Our focus is you

Many of the team are drawn directly from commercial backgrounds – they’ve worked in-house or managed businesses themselves. Our clients see us as commercially minded business people who just happen to be lawyers. We understand the issues businesses face and we expertly deploy valuable legal and commercial judgment that helps clients solve problems and achieve their objectives.

Our commercial and business lawyers make up one of the largest independent teams offering commercial legal services in the South East. We’re a real alternative to City law firms. We have a deep understanding of the needs of business.

Your key questions answered

Why do I need a written contract?

It’s well-established in English law that a contract does not need to be in writing. An agreement can be legally binding because of oral discussions you’ve had, or a contract could be implied because of previous dealings between you and another party. There are some exceptions, for example, share transfer contracts and contracts for the sale of land or intellectual property ownership transfers, should always be in writing. So generally speaking, you don’t need a written contract, but having the terms of your contract formalised is highly advisable – oral or implied agreements can lead to misunderstandings over what was agreed and ultimately can result in expensive and time-consuming legal disputes.

Whose terms apply to commercial contracts?

This question often arises in the context of a dispute over contract terms. You offer to enter a contract subject to your terms and conditions. The other contracting party accepts your offer – but on its own standard terms.  The uncertainty these situations cause (sometimes called the ‘battle of the forms’) is one reason why we place such a premium on getting the fundamentals of forming commercial contracts right. If you want your standard terms and conditions to apply to the contract to the exclusion of the other contracting parties’ terms you must ensure your terms are explicitly incorporated into the contract. This is sometimes achieved by ensuring your terms are provided to the other side at each stage of the contracting process. We can also include specific clauses to bolster the chances of your terms having precedence. You should always consider seeking legal advice before agreeing to enter a contract to ensure you understand whose terms apply. You may alternatively wish to agree a specific / bespoke contract between parties to record what has been agreed.

How do we limit liability and manage risk in case things go wrong?

In your desire to reach a potentially lucrative deal for your business it’s crucial not to lose sight of the risk you are taking on when you enter the contract. Always take a step back and consider the possibility that things don’t go according to plan. What happens if for some reason you can’t fulfil your side of the bargain or a dispute about terms arises? Could your business survive the legal claims that might result?

At DMH Stallard we have the expertise to pre-empt scenarios that could damage you commercially by contractually limiting your liability. We also advise on the appropriate due diligence exercises you should carry out before committing to any contract so that you minimise any general risks posed by the proposed agreement. You may also wish to consider insuring against potential claims.

In theory it’s possible to exclude liability entirely for certain risks. But you need to bear in mind that certain liabilities can’t legally be excluded (liability for personal injury caused by your negligence, for example). You must also ensure your contract is within the parameters of legislation relating to unfair terms (for business or consumers, as applicable).  It’s often more sensible to limit or cap liability to a reasonable sum so that you have the benefit of an enforceable cap.

Why is data protection important in most agreements and how do we comply?

Under data protection laws, whether you are a controller or a processor, you will be required to take certain steps with regard to your contracts.  For example, if you’re a controller, your contract with a processor must contain certain mandatory provisions.

Failure to comply with data protection laws can lead to irreparable reputational damage and heavy fines by the UK regulator the Information Commissioners Office (ICO).

Our also provide in-house training on DPA compliance and related matters to a wide range of businesses. Please see our Data Protection page for further information.

 

Who owns IP created by a services provider or freelancer?

Unlike work that’s carried out by employees, self-employed individuals or freelance contractors normally hold on to ownership of the intellectual property over work you’ve asked them to create, unless there is a written agreement to the contrary, which provides for an assignment of rights. At DMH Stallard we advise businesses on how they can secure intellectual property rights over contractors through bespoke agreements.

Please see our Intellectual Property page for further information.

Should we include a service level agreement in our IT contract?

Depending on the circumstances, it is recommended that you incorporate a service level agreement (SLA) into any overarching IT contract you have.  This can help clarify the service levels for an IT provider (so the customer understands where the limit of the IT provider’s service levels are) or the business receiving the service (to make sure that the service levels are sufficient to meet the needs of their business). The agreement should clearly identify the service being provided and cover key issues such as service response times, service recovery and remedy and maintenance of IT infrastructure. The SLA should also contain detailed provisions to deal with any for lapse or breakdown in the service and may also contain details on how to deal with any failure to provide the agreed level of service.

It’s important to acknowledge that the SLA will not be able to anticipate every eventuality or every day to day request the business might make. For this reason, SLAs should always be realistic in the goals they set and contain a degree of flexibility so that both sides can react appropriately to real word scenarios without breaching or undermining the entire SLA.

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Recent work

Long-term commercial, IP, IT and data protection advice

We have worked with our client for over 16 years acting as an outsourced in-house legal function for all business and day to day legal matters, supporting on all commercial, employment issues and property matters. Our ongoing legal support helps to minimise risks across the business.

Commercial IT, IP and data protection advice

We are retained by the in-house legal team who are often at capacity in terms of work volumes and we assist with overflow of business contract reviews and advice. We act as a sounding board for the business generally in connection with all legal matters.

Commercial, consumer and data protection advice

We are retained by a retailer with nearly 200 stores across the country as well as a significant online presence to provide consumer law, commercial law and data protection advice on an ongoing basis. Recent work includes reviewing and updating data protection policies and procedures, advising in relation to the application of consumer legislation (particularly in relation to customer refunds) and dealing with data subject access requests.

Creation of bespoke arts loan agreement

As part of our long term, strategic advice to one of the UK’s leading performing arts companies we created a bespoke loan agreement enabling the company to leverage its assets value by lending its unique production materials and other property to an international company.

Commercial software agreement

Our client is specialist in eco-grading food products, production of labelling systems and development of sustainable products. We advised and helped develop a new SaaS agreement (Software as a Service) agreement enabling the client to introduce a sophisticated modelling project geared to enabling all major UK supermarket retailers and other household name brand owners to analyse their product ranges.

Contracts and data protection

Our client is a PLC in the manufacturing sector. We work closely on contractual and data protection issues to minimise risk and clarify each party’s obligations and liabilities in inter-group and third-party contractual arrangements. We have advised various companies in the wider group of companies in relation to their contracts, including terms and conditions of sale of products, warranties and larger customer contracts requiring review and negotiation with customers. We have also advised on a collaboration agreement for the purposes of a potential combined commercial offering to customers.

IT services contract

Negotiating and finalising an IT managed services contract for a charitable body, including advice on data protection issues.

Royalty payments

Advising a charitable trust on intellectual property ownership and royalty payments, for the purposes of distribution of royalty income to nominated charities from the trust.

Collaboration agreement

Advising a large regional charity on a collaboration agreement with a number of other charities with the aim of improving the delivery of end of life services in the region.

Commercial contracts

We have worked with a leading manufacturer of heating, ventilation and air conditioning engineering products for over 15 years, advising in relation to all of its commercial contract needs

News and insights

Penalties for breaching environmental legislation

Insights

An overview of the environmental regulator’s approach to the enforcement and prosecution of environmental offences which outlines the potential penalties and other implications for a businesses who breaches environmental legislation

25/02/2015

Enforcing possession orders – how not to do it

Insights

We explain how not to enforce possession orders, as shown in London Borough of Southwark -v- AA [2014] EWHC 500 (QB)

29/09/2015