It is very important to read any contract prior to entering into the agreement, especially as a business because the law is not there to protect you like it is as a consumer. You could find your self in lengthy contracts, unable to leave and the other party has limited all their liability so far as allowed to by law and you are just pretty stuck. Reading it is one thing but making sure you understand it is another, terms are also always always worth negotiating. I have seen small business stuck with an overly expensive coffee machine for 5 years, and of course the common one of very unfair payment terms like 90 days. Lesson here is, always always read and if you need some guidance or support, we can help.

I have done a number of reviews this week, some being worse than others but pretty bad all the same. The point of having your own terms/contract in place is to protect you, it needs to be bespoke to your business. Copying someone else’s and adapting as you see fit will not be sufficient, loads of legal jargon and unclear clauses will not do this either.

Making sure there is no room for ambiguity and having terms that are clear and easy to read will encourage others to do business with you too. Think, who would you rather do business with? The company that has a 20 page contract that makes little sense where they probably don’t even understand it themselves or a company who has a clear set of terms that are easy to understand and in plain English? .. Exactly.

So what makes a good business to business contract?

1. Clarity – Be clear on what each party expects to get out of the contract. Clearly explain what it is you are going to do for the price you have quoted for, of course things can be added and amended as the relationship develops, so be clear on what happens in this instance and how it is priced up.
2. Obligations – Clearly state what each parties obligations are, this protects you as there is bound to be certain things you require your customers to do in order for you to fulfill your side of the contract.
3. Payment – Quite an important one, how do you want to be paid? When? What are the consequences of failure to pay? If it is a lengthy contract you may want to be able to increase prices and this needs to be done lawfully. Is it a monthly payment? Are deposits due? When will the installments be invoiced? By just stating payment is due on 14 days of invoice is not enough!
4. Limiting liability – Each party will want to ensure that not only is their own liability limited, but also that any limit of liability placed on the other party is adequate.  There are restrictions on liability for death or personal injury, which cannot be excluded or limited under any circumstances. However, liability for breach of contract can be excluded or limited. You should always exclude your liability for indirect and consequential loss and make sure that if you are the customer your liability is limited to this too. Both parties are going to want to exclude liability to the extent it can and to place a financial cap where it can’t. Often business contracts can be very bias here and will want indemnifying for a breach with as much financial value as they can, make sure this is limited before you sign! Placing the financial cap at the contract value is fair and clear. Consider the direct losses too, if the goods are not delivered on time? If you cannot conduct you business due to a breach, how will this be handled? This is a massive area and this is only touching the surface.
5. Cancellation/Termination – How is this handled? Do you allow a cancellation period once your services have been ordered? What is the procedure should your customers want to end the current term? Do you auto-renew, want rolling contracts? There are lots of different contract types which in turn means many different ways to cancel or terminate. Your contracts need to be clear on how this is dealt with. Oh and please make sure you understand your own terms! I had a client recently who had been disputing an invoice from a company he had entered into a 24 month auto renew contract with. Emails were going between them, and the company had even instructed a debt management company to chase the invoice. I had managed to get the 24 month invoice reduced to 3 months just by reading their own terms and conditions. I can imagine a little embarrassing on a company who clearly doesn’t read or understand their own terms. Don’t let that be you!

I hope you now have a better idea of what makes a good contract. There are of course other areas to consider too, such as protecting your intellectual property, confidentiality, data protection, how complaints or discrepancies are dealt with and what happens once the term ends.

It is highly recommended that you get your contracts drafted by a professional and if you are not sure how good your current terms are then drop me an email. kerry@bebconsultancy.co.uk

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Terms and Conditions are words we hear daily. If we sign up to a gym membership, buy a car or even enter a competition we have to accept the terms and conditions before even being a party to that agreement.  So why is it that not everyone sees the real importance of having them in place when running a small business?

Nine times out of ten clients will come to us AFTER a problem has occurred. Yet a high percentage of those clients would have avoided any of those problems should they have had watertight, robust, and bespoke Terms and Conditions.

What should they consist of?

Terms and Conditions are basically setting out the terms of sale and of your business, and also the conditions that must be met by your clients in order to receive your goods or services. Every single business no matter how big or small, need these clearly written out to determine exactly what the agreement is.

Although they may only be brought out in a worst-case scenario and when something goes horribly wrong, it is vital that they are legally enforceable and adapted specifically for your business to assure you are fully protected. This means no copy and pasting from other similar businesses!!

So, how do you write them?

Firstly you should investigate all your business processes, ask yourself how would you ideally work? What would your ideal client look like and how would that process work? Break it all down in a step by step ‘how to guide’.

• How do you quote your clients?
• How do you perform your services?
• What are your client’s obligations?
• How they can cancel?
• And most importantly, how do you get paid?

Once you have these gathered together and written them all out, it will form a good basis for your terms and conditions to work from. These become your most important clauses.

Then ask yourself what would worst case scenario be in your process:

• What could go wrong?
• If you had the most annoying frustrating customer ever, how could you protect your business from it?
• What would or could they likely want to complain about?
• Again I repeat, worst case scenario!

Write in clear, plain English

Clarity is key, and Trading Standards are hotting up on it. (NB: Trading Standards is the consumer organisation responsible for this in the UK. If you are in another country, you will need to check out the equivalent organisation in your country via your own government’s website.)

Organise the document well, and write it in reasonably plain English. Bear in mind that if you deal with consumers, they have more rights than when you are dealing business to business. You do not want consumers claiming to not have understood what they are entering into. If you have industry-specific jargon, or complex terms that are referred to a number of times in your document, define them.

Definitions should be in a standalone clause listing all these terms and their meanings, before the main body of your agreement. For a more coherent agreement we would suggest using clause numbers and titles, plainly showing what you are explaining.

Further items to write about

Another example of good practice would be to state how and when your contract with them is formed. This shows when your contractual obligations to each other begin.

By writing this it helps in the case of any claims over breaches of contract. And because it clearly states when your begin your legal obligations to each other, it makes it simple to enforce in courts or other legal dealings that in fact there is no question over whether a contract exists in the first place.

And finally…

And a further important note in relation to legalities: ensure your terms and conditions contain your full registered name, any trading names, your company number, and registered address! A simple thing to add to make sure they are legally enforceable.

Although in theory it’s possible for you to write your own Terms and Conditions, it is recommended to seek legal advice from experts like us at BEB when writing them up – either to check you have got everything right, or to draft them from scratch.

This article first appeared on Suzan St Maur’s award-winning website HowToWriteBetter HTWB

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Intention to create legal relations is one of the necessary elements in the formation of a contract. Alongside Offer and Acceptance and also Consideration. There must be an intention to create a legally binding contract by both parties or the contract does not exist.

In the context of a commercial contract this intention can be assumed and it is down to the individual party to prove otherwise if they are disagreeing that a contract exist. Equally if the parties to a commercial agreement do not want their agreement to be a contract then they need to make that clear, this will then override the presumption that they intend to enter into a legally binding contract.

When the contract or agreement is in a social setting or between friends it is always presumed that there was never an intention to create legal relations therefore it will need to be proved otherwise if there is a problem or a dispute.

Consideration

The basic rule is that there will be no enforceable contract unless it is supported by consideration. Consideration in a legal sense basically means the exchange of promises, so basically “I promise to pay you £50 if you promise to clean my house.” If someone promises to clean your house and you say thank you very much.” Then there is no exchange of promises, just one promise and so this is not a contract but legally known as a gift.

The promise can be to do something in the future (executory consideration), or when one of the parties makes the offer or acceptance that completely fulfils their obligations of the contract ie with payment or goods. (executed consideration).

Promises in the past are as a rule, considered to not be consideration. Putting it very simply if you ran a cleaning company you couldn’t go and clean your neighbours house and then expect payment.

“You can’t promise to do something when you have already done it.”

There are exceptions to this though,  if your neighbour had asked you to do it as a favour and then after they offered you £25 as a thank you. This would amount as consideration and therefore a contract would be formed.

“Consideration must be sufficient but need not be adequate”

Imagine a £15,000 car, the promise to pay for that car from the buyer is both sufficient and adequate. However, if that same car was being bought for £1,500 then the consideration would be sufficient but not adequate. However as long as the seller agreed freely to the sale, and there was an intention to create legal relations the inadequacy of the buyers payment (consideration) would not matter.

The reason for this principle is simple, it would be impossible for the courts to know definite values of goods and services and they believe that people should be allowed to make any contracts they like. Imagine a business using this as freedom to make bad contracts for little monetary value just to gain business and then later on relying on the courts to protect them.

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Whilst an offer can be as simple as a verbal sentence, both parties benefit from a detailed written set of terms for that offer. An offer is a promise to do or not to do something that may be accepted by another. Almost all business contracts are like this and are known as bilateral, because both parties make a contractual promise to the other. The offeror (the person making the offer) has promise to provide the goods or services to the offeree (the person to whom the offer is made too). The offeree in return has promised to pay the price agreed when accepting the offer. Offers can also be unilateral and so therefore not necessarily made to one person – these may be made to the world or to specific groups of people.

An offer is different from an invitation to treat. When we are browsing in a shop or searching the internet for a new pair of shoes the goods we see before us are not offers for us to accept. They are an invitation to treat, we make the offer when we purchase the goods and the shop/company are not bound to sell you those goods. For example if the item has been priced up wrong, or they have ran out of stock.

As soon as an offer is accepted, a contract comes into existence and both sides are legally bound. An acceptance can be made by words, or by conduct and does not need a signature. The acceptance needs to be clearly communicated for the agreement to be in place.

In addition to being accepted, an offer may be rejected, a counter-offer may be made, the offer may lapse or the offer may be withdrawn. Any of these will terminate the offer and therefore it will no longer exist and acceptance of it is therefore no longer possible.

When business contracts are made there are often a series of negotiations, proposals and enquiries. It can be very difficult to distinguish what is a counter offer and what is not should a dispute arise. All remember many businesses will use their standard terms of business when entering into contracts with other businesses. Just because you are the one providing the services does not necessarily mean your terms will be the ones that you bound by. It can often cause issues when a business believes the contract was made on their terms of business, and the other business believes it was made on their terms of purchase. In these cases the courts have to decide whose terms apply. They literally do this by applying the ordinary rules of offer and acceptance.  When was the offer made and by who? When was it accepted? Basically who ever has the last say.

This is why it is important to be strict with your policies and processes. Have a professional read over any terms you do not understand when entering into a contract with another business and always be very clear about your own terms.

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The Partnership Act 1890 defines partnership as “persons carrying on a business in common with a view of profit.” As with all areas of law this may seem pretty straight forward, but there have been cases where it has been decided that there was a partnership, despite an individual taking no share of the profits. In this case for example it was decided that there was a partnership as profit was intended. Partnerships can be created without even realising it! A partnership occurs where 2 or more people go into business together. Both registered as self-employed and are of no separate legal identity.

A partnership is a contractual relationship, and it may be created orally with no formal written agreement but it is always advised that a written contract is put in place. As it is a contractual agreement, a partnership is only created if all the requirements of a contract are fulfilled. What is a Contract? Often when a contractual relationship breaks down it is then the courts need to decide whether a partnership existed in the first place and if it did then there are implications on all parties involved.

The Partnership Act 1890 sets out 9 terms which are implied into this contract should there be no written formal agreement, this is why it is important that you get a Partnership agreement in place. They include for example:

• All the partners are entitled to share profits equally. If you don’t want this to be the case get an agreement.
• Partners are entitled to an interest rate of 5% per annum for payments or advances, many Partnership Agreements would change this.
• If not all partners are involved in making the management decisions then this needs to be expressly stated. If a partner has been excluded without an agreement this can be a reason to dissolve the firm.
• Partners have the right to a salary and should this not be the case then put it in an agreement
• All partners must agree should they bring on new partners, want this different then yes, get an agreement.

It is also worth remembering that in the absence of an agreement property will be partnership property if there is an implied agreement to that effect.

Still unsure whether you need a partnership agreement? Want to chat with someone about getting one drafted?

Call us 01604 217365 or visit www.beb.detypedev.com

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Before creating a relationship between an agency, the client and the candidate there will be some type of terms of business/contracts in place. Let’s take a look at the contract between the agency and the client. A relatively simple process – agency finds candidate, client hires candidate, client pays agency. In an ideal world, it is a smooth transaction where everyone is happy, candidate has a new job, client has a new employee and the agency are paid. Happy days!

However, what happens when that goes wrong?

• The client tries to bypass the agency and hire directly
• The client argues that the introduction was not made by the agency and refuses the invoice
• The client simply just does not pay an invoice
• The candidate leaves after a short time and so the client wants a refund
• The client wants to hire a temporary worker on a permanent basis

Things in business can always go wrong, and when they do, it can cause a break down in relationship, lengthy and often costly legal disputes.

Imagine having someone who is affordable, personable and qualified at the end of a phone should any of these problems occur? Contract law specialists who are on hand should any disputes arise in your business. We have experience of working with clients in this industry including re-writing terms or being an ‘in house’ legal department, we are passionate about what we do and are successful.

We offer 12 hours of contract and legal support during a 12-month period to be used as and when you require it:

• We will be your legal representative, dealing directly with your customers and suppliers
• Write your debtor letters
• Review, advise, amend and negotiate any new contracts with your customers
• Answer any ad hoc contract questions and queries
• Priority service over non-contract clients with a dedicated account manger
• 20% discount on normal hourly rate

Protect your business and project a more professional image

> All for just £69 + VAT per month

Do not hesitate call to find out more 01604 217365 or email kerry@bebconsultancy.co.uk

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The post Ensuring your Terms and Conditions are Legally Effective appeared first on BEB Contract & Legal Services.

As individuals, we enter into legal contracts every day whether that’s by buying our morning coffee, filling our cars with petrol, signing up to gym memberships or entering into a hire purchase agreement for washing machines or other household goods. Often it is overlooked but everything we do where there is an exchange of promises is governed by contract law. Like the rest of the English law, contract is no different. There is no single document out there which will tell you the rules to follow when entering or negotiating contracts or even what way something SHOULD go when there has been a dispute. The rules are scattered across other sources, many from case law where the judge’s decisions have set a precedent, some of which are centuries old yet are still very much valid today.

For a contract to be valid there must be an offer, an acceptance, a meeting of the mind/intention to create legal relations and consideration. It is important to remember that you may be entering into contracts without even realising it, however for the purposes of this blog I shall discuss the contracts that are properly drafted, require a signature and clearly lay out obligations and responsibilities of each party. These are the contracts often seen in business.  It is important that you should never sign a contract that you do not understand, always consult a lawyer before agreeing to the terms of any contract as it is highly likely you will be bound by it should you accept. Later stating you did not understand the terms will not stop the contract from being legally enforceable. Also remember, a signature is NOT always required to make a contract legally enforceable. This is often a common mistake people make. (I will do a blog on this at some point too).

It is important to consider your contracts carefully because they are the basis for your business. If you agree to a badly-written contract or a contract you have not read properly, you may be signing up to do more than you had bargained for. You may have waivered some rights you may end up wishing you could rely on, or you may have allowed the other party to limit their liabilities. It is all ifs buts and maybes but it is better to be fully aware of what you are signing up to than it costing thousands to put right if a problem occurs.

It is also important that every single business has a strong set of terms & conditions in which they can rely on for their business. It does not matter if you are selling cupcakes or providing on going cleaning services, make sure you have a set of terms and conditions that are bespoke to your business. This is your contract that you can rely on should a customer want to get out of paying, or try and argue the service was not what they had asked for. This is your business, your cash flow and your terms that need to be protecting.

At BEB we can provide contract management services and draft Terms & Conditions all at a very affordable price.

The post What is a Contract? appeared first on BEB Contract & Legal Services.

Non-compliance is not an option, the fines for breaching are huge! Not only the fines but breaking the law would not do well for business, it could damage your repetition and break down client relationships.

But what does it even mean?

As mentioned above the GDPR builds upon existing laws rather than completely new ones. The good news is that you should be doing most of it already under the DPA.

The principles are as follows:

What is personal data?

All the obvious things like name, address, contact information, religious beliefs and sexuality will still be classed as personal data under the GDPR. However, the GDPR has expanded this definition to include IP addresses and economic, cultural or mental health information. Basically any data which is personally identifiable will be considered as personal data.

So how can you prepare?

Nominate a Data Protection Officer

Although it is not a legal requirement for every business to appoint a Data Protection Officer (DPO) it would be beneficial. Having someone take ownership of the data processes and inform all the members of the team about their obligations to comply with the GDPR could save your business time and money.

Make sure consent is clear and concise

Businesses in the UK have always been able to rely on implied consent. That is consent inferred from silence, pre-ticked boxes or even inactivity.

Under the GDPR, not only must consent be unambiguous and obtained through a clear and affirmative action but GDPR also requires businesses to show how they comply, keep a record and provide proof that consent has been given by the individual to hold and process their data. The individual must also be clearly informed on how to withdraw their consent at any time whenever they want to. These individuals must be made aware of this right prior to any consent they give and also on a continuing basis.

You can no longer hide the terms and conditions for consent, they must always be separate from your standard terms and you cannot make them too complicated so people won’t bother to read them. Put simply their consent must be a genuine choice, and cannot be a standard condition of service.

When collating personal data from your own website it can be slightly more straightforward than by other means. Consent can be provided by an ‘opt in’ tick box which is clear and unambiguous, (remember pre ticked boxes are a no no) and the proof is all recorded. When personal data has been collected elsewhere, consent forms are the most compliant way to stay in line with the GDPR.  This way, businesses can make sure consent is specific, clear, prominent, opted-in, properly documented and easily withdrawn.

Review your IT policies

Are you doing everything you can to minimise the risks? You may have collected the data lawfully however it is equally as important that it is stored in accordance with the GDPR. Under the GDPR, there may be an increase in access requests since now businesses cannot charge for this. Which put simply means individuals have a right to get a copy of any information that is being held about them. How would you handle this? Are your databases clear enough to make this a quick and easy process? There are time limits in place. Also encrypt your data – Encryption is a better form of protection and if there was ever a breach then having the data encrypted would help to limit any potential fine.

Review your current policies and procedures

By acting now, you can ensure your terms and conditions and policies are adequate for the coming enforcement of the GDPR. By understanding your own policies, it will make compliance a whole lot easier should an issue arise.

It is important that any business that holds or uses personal data should not ignore the GDPR however there really isn’t any reason to panic either.

BEB can assist with re-writing your terms and conditions and policies, drafting consent forms and answering any questions you may have.  www.beb.detypedev.com Call us today on 01604 217365.

Extra guidance is also available here https://ico.org.uk/for-organisations/data-protection-reform/overview-of-the-gdpr/ from the Information Commissioner’s Office.

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Social Media is fast becoming a powerful business tool with small businesses using this as their main method of marketing, however it is still important to have a website for your business. Every business owner will want their website to be attractive, appealing and engaging but most importantly it needs to be legal!

With the focus being predominately on getting customers, often it seems businesses overlook the legal requirements for websites.

Is your website legal?

This week I have worked with a client updating their current privacy policy in line with the fast approaching GDPR. It is essential that you make sure the content of you privacy policy is easily understandable, clear and legally compliant. It took some work but at least this business had one! Whilst networking I have come across a number of websites that do not even have any kind of privacy policy on their website. Which is what got me thinking what else do we need to make our websites legal?

Simple steps to make your website legal:

• Company Information  

  I would hope that every website would have this information clearly stated. For a registered company, the website needs to display the business name, place of registration, registration number and its registered office address. A valid contact email address should also be clearly displayed; a contact form alone is not good enough. If you have all this then great…. Good start!

• Privacy Policy 

  A Privacy policy MUST be displayed on your website if data is being processed and it must inform the user what the data is being used for. This is essential to be compliant with the Data Protection Act 1998 and the upcoming amendments with GDPR.

  To put it simply… if you have a contact form on your website where users can ask you questions via your website or sign up to your mailing lists you need a Privacy Policy. If you have an online shop you need a Privacy Policy (and T&C’s). You will probably have cookies on your website and collect analytics about your website traffic and therefore you need a Privacy Policy.  The Privacy Policy should be accessible on every page so it is a good idea to place a link in the footer of your website along with your Terms & Conditions and ‘Contact Us’ link.

• Cookie Laws

  There are laws on making sure your users know about your cookie use, it is sufficient to set out within the Privacy Policy if and how your business uses cookies on the website but make sure it is in there.

• EU Anti-Spam Laws

  This law dictates that users of your website must give express permission to be sent marketing emails. If people have signed up to your mailing list on your website, or have checked a box to say, ‘I would like to receive newsletters’ (or something more quirky) then great news that counts as permission! GDPR however has gone one step further and by May of next year,  this box must NOT be pre-ticked. Once you have the permission to email your lovely marketing, this law requires you to provide a link or instructions on how to unsubscribe from your newsletter emails in EVERY email!

Once you have all the above sorted you are legal!

Do you have an online shop?

If you are selling products on your website then this throws some more legal issues at you. You must clearly display a link to your terms and conditions of purchase, your delivery options, and returns/refunds/exchange policy. If you are selling to consumers then this is even more important. Not only does it protect your customers, it also protects you. By not having any Terms & Conditions in place you are breaking the law and legally leaving yourself very exposed. Furthermore if you are taking payments then this has even more legal implications.

Consequences of not being legal

Failure to comply with the above can result in fines being received. The Information Commissioner’s Office and local Trading Standards offices can bring action against your business and so can the website user if the individual can demonstrate a loss as a result of your website failing to comply. The ICO will be hotter than ever once the GDPR is in place, don’t leave yourself open, make sure you’re legal!

And lastly,

Don’t copy and paste from other websites, not only is this copyright, you run the risk of copying content that is not legally compliant or copying complete rubbish. It certainly will not be bespoke to your business and should you see yourself involved in a legal dispute you may not be able to rely on it in court.

BEB can assist with making sure your website is legal, drafting your terms and conditions or policies and answering any questions you may have.

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