Company Law

The first question a lawyer will ask in the event of any dispute is: ‘Where is the contract?’ This is because every lawyer knows that if their client does not have a properly drafted contract in place supporting their position, then it will mean an uphill battle for their client from the outset – for the client this means delay and cost.

We can have professionally drafted terms tailor-made for your business and also advise you as to how best use them in order that (where possible) they take priority over the other side.

We will ensure that your terms will encompass related matters such as method of payment and timings of payment, and limitation/exclusions of liability.

A provider of services, will often wish to increase its market penetration by putting in place a network of sellers in order increase profitability and to create a stronger brand presence within a certain territory.

If you are provider of the services we can draft a suitable distribution agreement that will cover issues such as sales targets, profits and payments, ownership of the goods and the extent of sales territories and whether the arrangement is to be exclusive or non-exclusive.

The financial risks assumed by the distributor are greater in many cases than that of the provider of the services, and we can advise on how those risks can be limited.

The franchise agreement sets out clearly the duties and obligations of both parties with respect to the franchisor and franchisee. It deals with such matters as the duration of the agreement, training, fees, use of intellectual property, advertising and the right (or not) of the franchisee to resell the franchise at a particular point in time as well as termination – these agreements are as varied as the franchises they represent.

If you are the franchisee in this equation then you may be quite sure that this agreement has been drafted in a one-sided manner and this is where we can assist you in attempting to negotiate a better deal.

Under a collaboration agreement the parties collaborate in a business venture but without having to become partners or shareholders in a joint venture company. A typical example would be where one party has the ‘idea’ but no money whilst the other party has the money or other resources to back the idea. There is then the question of the split of profits (and losses) and very often the question of ownership of intellectual property arises.

The term ‘joint venture’ is most commonly applied to an arrangement whereby two or more parties provide capital or assets or other resources to a limited private company in exchange for shares in that company, with a view to it carrying on a business.

The parties to the above arrangements would be well advised to spend some time and money on documenting each parties’ obligations to each other and the joint venture itself to include various provisions such as termination and exit, as well as ownership of intellectual property – we have a great deal of experience in this area and would be happy to assist you in the negotiation and drafting of a suitable agreement.

An essential feature of outsourcing is that the provider takes on the tasks that would otherwise be carried on by in-house employees which can range from HR to IT to BPO.

Generally speaking, we tend to find that relationships based on contracts tend to be less successful than contracts based on relationships, but the cornerstone to this arrangement is the outsourcing agreement itself which deals not just with term and price, but also on the long term relationship between the parties.

A consultancy agreement is a legal document that defines the terms and conditions under which one party provides services to another – these agreements tend to be of short-term duration with well-defined deliverables.

We often see that consideration will not be given to which party owns any intellectual property and, in that case, under the Copyright and Related Rights Act 2000, ownership of all intellectual property will fall to the consultant unless there is written agreement to the contrary. Was this the intention of the parties? We can assist in explaining how the law operates in this area in order to best protect your business assets and thereby avoid costly mistakes later on.

A private business can be sold either through the sale of its assets or, if it is company, through the sale of its shares – by far the most “meaty” part of a share sale agreement will be the sections providing for the Warranties (contractual promises given by the seller). They normally consume a large part of the negotiation process involved in the sale as well – this is normally to the dismay of the seller and purchaser who would have considered that ‘the deal was done’ once the price was agreed.

We have a great deal of experience on advising and negotiating warranties and their accompanying indemnities (a promise to compensate for loss if a warranty is breached without proving loss as in a breach of warranty), and can therefore assist in speeding up the process as well as therefore saving on the attendant costs.

In addition, due to our experience in preparing due diligence reports
we can advise the purchaser on a number of material concerns that can assist the purchaser in deciding if in fact the company/business is actually worth buying, and/or assisting in achieving a lower asking price due to the unearthing of previously unknown problems. We have found that our due diligence report invariably pays for itself, due to advising the client of the inherent risks involved in the purchase and in using it as a toll to lower the purchase price being paid.

Of course, on the other hand, the canny seller can bring us in before the business or company is put on the market so that we can perform a due diligence exercise and therefore ‘put their house in order’, thereby creating a more sellable business/company and preserving as much of the asking price as possible.

There has been a huge growth in the variety and volume of goods and services which are available on-line and, almost inevitably, the amount of legislation governing it has also increased.

There are two distinct types of legislation that affect all on-line sellers (bar a small number of exceptions). Firstly, the traditional consumer protection regulations which are well established and many in number and secondly, those regulations designed specifically to deal with problems and issues facing on-line sellers.

It is the second limb that is the one that is the relative ‘new kid on the block’, and it is worth noting that these regulations were introduced in order to (largely) protect consumers’ rights when they buy products over the internet or by telephone (i.e. in a non face-to-face environment). Businesses covered by the regulations (which will cover most retailers selling on line) must adopt terms and conditions of sale and have certain procedures in place that comply with the regulations or be at risk of breaking the law.

Software is an intangible asset that is (in the main) protected by way of copyright. The owner has the right to allow or prohibit copying and can use a number of means of commercially exploiting the work. From a user’s point of view, it is therefore virtually impossible (there are lawful exceptions) to use software legitimately without infringing the owners copyright.

However, that said, in the ‘real world’ one is best advised to not simply rely on enforcing copyright in order to protect one’s rights, especially if the software is going to be used in a foreign jurisdiction and therefore the owner will normally grant the user a licence (permission) to use the software.

As we act for both owners and users on any given week, we are well placed to advise what each party should be looking out for in terms of the negotiation of a software licence.

Software will break down sooner rather than later and this should be expected in what is a complex dimension – what should not be expected however, is that a business will be non-operational for an extended period of time whilst that problem is being fixed!

If your business licenses software (and most do) do you know how long it will take to fix (and not just respond to the telephone call) it in the event the system fails to operate? If you are the software owner or licensee have you fully protected your intellectual property and revenue stream? How are you operating your fixes? What happens if you cannot fix it? We can assist in drafting and negotiating your agreement in order to best protect your business, whether you are the owner or the user.

A confidentiality agreement (sometimes called an NDA) is a legally binding agreement between two or more parties wishing to disclose and/or receive confidential information. The purpose of such an agreement is to prevent the receiving party or parties from using or disclosing the confidential information for any purpose other than explicitly stated in the agreement for a defined period of time.

A well drafted confidentiality agreement is essential when one wishes to disclose to interested parties information which is commercially or technically sensitive and which is not in the public domain. Confidential information disclosed in these circumstances cannot be used for any purpose other than the defined purpose in the agreement without the prior written permission of the disclosing party.

Sometimes, it just makes sense to have someone else sell the software. The core element of this strategy would be to have in place at the outset a clear reseller agreement that sets out key areas between the parties such as whether the arrangement will be exclusive or non-exclusive, the territory that the reseller may sell in, terms of payment, ownership of intellectual property, technical support, a clearly drafted end user licence, the term of the agreement and importantly (but often not dealt with) how the agreement may be terminated.

We have experience of dealing with both sides of the relationship and if you are the seller we can best advise you on the above aspects if you are presented with such an agreement.

In order to gain the huge benefits of having a website, a business would be well advised to pay great attention to its creation, structure and design in order to ensure that it operates effectively. In the ‘old days’ it was common for a business to have a tech-savvy friend or acquaintance design and build their business website, but as websites and the business arena have become more and more sophisticated and there is greater awareness of the business benefits of having a professional website, it is more common that such work is outsourced to full-time developers. These developers may then also provide other services such as domain name management, site maintenance as well as web analytic services and an effective site content management system.

If you are a website developer we can provide you with a website development agreement to use with your clients, and if you are purchasing a website we can advise you on what to look out for if presented with such an agreement.

The terms of such an agreement will normally deal with the scope of what is being provided, the timing, features and content, obligations of the parties as well as ownership of intellectual property contained within the website. There is no doubt that a well-drafted agreement will be of great benefit to both sides in terms of starting the project off on the correct footing in order to avoid any later misunderstandings.