Commercial Law

Herrington Carmichael LLP has a team of experienced commercial lawyers that provides 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.

Red Flag Contract Review

A Red Flag Contract Review is an effective way for your business to review commercial

contracts quickly and cost effectively based on a limited review of only the most fundamental provisions.

What are the benefits of a Red Flag Contract Review?

By reviewing specific terms of your key contracts, costs can be reduced. As the saying goes, an ounce of prevention is worth a pound of cure.

By identifying legal blind spots and implementing workarounds leads to smart working.

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

Red Flag Review FAQs

What’s included in the red flag review?

Reviewing the contract and preparing a high-level report in relation to the key legal risks associated with the contents and omissions of the contract. It is a high-level review rather than a full review, focussing on key issues rather than providing a full contract commentary. A few examples of clauses we would review would be:

  • Term
  • Limits of liability
  • Confidential Information definition
  • Confidential information not covered
  • Change of control
  • Governing law
  • Jurisdiction

All reviews will be done from a commercial law perspective and all advice is from an English law perspective only. If a contract is governed by foreign law, then local advice is recommended.

What contracts will not be reviewed?

  • Property e.g. leases or sale of property
  • Employment e.g. full-time, part-time, fixed term, internships or freelancer contracts
  • Immigration related contracts
  • Corporate contracts e.g. shareholder agreements, business purchase contracts, articles of association, share buy-back agreements, share scheme documents
  • Pension related contracts
  • Litigation documents or contracts e.g. letters of claim or court documents
  • Insurance policies or associated documents
  • Banking and finance e.g. bonding, loan, deposit or factoring contracts
  • Franchise contracts

How quickly will the Red Flag Review be provided?

After receipt of your contract(s) from you , we would deliver the high-level report within 2 business days after receipt of our signed engagement letter etc.

What’s the cost of Red Flag Contract Review?

We will provide the above service on a fixed fee basis up to the point of providing you with the red flag report.

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

Is the Red Flag Contract Review suitable for all situations?

The service is not suitable for all situations. For example, if you would like a full or detailed commentary on a contract, the service may not be appropriate. We would be pleased to discuss with you on a case-by-case basis.

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 Legal Audit

A Commercial Legal Audit is an effective way for your company to review certain key contracts and its commercial and consumer law practices as well as certain policies to ensure that not only are your contracts adequately protected but to ensure you have the right procedures in place to make sure those contracts are working for you.

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

    Commerical Law Team

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    Award winning legal advice

    Herrington Carmichael offers legal advice to UK and International businesses as well as individuals and families. Rated as a ‘Leading Firm 2024’ by the legal directory Legal 500 and listed in The Times ‘Best Law Firms 2023 & 2024’. Herrington Carmichael has offices in London, Farnborough, Reading, and Ascot.

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