workers, contractors or customers). Whatever contact tracing method you choose, it’s important to think about privacy so that people can trust you to protect their personal information. If they don’t trust your method, they won’t want to use it. This guide will help you ‘do privacy right’ when contact tracing. 1. Minimise the data you’re collecting Only collect the personal information you need for the purpose of contact tracing – including a person’s name, contact details, and the date and time they were on your premises. You might also want to ask people to con!rm that they don’t have any Covid-19 symptoms or haven’t been in contact with anyone who may have Covid-19. 2. Be open and transparent Make sure people are aware that you’re collecting personal information about them for contact tracing, and how you’re doing this. Tell people what personal information you’re collecting, what it will be used for, who it will be shared with, what will happen if they refuse to provide it, and how they can ask for a copy of it. You could do this by including a privacy statement on a register, via the workplace intranet, or by putting up a poster. If you want to use the personal information you collect for contact tracing for another purpose, reconsider – people probably won’t appreciate this. If you go ahead, make this other purpose very plain and clear. If you are using existing systems (such as employee swipe card entry records) make sure this is known to users. 3. Protect the data and be accountable Keep contact tracing information secure from loss or unauthorised access, whether it is in physical or electronic form. Only those who need to access it should be able to. Take steps to make sure people can’t see each other’s information when they give you theirs. If using a contact tracing method provided by a third-party, check that: they’re a reputable provider and their method has not been criticised by others their security is acceptable they will not use the information for their own purposes/on-sell it (if they say they will only do this on a deidenti!ed or aggregated basis, verify this, and think about whether this would meet people’s expectations) they can meet your retention/deletion requirements they will tell you about a privacy breach and assist you with any investigation. 4. Remember people have a right to know Individuals have a right to access the personal information you hold about them and ask to correct it if it’s wrong. You have an obligation to respond to requests for contact tracing information under the Privacy Act, and your contact tracing method needs to enable you to do this. People aren’t entitled to access contact tracing information about others. 5. Make sure the data is accurate Contact tracing will only work if accurate and up to date personal information is available to contact people at risk. Make sure your contact tracing method is simple to use to encourage the collection of accurate information. If you’re using existing systems, such as sta swipe cards, you need to have con!dence the contact information you have for those users is accurate (or take steps to check it). 6. Stick to your purpose Only use contact tracing information for the purpose of contact tracing and only share it with the Ministry of Health and/or a District Health Board unless: you made it very clear that you were also going to use it for another purpose/share it with someone else; or you are legally allowed to (including under the exceptions to Information Privacy Principles 10 and 11). Only share the speci!c information that has been requested. 7. Get rid of the data when you’re done Keep contact tracing information only for as long as it is needed for contact tracing purposes. WorkSafe suggests that this information should be kept for no longer than 2 months. Securely and permanently destroy the information when the time comes.
About the Author Jim Bennett Sales Specialist & Business Advisor Or simply put, just a . . . Salesman!! Hi there —-my name is Jim and I’ve been selling professionally for over 40 years. For those who know me, some would say I’ve been around far too long and in fact, many would probably even suggest I might even be out of touch But from everything I’m seeing play out in the aftermath of COVID-19 and even before its arrival, I’m thinking what I have to say just might be more relevant today than ever before. You see you don’t get to be around as long asI have and not learn a thing or two about sales and selling. And yeah sure, I’ve worked in large and small corporates and sold a lot of things to a lot of people. But you know what, none of it happened without one simple principle being applied. Someone had to want to do business with me –and that’s the simple truth. You see without that, you can have the best product, deal, company, brand or whatever you want to dress it up as, it doesn’t make a scrapof difference. If you don’t deliver on 3 fundamental principles, forget it –you’re wasting your customer’s valuable time!! So if you want to be effective and make a difference in your business, read on. It might not be pretty, but it’s the simple truth and based on my experience, it works. Introducing the 3 R’s When I started out selling many years ago, I wish someone had just sat me down and told me what I’m about to tell you. It would have saved me a lot of time, pain and frustration and just possibly, I might have been able to help more people earlier in my career. Instead, I was sent to numerous sales courses, read a whole lot of outdated books and listened to the war stories of many veteran salesman who would tell me why customers should be grateful about the product or service I was peddling. That what I had for them was what they wanted, irrespective of whether it really met their need. Because let’s face it, 40 years ago, what customer in their right mind really knew what they wanted? So over the years I had to learn and learn fast. And yes, I quickly came to the realization that all I needed to know was the 3 R’s in order to “Earn the Right” to do business. Yes that’s correct. The simple truth about doing business, building relationships, doing long term deals, making lifelong business friendships all come down to three simple things–being REAL, RELEVENT and RELATABLE. WOW —-could it really be that simple? Being REAL So what does being“REAL” actually mean?. Well simply put, it means being yourself. If you think selling is about having to BS your way to a deal, then you’ve missed the point. In fact I’d go as far as to suggest you need to get out now. Get out before you screw your business, your customer and yourself. I believe what customers want today more than ever before is for you to be genuine, upfront, honest and most of all, have the ability toestablish what they actually need. They want to see a genuine desire from someone who really does give a toss. I’m not saying you need to have the gift of the gab—far from it. In fact, you’re better off not having a smooth-talking tongue. But what I am saying is be passionate about what you do. It shows them that you are the real deal. And in my experience, people will gravitate toward someone who’s confident, excited and passionate about who they are and what they’re selling. Now for those that might be reading this and scratching their head, yes what I’m saying is BE HONEST. Trust is one of the greatest qualities you can be remembered for and if you lose that, it’s gone forever. So to recap being “REAL” is all about being true to your customer –they deserve it. Being “REAL” to your business –its cost a lot to get to this point and most of all, be “REAL” to yourself. You will be the ultimate architect inwhether you succeed or fail, so be remembered for what you deliver. Afterall, Life is about Delivery. So what keeps you “RELEVANT”? Have a really goodhard think about the question. This is not about someone having a go and suggesting for a moment you’re not valued. This is about whether what you do, stand for, deliver, actually provides relevance to the person you are delivering it to. Download my eBook by clicking the graphic on the right to get the full story. I look forward to sharing it with you.
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