Commercial Contract Lawyers

Herrington Carmichael has a team of experienced commercial lawyers who provide a combination of legal expertise and pragmatic commercial awareness.

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Business Contracts

We make time to understand you and your business. We are alert to the fact that not all projects fit neatly into a standard form of document and that contracts need to be tailored to the specific circumstances and the needs of our clients.

Our commercial contract lawyers have extensive experience across a wide range of industry sectors and have dealt with clients ranging from owner-managed businesses to many household name brands. 

Business Contracts
Consumer Contracts
Software & IT Contracts
Competition Laws
Contract Disputes
International Contracts
Public Procurement
Commercial Contract Review
Commercial Legal Audit
Non-Disclosure Agreements

Business Contracts

Bespoke Contracts
We are alert to the fact that not all projects fit neatly into a standard form of document and that contracts need to be tailored to the specific circumstances and the needs of our clients.

We regularly advise clients on and negotiate:

  • Agency & distribution agreements
  • Complex commercial agreements
  • IT & Technology contracts
  • Managed services agreements
  • Manufacturing agreements
  • Non-disclosure agreements
  • Outsourcing agreements
  • Supply of Goods Contracts

Standard terms and conditions
We help in-house teams draft bespoke standard terms and conditions by getting to know their business and its risks and opportunities, and using our expertise to make sure the terms and conditions are as protective as possible.

What type of support can you provide with our contracts?
We provide a holistic end-to-end service and can be as involved as you’d like. We can undertake a full negotiation role when setting up contracts, or simply review and advise on a few key provisions. We can prepare documents or advise on the terms after they have been executed. We offer a one-stop-shop for all commercial contract requirements. 

Consumer Contracts

Our consumer contracts specialists can advise on the wide range of regulations which regulate consumer contracts, making sure they are compliant and protective.

The sale of goods and services to consumers is subject to a wide range of legislation and regulation. It is essential that your commercial agreements comply with consumer law. At the same time, you need to ensure that your interests are properly protected; which can be a fine balancing act.

Consumer Protection Laws
As well as the correct way to draft consumer terms and conditions, it is important to make sure that the way you do business is compliant with consumer protection laws. For example, there are rules around misleading advertising and product safety, including post sale safety monitoring and reporting obligations. As a result of the negative impact any breaches can have on the reputation and sales of a business, it is important to get these things right. Our consumer law specialists have significant experience in advising businesses on the ‘right way’ to navigate these regulations.

Recent Experience:

  • Support of an international brand on a range of consumer facing contracts including supply of goods agreements, software licence agreements, product warranties and returns policies.
  • Managed the international expansion of an international brand in relation to its consumer agreements.

Standard Terms & Conditions
One example of some of the rules that govern consumer law terms and conditions is that those which are considered to be unfair to consumers are therefore unlawful for use in transactions with consumers.

It is important to ensure that your own terms and conditions are incorporated properly when engaging with another party, or otherwise they will have little to no value. Our lawyers advise on the best and most protective way to ensure that your terms apply.

Creating standard terms and conditions for your business requires both knowledge of how relationships with consumers work but also expertise on how to make sure the terms and conditions are compliant with consumer laws.

Our consumer law specialists use a tailor-made approach to make sure your terms and conditions work in practice and in law.

Recent Experience:

  • Supported an automotive broker on terms and conditions of sale.
  • Advised a solar energy provider on its consumer terms and conditions.
  • We worked with a dash cam manufacturer on terms and conditions in relation to its products.
  • A well-known hotel brand needed advice on their terms and conditions with consumers and on Covid related impacts to the contracts.

Software & IT Contracts

Our commercial team enjoys seeing how fast-changing the tech world is and offer a range of specialised legal advice on software and IT contract deals.

Our commercial contracts team assists software companies and enterprises on complex software and IT agreements such as:

  • SaaS, PaaS, IaaS and other cloud contracts
  • End User Licence Contracts
  • App Terms and Conditions
  • Software Development Contracts
  • Software outsourcing arrangements

Software & IT Contract Services

Competition Lawyers

Our team of regulatory lawyers regularly advise businesses on merger controls and competition law in connection with business activity.

Our team can advise you on the implications of specific clauses in agreements and also provide advice on merger control.

Competition law in contracts
Our competition lawyers are experienced in advising clients on a wide variety of commercial contracts for compliance with UK and EU competition rules. We analyse agreements and their pricing, exclusivity and territorial restrictions to identify potentially anti-competitive terms, assess the risk of enforcement action, and provide tailored advice to mitigate legal issues.

We collaborate with other advisers, including accountants and economists to ensure tailored, holistic advice is provided.

Merger control advice
We provide guidance to clients going through the regulatory aspects of mergers, acquisitions and joint ventures to assess whether merger control clearance is required, and also those going through the full process of obtaining merger clearance and securing approval of transactions from the Competition and Markets Authority (CMA). Should the CMA decide to further review the proposed transaction, we help to navigate the inquiry process.

Contract Disputes

Many Contracts run perfectly happily and any contract dispute that does arise can be ironed out by both sides taking a commercial view and wanting to achieve the end goal. After all, you are businesses that want to do business with each other.

However, when a contract dispute grows, or it becomes apparent that you have been let down and it is reflecting badly on your ability to service your own Clients – early intervention is essential.

We can provide you with an assessment of the legal issues allied with pragmatic commercial advice and guide you through the next steps which will be designed to resolve your contract dispute and get things back on track as quickly as possible.

If it is more serious and the Contract needs to be ended or there is loss being claimed, we can act for you to bring about a resolution and that does not always mean Court action is inevitable. The vast majority of such disputes are resolved through settlement negotiations, and Alternative Dispute Resolution including Mediation.

Contract Disputes

International Contracts

Our International Commercial Lawyers work with businesses looking to globalise in the ever-changing world of international business.

We can help with the legal elements to allow you to grow your business overseas or to ease your entry into the UK market. We are members of international and local chambers of commerce and attend global and local trade events to keep you informed on industry trends and gain valuable insights into the global marketplace.

As English law advisors, we help businesses develop and reach new markets if you are expanding into the UK or exporting from the UK by providing strategic legal advice to manage negotiations of complex contractual arrangements. These arrangements include the supply of goods, supply of services, agency and distribution agreements, outsourcing agreements, manufacturing agreements and IT contracts to dealing with overseas supply-chain issues, intellectual property and data projects. We add value to businesses looking to expand internationally by managing local counsel to keep legal costs within budget and timescales on track. We achieve this by ensuring that business contracts and operations are able to remain as consistent as possible in new territories.

International Contracts

Procurement Lawyers

We regularly advise clients on public procurement issues and are supported by our experienced Real Estate and Dispute Resolution teams to ensure that we deal efficiently with any procurement challenges that may arise.

We are well placed to advise corporations and government bodies on the acquisition of goods or services by governmental entities. A crucial aspect of public procurement is ensuring you submit a compliant bid as any non-adherence could result in exclusion from the process.

We have assisted many clients to submit bids in which they were ultimately successful. A couple of examples of our recent work in this area includes:

  • Advising a services provider in respect of a series of contracts worth £70 million with a public body.
  • Advising a service provider on outsourcing contract with UK bank – contract value £80 million.

Public Procurement Services

Commercial Contract Review

A Commercial Contract Review is an effective way for your business to review commercial contracts quickly and cost effectively based on a review of the most fundamental provisions.

By identifying legal risk in a business, actions can be implemented to reduce exposure to financial risk such as fines for non-compliance, damages for breach of contract or damages from claimants.

What’s the cost of Commercial Contract Review?
We will provide the above service on a fixed fee basis up to the point of providing you with the redline report.

  • NDA – £250 + VAT
  • Contracts up to 15 pages – £400 + VAT
  • Contracts 16 – 30 pages – £550 + VAT
  • Contracts 31 pages and above – £750 + VAT

Commercial Contract Review Services

Commercial Audit

In the fast-paced business environment, a company may experience challenges which could ultimately lead to legal risk. This may be caused by a number of different factors that include, not having the right contracts in place, not following best practice, or not having or following the necessary legal policies.

A commercial legal audit is an effective review of certain key contracts as well as certain policies to ensure that not only are your contracts adequately protected but also that you have the right procedures in place to make sure those contracts are working for you. The audit consists of advising on certain elements of key contracts and policies as well as ways of incorporating a business’ standard terms and conditions. The review is done from a commercial law perspective and all advice is based on English law.

Commercial Audit Services

Non-Disclosure Agreements

An NDA, otherwise known as a confidentiality agreement, creates obligations on one or more parties to treat information disclosed to it under certain circumstances as confidential. They can be mutual (i.e. each party is obligated to protect information disclosed to it) or one-way, where obligations are only imposed on one party.

NDAs can be required in many different circumstances such as at the due diligence stage of a merger or acquisition, or in respect of a funding arrangement, when discussing joint ventures, when disclosing information in respect of a potential business arrangement or the supply or goods or services and many more. The aim of the NDA is to protect a business’ confidential information from disclosure to third parties and to ensure that this information is used for a defined purpose only. If that obligation is breached and confidential information is passed on or misused, the business can usually then claim damages and / or obtain an injunction (dependant on the terms of the NDA).

We regularly assist businesses to legitimately protect their commercial interests, confidentiality and reputation. We advise all types of business organisations on NDAs and matters of confidentiality and trade secrets, including the common law duty of confidence the terms of NDAs. When negotiating an NDA, you need to consider what you are seeking to protect, whether the proposed restrictions are reasonable, how long the NDA should last and what remedies will be available in the event of a breach.

With so many issues to consider, it is important to take specialist legal advice. Our commercial lawyers are experienced with advising and drafting NDAs and so we can act for you to ensure the interests of your business are adequately protected.

FAQs

What are the differences between Business to Business and Business to Consumer contracts?

English and Welsh law includes a number of restrictions on terms which businesses can include in contracts with consumers which do not apply when they are contracting with other businesses.

Firstly, the terms need to be easy to understand and legal jargon should be avoided. Therefore, on the whole, business to business contracts are drafted in a completely different way to business to consumer contracts.

There are also requirements for the terms to be fair when it comes to contracting with consumers (and the law determines what is and is not fair), albeit in some circumstances this requirement does also apply to business to business contracts. This means that some protections which would be permissible when contracting with businesses would not be so when dealing with consumers.

In addition, consumers have certain implied rights which businesses do not have. This includes termination rights, rights to receive certain information and certain other rights in respect of goods and services which don’t accord with the requirements of the contract.

It is imperative that the rules are followed when contracting with consumers as there can be repercussions for failing to do so. Expert legal advice is advisable.

What are the differences between national and international contracts?

There are a number of key differences when it comes to international contracts and thought needs to be given to items such as which laws govern the contract, which courts have jurisdiction to hear disputes and whether compliance with any particular local laws is required. It is important to consider this when entering contracts with foreign companies and take advice on the implications. International contracts may be subject to different tax or import/export duties as well as increased or decreased tax rates compared to national contracts.

Similarly, things like the currency for payment will need to be addressed, as well as considering issues surrounding changes in the exchange rate.

There may be added obligations to comply with certain standards or placing certain markings on goods when trading internationally. International trade may be subject to import and export controls and it’s important to consider who bears the costs and risks associated with this.

How notices are served is another factor considering letters will have to travel internationally.

This is to name but a few of the considerations when entering into international contracts.

What are the key components of limitation of liability clauses?

Limitation of liability clauses are an integral part of every commercial contract. Despite there being strict restrictions on limiting liability when contracting with consumers, it is common practice in B2B contracts to exclude and limit liability.

Exclusions of indirect loss, consequential loss, special loss and other heads of loss such as loss of profits are commonplace in B2B contracts but consideration needs to be given to how this could impact potential claims.

When structuring a liability cap, consideration would be whether a cap will apply for the duration of the contract or on an annual (or other time period) basis or a per claims basis (to name a few of the potential structures).

Other important considerations including what the value of the cap on liability is, what claims fall within the cap and whether there are any “uncapped” liabilities under the contract as well as whether particular types of claims do or do not count towards the cap.

Under English and Welsh law there are certain types of loss which cannot be limited or excluded such as death or personal injury arising from negligence, fraud, or fraudulent misrepresentation, as well as some others.

There are also other legal restrictions on caps and limits in the B2B contract which apply in certain circumstances and parties will need to be mindful of these.

What contracts do I need to supply my goods?

Limitation of liability clauses are an integral part of every commercial contract. Despite there being strict restrictions on limiting liability when contracting with consumers, it is common practice in B2B contracts to exclude and limit liability.

Exclusions of indirect loss, consequential loss, special loss and other heads of loss such as loss of profits are commonplace in B2B contracts but consideration needs to be given to how this could impact potential claims.

When structuring a liability cap, consideration would be whether a cap will apply for the duration of the contract or on an annual (or other time period) basis or a per claims basis (to name a few of the potential structures).

Other important considerations including what the value of the cap on liability is, what claims fall within the cap and whether there are any “uncapped” liabilities under the contract as well as whether particular types of claims do or do not count towards the cap.

Under English and Welsh law there are certain types of loss which cannot be limited or excluded such as death or personal injury arising from negligence, fraud, or fraudulent misrepresentation, as well as some others.

There are also other legal restrictions on caps and limits in the B2B contract which apply in certain circumstances and parties will need to be mindful of these.

What do competition lawyers do?

Competition lawyers can provide merger control advice and negotiate clearance for acquisitions, mergers and joint ventures. They can also advise clients on a wide variety of commercial contracts for compliance with UK and EU competition rules.

What is merger control clearance?

Merger control clearance is the approval needed from the competition authorities before companies can complete transactions such as mergers or acquisitions or other transactions that could negatively impact market competition.

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Best Law Firms 2024

Herrington Carmichael has once again been named in the Times Best Law Firms. We were first listed in 2023 and have once again made the Best Law Firms list for 2024.

www.thetimes.co.uk/article/herrington-carmichael

Best Law Firm 2024