Commercial and Business

What goes around comes around. SaaS providers are under pressure to provide more flexible and adaoptive service offerings to stay ahead in the market.

When buying a business, a buyer may be particularly concerned to ensure that they acquire profitable existing contracts which the business has entered into with third parties. The legal framework underlying each method of transfer is very different and the implications for existing commercial contracts varies depending on the choice of acquisition method. 

Commercial contracts will routinely include clauses that aim to limit the liability or exclude one or both party's liability for breach of contract and/or claims in negligence. Although the starting point is that the parties are entitled to agree to any terms that they choose, there are certain limitations on the enforceability of limitations of liability and exclusion clauses. Businesses should also be particularly aware of the far greater restrictions on the liability which can be excluded in contracts with consumers.

Standard Terms of Business are commonplace in commercial transactions. They offer certainty as to a party’s obligations and potential liability under a contract. However, where one of the parties to a commercial transaction try to contract by reference to one or more standard terms of business, a situation can arise commonly known as Battle of the Forms in English law  and contract formation cases.

Shareholders’ agreements provide a foundation for shareholders to maintain cohesive ownership and management of a company. They are especially important where a company has several shareholders with varying degrees of involvement to ensure that each shareholder is clear as to their rights and responsibilities within the company.

Startups offering services should ensure that their service agreements are carefully drafted to accurately reflect the role and responsibilities of the service provider. Legal advice is essential to ensure that businesses understand what provisions should be included and the effect of those provisions on both parties to the contract. Written agreements will often prevent disputes arising as to the interpretation of contractual terms, but oral agreements can be equally binding. 

One reason why it is important for businesses starting up to enter into employment contracts is because employees who begin working for the particular business may find themselves taking on responsibility for jobs which they originally did not agree to. An employment contract will settle any misunderstandings.

Novation is the process of transferring terms in a contract between two parties, to a third party. There must be a new contract which substitutes the original contract. One of the benefits of novation is that it can be applied to any contract, such as technology agreements, and in any industry, such as the construction industry.

There are two main categories of indemnities in information technology contracts. The first provides cover for losses where events which do not directly related to the performance of the contract, cause a loss. In other words, there is no performance which has breached the contract. This can include breaches of data protection regulations.

It is essential that new business seek specialist legal advice to reduce the risk of disputes when starting up. One way of preventing or minimising disputes is incorporating the business at the earliest opportunity. 

There are many considerations to be made when businesses intend on entering negotiations for an intellectual property license.

The case of De Beers v Atos involved a diamond business who entered into a fixed price contract with a vendor. Subsequently, both parties sought judgment for repudiatory breach of contract after delays and costs overrunning. In order to prevent such a dispute arising, it is important to foreshadow legal issues that are likely to arise in IT development contracts and project management.

Retention of title clauses are available to suppliers of products to insulate against failures to pay for goods by financially weak customers. We discuss some of the requirements for valid and enforceable retention of title clauses, and the default position regarding the passing of legal title in a sale of goods contract which may be changed by retention of title clauses.

Intellectual property licensing enables use of intellectual property to be lawful; without a license, use will be an infringement of the owner’s rights. Provisions in an intellectual property license can be negotiated to agree the scope of the licence and duration, amongst other terms. We discuss the benefits of applying for a license to both owners and users of intellectual property and what disadvantages may arise.

If a competitor or other third party has induced an employee to intentionally commit wrongdoing or act detrimentally to your business, then you might have recourse to a legal remedy and potential damages under the tort of inducing breach of contract, or procuring breach of contract in modern parlance.

Small and medium sized businesses face a greater risk of cybercrime and online fraud than larger enterprises. In this article, we discuss why smaller businesses are being targeted, how cyberattacks can be avoided using effective monitoring and the steps that should be taken if you discover that your business is at risk.

When is a person self-employed, and when are that employed? Three tests apply to determine whether a person is self-employed or employed by some else. We discuss the tests and the factors weighed by courts to decide the position.

Planning for changes and variations of prices of the course of a long term contract requires flexibility to be built in to a commercial contract.

Fundamental principles of law prevent contracting parties from assigning contractual rights to another person. Should a contracting party wish to assign its rights to a third party, the agreement of the person to take on the responsibilities in the contract is required.