John Linton .....with broken promises....or from a supplier's view..."ahhhh....you must have read the contract differently to what it REALLY means"....
Back in the days when honesty and accommodation were the principal components in commercial dealings (some people put that as recently as 3,000 BCE) a commercial agreement between two parties was based on mutual benefits to buyer and seller with clearly understood obligations, on both parties, with clearly understood delivery arrangements - if only of the type that ".........and when I return home (God willing and may his name be thrice blessed for eternity) I will do my best to get your beads on the next available camel headed in your direction". Even in the dreaded "Clause 13" days of IBM in the grip (squirrel or otherwise) of the US Federal Government's anti-trust lawsuit the most powerful commercial entity the world has ever seen was punctilious to the point of exquisite agony to, legally, bend over backwards to ensure the 'other party' got the fairest possible deal with almost every aspect framed in the customer's favour....and that was less than 40 years ago.
In those really nice, honest days both sellers and buyers used to take the view that signing a contract was something you did to get the installation process started - the contract was placed in 'the bottom drawer' of the buyers desk and never referred to again by either party and particularly not the lawyers of either party. Contracts were necessary evils that legal departments wanted so they could justify their employment and so that they could convert most of the office space in the CBD into storage areas for filing cabinets holding expensively prepared documents that no-one ever referred to again once they had been signed and countersigned.
At my advanced age I can clearly remember how business has been successfully carried out, even with the most punctilious of the larger Federal Government departments and the most pettifogging legal departments of major Australian commercial enterprises, over the last three decades of the last century in this way with never a "contract dispute" being considered by any party. And then there is now - in the second decade of the revised Telecommunications Act and who would know what is really 'promised' or can be expected to be 'delivered? Certainly not me - partly because I come from a different era (the era of contracts/bottom drawers) but mostly, at least so I think, because I've always thought it was reasonable that a buyer should reasonably get what they sign up to pay for and a seller has the obligation to do that. I guess it's one more clear indication that I should pursue some other way of filling in each day's empty hours because I equally clearly no longer, if in fact I ever did, understand today's commercial legal/contract practices.
So, apparently, it's now possible for large organisations (and I'm truly talking generally and that phrase isn't 'code' for "Telstra") to resort to legal cost 'bullying' as their primary method of 'solving' issues of delivery or performance when such issues arise. Exetel has no ability to deal with such providers as we have neither the time nor the money and we definitely don't have the capacity to string out critical (to us) supply situations that affect our end users. So we only have one course of action - we do whatever the supplier requires which often either inconveniences us, often also inconveniences our customers and/or costs us money or reputation loss. This happens more often than any reasonable person could expect in any given year. If these sorts of legal bullying issues just affected Exetel then it would be obvious that it's simply our own fault in being careless with either our contract negotiation or contract drafting. I am completely happy to accept that I am truly lousy in both those areas of business and it could well be entirely my personal fault that Exetel ever gets itself in to 'trouble' on contract issues - I understand that I have a very old fashioned view of contracts which is why we always use highly competent (and very expensive) legal advice in both our personal and professional lives....but not until this moment in time on simple supply contract issues.
I was jerked back to Australia 2009 reality this morning when I read an 'overnight' email drawing my attention to a 'breach' of one of our current supply contracts and a peremptory demand about what I (Exetel) was going to do about it. I was a little taken aback by the tone of the, very brief, communication as well as by the content. I will do something about it today but it has left me a little bewildered as to what the supplier's intention is in sending such a tersely worded communication. How do they expect Exetel/me to react? I well remember this particular supplier taking action against a smaller company than Exetel not too long ago which resulted in that company being sold up by the supplier to pay for services that the smaller company had never used but was, at least in legal detail, required to pay a great deal of money for even though they had never been used. I have a very busy day today in terms of the monthly management reviews followed by the June board meeting so I will deal with it over the weekend.
Perhaps the time has come to admit that business in 2009 is beyond my ability to deal with and go to the UK and work with people who have more reasonable attitudes to commercial relationships? Maybe there aren't any such people/entities any more and it's simply my inability to deal with today's Australian commercial realities.