Essentials for drafting online consumer terms and conditions
Our commercial lawyers can support you with legal advice on all aspects contract law and running your business, including advising on the drafting and negotiation of the commercial contracts and safeguards that you will need to protect your business interests.
Our solicitors regularly advise on commercial issues relating to the ownership and licensing of intellectual property rights (IP law), branding, data protection compliance, confidentiality agreements (NDAs), master services agreements, consultancy agreements, contracts for the supply of goods, agency and distribution arrangements, sponsorship and franchising.
If you are grappling with an issue of particular complexity or significant risk for your business, get in touch. We will advise you on any technical considerations, give a solutions driven commercial view and carry out any drafting or negotiation which is required.
We have extensive experience of advising innovative technology businesses in a variety of sectors, including fintech, big data, virtual reality, artificial intelligence and crypto-assets. We regularly carry out healthchecks of existing commercial and contractual arrangements and draft updates or new documentation as necessary.
Below are some questions relating to commercial legal advice that we are frequently asked by clients with specific issues around commercial issues and commercial contract law.
A contract is a legally enforceable agreement which gives certain rights and responsibilities to those that agree to their terms. Contract formation is a practical question and is often determined by analysing the prior negotiations (such as email chains) between the parties. A brief summary of the essential elements to be established for contract formation in English law is as follows:
Yes. English law allows for e-signatures of all complexities to be used as the basis for entry into a contract with equal treatment to execution by wet-ink signature, so long as the signatory intends for the e-signature to authenticate the document.
The essential elements of contract formation also apply to terms of business displayed on your website or app.
Importantly your customers must be given the opportunity to accept or decline the terms, for example by completing a tick box and clicking a button. Additional requirements as to the type and amount of information to be included in the terms of business will vary depending on whether you are engaging consumers or businesses.
For further advice on the type and amount of information that should be included, contact the team.
The terms “agent” and “distributor” are often used interchangeably as supply chain intermediaries but they differ substantially as regards their legal interpretation. An agent is a person who acts on behalf of another party (the principal).
Some agents have the power to negotiate and conclude contracts with customers on the principal’s behalf whereas others have the ability to make introductions only. Agents are generally not parties to the contract between the principal and the customer. In such cases, a customer who buys from the agent is in fact entering into a contract with the principal. Clearly identifying the scope of the agent’s power will help avoid uncertainty as to whether the principal has incurred liability to a customer.
A distributor purchases goods from the manufacturer or supplier and resells them to its customers with a margin to cover its costs and make profit. In this way the distributor contracts with both the supplier and the customer. An agency agreement may be preferable where the agency commission fees are lower than the margin costs of a distributor or where the principal wishes to retain control of the price of the goods, the target customer base and how the goods are marketed.
By contrast, a distribution agreement may be more appropriate if the supplier intends for title and risk in the goods to pass to the distributor. Distribution arrangements are more straightforward to terminate because they are not subject to the commercial agency regulations which grant a right to a lump sum payment to certain agents on termination of their agency agreement, regardless of breach of contract by the agent. Taxation is also less problematic for distributors as there is no risk of double taxation which can arise when a principal is deemed to trade in a particular country because it has an agent there.
An employment tribunal claim involving only claims of unfair dismissal and wrongful dismissal will normally, but not always be a simple claim.
Franchising involves an established business (a ‘franchisor’) granting a licence to a third party (a ‘franchisee’), which allows the franchisee to trade using the brand of the franchisor.
The franchisee has responsibility for running their own business, although subject to the rules and restrictions of the franchisor’s business model, thereby protecting the franchisor’s brand. Typically, a franchisor provides a franchisee with a manual setting out the operation and procedures that the franchisee must adhere to when running their business. In addition, a franchisor usually provides initial and ongoing training to a franchisee in respect of the operational and procedural matters applicable to running a business using their brand. In return for use of the brand and the provision of training, a franchisee usually pays a franchisor a mixture of initial and ongoing fixed fees, as well as a proportion of the profits made from their business.
Personal data is any information about a particular living individual (known as the “data subject”) such as employees, customers, business contacts and members of the public. This information could directly identify a person by name or enable them to be identified through a combination of information such as by identification number and address.
GDPR is shorthand for the EU’s General Data Protection Regulation which currently applies in the UK as tailored by the Data Protection Act 2018 (please see our blog for insight on the potential implications of Brexit). The purpose of GDPR is to create an EU wide framework for the fair and proper use of information about people which in turn fosters the build-up of trust between individuals and organisations.
GDPR introduces minimum standards of care to ensure that organisations adopt a risk based approach when collecting, using, storing or otherwise processing an individual’s personal data. This includes key principles to inform decision making as well as certain lawful bases which require the processing to be necessary for a particular purpose and communicated in a privacy notice.
Under the GDPR, a data controller may only engage a data processor via a legally binding contract containing certain mandatory terms. Details of the mandatory terms to be adopted can be found in our blog. You should consider whether your contracts with suppliers (who process personal data as processors) contain the mandatory terms and, if not, vary them accordingly.
You should also consider whether your business, in the course of providing its services, does so as a data processor. If so, you will need to ensure that your terms of business with all of your customers incorporate the mandatory terms set out in the GDPR.
GDPR restricts transfers of personal data to countries located outside the EEA (“third countries”) as well as to international organisations (these transfers each are known as “restricted transfers”). This is because data subjects risk losing the protection granted by GDPR in these situations. As such, restricted transfers cannot be made without:
Briefly, an adequacy decision means that the level of protection provided by a country’s data privacy regime is considered to be essentially equivalent to the standards of care set out in GDPR.
Appropriate safeguards are broadly:
If one of these safeguards has been implemented then restricted transfers of data can go ahead provided that the rest of GDPR is complied with.
Model clauses are entered into between the data exporter (located inside the EEA) and the data importer (located outside the EEA) which contain non-negotiable contractual obligations and directly enforceable rights for the individuals concerned. Binding corporate rules are effectively an internal code of conduct approved by the EEA supervisory body situated in the EEA country where one of the companies is based.
GDPR introduces different responsibilities for data controllers, joint controllers and processors. The role that your business plays in a commercial arrangement will depend on the particular circumstances.
Generally, the controller will be the decision maker determining how, why and which personal data is collected. Joint controllers will have data collection objectives and procedures in common with another controller. The processor follows instructions and usually receives the data from a third party such as a client and has no direct relationship with the individual.
The ICO can bring enforcement action against both controllers and processors for non-compliance with GDPR. Likewise, individuals can make a claim for compensation and damages against both controllers and processors for breaches of the rights under data protection law. It is therefore crucial that you carefully review and document the flow of personal data between your organisation and others so that your status is clear (regardless of the terminology used in a contract).
Your data protection obligations should be taken seriously as a failure to comply may lead to the UK’s privacy regulator the Information Commissioners Office (the “ICO”) imposing fines of up to the higher of:
An indemnity is a promise to reimburse the contract counterparty (and any other specified persons) for losses suffered as a consequence of a specific event taking place. For example, in a licence of intellectual property rights, the licensee may wish to be indemnified by the licensor for any losses suffered as a result of a third party claiming that the use of such rights infringes rights which they hold.
Unlike a regular claim for breach of contract, there is no need to show fault and if the specified trigger event occurs, the indemnifying party automatically becomes liable.
Giving an indemnity should not be taken lightly. You should consider whether other contractual protections may be more suitable in the circumstances. Further, the scope of an indemnity and the extent of losses that it covers as well as limitations of liability should be carefully worded.
A warranty is an assurance or a statement of fact in a contract by one party to the other. If the warranty is breached, it constitutes a breach of contract which may give rise to a claim for damages.
Unlike a condition, a breach of warranty does not provide the injured party with a right to terminate the contract.
Agreements for the provision of services typically include warranties from the supplier that:
Suppliers should, of course, pay careful attention to the wording of the warranties in their contracts to ensure that they can provide them and they do not expose the business to unnecessary risk.
If a warranty in respect of a material area of risk is breached, an indemnity is typically requiring for any losses suffered arising from that breach.
Non-Disclosure Agreements (“NDAs”) are generally short form commercial contracts that are put in place to protect the confidentiality of information that is disclosed between the parties for a particular business purpose.
Confidential information can be broadly defined to protect both commercial information and personal data. Examples of information that is typically protected by a NDA include:
NDAs are designed to prevent the recipient from taking unfair advantage of information received in confidence. This is achieved in part by restricting the use of the confidential information to a defined purpose.
For example, if you are an investor or start-up business entering into discussions to explore a potential investment, then use of the confidential information should be carefully defined to reference the prospective transaction. Other key considerations will depend on your particular business requirements but common issues include whether the obligations are unilateral or mutual (i.e. is there a one way flow of information or is it coming from both sides?), the duration of the obligations and remedies for breach of confidentiality.
Penalty clauses have the objective of punishing the defaulting party by requiring payment of an excessive amount which is triggered a specified breach of contract. Penalty clauses will not be enforced beyond the actual loss suffered by courts in England and Wales.
Typical examples of penalty clauses include high levels of late payment interest or a disproportionately large sum becoming payable on the occurrence of a breach e.g. if the deliverables for services have not been provided by a particular date. It can be difficult to accurately anticipate the losses likely to be suffered as a result of breach and it is best to take advice as to whether a provision is likely to be valid from the outset.
Intellectual property rights (“IP rights”) are intangible property rights which are the result of your intellectual endeavours for example, proprietary methodology.
In a licensing arrangement, the licensor (IP rights owner) retains ownership of the IP rights and grants the receiving party (the licensee) permission to use them in exchange for a fee (usually as royalties whereby a percentage of the licensee’s sales revenues are payable to the licensor periodically).
Licensing can benefit licensors by boosting revenues and market penetration whilst allowing licensees to enjoy greater access to expertise and lower research and development costs.
In deciding whether to grant or take a licence you should consider how it will help meet your business needs and commercial goals. Risks of licensing typically include prohibitively high rates of royalties being charged and reputational harm which can occur where a licensee uses your trade mark but produces inferior quality products.
There are numerous types of licences and variable conditions which can impact the effectiveness of this commercialisation vehicle. For example, exclusivity, whether the rights can be transferred or sub-licensed, the duration of the licence, territorial and use restrictions, performance obligations (such as minimum sales) and payment terms.
If you are considering granting or taking a licence of IP rights and would like further support then please contact our IP law experts.
An assignment of intellectual property rights (‘IP Rights’) differs from a licence in the sense that ownership of the IP Rights is transferred from the assignor to the assignee, usually in exchange for a fee. Documenting such an assignment therefore sounds straightforward but assignors should be aware that assignees may seek certain contractual protections in respect of the assignment, including:
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