Commercial Law

• Advising infrastructure provider in respect of a c£160 million sub-contract in connection with a public body.
• Advising services provider in respect of a series of contracts worth c£70 million with a public body.
• Advising service provider on outsourcing contract with UK bank – contract value c£80 million.
• Acting for leading big data software business in drafting and negotiating software development and licensing agreement, to include advice on flow down licence terms.
• Automotive industry – A multi million pound agreement for the sale of goods to Tier 1 manufacturer.
• National supermarket chain – A multi million pound field marketing services agreement.
• Drafting, negotiating and advising on agreement for provision of services to customers of large UK bank on an insured basis. Value £60 million per annum, to include reviewing, amending and approving terms of business agreements with numerous insurers including Lloyds syndicates.

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 around 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 its 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.

Limitation of liability clauses are an integral part of every commercial contract. Whilst there are 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 business to business 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 claim 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 business to business contract which apply in certain circumstances and parties will need to be mindful of these.

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 is 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. Therefore 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. Therefore expert advice is always advisable.