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Commercial Law

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

We make time to understand your business. Our 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.

Commercial 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 complex commercial agreements, agency & distribution agreements, outsourcing agreements, non-disclosure agreements, manufacturing agreements, IT & Technology contracts, and managed services agreements to name a few.

Commercial law & Regulatory law advice

We also provide our clients with a full range of commercial law and regulatory law advice, including the impact of consumer law and competition law on businesses, e-commerce and sales strategies, and ensuring businesses are aware of their data protection and regulatory requirements.

Our wealth of experience and blend of private practice and in house experience means that there is very little that we have not seen before, so we are well placed to deal with whatever is thrown at us.

Commercial law training & In-house support

As well as advising on commercial agreements and providing commercial advice, we offer bespoke commercial law training and in-house legal support tailored to suit you and your business.

Our Experience
  • 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.

Commercial law FAQs

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 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.

What are the key components of limitation of liability clauses?

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.

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 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.

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      Recent Commercial Law Cases 

      Wealth Management Contract

      Herrington Carmichael were instructed to advise on and negotiate a SAAS development and services agreement between a wealth management business and a wealth management platform service provider. Complexities included ensuring appropriate business continuity plans were in place (including software escrow arrangements), and ensuring compliance with the FCA rules on outsourcing to the cloud.

      Commercial contract for new product

      The commercial law team were instructed to advise on and negotiate a new product design agreement, development agreement and manufacturing agreement for a new product for use in the security sector. As part of the project, Herrington Carmichael were required to ensure a back to back contract was entered into with suitable flow down provisions to the key parts manufacturer.

      A Complex Global Software Distribution Agreement

      Herrington Carmichael were instructed to advise on and negotiate firstly an Australian and then a global software distribution agreement. Complexities included negotiating with a global business with strict contractual requirements and policies, whilst seeking to ensure a favourable position to our client. We were also required to manage the local law advice in respect of contracts governed by foreign laws and further to ensure that suitable terms were imposed on resellers commensurate to the protections required by our client.

      Herrington Carmichael has acted like an extension of our business. They have been a huge support, have been exceptionally credible in some extremely difficult commercial contractual matters.

      - Legal 500, 2022

      Strong commercial and corporate team, offering reliable and practical advice at competitive rates. The quality of advice we have received when instructing the commercial team is comparable to many large City firms we have used but at non-City fees.

      - Legal 500, 2022

      Herrington Carmichael has a diverse skillset, covering most requirements. This means we can tackle complex issues knowing that they can call on their colleagues to compliment the analysis.

      - Legal 500, 2022

      Commercial Law Podcasts

      At the Legal Room UK we will be using a diverse range of our specialist lawyers and business friends to bring you expertise and insight on a variety of topics on a range of topics from commercial law, to property law, employment law and more.

      All our podcasts are for general information and are not to be taken as bespoke legal advice. 

      Standard Terms & Conditions

      Breach of Contract

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      The impacts of COVID-19 (Coronavirus)

      Impact of Covid-19 (Coronavirus) on commercial contracts: Some Practical Tipsre

      Businesses are facing increasing uncertainty in light of the rapidly evolving Covid 19 (Coronavirus) situation.

      Click to read more >

      Coronavirus – What about my Contract?

      Coronavirus is having an unprecedented impact on the business and personal lives of everyone. Putting aside the obvious complications of trying to avoid social contact and staying healthy; the next big headache is how to keep businesses moving forward properly.

      Click here to read more >

      Contract termination: Getting it wrong

      A business wishing to terminate a contract should carefully assess whether a valid right to terminate has arisen and should also carefully assess the practical requirements for terminating the contract.

      Click here to read more >

      Latest news | insights

      Auto-sync causes IP infringement

      Auto-sync causes IP infringement

      In the case of WEISS TECHNIK UK LTD v DAVIES, the Court held that four former employees and a company set up by one of them had breached their contractual and equitable confidentiality obligations.

      read more
      Commercial Landlords: Tenants Insolvency

      Commercial Landlords: Tenants Insolvency

      All of the government emergency legislation for COVID that was designed to prevent commercial tenants being wound up or leases forfeited because of rent arrears arising from the pandemic have gone.

      read more

      Award winning legal advice

      We are solicitors in Camberley, Wokingham and London. In 2019, Herrington Carmichael won ‘Property Law Firm of the Year’ at the Thames Valley Business Magazines Property Awards, ‘Best Medium Sized Business’ at the Surrey Heath Business Awards and we were named IR Global’s ‘Member of the Year’. We are ranked as a Leading Firm 2023 by Legal 500 and Alistair McArthur is ranked in Chambers 2022.

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