Running your business

Running your business

 

When you are running your business, you want to be focused on the things that make you money, and not worrying about non-core functions such as legal. That being said having an understanding is key. 

This section covers a number of different legal matters that might come up while you are running your business.

 

Hiring & Managing Employees

Notice of breach of covenants


What is it?

This is popularly called a Section 146 Notice (it is a notice required to be served by section 146 of the Law of Property Act 1925 and relates solely to business tenants) that warns a tenant who is in breach of covenant (other than the covenant to pay rent) of the landlord’s intention to forfeit the lease on ground of the breach of covenant.

Why is it important?

“Forfeiture” is the right of the landlord to re-enter the commercial property and take back possession of the property if a covenant has been breached.

For the notice to be valid and binding the notice must specify the breach of covenant and if the breach is capable of remedy , require the tenant to remedy it and pay monetary compensation to the landlord for the breach.

A landlord can only serve such a notice if the lease contains a right to forfeit the lease (i.e. a right of re-entry). The notice must also contain certain prescribed information. If the tenant does not remedy the breach within a reasonable time the landlord can start forfeiture proceedings in the County Court.

Risks

A landlord who wants to forfeit the lease must avoid “waiving” the breach of covenant. Waiver occurs where a landlord becomes aware of a breach of the lease but does not take action against the tenant within a reasonable period or acknowledges the continuation of the lease by for example demanding rent or service charges or accepting rent payments from the tenant.




Break notice


What is it? A Break Notice, also known as a Break Clauses or a break option, is an important contractual provision in a lease which allows either a landlord or tenant to bring a Lease to an early end. Some landlords often have a vested interest in making life difficult for a tenant seeking to exercise its option to break the lease by making the option subject to stringent conditions. Why is it important?

Break Notices are akin to options and are therefore strictly construed by the courts . From the tenant’s perspective, a properly drafted Break Clause gives them the opportunity to avoid being tied into a lease that they can no longer afford. This is a safety-net for a tenant – especially if they are just starting out.

Understandably though, a landlord who is receiving a steady rental income may be reluctant to lose a tenant, particularly in tough economic times.

Risks

Any tenant seeking to exercise the option to break the lease must check the lease carefully and ensure they follow the landlord’s “break clause conditions” to the letter. It is crucial when taking a lease that a tenant understands that the conditions of the Break Clause can easily defeat an option to break unless followed to the letter. If the conditions are not strictly followed the termination is not valid and the tenant remains a lessee until the expiry of the lease, the next break clause date or until the tenant is able to assign the lease with the landlord’s consent if there is such a provision in the lease.

A properly advised tenant should refuse any condition, other than up-to date payment of principal rent and giving up occupation.




Tenant's agreement to exclude security of tenure


What is it?

The Landlord and Tenant Act 1954 provides tenants of business premises with rights of ‘security of tenure’. This means that once a business tenant’s lease expires, the tenant has the right to request a new lease on the same terms as the previous lease (subject to agreement on terms, such as the amount of rent, any legislative updates etc), except where the landlord has a statutory ground to refuse a new lease (for instance, if the tenant has failed to pay rent or the landlord wishes to redevelop the premises).

Why is it important?

When agreeing to enter into a commercial or business lease, one of the things that will be discussed when agreeing Heads of Terms is whether your lease will be ‘protected’ with security of tenure, or ‘contracted out’ i.e. excluded’ from security of tenure. It is quite common for landlords to require that security of tenure rights are excluded from a lease. They do this by asking the prospective tenant to sign a notice in front of an independent solicitor agreeing to the exclusion of security of tenure under the lease.

Risks

This notice means that a tenant of commercial premises will not have the automatic right to request a renewal of their lease at the end of the term of the lease, leaving the landlord free to let the property to another tenant at the end of the term. This is because landlords often wish to retain strict control over the occupation of their property. If security of tenure is excluded, you the tenant, must vacate the property at the end of the lease in accordance with its terms unless you have negotiated a new lease with the landlord separately.




Landlord's notice to exclude security of tenure





Section 25 Notice


What is it?

This is a notice by the landlord under s25 of the Landlord and Tenant Act 1954.

Why is it important?

It allows the landlord to start a procedure which will end either in the tenant being granted a new lease or in the tenant vacating. This notice cannot be given before the last year of the lease terms nor after the tenant has served a request for a new tenancy under s26 of the Act.

Risks

The s25 notice must state the date on which the landlord intends to bring the existing lease to an end.




Section 26 Notice


What is it?

This is a notice given by the tenant requesting a new tenancy upon the termination of the old tenancy.

Why is it important?

The s26 request must specify the date on which the existing lease is to end.

Risks

This notice cannot be served before the last year of the agreed lease term nor can it be served after the landlord has served a s25 notice.




Licence for alterations


What is it?

This is a licence from the landlord to the tenant giving the tenant the right to carry out specific works or alterations to the property that is being let. The alterations may be major or minor.

Why is it important?

The Licence should include provisions as to the manner in which the tenant will carry out the works, timescales, reinstatement and (to the extent applicable) the Construction (Design and Management) Regulations 2015. Drawings and specifications showing the proposed works should be attached to the Licence so that it is clear what the landlord is consenting to.

If the proposed alterations are not substantial (e.g. the erection of demountable partitioning or signage) you can use a simple Letter- Licence to Alter.




Section 27 Notice


What is it? A tenant has the right under s27 of the 1954 Act to bring the tenancy to an end by giving at least three months’ notice before the date on which the tenancy would otherwise expire. If the lease term has expired but the tenancy is still continuing under the 1954 Act the tenant may bring that continuing tenancy to an end by giving not less than three months’ notice in writing to the landlord.





Managing licenses


Running an online business


Protecting your IP


Business Relationships


Writing a business plan


HR Policies

Notice of breach of covenants


What is it?

This is popularly called a Section 146 Notice (it is a notice required to be served by section 146 of the Law of Property Act 1925 and relates solely to business tenants) that warns a tenant who is in breach of covenant (other than the covenant to pay rent) of the landlord’s intention to forfeit the lease on ground of the breach of covenant.

Why is it important?

“Forfeiture” is the right of the landlord to re-enter the commercial property and take back possession of the property if a covenant has been breached.

For the notice to be valid and binding the notice must specify the breach of covenant and if the breach is capable of remedy , require the tenant to remedy it and pay monetary compensation to the landlord for the breach.

A landlord can only serve such a notice if the lease contains a right to forfeit the lease (i.e. a right of re-entry). The notice must also contain certain prescribed information. If the tenant does not remedy the breach within a reasonable time the landlord can start forfeiture proceedings in the County Court.

Risks

A landlord who wants to forfeit the lease must avoid “waiving” the breach of covenant. Waiver occurs where a landlord becomes aware of a breach of the lease but does not take action against the tenant within a reasonable period or acknowledges the continuation of the lease by for example demanding rent or service charges or accepting rent payments from the tenant.




Break notice


What is it? A Break Notice, also known as a Break Clauses or a break option, is an important contractual provision in a lease which allows either a landlord or tenant to bring a Lease to an early end. Some landlords often have a vested interest in making life difficult for a tenant seeking to exercise its option to break the lease by making the option subject to stringent conditions. Why is it important?

Break Notices are akin to options and are therefore strictly construed by the courts . From the tenant’s perspective, a properly drafted Break Clause gives them the opportunity to avoid being tied into a lease that they can no longer afford. This is a safety-net for a tenant – especially if they are just starting out.

Understandably though, a landlord who is receiving a steady rental income may be reluctant to lose a tenant, particularly in tough economic times.

Risks

Any tenant seeking to exercise the option to break the lease must check the lease carefully and ensure they follow the landlord’s “break clause conditions” to the letter. It is crucial when taking a lease that a tenant understands that the conditions of the Break Clause can easily defeat an option to break unless followed to the letter. If the conditions are not strictly followed the termination is not valid and the tenant remains a lessee until the expiry of the lease, the next break clause date or until the tenant is able to assign the lease with the landlord’s consent if there is such a provision in the lease.

A properly advised tenant should refuse any condition, other than up-to date payment of principal rent and giving up occupation.




Tenant's agreement to exclude security of tenure


What is it?

The Landlord and Tenant Act 1954 provides tenants of business premises with rights of ‘security of tenure’. This means that once a business tenant’s lease expires, the tenant has the right to request a new lease on the same terms as the previous lease (subject to agreement on terms, such as the amount of rent, any legislative updates etc), except where the landlord has a statutory ground to refuse a new lease (for instance, if the tenant has failed to pay rent or the landlord wishes to redevelop the premises).

Why is it important?

When agreeing to enter into a commercial or business lease, one of the things that will be discussed when agreeing Heads of Terms is whether your lease will be ‘protected’ with security of tenure, or ‘contracted out’ i.e. excluded’ from security of tenure. It is quite common for landlords to require that security of tenure rights are excluded from a lease. They do this by asking the prospective tenant to sign a notice in front of an independent solicitor agreeing to the exclusion of security of tenure under the lease.

Risks

This notice means that a tenant of commercial premises will not have the automatic right to request a renewal of their lease at the end of the term of the lease, leaving the landlord free to let the property to another tenant at the end of the term. This is because landlords often wish to retain strict control over the occupation of their property. If security of tenure is excluded, you the tenant, must vacate the property at the end of the lease in accordance with its terms unless you have negotiated a new lease with the landlord separately.




Landlord's notice to exclude security of tenure





Section 25 Notice


What is it?

This is a notice by the landlord under s25 of the Landlord and Tenant Act 1954.

Why is it important?

It allows the landlord to start a procedure which will end either in the tenant being granted a new lease or in the tenant vacating. This notice cannot be given before the last year of the lease terms nor after the tenant has served a request for a new tenancy under s26 of the Act.

Risks

The s25 notice must state the date on which the landlord intends to bring the existing lease to an end.




Section 26 Notice


What is it?

This is a notice given by the tenant requesting a new tenancy upon the termination of the old tenancy.

Why is it important?

The s26 request must specify the date on which the existing lease is to end.

Risks

This notice cannot be served before the last year of the agreed lease term nor can it be served after the landlord has served a s25 notice.




Licence for alterations


What is it?

This is a licence from the landlord to the tenant giving the tenant the right to carry out specific works or alterations to the property that is being let. The alterations may be major or minor.

Why is it important?

The Licence should include provisions as to the manner in which the tenant will carry out the works, timescales, reinstatement and (to the extent applicable) the Construction (Design and Management) Regulations 2015. Drawings and specifications showing the proposed works should be attached to the Licence so that it is clear what the landlord is consenting to.

If the proposed alterations are not substantial (e.g. the erection of demountable partitioning or signage) you can use a simple Letter- Licence to Alter.




Section 27 Notice


What is it? A tenant has the right under s27 of the 1954 Act to bring the tenancy to an end by giving at least three months’ notice before the date on which the tenancy would otherwise expire. If the lease term has expired but the tenancy is still continuing under the 1954 Act the tenant may bring that continuing tenancy to an end by giving not less than three months’ notice in writing to the landlord.





Managing licenses


Running an online business


Protecting your IP


Business Relationships


Writing a business plan


Protecting your IP

Trademark (UK, EU, US, China)


What is it? One of the best ways of protecting your business name, brand and logo from being copied is to register a trademark. A trademark is a distinctive sign eg name, brand, logo or tagline (or a combination of these) used by a business to distinguish its goods and or services from those sold by another business and to identify its business as the source of those goods and services. In the UK, trademarks are granted by the UK Intellectual Property Office (UK IPO) Registering a trademark increases the protection it receives and stops others from using it. You may be able to register a trademark over:

  • words (eg the trademark “Nandos”)
  • pictures and words (eg the Pure Business Law trademark).
  • slogans (eg the Lidl strap line “Big on quality, Lidl on price”)
  • colours (eg the Cadbury Dairy Milk purple as owned by Kraft ).
  • sounds (eg the Match of the Day theme song played when their logo appears at the beginning of football matches) and
  • Logos (eg the Mac OS logo);
  • 3D shapes (eg the Pepsi cola bottle shape)
Why is it important? Registering a name or a logo gives you the following three benefits: Allows you to object if someone else applies to register ay name or logo that is similar to your trademark for the same of similar goods or services. This protection does not cover an application to use the same name or branding for a different type of business. For instance if you register “Fast-Sports” for a trade mark for selling sports cars, no one could register “Fast-Spots” for anything to do with selling cars but they may be able to register it as a trade mark for a dry-cleaning business because that has nothing to do with cars. If another business tries to use the same or similar branding on similar goods or services thereby infringing your trademark you can take legal proceedings to stop them. Your business’s goodwill and reputation have commercial value so registering a trademark is an easy way to protect your hard work and creativity. Registering a trademark gives you the exclusive right to use it for 10 years, after which you must make an application to renew it to the Intellectual Property Office (IPO). Their website is at www.ipo.gov.uk. You can register your trademarks in the UK, the EU and or internationally. All registrations last for 10years and are renewable indefinitely in further 10-year periods. The most suitable registration for your brand will depend on where you do business eg UK, EU or internationally. Risks If you do not register your name, brand or logo as a trademark you will not be able to easily stop other people using your trademark and you may end up allowing other businesses to profit from your hard work.




Patent (Worldwide)


What is it? Protect your invention through a patent. A patent gives you an exclusive right over a novel invention that you have created. It gives you the exclusive right to use and reproduce your invention and stop people copying your invention without your permission. For instance, only Apple can make and sell Apple phones. In the UK, patents are granted by the UK Intellectual Property Office (UK IPO) To have a patent over something you have created, you must register it at the IPO. Patents generally last for up to twenty years. You can only patent a novel invention and cannot patent something that is already in the public domain. This means that your invention must be new (i.e. you cannot patent something which already exists eg a literary work, method of medical treatment, a diagnosis, scientific theory or a discovery) . You also cannot patent something which is already the subject of a patent application pre-dating your application. This means that you must carry out extensive market research examining trade journals and academic papers relevant to your industry market and searching for patents and patent applications on the patent registers worldwide. Obtaining a patent is expensive and time consuming. You should enlist the help of a professional eg lawyer or patent agent before starting an application for a patent. Why is it important?
Should I register my invention as a patent? Yes, you should if you believe that you have created a novel product or process which is so important to your business that you wish to pay a patent application fee to prevent others from using it. Risks Registering your invention as a patent ensures that:

  1. You can prevent others using your product or process if they intend to use it for commercial purposes.
  2. You can profit from your patent by only permitting certain people to use it for commercial purposes and only on condition that they pay you or give you a percentage of the profits they make from using your patent.
Risks If you do not register your invention as a patent, you will not be able to easily stop other people copying your ideas and you may end up allowing other businesses to profit from your hard work. You can use free online databases to search for patents eg Ipsum the UK IPO’s search facility, the Patents Journal (for UK applications that have been filed but not yet published), Espacenet – the European Patents Office’s (EPO’s) free database for worldwide patents including UK patents and Patentscope – the World Intellectual Property Organisation’s (WIPO’s ) free database for worldwide patents including UK patents. Note that these databases may not be up to date. As an alternative you may prefer to use professional search services such as:
  1. The PATLIB (patent library) centre
  2. A Patent attorney through the Chartered Institute of Patent Attorneys at www.cipa.org.uk




IP Assignment Agreement


What is it? An IP assignment agreement transfers rights and ownership in an IP created by one person to someone else or to a business. It can be used to transfer rights in a trademark, patent, logo, designs or any other IP. Why is it important? An IP assignment agreement is important when a business is sold, and the founder created intellectual property before becoming a part of the company or a company employs a someone whether consultant or employee to do some work.




Registering Designs


What is it? Register your design to stop someone else from using it. A design right is a right that you have which can protect your original design from being copied by someone else.There are two different types of design rights – registered and unregistered design rights which can protect the look or appearance of a product from being copied. Why is it important? Design rights can exist in computer icons, logos, graphic designs, packaging and clothing. The rights do not arise by reference to the particular product but rather in the shape or look of either the whole of the product or part of that product. For instance, a registered design right in a motif used on a book will be infringed if someone else uses the same design motif on a duvet cover. In the UK, design registrations are granted by the UK Intellectual Property Office (UK IPO). Risks Even if you do not register your design, it will still be automatically protected as an unregistered design right. However this right is more limited right because it only protects you against unauthorised copying and does not prevent other people creating similar designs independently. For businesses in the UK these unregistered design rights arise automatically in the UK and the EU for some designs under both UK and EU law if the relevant criteria are met. In the UK, unregistered design rights arise as soon as the relevant designs are recorded in some way eg in a drawing and in the UK as soon as they are made available to the public. However, the protection granted differs slightly in each jurisdiction. For instance in the UK unregistered design rights will automatically protect either the shape or configuration of the whole or part of an article for up to 15 years, whereas in the EU unregistered design rights will automatically protect not only the appearance of the whole or part of any industrial or handicraft product resulting from its features but also its lines, shape, texture, contours and materials but only for up to 3 years. You should therefor keep a watching brief and consider whether such a right has arisen as soon as you believe that either you or your employees (in the course of their employment) have created an original design. Brexit The UK and the EU have agreed that there will be an implementation period (ie transition period) from the date the UK left the EU i.e. 31 January 2020 until 31 December 2020 or a later date if the transition period is extended. During this period there will be no changes to unregistered design rights. UK unregistered design rights UK unregistered design rights will continue after the transition period and provide up to 15 years of protection. However, after the transition period the UK Government has advised that only UK residents or businesses incorporated in the UK will be eligible for UK registered designs. EU unregistered design rights From the end of the transition period unregistered design rights in the EU (ie unregistered Community designs) will no longer be valid in the IK. The government has advised that it will immediately replace the unregistered Community design rights with UK unregistered design rights ( to be known as UK continuing unregistered design rights) and which will offer protection in the EU and UK for the rest of the three year terms previously attached to the unregistered Community design right. This means you will continue to be protected in the EU and UK for unregistered Community designs that existed before the end of the transition period. If you are concerned about how to protect your unregistered design rights in the UK and EU after the transition period please contact our IP lawyers for further advice on 01234 938089.




Non-Disclosure Agreement (NDA)/Letter of confidentiality


What is it? This agreement protects confidential information belonging to your business including IP and other information which you do not want to be made public. Why is it important? It is important to have an NDA in place before sharing any confidential or sensitive information in business meetings with people with whom you intend to do business eg investors, prospective co-founders, suppliers, consultants and the like. A letter of confidentiality is similar to a non-disclosure agreement. The party disclosing confidential information imposes restrictions as to the use of this confidential information to the party receiving it. Risks If you do not have the required safeguards in place to protect your intellectual property during business meetings or negotiations you may have your designs, inventions or work stolen or copied by the person with whom you are negotiating. This could be disastrous for your business.




one-way confidentiality agreement


What is it? A one-way Confidentiality agreement is similar to a non-disclosure agreement but imposes restrictions as to the use of this confidential information only on one party.




Assignment of intellectual property


What is it? An IP assignment agreement transfers rights and ownership in an IP created by one-person eg trademark, patent, logo, designs or any other IP to someone else or to a business. Why is it important? An IP assignment agreement is important when a business is sold, and the founder created intellectual property before becoming a part of the company or a company employs a someone whether consultant or employee to do some work. If you assign IP rights to another business, you are transferring ownership of the IP. It is more common to licence intellectual property rights than to assign them in business. Licensing allows a third party to have rights over the IP and do certain acts with the IP that they would not otherwise have been able to do but you keep ownership of the IP. You can limit the licence to a certain area eg the UK, Middle East, Africa etc or to a certain period of time eg 1 year, 2 years etc. Risks If for example you assign your IP to a business and it fails, you would have lost your IP. If on the other hand you licence your IP to another business, you are in ultimate control and can stipulate how the IP should be used and when it has to be returned. You can also stipulate that the IP be returned to you if the business goes into liquidation or on the happening of certain events.




Copyright


What is it? Copyright is the exclusive right to use and reproduce in public any material you have created if it falls into one of the following categories: i) Written work such as books, plays film scripts, web content, articles, essays, professional opinions, tables, compilations and databases; ii)Artistic works such as paintings, drawings, photos, maps, charts, plan, diagrams etc; iii)sound recordings; iv)Films, music and broadcasts; or v) computer programs. Why is it important? Copyright arises automatically when you create the work so there is no need to register copyright to own a work that you have created. You should be wary of any person that asks you to pay them to register your copyright in a work that you have created as it will be a scam. Businesses as well as individuals can own copyright. Copyright usually lasts for 70 years. You can buy someone’s copyright via a document called a Deed of assignment or give them a licence to use your copyright. As a general rule if an employee creates a work in the course of their employment their employer (ie the business ) will own the work. However, if the work in question is not part of the agreed duties of the employee the employee will own the work. To ensure that copyright work created by employees is owned by the business you should include appropriate intellectual property clauses in your employment contracts. Risks If you commission a piece of work from a freelancer the copyright in the work will belong to the freelancer unless the parties have agreed otherwise. It is important to ensure that the position on ownership of the copyright in writing before work starts to ensure that the business owns the copyright in the work produced by the freelancer.





Business Relationships

Trademark (UK, EU, US, China)


What is it? One of the best ways of protecting your business name, brand and logo from being copied is to register a trademark. A trademark is a distinctive sign eg name, brand, logo or tagline (or a combination of these) used by a business to distinguish its goods and or services from those sold by another business and to identify its business as the source of those goods and services. In the UK, trademarks are granted by the UK Intellectual Property Office (UK IPO) Registering a trademark increases the protection it receives and stops others from using it. You may be able to register a trademark over:

  • words (eg the trademark “Nandos”)
  • pictures and words (eg the Pure Business Law trademark).
  • slogans (eg the Lidl strap line “Big on quality, Lidl on price”)
  • colours (eg the Cadbury Dairy Milk purple as owned by Kraft ).
  • sounds (eg the Match of the Day theme song played when their logo appears at the beginning of football matches) and
  • Logos (eg the Mac OS logo);
  • 3D shapes (eg the Pepsi cola bottle shape)
Why is it important? Registering a name or a logo gives you the following three benefits: Allows you to object if someone else applies to register ay name or logo that is similar to your trademark for the same of similar goods or services. This protection does not cover an application to use the same name or branding for a different type of business. For instance if you register “Fast-Sports” for a trade mark for selling sports cars, no one could register “Fast-Spots” for anything to do with selling cars but they may be able to register it as a trade mark for a dry-cleaning business because that has nothing to do with cars. If another business tries to use the same or similar branding on similar goods or services thereby infringing your trademark you can take legal proceedings to stop them. Your business’s goodwill and reputation have commercial value so registering a trademark is an easy way to protect your hard work and creativity. Registering a trademark gives you the exclusive right to use it for 10 years, after which you must make an application to renew it to the Intellectual Property Office (IPO). Their website is at www.ipo.gov.uk. You can register your trademarks in the UK, the EU and or internationally. All registrations last for 10years and are renewable indefinitely in further 10-year periods. The most suitable registration for your brand will depend on where you do business eg UK, EU or internationally. Risks If you do not register your name, brand or logo as a trademark you will not be able to easily stop other people using your trademark and you may end up allowing other businesses to profit from your hard work.




Patent (Worldwide)


What is it? Protect your invention through a patent. A patent gives you an exclusive right over a novel invention that you have created. It gives you the exclusive right to use and reproduce your invention and stop people copying your invention without your permission. For instance, only Apple can make and sell Apple phones. In the UK, patents are granted by the UK Intellectual Property Office (UK IPO) To have a patent over something you have created, you must register it at the IPO. Patents generally last for up to twenty years. You can only patent a novel invention and cannot patent something that is already in the public domain. This means that your invention must be new (i.e. you cannot patent something which already exists eg a literary work, method of medical treatment, a diagnosis, scientific theory or a discovery) . You also cannot patent something which is already the subject of a patent application pre-dating your application. This means that you must carry out extensive market research examining trade journals and academic papers relevant to your industry market and searching for patents and patent applications on the patent registers worldwide. Obtaining a patent is expensive and time consuming. You should enlist the help of a professional eg lawyer or patent agent before starting an application for a patent. Why is it important?
Should I register my invention as a patent? Yes, you should if you believe that you have created a novel product or process which is so important to your business that you wish to pay a patent application fee to prevent others from using it. Risks Registering your invention as a patent ensures that:

  1. You can prevent others using your product or process if they intend to use it for commercial purposes.
  2. You can profit from your patent by only permitting certain people to use it for commercial purposes and only on condition that they pay you or give you a percentage of the profits they make from using your patent.
Risks If you do not register your invention as a patent, you will not be able to easily stop other people copying your ideas and you may end up allowing other businesses to profit from your hard work. You can use free online databases to search for patents eg Ipsum the UK IPO’s search facility, the Patents Journal (for UK applications that have been filed but not yet published), Espacenet – the European Patents Office’s (EPO’s) free database for worldwide patents including UK patents and Patentscope – the World Intellectual Property Organisation’s (WIPO’s ) free database for worldwide patents including UK patents. Note that these databases may not be up to date. As an alternative you may prefer to use professional search services such as:
  1. The PATLIB (patent library) centre
  2. A Patent attorney through the Chartered Institute of Patent Attorneys at www.cipa.org.uk




IP Assignment Agreement


What is it? An IP assignment agreement transfers rights and ownership in an IP created by one person to someone else or to a business. It can be used to transfer rights in a trademark, patent, logo, designs or any other IP. Why is it important? An IP assignment agreement is important when a business is sold, and the founder created intellectual property before becoming a part of the company or a company employs a someone whether consultant or employee to do some work.




Registering Designs


What is it? Register your design to stop someone else from using it. A design right is a right that you have which can protect your original design from being copied by someone else.There are two different types of design rights – registered and unregistered design rights which can protect the look or appearance of a product from being copied. Why is it important? Design rights can exist in computer icons, logos, graphic designs, packaging and clothing. The rights do not arise by reference to the particular product but rather in the shape or look of either the whole of the product or part of that product. For instance, a registered design right in a motif used on a book will be infringed if someone else uses the same design motif on a duvet cover. In the UK, design registrations are granted by the UK Intellectual Property Office (UK IPO). Risks Even if you do not register your design, it will still be automatically protected as an unregistered design right. However this right is more limited right because it only protects you against unauthorised copying and does not prevent other people creating similar designs independently. For businesses in the UK these unregistered design rights arise automatically in the UK and the EU for some designs under both UK and EU law if the relevant criteria are met. In the UK, unregistered design rights arise as soon as the relevant designs are recorded in some way eg in a drawing and in the UK as soon as they are made available to the public. However, the protection granted differs slightly in each jurisdiction. For instance in the UK unregistered design rights will automatically protect either the shape or configuration of the whole or part of an article for up to 15 years, whereas in the EU unregistered design rights will automatically protect not only the appearance of the whole or part of any industrial or handicraft product resulting from its features but also its lines, shape, texture, contours and materials but only for up to 3 years. You should therefor keep a watching brief and consider whether such a right has arisen as soon as you believe that either you or your employees (in the course of their employment) have created an original design. Brexit The UK and the EU have agreed that there will be an implementation period (ie transition period) from the date the UK left the EU i.e. 31 January 2020 until 31 December 2020 or a later date if the transition period is extended. During this period there will be no changes to unregistered design rights. UK unregistered design rights UK unregistered design rights will continue after the transition period and provide up to 15 years of protection. However, after the transition period the UK Government has advised that only UK residents or businesses incorporated in the UK will be eligible for UK registered designs. EU unregistered design rights From the end of the transition period unregistered design rights in the EU (ie unregistered Community designs) will no longer be valid in the IK. The government has advised that it will immediately replace the unregistered Community design rights with UK unregistered design rights ( to be known as UK continuing unregistered design rights) and which will offer protection in the EU and UK for the rest of the three year terms previously attached to the unregistered Community design right. This means you will continue to be protected in the EU and UK for unregistered Community designs that existed before the end of the transition period. If you are concerned about how to protect your unregistered design rights in the UK and EU after the transition period please contact our IP lawyers for further advice on 01234 938089.




Non-Disclosure Agreement (NDA)/Letter of confidentiality


What is it? This agreement protects confidential information belonging to your business including IP and other information which you do not want to be made public. Why is it important? It is important to have an NDA in place before sharing any confidential or sensitive information in business meetings with people with whom you intend to do business eg investors, prospective co-founders, suppliers, consultants and the like. A letter of confidentiality is similar to a non-disclosure agreement. The party disclosing confidential information imposes restrictions as to the use of this confidential information to the party receiving it. Risks If you do not have the required safeguards in place to protect your intellectual property during business meetings or negotiations you may have your designs, inventions or work stolen or copied by the person with whom you are negotiating. This could be disastrous for your business.




one-way confidentiality agreement


What is it? A one-way Confidentiality agreement is similar to a non-disclosure agreement but imposes restrictions as to the use of this confidential information only on one party.




Assignment of intellectual property


What is it? An IP assignment agreement transfers rights and ownership in an IP created by one-person eg trademark, patent, logo, designs or any other IP to someone else or to a business. Why is it important? An IP assignment agreement is important when a business is sold, and the founder created intellectual property before becoming a part of the company or a company employs a someone whether consultant or employee to do some work. If you assign IP rights to another business, you are transferring ownership of the IP. It is more common to licence intellectual property rights than to assign them in business. Licensing allows a third party to have rights over the IP and do certain acts with the IP that they would not otherwise have been able to do but you keep ownership of the IP. You can limit the licence to a certain area eg the UK, Middle East, Africa etc or to a certain period of time eg 1 year, 2 years etc. Risks If for example you assign your IP to a business and it fails, you would have lost your IP. If on the other hand you licence your IP to another business, you are in ultimate control and can stipulate how the IP should be used and when it has to be returned. You can also stipulate that the IP be returned to you if the business goes into liquidation or on the happening of certain events.




Copyright


What is it? Copyright is the exclusive right to use and reproduce in public any material you have created if it falls into one of the following categories: i) Written work such as books, plays film scripts, web content, articles, essays, professional opinions, tables, compilations and databases; ii)Artistic works such as paintings, drawings, photos, maps, charts, plan, diagrams etc; iii)sound recordings; iv)Films, music and broadcasts; or v) computer programs. Why is it important? Copyright arises automatically when you create the work so there is no need to register copyright to own a work that you have created. You should be wary of any person that asks you to pay them to register your copyright in a work that you have created as it will be a scam. Businesses as well as individuals can own copyright. Copyright usually lasts for 70 years. You can buy someone’s copyright via a document called a Deed of assignment or give them a licence to use your copyright. As a general rule if an employee creates a work in the course of their employment their employer (ie the business ) will own the work. However, if the work in question is not part of the agreed duties of the employee the employee will own the work. To ensure that copyright work created by employees is owned by the business you should include appropriate intellectual property clauses in your employment contracts. Risks If you commission a piece of work from a freelancer the copyright in the work will belong to the freelancer unless the parties have agreed otherwise. It is important to ensure that the position on ownership of the copyright in writing before work starts to ensure that the business owns the copyright in the work produced by the freelancer.





Running an online business

Notice of breach of covenants


What is it?

This is popularly called a Section 146 Notice (it is a notice required to be served by section 146 of the Law of Property Act 1925 and relates solely to business tenants) that warns a tenant who is in breach of covenant (other than the covenant to pay rent) of the landlord’s intention to forfeit the lease on ground of the breach of covenant.

Why is it important?

“Forfeiture” is the right of the landlord to re-enter the commercial property and take back possession of the property if a covenant has been breached.

For the notice to be valid and binding the notice must specify the breach of covenant and if the breach is capable of remedy , require the tenant to remedy it and pay monetary compensation to the landlord for the breach.

A landlord can only serve such a notice if the lease contains a right to forfeit the lease (i.e. a right of re-entry). The notice must also contain certain prescribed information. If the tenant does not remedy the breach within a reasonable time the landlord can start forfeiture proceedings in the County Court.

Risks

A landlord who wants to forfeit the lease must avoid “waiving” the breach of covenant. Waiver occurs where a landlord becomes aware of a breach of the lease but does not take action against the tenant within a reasonable period or acknowledges the continuation of the lease by for example demanding rent or service charges or accepting rent payments from the tenant.




Break notice


What is it? A Break Notice, also known as a Break Clauses or a break option, is an important contractual provision in a lease which allows either a landlord or tenant to bring a Lease to an early end. Some landlords often have a vested interest in making life difficult for a tenant seeking to exercise its option to break the lease by making the option subject to stringent conditions. Why is it important?

Break Notices are akin to options and are therefore strictly construed by the courts . From the tenant’s perspective, a properly drafted Break Clause gives them the opportunity to avoid being tied into a lease that they can no longer afford. This is a safety-net for a tenant – especially if they are just starting out.

Understandably though, a landlord who is receiving a steady rental income may be reluctant to lose a tenant, particularly in tough economic times.

Risks

Any tenant seeking to exercise the option to break the lease must check the lease carefully and ensure they follow the landlord’s “break clause conditions” to the letter. It is crucial when taking a lease that a tenant understands that the conditions of the Break Clause can easily defeat an option to break unless followed to the letter. If the conditions are not strictly followed the termination is not valid and the tenant remains a lessee until the expiry of the lease, the next break clause date or until the tenant is able to assign the lease with the landlord’s consent if there is such a provision in the lease.

A properly advised tenant should refuse any condition, other than up-to date payment of principal rent and giving up occupation.




Tenant's agreement to exclude security of tenure


What is it?

The Landlord and Tenant Act 1954 provides tenants of business premises with rights of ‘security of tenure’. This means that once a business tenant’s lease expires, the tenant has the right to request a new lease on the same terms as the previous lease (subject to agreement on terms, such as the amount of rent, any legislative updates etc), except where the landlord has a statutory ground to refuse a new lease (for instance, if the tenant has failed to pay rent or the landlord wishes to redevelop the premises).

Why is it important?

When agreeing to enter into a commercial or business lease, one of the things that will be discussed when agreeing Heads of Terms is whether your lease will be ‘protected’ with security of tenure, or ‘contracted out’ i.e. excluded’ from security of tenure. It is quite common for landlords to require that security of tenure rights are excluded from a lease. They do this by asking the prospective tenant to sign a notice in front of an independent solicitor agreeing to the exclusion of security of tenure under the lease.

Risks

This notice means that a tenant of commercial premises will not have the automatic right to request a renewal of their lease at the end of the term of the lease, leaving the landlord free to let the property to another tenant at the end of the term. This is because landlords often wish to retain strict control over the occupation of their property. If security of tenure is excluded, you the tenant, must vacate the property at the end of the lease in accordance with its terms unless you have negotiated a new lease with the landlord separately.




Landlord's notice to exclude security of tenure





Section 25 Notice


What is it?

This is a notice by the landlord under s25 of the Landlord and Tenant Act 1954.

Why is it important?

It allows the landlord to start a procedure which will end either in the tenant being granted a new lease or in the tenant vacating. This notice cannot be given before the last year of the lease terms nor after the tenant has served a request for a new tenancy under s26 of the Act.

Risks

The s25 notice must state the date on which the landlord intends to bring the existing lease to an end.




Section 26 Notice


What is it?

This is a notice given by the tenant requesting a new tenancy upon the termination of the old tenancy.

Why is it important?

The s26 request must specify the date on which the existing lease is to end.

Risks

This notice cannot be served before the last year of the agreed lease term nor can it be served after the landlord has served a s25 notice.




Licence for alterations


What is it?

This is a licence from the landlord to the tenant giving the tenant the right to carry out specific works or alterations to the property that is being let. The alterations may be major or minor.

Why is it important?

The Licence should include provisions as to the manner in which the tenant will carry out the works, timescales, reinstatement and (to the extent applicable) the Construction (Design and Management) Regulations 2015. Drawings and specifications showing the proposed works should be attached to the Licence so that it is clear what the landlord is consenting to.

If the proposed alterations are not substantial (e.g. the erection of demountable partitioning or signage) you can use a simple Letter- Licence to Alter.




Section 27 Notice


What is it? A tenant has the right under s27 of the 1954 Act to bring the tenancy to an end by giving at least three months’ notice before the date on which the tenancy would otherwise expire. If the lease term has expired but the tenancy is still continuing under the 1954 Act the tenant may bring that continuing tenancy to an end by giving not less than three months’ notice in writing to the landlord.





Managing licenses


Running an online business


Protecting your IP


Business Relationships


Writing a business plan


Buying & Selling Goods & Services

Terms and conditions for supply of services to business customers


What is it? Terms and conditions set out the rules and specifications which apply in every supply of services that a seller makes and helps to make everyone aware of their rights and obligations from the outset. Why is it important? Make sure you protect your business interests with professionally prepared terms and conditions. When supplying services to a business your terms and conditions should cover issues such as timing and termination of supply, orders, specifications, obligations, pricing, payment, intellectual property, confidentiality, warranties, liability and termination.




Terms and conditions for sale of goods to business customers


What is it? Terms and conditions set out the rules and specifications which apply in every sale of goods that a seller makes and helps to make everyone aware of their rights and obligations from the outset. Why is it important? When selling goods to a business your terms and conditions should cover the nature of products to be sold, orders, delivery, pricing, payment, risk, warranties, defects, liability and confidentiality.




Terms and conditions for supply of services to consumers/businesses


What is it?

There are different terms and conditions for the supply of services to businesses (B2B contracts) and the supply of services to consumers(B2C contracts). When a business deals with a consumer (ie someone who buys goods or services for personal use, as opposed to buying the goods or services on behalf of a business) the consumer is given more legal protection than a business.

Why is it important?

Any business that is entering into a contract with a consumer must abide by a wide range of consumer law requirements such as the Consumer Rights Act 2015, the Sale of Goods Act and Supply of Goods and Services Act , the Consumer Contracts Regulations , the Misrepresentation Act and the Data Protection Act.

Risks

The T&Cs for supply of services to consumers should be used when

  • You are supplying services with or without goods to customers not acting in the course of a business (i.e. consumers).

The T&Cs for supply of services to businesses should be used when

  • You are supplying services with or without goods to customers acting in the course of a business (i.e. Businesses).




Consent Notices


What is it? The law provides that if your website is based in the EU or if you are targeting customers in the EU and your site uses one or more cookies you need to display a cookie consent notice. To comply with the law your need to do three things Let users to your website know that you are using cookies. Provide a link where they can learn more about how you use the data you gather. Provide a way for your website users to consent to the use of cookies. Consent can be explicit opt-in consent and implied consent. For explicit consent, users have to click a button, select a checkbox or complete some other specific activity to opt in to the use of cookies. The most common way to do this is to display a banner at the top or bottom of your website with a link to your Privacy policy and a button to consent to the use of cookies and hide the banner. For implied consent a clear notice must be provided, and the user must be made aware that a specific action will be understood to be implied consent to the use of cookies. One way that implied consent is obtained is by displaying a prominent cookie notice that ends with a statement like “By continuing to use this site you agree to the use of cookies”. The law applies whether a user is on a smartphone, tablet, a laptop, computer or other device. So when you set up your cookie notice you must ensure that the notice appears and functions well on all devices. There are also plugins for Cookie consent notices.




Terms and conditions for sale of goods to consumers/businesses


What is it?

There are different terms and conditions for the sale of goods to businesses (B2B) and the sale of goods to consumers(B2C).

Why is it important?

The T&Cs for sale of goods to consumers should be used when

  • You are supplying goods with or without services to customers not acting in the course of a business (i.e. consumers)

The T&Cs for sale of goods to businesses should be used when

  • You are supplying goods with or without services to customers acting in the course of a business (i.e. businesses)




Terms and conditions for sale of goods to consumers via a website





Terms and conditions for supply of services to consumers via a website





Heads of terms


What is it? This is similar to a Memorandum of Understanding (MOU)s, Term sheet or Letter of intent. The heads of terms set out the key terms agreed by the parties before entering a business transaction. It is not contractually binding. Heads of Terms are usually set out in a letter or document setting out the key terms agreed by parties who intend to enter a binding contract. It is also known as Letter of Intent, a Memorandum of Understanding (MOU) or a Term Sheet. It is a useful tool when two or more parties intend to enter a future contract and want to identify, describe and agree, without it being contractually binding, the terms to be further negotiated and then recorded in a contractually binding contract. There will occasionally be statements in heads of terms which are exceptions to the general approach that heads of terms are not binding: this will occur if the parties put in statements which heads of terms expressly state are to be of legally binding effect until a definitive contract is signed. If that is the case those statements will generally be binding. Why is it important? Heads of terms are useful to set out the progress made during negotiations, reduce the potential for misunderstandings, indicate the major issues which still need to be resolved and make it clear what the parties intend when they enter into the contract. The disadvantage of Heads of terms is that it can take up a considerable amount of time and may distract the parties from working on negotiating a full and detailed binding contract. Risks There have been occasions when the parties to a proposed commercial arrangement never actually agree or sign a definite contract and have gone on to implement their deal based only on the Heads of terms. This creates a very uncertain legal position which may lead to disputes and legal problems.




Letter of intent (LOI)


What is it? A Letter of Intent is a pre-contract, non-binding document setting out the key terms agreed by parties who intend to enter into a binding contract. It is also known as Heads of Terms, a Memorandum of Understanding (MOU) or a Term Sheet. It is a useful tool when two or more parties intend to enter into a future contract and want to identify, describe and agree, without it being contractually binding, the terms to be further negotiated and then recorded in a contractually binding contract. There will occasionally be statements in a letter of intent which are exceptions to the general approach that a letter of intent is not binding: this will occur if the parties put in statements which the letter of intent expressly states are to be of legally binding effect until a definitive contract is signed. If that is the case those statements will generally be binding. Why is it important? A letter of intent is useful to set out the progress made during negotiations, reduce the potential for misunderstandings, indicate the major issues which still need to be resolved and make it clear what the parties intend when they enter into the contract. The disadvantage of a letter of intent is that it can take up a considerable amount of time and may distract the parties from working on negotiating a full and detailed binding contract. Risks There have been occasions when the parties to a proposed commercial arrangement never actually agree or sign a definite contract and have gone on to implement their deal based only on the letter of intent. This creates a very uncertain legal position which may result in disputes and legal problems.




Invoice


What is it? An invoice is a statement setting out the goods and or services that have been supplied by a seller to a buyer and the money owed for those goods and or services. It is created by a seller or supplier to request payment for goods sold and or services provided. It is also called a bill. Why is it important? It identifies the trading partners, specifies the terms of the deal and provides information on the payment figure, the available methods of payment and the payment terms i.e. the maximum amount of time that a buyer had to pay for the goods and or services that they have purchased from the seller.




Sales of goods agreements


What is it?

A Sale of Goods Agreement (sometimes called a Sales Agreement or Sales Contract) is a contract entered into between a buyer and a seller of goods for the sale and purchase of specific goods by the buyer. When you sell goods, you create a sale of goods contract.

Why is it important?

The terms in a sale of goods contract may vary depending on whether it is a sale to a consumer (i.e. a B2C contract ) or a sale to a business (i.e. a “commercial” sale or B2B contract.) A consumer is someone who buys goods or services for personal use, as opposed to buying the goods or services on behalf of a business. Consumers who act as the buyer in a contract for a sale of goods are given more legal protection than businesses. The legal protection is given to help the party considered to be the more vulnerable party to the contract ie the consumer as opposed to the business.

The sale of goods agreement will set out the seller and buyer’s obligations, the terms on which the seller is willing to sell and transfer the goods to the buyer, the nature of the goods to be sold, the price, payment terms, shipping and collection details, delivery time and what happens at the end of the contract.

Risks

A Sale of Goods Agreement can be made orally or in writing. However, having a well-written Sale of Goods Agreement can help protect one or both of the parties if there is a problem with the sale eg goods are late in arriving or the goods have been damaged or destroyed.




Purchase order


What is it? A purchase order is prepared by a buyer when the buyer orders goods or services from a seller. The purchase order will indicate the type of goods, quantity of goods and the price the buyer is willing to pay for the products and or services. Once the seller accepts the purchase order it becomes a legally binding contract as the seller has agreed to sell the goods and or services at the prices put forward by the buyer. The seller will then issue an invoice to the buyer based on the purchase order. Why is it important? Purchase orders are important for businesses as it is instrumental in tracking expenditure, makes orders easier to track, helps avoid audit problems and provides contractual legal protection for the buyer and the supplier. Alongside a purchase order system, it is vital that a company has strong credit management practices to safeguard cash flow from bad debts and late payment. A strong debt collection process is vital to ensure payment is made when the goods or services have been delivered. Invoice promptly and accurately and chase up with reminders. If a customer will not pay or ignores payment requests take action – Appoint a debt collection agency, take debt recovery action through the courts or pass the debt to a solicitor. Pure Business Law has experienced debt collection lawyers who can assist you with debt recovery.




Services agreement


What is it? A Service agreement also known as a Service contract or Contract for Services is a written agreement between a service provider and a customer setting out agreed terms for the supply of services. The terms should include details of the services to be provided, location of provision of the services, payment. Limitation of liability clause, tools or materials to be used, termination of the agreement, ownership of intellectual property clause and dispute resolution clauses. Why is it important? A services agreement is required when a business wants to engage another business to supply services. If your business is the service provider, you should use a service contract whenever you are hired by a customer to complete a service. If you are the customer and the service provider does not supply the contract, you can use a Service agreement to ensure that the terms of the service relationship are clear.





Managing licenses


Running an online business


Protecting your IP


Business Relationships


Writing a business plan


Managing a company

Notice of breach of covenants


What is it?

This is popularly called a Section 146 Notice (it is a notice required to be served by section 146 of the Law of Property Act 1925 and relates solely to business tenants) that warns a tenant who is in breach of covenant (other than the covenant to pay rent) of the landlord’s intention to forfeit the lease on ground of the breach of covenant.

Why is it important?

“Forfeiture” is the right of the landlord to re-enter the commercial property and take back possession of the property if a covenant has been breached.

For the notice to be valid and binding the notice must specify the breach of covenant and if the breach is capable of remedy , require the tenant to remedy it and pay monetary compensation to the landlord for the breach.

A landlord can only serve such a notice if the lease contains a right to forfeit the lease (i.e. a right of re-entry). The notice must also contain certain prescribed information. If the tenant does not remedy the breach within a reasonable time the landlord can start forfeiture proceedings in the County Court.

Risks

A landlord who wants to forfeit the lease must avoid “waiving” the breach of covenant. Waiver occurs where a landlord becomes aware of a breach of the lease but does not take action against the tenant within a reasonable period or acknowledges the continuation of the lease by for example demanding rent or service charges or accepting rent payments from the tenant.




Break notice


What is it? A Break Notice, also known as a Break Clauses or a break option, is an important contractual provision in a lease which allows either a landlord or tenant to bring a Lease to an early end. Some landlords often have a vested interest in making life difficult for a tenant seeking to exercise its option to break the lease by making the option subject to stringent conditions. Why is it important?

Break Notices are akin to options and are therefore strictly construed by the courts . From the tenant’s perspective, a properly drafted Break Clause gives them the opportunity to avoid being tied into a lease that they can no longer afford. This is a safety-net for a tenant – especially if they are just starting out.

Understandably though, a landlord who is receiving a steady rental income may be reluctant to lose a tenant, particularly in tough economic times.

Risks

Any tenant seeking to exercise the option to break the lease must check the lease carefully and ensure they follow the landlord’s “break clause conditions” to the letter. It is crucial when taking a lease that a tenant understands that the conditions of the Break Clause can easily defeat an option to break unless followed to the letter. If the conditions are not strictly followed the termination is not valid and the tenant remains a lessee until the expiry of the lease, the next break clause date or until the tenant is able to assign the lease with the landlord’s consent if there is such a provision in the lease.

A properly advised tenant should refuse any condition, other than up-to date payment of principal rent and giving up occupation.




Tenant's agreement to exclude security of tenure


What is it?

The Landlord and Tenant Act 1954 provides tenants of business premises with rights of ‘security of tenure’. This means that once a business tenant’s lease expires, the tenant has the right to request a new lease on the same terms as the previous lease (subject to agreement on terms, such as the amount of rent, any legislative updates etc), except where the landlord has a statutory ground to refuse a new lease (for instance, if the tenant has failed to pay rent or the landlord wishes to redevelop the premises).

Why is it important?

When agreeing to enter into a commercial or business lease, one of the things that will be discussed when agreeing Heads of Terms is whether your lease will be ‘protected’ with security of tenure, or ‘contracted out’ i.e. excluded’ from security of tenure. It is quite common for landlords to require that security of tenure rights are excluded from a lease. They do this by asking the prospective tenant to sign a notice in front of an independent solicitor agreeing to the exclusion of security of tenure under the lease.

Risks

This notice means that a tenant of commercial premises will not have the automatic right to request a renewal of their lease at the end of the term of the lease, leaving the landlord free to let the property to another tenant at the end of the term. This is because landlords often wish to retain strict control over the occupation of their property. If security of tenure is excluded, you the tenant, must vacate the property at the end of the lease in accordance with its terms unless you have negotiated a new lease with the landlord separately.




Landlord's notice to exclude security of tenure





Section 25 Notice


What is it?

This is a notice by the landlord under s25 of the Landlord and Tenant Act 1954.

Why is it important?

It allows the landlord to start a procedure which will end either in the tenant being granted a new lease or in the tenant vacating. This notice cannot be given before the last year of the lease terms nor after the tenant has served a request for a new tenancy under s26 of the Act.

Risks

The s25 notice must state the date on which the landlord intends to bring the existing lease to an end.




Section 26 Notice


What is it?

This is a notice given by the tenant requesting a new tenancy upon the termination of the old tenancy.

Why is it important?

The s26 request must specify the date on which the existing lease is to end.

Risks

This notice cannot be served before the last year of the agreed lease term nor can it be served after the landlord has served a s25 notice.




Licence for alterations


What is it?

This is a licence from the landlord to the tenant giving the tenant the right to carry out specific works or alterations to the property that is being let. The alterations may be major or minor.

Why is it important?

The Licence should include provisions as to the manner in which the tenant will carry out the works, timescales, reinstatement and (to the extent applicable) the Construction (Design and Management) Regulations 2015. Drawings and specifications showing the proposed works should be attached to the Licence so that it is clear what the landlord is consenting to.

If the proposed alterations are not substantial (e.g. the erection of demountable partitioning or signage) you can use a simple Letter- Licence to Alter.




Section 27 Notice


What is it? A tenant has the right under s27 of the 1954 Act to bring the tenancy to an end by giving at least three months’ notice before the date on which the tenancy would otherwise expire. If the lease term has expired but the tenancy is still continuing under the 1954 Act the tenant may bring that continuing tenancy to an end by giving not less than three months’ notice in writing to the landlord.





Managing licenses


Running an online business


Protecting your IP


Business Relationships


Writing a business plan


Settlement agreements & Ref

Trademark (UK, EU, US, China)


What is it? One of the best ways of protecting your business name, brand and logo from being copied is to register a trademark. A trademark is a distinctive sign eg name, brand, logo or tagline (or a combination of these) used by a business to distinguish its goods and or services from those sold by another business and to identify its business as the source of those goods and services. In the UK, trademarks are granted by the UK Intellectual Property Office (UK IPO) Registering a trademark increases the protection it receives and stops others from using it. You may be able to register a trademark over:

  • words (eg the trademark “Nandos”)
  • pictures and words (eg the Pure Business Law trademark).
  • slogans (eg the Lidl strap line “Big on quality, Lidl on price”)
  • colours (eg the Cadbury Dairy Milk purple as owned by Kraft ).
  • sounds (eg the Match of the Day theme song played when their logo appears at the beginning of football matches) and
  • Logos (eg the Mac OS logo);
  • 3D shapes (eg the Pepsi cola bottle shape)
Why is it important? Registering a name or a logo gives you the following three benefits: Allows you to object if someone else applies to register ay name or logo that is similar to your trademark for the same of similar goods or services. This protection does not cover an application to use the same name or branding for a different type of business. For instance if you register “Fast-Sports” for a trade mark for selling sports cars, no one could register “Fast-Spots” for anything to do with selling cars but they may be able to register it as a trade mark for a dry-cleaning business because that has nothing to do with cars. If another business tries to use the same or similar branding on similar goods or services thereby infringing your trademark you can take legal proceedings to stop them. Your business’s goodwill and reputation have commercial value so registering a trademark is an easy way to protect your hard work and creativity. Registering a trademark gives you the exclusive right to use it for 10 years, after which you must make an application to renew it to the Intellectual Property Office (IPO). Their website is at www.ipo.gov.uk. You can register your trademarks in the UK, the EU and or internationally. All registrations last for 10years and are renewable indefinitely in further 10-year periods. The most suitable registration for your brand will depend on where you do business eg UK, EU or internationally. Risks If you do not register your name, brand or logo as a trademark you will not be able to easily stop other people using your trademark and you may end up allowing other businesses to profit from your hard work.




Patent (Worldwide)


What is it? Protect your invention through a patent. A patent gives you an exclusive right over a novel invention that you have created. It gives you the exclusive right to use and reproduce your invention and stop people copying your invention without your permission. For instance, only Apple can make and sell Apple phones. In the UK, patents are granted by the UK Intellectual Property Office (UK IPO) To have a patent over something you have created, you must register it at the IPO. Patents generally last for up to twenty years. You can only patent a novel invention and cannot patent something that is already in the public domain. This means that your invention must be new (i.e. you cannot patent something which already exists eg a literary work, method of medical treatment, a diagnosis, scientific theory or a discovery) . You also cannot patent something which is already the subject of a patent application pre-dating your application. This means that you must carry out extensive market research examining trade journals and academic papers relevant to your industry market and searching for patents and patent applications on the patent registers worldwide. Obtaining a patent is expensive and time consuming. You should enlist the help of a professional eg lawyer or patent agent before starting an application for a patent. Why is it important?
Should I register my invention as a patent? Yes, you should if you believe that you have created a novel product or process which is so important to your business that you wish to pay a patent application fee to prevent others from using it. Risks Registering your invention as a patent ensures that:

  1. You can prevent others using your product or process if they intend to use it for commercial purposes.
  2. You can profit from your patent by only permitting certain people to use it for commercial purposes and only on condition that they pay you or give you a percentage of the profits they make from using your patent.
Risks If you do not register your invention as a patent, you will not be able to easily stop other people copying your ideas and you may end up allowing other businesses to profit from your hard work. You can use free online databases to search for patents eg Ipsum the UK IPO’s search facility, the Patents Journal (for UK applications that have been filed but not yet published), Espacenet – the European Patents Office’s (EPO’s) free database for worldwide patents including UK patents and Patentscope – the World Intellectual Property Organisation’s (WIPO’s ) free database for worldwide patents including UK patents. Note that these databases may not be up to date. As an alternative you may prefer to use professional search services such as:
  1. The PATLIB (patent library) centre
  2. A Patent attorney through the Chartered Institute of Patent Attorneys at www.cipa.org.uk




IP Assignment Agreement


What is it? An IP assignment agreement transfers rights and ownership in an IP created by one person to someone else or to a business. It can be used to transfer rights in a trademark, patent, logo, designs or any other IP. Why is it important? An IP assignment agreement is important when a business is sold, and the founder created intellectual property before becoming a part of the company or a company employs a someone whether consultant or employee to do some work.




Registering Designs


What is it? Register your design to stop someone else from using it. A design right is a right that you have which can protect your original design from being copied by someone else.There are two different types of design rights – registered and unregistered design rights which can protect the look or appearance of a product from being copied. Why is it important? Design rights can exist in computer icons, logos, graphic designs, packaging and clothing. The rights do not arise by reference to the particular product but rather in the shape or look of either the whole of the product or part of that product. For instance, a registered design right in a motif used on a book will be infringed if someone else uses the same design motif on a duvet cover. In the UK, design registrations are granted by the UK Intellectual Property Office (UK IPO). Risks Even if you do not register your design, it will still be automatically protected as an unregistered design right. However this right is more limited right because it only protects you against unauthorised copying and does not prevent other people creating similar designs independently. For businesses in the UK these unregistered design rights arise automatically in the UK and the EU for some designs under both UK and EU law if the relevant criteria are met. In the UK, unregistered design rights arise as soon as the relevant designs are recorded in some way eg in a drawing and in the UK as soon as they are made available to the public. However, the protection granted differs slightly in each jurisdiction. For instance in the UK unregistered design rights will automatically protect either the shape or configuration of the whole or part of an article for up to 15 years, whereas in the EU unregistered design rights will automatically protect not only the appearance of the whole or part of any industrial or handicraft product resulting from its features but also its lines, shape, texture, contours and materials but only for up to 3 years. You should therefor keep a watching brief and consider whether such a right has arisen as soon as you believe that either you or your employees (in the course of their employment) have created an original design. Brexit The UK and the EU have agreed that there will be an implementation period (ie transition period) from the date the UK left the EU i.e. 31 January 2020 until 31 December 2020 or a later date if the transition period is extended. During this period there will be no changes to unregistered design rights. UK unregistered design rights UK unregistered design rights will continue after the transition period and provide up to 15 years of protection. However, after the transition period the UK Government has advised that only UK residents or businesses incorporated in the UK will be eligible for UK registered designs. EU unregistered design rights From the end of the transition period unregistered design rights in the EU (ie unregistered Community designs) will no longer be valid in the IK. The government has advised that it will immediately replace the unregistered Community design rights with UK unregistered design rights ( to be known as UK continuing unregistered design rights) and which will offer protection in the EU and UK for the rest of the three year terms previously attached to the unregistered Community design right. This means you will continue to be protected in the EU and UK for unregistered Community designs that existed before the end of the transition period. If you are concerned about how to protect your unregistered design rights in the UK and EU after the transition period please contact our IP lawyers for further advice on 01234 938089.




Non-Disclosure Agreement (NDA)/Letter of confidentiality


What is it? This agreement protects confidential information belonging to your business including IP and other information which you do not want to be made public. Why is it important? It is important to have an NDA in place before sharing any confidential or sensitive information in business meetings with people with whom you intend to do business eg investors, prospective co-founders, suppliers, consultants and the like. A letter of confidentiality is similar to a non-disclosure agreement. The party disclosing confidential information imposes restrictions as to the use of this confidential information to the party receiving it. Risks If you do not have the required safeguards in place to protect your intellectual property during business meetings or negotiations you may have your designs, inventions or work stolen or copied by the person with whom you are negotiating. This could be disastrous for your business.




one-way confidentiality agreement


What is it? A one-way Confidentiality agreement is similar to a non-disclosure agreement but imposes restrictions as to the use of this confidential information only on one party.




Assignment of intellectual property


What is it? An IP assignment agreement transfers rights and ownership in an IP created by one-person eg trademark, patent, logo, designs or any other IP to someone else or to a business. Why is it important? An IP assignment agreement is important when a business is sold, and the founder created intellectual property before becoming a part of the company or a company employs a someone whether consultant or employee to do some work. If you assign IP rights to another business, you are transferring ownership of the IP. It is more common to licence intellectual property rights than to assign them in business. Licensing allows a third party to have rights over the IP and do certain acts with the IP that they would not otherwise have been able to do but you keep ownership of the IP. You can limit the licence to a certain area eg the UK, Middle East, Africa etc or to a certain period of time eg 1 year, 2 years etc. Risks If for example you assign your IP to a business and it fails, you would have lost your IP. If on the other hand you licence your IP to another business, you are in ultimate control and can stipulate how the IP should be used and when it has to be returned. You can also stipulate that the IP be returned to you if the business goes into liquidation or on the happening of certain events.




Copyright


What is it? Copyright is the exclusive right to use and reproduce in public any material you have created if it falls into one of the following categories: i) Written work such as books, plays film scripts, web content, articles, essays, professional opinions, tables, compilations and databases; ii)Artistic works such as paintings, drawings, photos, maps, charts, plan, diagrams etc; iii)sound recordings; iv)Films, music and broadcasts; or v) computer programs. Why is it important? Copyright arises automatically when you create the work so there is no need to register copyright to own a work that you have created. You should be wary of any person that asks you to pay them to register your copyright in a work that you have created as it will be a scam. Businesses as well as individuals can own copyright. Copyright usually lasts for 70 years. You can buy someone’s copyright via a document called a Deed of assignment or give them a licence to use your copyright. As a general rule if an employee creates a work in the course of their employment their employer (ie the business ) will own the work. However, if the work in question is not part of the agreed duties of the employee the employee will own the work. To ensure that copyright work created by employees is owned by the business you should include appropriate intellectual property clauses in your employment contracts. Risks If you commission a piece of work from a freelancer the copyright in the work will belong to the freelancer unless the parties have agreed otherwise. It is important to ensure that the position on ownership of the copyright in writing before work starts to ensure that the business owns the copyright in the work produced by the freelancer.





Commercial notices

Notice of breach of covenants


What is it?

This is popularly called a Section 146 Notice (it is a notice required to be served by section 146 of the Law of Property Act 1925 and relates solely to business tenants) that warns a tenant who is in breach of covenant (other than the covenant to pay rent) of the landlord’s intention to forfeit the lease on ground of the breach of covenant.

Why is it important?

“Forfeiture” is the right of the landlord to re-enter the commercial property and take back possession of the property if a covenant has been breached.

For the notice to be valid and binding the notice must specify the breach of covenant and if the breach is capable of remedy , require the tenant to remedy it and pay monetary compensation to the landlord for the breach.

A landlord can only serve such a notice if the lease contains a right to forfeit the lease (i.e. a right of re-entry). The notice must also contain certain prescribed information. If the tenant does not remedy the breach within a reasonable time the landlord can start forfeiture proceedings in the County Court.

Risks

A landlord who wants to forfeit the lease must avoid “waiving” the breach of covenant. Waiver occurs where a landlord becomes aware of a breach of the lease but does not take action against the tenant within a reasonable period or acknowledges the continuation of the lease by for example demanding rent or service charges or accepting rent payments from the tenant.




Break notice


What is it? A Break Notice, also known as a Break Clauses or a break option, is an important contractual provision in a lease which allows either a landlord or tenant to bring a Lease to an early end. Some landlords often have a vested interest in making life difficult for a tenant seeking to exercise its option to break the lease by making the option subject to stringent conditions. Why is it important?

Break Notices are akin to options and are therefore strictly construed by the courts . From the tenant’s perspective, a properly drafted Break Clause gives them the opportunity to avoid being tied into a lease that they can no longer afford. This is a safety-net for a tenant – especially if they are just starting out.

Understandably though, a landlord who is receiving a steady rental income may be reluctant to lose a tenant, particularly in tough economic times.

Risks

Any tenant seeking to exercise the option to break the lease must check the lease carefully and ensure they follow the landlord’s “break clause conditions” to the letter. It is crucial when taking a lease that a tenant understands that the conditions of the Break Clause can easily defeat an option to break unless followed to the letter. If the conditions are not strictly followed the termination is not valid and the tenant remains a lessee until the expiry of the lease, the next break clause date or until the tenant is able to assign the lease with the landlord’s consent if there is such a provision in the lease.

A properly advised tenant should refuse any condition, other than up-to date payment of principal rent and giving up occupation.




Tenant's agreement to exclude security of tenure


What is it?

The Landlord and Tenant Act 1954 provides tenants of business premises with rights of ‘security of tenure’. This means that once a business tenant’s lease expires, the tenant has the right to request a new lease on the same terms as the previous lease (subject to agreement on terms, such as the amount of rent, any legislative updates etc), except where the landlord has a statutory ground to refuse a new lease (for instance, if the tenant has failed to pay rent or the landlord wishes to redevelop the premises).

Why is it important?

When agreeing to enter into a commercial or business lease, one of the things that will be discussed when agreeing Heads of Terms is whether your lease will be ‘protected’ with security of tenure, or ‘contracted out’ i.e. excluded’ from security of tenure. It is quite common for landlords to require that security of tenure rights are excluded from a lease. They do this by asking the prospective tenant to sign a notice in front of an independent solicitor agreeing to the exclusion of security of tenure under the lease.

Risks

This notice means that a tenant of commercial premises will not have the automatic right to request a renewal of their lease at the end of the term of the lease, leaving the landlord free to let the property to another tenant at the end of the term. This is because landlords often wish to retain strict control over the occupation of their property. If security of tenure is excluded, you the tenant, must vacate the property at the end of the lease in accordance with its terms unless you have negotiated a new lease with the landlord separately.




Landlord's notice to exclude security of tenure





Section 25 Notice


What is it?

This is a notice by the landlord under s25 of the Landlord and Tenant Act 1954.

Why is it important?

It allows the landlord to start a procedure which will end either in the tenant being granted a new lease or in the tenant vacating. This notice cannot be given before the last year of the lease terms nor after the tenant has served a request for a new tenancy under s26 of the Act.

Risks

The s25 notice must state the date on which the landlord intends to bring the existing lease to an end.




Section 26 Notice


What is it?

This is a notice given by the tenant requesting a new tenancy upon the termination of the old tenancy.

Why is it important?

The s26 request must specify the date on which the existing lease is to end.

Risks

This notice cannot be served before the last year of the agreed lease term nor can it be served after the landlord has served a s25 notice.




Licence for alterations


What is it?

This is a licence from the landlord to the tenant giving the tenant the right to carry out specific works or alterations to the property that is being let. The alterations may be major or minor.

Why is it important?

The Licence should include provisions as to the manner in which the tenant will carry out the works, timescales, reinstatement and (to the extent applicable) the Construction (Design and Management) Regulations 2015. Drawings and specifications showing the proposed works should be attached to the Licence so that it is clear what the landlord is consenting to.

If the proposed alterations are not substantial (e.g. the erection of demountable partitioning or signage) you can use a simple Letter- Licence to Alter.




Section 27 Notice


What is it? A tenant has the right under s27 of the 1954 Act to bring the tenancy to an end by giving at least three months’ notice before the date on which the tenancy would otherwise expire. If the lease term has expired but the tenancy is still continuing under the 1954 Act the tenant may bring that continuing tenancy to an end by giving not less than three months’ notice in writing to the landlord.





Managing licenses


Running an online business


Protecting your IP


Business Relationships


Writing a business plan


Letting a commercial property

Trademark (UK, EU, US, China)


What is it? One of the best ways of protecting your business name, brand and logo from being copied is to register a trademark. A trademark is a distinctive sign eg name, brand, logo or tagline (or a combination of these) used by a business to distinguish its goods and or services from those sold by another business and to identify its business as the source of those goods and services. In the UK, trademarks are granted by the UK Intellectual Property Office (UK IPO) Registering a trademark increases the protection it receives and stops others from using it. You may be able to register a trademark over:

  • words (eg the trademark “Nandos”)
  • pictures and words (eg the Pure Business Law trademark).
  • slogans (eg the Lidl strap line “Big on quality, Lidl on price”)
  • colours (eg the Cadbury Dairy Milk purple as owned by Kraft ).
  • sounds (eg the Match of the Day theme song played when their logo appears at the beginning of football matches) and
  • Logos (eg the Mac OS logo);
  • 3D shapes (eg the Pepsi cola bottle shape)
Why is it important? Registering a name or a logo gives you the following three benefits: Allows you to object if someone else applies to register ay name or logo that is similar to your trademark for the same of similar goods or services. This protection does not cover an application to use the same name or branding for a different type of business. For instance if you register “Fast-Sports” for a trade mark for selling sports cars, no one could register “Fast-Spots” for anything to do with selling cars but they may be able to register it as a trade mark for a dry-cleaning business because that has nothing to do with cars. If another business tries to use the same or similar branding on similar goods or services thereby infringing your trademark you can take legal proceedings to stop them. Your business’s goodwill and reputation have commercial value so registering a trademark is an easy way to protect your hard work and creativity. Registering a trademark gives you the exclusive right to use it for 10 years, after which you must make an application to renew it to the Intellectual Property Office (IPO). Their website is at www.ipo.gov.uk. You can register your trademarks in the UK, the EU and or internationally. All registrations last for 10years and are renewable indefinitely in further 10-year periods. The most suitable registration for your brand will depend on where you do business eg UK, EU or internationally. Risks If you do not register your name, brand or logo as a trademark you will not be able to easily stop other people using your trademark and you may end up allowing other businesses to profit from your hard work.




Patent (Worldwide)


What is it? Protect your invention through a patent. A patent gives you an exclusive right over a novel invention that you have created. It gives you the exclusive right to use and reproduce your invention and stop people copying your invention without your permission. For instance, only Apple can make and sell Apple phones. In the UK, patents are granted by the UK Intellectual Property Office (UK IPO) To have a patent over something you have created, you must register it at the IPO. Patents generally last for up to twenty years. You can only patent a novel invention and cannot patent something that is already in the public domain. This means that your invention must be new (i.e. you cannot patent something which already exists eg a literary work, method of medical treatment, a diagnosis, scientific theory or a discovery) . You also cannot patent something which is already the subject of a patent application pre-dating your application. This means that you must carry out extensive market research examining trade journals and academic papers relevant to your industry market and searching for patents and patent applications on the patent registers worldwide. Obtaining a patent is expensive and time consuming. You should enlist the help of a professional eg lawyer or patent agent before starting an application for a patent. Why is it important?
Should I register my invention as a patent? Yes, you should if you believe that you have created a novel product or process which is so important to your business that you wish to pay a patent application fee to prevent others from using it. Risks Registering your invention as a patent ensures that:

  1. You can prevent others using your product or process if they intend to use it for commercial purposes.
  2. You can profit from your patent by only permitting certain people to use it for commercial purposes and only on condition that they pay you or give you a percentage of the profits they make from using your patent.
Risks If you do not register your invention as a patent, you will not be able to easily stop other people copying your ideas and you may end up allowing other businesses to profit from your hard work. You can use free online databases to search for patents eg Ipsum the UK IPO’s search facility, the Patents Journal (for UK applications that have been filed but not yet published), Espacenet – the European Patents Office’s (EPO’s) free database for worldwide patents including UK patents and Patentscope – the World Intellectual Property Organisation’s (WIPO’s ) free database for worldwide patents including UK patents. Note that these databases may not be up to date. As an alternative you may prefer to use professional search services such as:
  1. The PATLIB (patent library) centre
  2. A Patent attorney through the Chartered Institute of Patent Attorneys at www.cipa.org.uk




IP Assignment Agreement


What is it? An IP assignment agreement transfers rights and ownership in an IP created by one person to someone else or to a business. It can be used to transfer rights in a trademark, patent, logo, designs or any other IP. Why is it important? An IP assignment agreement is important when a business is sold, and the founder created intellectual property before becoming a part of the company or a company employs a someone whether consultant or employee to do some work.




Registering Designs


What is it? Register your design to stop someone else from using it. A design right is a right that you have which can protect your original design from being copied by someone else.There are two different types of design rights – registered and unregistered design rights which can protect the look or appearance of a product from being copied. Why is it important? Design rights can exist in computer icons, logos, graphic designs, packaging and clothing. The rights do not arise by reference to the particular product but rather in the shape or look of either the whole of the product or part of that product. For instance, a registered design right in a motif used on a book will be infringed if someone else uses the same design motif on a duvet cover. In the UK, design registrations are granted by the UK Intellectual Property Office (UK IPO). Risks Even if you do not register your design, it will still be automatically protected as an unregistered design right. However this right is more limited right because it only protects you against unauthorised copying and does not prevent other people creating similar designs independently. For businesses in the UK these unregistered design rights arise automatically in the UK and the EU for some designs under both UK and EU law if the relevant criteria are met. In the UK, unregistered design rights arise as soon as the relevant designs are recorded in some way eg in a drawing and in the UK as soon as they are made available to the public. However, the protection granted differs slightly in each jurisdiction. For instance in the UK unregistered design rights will automatically protect either the shape or configuration of the whole or part of an article for up to 15 years, whereas in the EU unregistered design rights will automatically protect not only the appearance of the whole or part of any industrial or handicraft product resulting from its features but also its lines, shape, texture, contours and materials but only for up to 3 years. You should therefor keep a watching brief and consider whether such a right has arisen as soon as you believe that either you or your employees (in the course of their employment) have created an original design. Brexit The UK and the EU have agreed that there will be an implementation period (ie transition period) from the date the UK left the EU i.e. 31 January 2020 until 31 December 2020 or a later date if the transition period is extended. During this period there will be no changes to unregistered design rights. UK unregistered design rights UK unregistered design rights will continue after the transition period and provide up to 15 years of protection. However, after the transition period the UK Government has advised that only UK residents or businesses incorporated in the UK will be eligible for UK registered designs. EU unregistered design rights From the end of the transition period unregistered design rights in the EU (ie unregistered Community designs) will no longer be valid in the IK. The government has advised that it will immediately replace the unregistered Community design rights with UK unregistered design rights ( to be known as UK continuing unregistered design rights) and which will offer protection in the EU and UK for the rest of the three year terms previously attached to the unregistered Community design right. This means you will continue to be protected in the EU and UK for unregistered Community designs that existed before the end of the transition period. If you are concerned about how to protect your unregistered design rights in the UK and EU after the transition period please contact our IP lawyers for further advice on 01234 938089.




Non-Disclosure Agreement (NDA)/Letter of confidentiality


What is it? This agreement protects confidential information belonging to your business including IP and other information which you do not want to be made public. Why is it important? It is important to have an NDA in place before sharing any confidential or sensitive information in business meetings with people with whom you intend to do business eg investors, prospective co-founders, suppliers, consultants and the like. A letter of confidentiality is similar to a non-disclosure agreement. The party disclosing confidential information imposes restrictions as to the use of this confidential information to the party receiving it. Risks If you do not have the required safeguards in place to protect your intellectual property during business meetings or negotiations you may have your designs, inventions or work stolen or copied by the person with whom you are negotiating. This could be disastrous for your business.




one-way confidentiality agreement


What is it? A one-way Confidentiality agreement is similar to a non-disclosure agreement but imposes restrictions as to the use of this confidential information only on one party.




Assignment of intellectual property


What is it? An IP assignment agreement transfers rights and ownership in an IP created by one-person eg trademark, patent, logo, designs or any other IP to someone else or to a business. Why is it important? An IP assignment agreement is important when a business is sold, and the founder created intellectual property before becoming a part of the company or a company employs a someone whether consultant or employee to do some work. If you assign IP rights to another business, you are transferring ownership of the IP. It is more common to licence intellectual property rights than to assign them in business. Licensing allows a third party to have rights over the IP and do certain acts with the IP that they would not otherwise have been able to do but you keep ownership of the IP. You can limit the licence to a certain area eg the UK, Middle East, Africa etc or to a certain period of time eg 1 year, 2 years etc. Risks If for example you assign your IP to a business and it fails, you would have lost your IP. If on the other hand you licence your IP to another business, you are in ultimate control and can stipulate how the IP should be used and when it has to be returned. You can also stipulate that the IP be returned to you if the business goes into liquidation or on the happening of certain events.




Copyright


What is it? Copyright is the exclusive right to use and reproduce in public any material you have created if it falls into one of the following categories: i) Written work such as books, plays film scripts, web content, articles, essays, professional opinions, tables, compilations and databases; ii)Artistic works such as paintings, drawings, photos, maps, charts, plan, diagrams etc; iii)sound recordings; iv)Films, music and broadcasts; or v) computer programs. Why is it important? Copyright arises automatically when you create the work so there is no need to register copyright to own a work that you have created. You should be wary of any person that asks you to pay them to register your copyright in a work that you have created as it will be a scam. Businesses as well as individuals can own copyright. Copyright usually lasts for 70 years. You can buy someone’s copyright via a document called a Deed of assignment or give them a licence to use your copyright. As a general rule if an employee creates a work in the course of their employment their employer (ie the business ) will own the work. However, if the work in question is not part of the agreed duties of the employee the employee will own the work. To ensure that copyright work created by employees is owned by the business you should include appropriate intellectual property clauses in your employment contracts. Risks If you commission a piece of work from a freelancer the copyright in the work will belong to the freelancer unless the parties have agreed otherwise. It is important to ensure that the position on ownership of the copyright in writing before work starts to ensure that the business owns the copyright in the work produced by the freelancer.





Sale and Purchase of Commerial Property

Settlement agreement


What is it?

A Settlement Agreement is a binding contract between an employer and employee which settles claims that an employee may have against their employer. Whilst such an agreement is usually used in relation to be ending the employment it may also be used to settle a dispute that has arisen between an employer and employee where there is no intention by either party to end the employment.

Why is it important?

The terms of the settlement agreement must be mutually agreed between the employer and employee and must include a waiver of the specific claims which the employee has or could have. The agreement should contain a breakdown of the payments which have been agreed and should also state whether any of the payments are to be paid to the employee free of tax. Payments of up to £30k compensation can often be paid without deduction of tax if the payment is being made on an “ex gratia basis” (i.e. it is a payment you have voluntarily decided to make rather than one that you are legally obliged to make) or as compensation damages for a breach of contract.

Risks?

For a settlement agreement to be legally binding it must meet a number of statutory requirements eg it must be in writing, must specify the particular claims or complaints which the agreement is settling and the employee must have received advice on the terms and effect of the agreement from an independent solicitor or a trade union official whose advice is covered by insurance.

If the settlement agreement does not meet all of the statutory requirements, it will not be binding and the employee can still bring claims against the employer relating to the claims allegedly “settled” by the settlement agreement.It is a good idea to take proper legal advice before you decide to enter into a settlement agreement.

For more information on settlement agreements, contact our employment solicitors




Reference letter


What is it?

A Reference letter is a letter that is usually written to testify to a person’s or (sometimes) a company’s skills, experience, character and or achievements. It is used in various circumstances eg when a candidate applies for a job and needs a reference to support their application, if a job candidate is made a job offer and is asked to provide a reference letter before the contract can be signed, a landlord asks a prospective tenant to provide a reference letter testifying to their character and good financial statues, a student applies for funding and is asked to provide a reference letter or a company applies for a tender and is asked to provide reference letters testifying to their ability to do the job and their trustworthiness.

Why is it important?

A Reference letter is a formal document and should be written in a business-like style. Do not mention any weaknesses that the candidate has or say anything that could be construed as derogatory or libel. If you honestly feel that the applicant has no good qualities or if you have had a dispute with them in the past you should tell them to get a reference letter from someone else. An employer must give a reference if there was a written agreement to do so and they are in a regulated industry such as Financial services.

Risks

You are under no obligation to give a work reference but if you do it must be fair and accurate. Your employee may be able to sue you in court and claim damages if you give a reference, they think is misleading or unfair. To do so the employee must be able to show that (a ) the reference is misleading or inaccurate and (b) they suffered a loss eg a job offer was withdrawn.It is essential that you do not lie in it or you could be sued.

Need some advice? Contact our employment solicitors.





Buying & Selling a business

Terms and conditions for supply of services to business customers


What is it? Terms and conditions set out the rules and specifications which apply in every supply of services that a seller makes and helps to make everyone aware of their rights and obligations from the outset. Why is it important? Make sure you protect your business interests with professionally prepared terms and conditions. When supplying services to a business your terms and conditions should cover issues such as timing and termination of supply, orders, specifications, obligations, pricing, payment, intellectual property, confidentiality, warranties, liability and termination.




Terms and conditions for sale of goods to business customers


What is it? Terms and conditions set out the rules and specifications which apply in every sale of goods that a seller makes and helps to make everyone aware of their rights and obligations from the outset. Why is it important? When selling goods to a business your terms and conditions should cover the nature of products to be sold, orders, delivery, pricing, payment, risk, warranties, defects, liability and confidentiality.




Terms and conditions for supply of services to consumers/businesses


What is it?

There are different terms and conditions for the supply of services to businesses (B2B contracts) and the supply of services to consumers(B2C contracts). When a business deals with a consumer (ie someone who buys goods or services for personal use, as opposed to buying the goods or services on behalf of a business) the consumer is given more legal protection than a business.

Why is it important?

Any business that is entering into a contract with a consumer must abide by a wide range of consumer law requirements such as the Consumer Rights Act 2015, the Sale of Goods Act and Supply of Goods and Services Act , the Consumer Contracts Regulations , the Misrepresentation Act and the Data Protection Act.

Risks

The T&Cs for supply of services to consumers should be used when

  • You are supplying services with or without goods to customers not acting in the course of a business (i.e. consumers).

The T&Cs for supply of services to businesses should be used when

  • You are supplying services with or without goods to customers acting in the course of a business (i.e. Businesses).




Consent Notices


What is it? The law provides that if your website is based in the EU or if you are targeting customers in the EU and your site uses one or more cookies you need to display a cookie consent notice. To comply with the law your need to do three things Let users to your website know that you are using cookies. Provide a link where they can learn more about how you use the data you gather. Provide a way for your website users to consent to the use of cookies. Consent can be explicit opt-in consent and implied consent. For explicit consent, users have to click a button, select a checkbox or complete some other specific activity to opt in to the use of cookies. The most common way to do this is to display a banner at the top or bottom of your website with a link to your Privacy policy and a button to consent to the use of cookies and hide the banner. For implied consent a clear notice must be provided, and the user must be made aware that a specific action will be understood to be implied consent to the use of cookies. One way that implied consent is obtained is by displaying a prominent cookie notice that ends with a statement like “By continuing to use this site you agree to the use of cookies”. The law applies whether a user is on a smartphone, tablet, a laptop, computer or other device. So when you set up your cookie notice you must ensure that the notice appears and functions well on all devices. There are also plugins for Cookie consent notices.




Terms and conditions for sale of goods to consumers/businesses


What is it?

There are different terms and conditions for the sale of goods to businesses (B2B) and the sale of goods to consumers(B2C).

Why is it important?

The T&Cs for sale of goods to consumers should be used when

  • You are supplying goods with or without services to customers not acting in the course of a business (i.e. consumers)

The T&Cs for sale of goods to businesses should be used when

  • You are supplying goods with or without services to customers acting in the course of a business (i.e. businesses)




Terms and conditions for sale of goods to consumers via a website





Terms and conditions for supply of services to consumers via a website





Heads of terms


What is it? This is similar to a Memorandum of Understanding (MOU)s, Term sheet or Letter of intent. The heads of terms set out the key terms agreed by the parties before entering a business transaction. It is not contractually binding. Heads of Terms are usually set out in a letter or document setting out the key terms agreed by parties who intend to enter a binding contract. It is also known as Letter of Intent, a Memorandum of Understanding (MOU) or a Term Sheet. It is a useful tool when two or more parties intend to enter a future contract and want to identify, describe and agree, without it being contractually binding, the terms to be further negotiated and then recorded in a contractually binding contract. There will occasionally be statements in heads of terms which are exceptions to the general approach that heads of terms are not binding: this will occur if the parties put in statements which heads of terms expressly state are to be of legally binding effect until a definitive contract is signed. If that is the case those statements will generally be binding. Why is it important? Heads of terms are useful to set out the progress made during negotiations, reduce the potential for misunderstandings, indicate the major issues which still need to be resolved and make it clear what the parties intend when they enter into the contract. The disadvantage of Heads of terms is that it can take up a considerable amount of time and may distract the parties from working on negotiating a full and detailed binding contract. Risks There have been occasions when the parties to a proposed commercial arrangement never actually agree or sign a definite contract and have gone on to implement their deal based only on the Heads of terms. This creates a very uncertain legal position which may lead to disputes and legal problems.




Letter of intent (LOI)


What is it? A Letter of Intent is a pre-contract, non-binding document setting out the key terms agreed by parties who intend to enter into a binding contract. It is also known as Heads of Terms, a Memorandum of Understanding (MOU) or a Term Sheet. It is a useful tool when two or more parties intend to enter into a future contract and want to identify, describe and agree, without it being contractually binding, the terms to be further negotiated and then recorded in a contractually binding contract. There will occasionally be statements in a letter of intent which are exceptions to the general approach that a letter of intent is not binding: this will occur if the parties put in statements which the letter of intent expressly states are to be of legally binding effect until a definitive contract is signed. If that is the case those statements will generally be binding. Why is it important? A letter of intent is useful to set out the progress made during negotiations, reduce the potential for misunderstandings, indicate the major issues which still need to be resolved and make it clear what the parties intend when they enter into the contract. The disadvantage of a letter of intent is that it can take up a considerable amount of time and may distract the parties from working on negotiating a full and detailed binding contract. Risks There have been occasions when the parties to a proposed commercial arrangement never actually agree or sign a definite contract and have gone on to implement their deal based only on the letter of intent. This creates a very uncertain legal position which may result in disputes and legal problems.




Invoice


What is it? An invoice is a statement setting out the goods and or services that have been supplied by a seller to a buyer and the money owed for those goods and or services. It is created by a seller or supplier to request payment for goods sold and or services provided. It is also called a bill. Why is it important? It identifies the trading partners, specifies the terms of the deal and provides information on the payment figure, the available methods of payment and the payment terms i.e. the maximum amount of time that a buyer had to pay for the goods and or services that they have purchased from the seller.




Sales of goods agreements


What is it?

A Sale of Goods Agreement (sometimes called a Sales Agreement or Sales Contract) is a contract entered into between a buyer and a seller of goods for the sale and purchase of specific goods by the buyer. When you sell goods, you create a sale of goods contract.

Why is it important?

The terms in a sale of goods contract may vary depending on whether it is a sale to a consumer (i.e. a B2C contract ) or a sale to a business (i.e. a “commercial” sale or B2B contract.) A consumer is someone who buys goods or services for personal use, as opposed to buying the goods or services on behalf of a business. Consumers who act as the buyer in a contract for a sale of goods are given more legal protection than businesses. The legal protection is given to help the party considered to be the more vulnerable party to the contract ie the consumer as opposed to the business.

The sale of goods agreement will set out the seller and buyer’s obligations, the terms on which the seller is willing to sell and transfer the goods to the buyer, the nature of the goods to be sold, the price, payment terms, shipping and collection details, delivery time and what happens at the end of the contract.

Risks

A Sale of Goods Agreement can be made orally or in writing. However, having a well-written Sale of Goods Agreement can help protect one or both of the parties if there is a problem with the sale eg goods are late in arriving or the goods have been damaged or destroyed.




Purchase order


What is it? A purchase order is prepared by a buyer when the buyer orders goods or services from a seller. The purchase order will indicate the type of goods, quantity of goods and the price the buyer is willing to pay for the products and or services. Once the seller accepts the purchase order it becomes a legally binding contract as the seller has agreed to sell the goods and or services at the prices put forward by the buyer. The seller will then issue an invoice to the buyer based on the purchase order. Why is it important? Purchase orders are important for businesses as it is instrumental in tracking expenditure, makes orders easier to track, helps avoid audit problems and provides contractual legal protection for the buyer and the supplier. Alongside a purchase order system, it is vital that a company has strong credit management practices to safeguard cash flow from bad debts and late payment. A strong debt collection process is vital to ensure payment is made when the goods or services have been delivered. Invoice promptly and accurately and chase up with reminders. If a customer will not pay or ignores payment requests take action – Appoint a debt collection agency, take debt recovery action through the courts or pass the debt to a solicitor. Pure Business Law has experienced debt collection lawyers who can assist you with debt recovery.




Services agreement


What is it? A Service agreement also known as a Service contract or Contract for Services is a written agreement between a service provider and a customer setting out agreed terms for the supply of services. The terms should include details of the services to be provided, location of provision of the services, payment. Limitation of liability clause, tools or materials to be used, termination of the agreement, ownership of intellectual property clause and dispute resolution clauses. Why is it important? A services agreement is required when a business wants to engage another business to supply services. If your business is the service provider, you should use a service contract whenever you are hired by a customer to complete a service. If you are the customer and the service provider does not supply the contract, you can use a Service agreement to ensure that the terms of the service relationship are clear.





Managing licenses


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Protecting your IP


Business Relationships


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Operating as a Sole Trader

Notice of breach of covenants


What is it?

This is popularly called a Section 146 Notice (it is a notice required to be served by section 146 of the Law of Property Act 1925 and relates solely to business tenants) that warns a tenant who is in breach of covenant (other than the covenant to pay rent) of the landlord’s intention to forfeit the lease on ground of the breach of covenant.

Why is it important?

“Forfeiture” is the right of the landlord to re-enter the commercial property and take back possession of the property if a covenant has been breached.

For the notice to be valid and binding the notice must specify the breach of covenant and if the breach is capable of remedy , require the tenant to remedy it and pay monetary compensation to the landlord for the breach.

A landlord can only serve such a notice if the lease contains a right to forfeit the lease (i.e. a right of re-entry). The notice must also contain certain prescribed information. If the tenant does not remedy the breach within a reasonable time the landlord can start forfeiture proceedings in the County Court.

Risks

A landlord who wants to forfeit the lease must avoid “waiving” the breach of covenant. Waiver occurs where a landlord becomes aware of a breach of the lease but does not take action against the tenant within a reasonable period or acknowledges the continuation of the lease by for example demanding rent or service charges or accepting rent payments from the tenant.




Break notice


What is it? A Break Notice, also known as a Break Clauses or a break option, is an important contractual provision in a lease which allows either a landlord or tenant to bring a Lease to an early end. Some landlords often have a vested interest in making life difficult for a tenant seeking to exercise its option to break the lease by making the option subject to stringent conditions. Why is it important?

Break Notices are akin to options and are therefore strictly construed by the courts . From the tenant’s perspective, a properly drafted Break Clause gives them the opportunity to avoid being tied into a lease that they can no longer afford. This is a safety-net for a tenant – especially if they are just starting out.

Understandably though, a landlord who is receiving a steady rental income may be reluctant to lose a tenant, particularly in tough economic times.

Risks

Any tenant seeking to exercise the option to break the lease must check the lease carefully and ensure they follow the landlord’s “break clause conditions” to the letter. It is crucial when taking a lease that a tenant understands that the conditions of the Break Clause can easily defeat an option to break unless followed to the letter. If the conditions are not strictly followed the termination is not valid and the tenant remains a lessee until the expiry of the lease, the next break clause date or until the tenant is able to assign the lease with the landlord’s consent if there is such a provision in the lease.

A properly advised tenant should refuse any condition, other than up-to date payment of principal rent and giving up occupation.




Tenant's agreement to exclude security of tenure


What is it?

The Landlord and Tenant Act 1954 provides tenants of business premises with rights of ‘security of tenure’. This means that once a business tenant’s lease expires, the tenant has the right to request a new lease on the same terms as the previous lease (subject to agreement on terms, such as the amount of rent, any legislative updates etc), except where the landlord has a statutory ground to refuse a new lease (for instance, if the tenant has failed to pay rent or the landlord wishes to redevelop the premises).

Why is it important?

When agreeing to enter into a commercial or business lease, one of the things that will be discussed when agreeing Heads of Terms is whether your lease will be ‘protected’ with security of tenure, or ‘contracted out’ i.e. excluded’ from security of tenure. It is quite common for landlords to require that security of tenure rights are excluded from a lease. They do this by asking the prospective tenant to sign a notice in front of an independent solicitor agreeing to the exclusion of security of tenure under the lease.

Risks

This notice means that a tenant of commercial premises will not have the automatic right to request a renewal of their lease at the end of the term of the lease, leaving the landlord free to let the property to another tenant at the end of the term. This is because landlords often wish to retain strict control over the occupation of their property. If security of tenure is excluded, you the tenant, must vacate the property at the end of the lease in accordance with its terms unless you have negotiated a new lease with the landlord separately.




Landlord's notice to exclude security of tenure





Section 25 Notice


What is it?

This is a notice by the landlord under s25 of the Landlord and Tenant Act 1954.

Why is it important?

It allows the landlord to start a procedure which will end either in the tenant being granted a new lease or in the tenant vacating. This notice cannot be given before the last year of the lease terms nor after the tenant has served a request for a new tenancy under s26 of the Act.

Risks

The s25 notice must state the date on which the landlord intends to bring the existing lease to an end.




Section 26 Notice


What is it?

This is a notice given by the tenant requesting a new tenancy upon the termination of the old tenancy.

Why is it important?

The s26 request must specify the date on which the existing lease is to end.

Risks

This notice cannot be served before the last year of the agreed lease term nor can it be served after the landlord has served a s25 notice.




Licence for alterations


What is it?

This is a licence from the landlord to the tenant giving the tenant the right to carry out specific works or alterations to the property that is being let. The alterations may be major or minor.

Why is it important?

The Licence should include provisions as to the manner in which the tenant will carry out the works, timescales, reinstatement and (to the extent applicable) the Construction (Design and Management) Regulations 2015. Drawings and specifications showing the proposed works should be attached to the Licence so that it is clear what the landlord is consenting to.

If the proposed alterations are not substantial (e.g. the erection of demountable partitioning or signage) you can use a simple Letter- Licence to Alter.




Section 27 Notice


What is it? A tenant has the right under s27 of the 1954 Act to bring the tenancy to an end by giving at least three months’ notice before the date on which the tenancy would otherwise expire. If the lease term has expired but the tenancy is still continuing under the 1954 Act the tenant may bring that continuing tenancy to an end by giving not less than three months’ notice in writing to the landlord.





Managing licenses


Running an online business


Protecting your IP


Business Relationships


Writing a business plan


Ending or Assigning an Existing Agreement

Notice of breach of covenants


What is it?

This is popularly called a Section 146 Notice (it is a notice required to be served by section 146 of the Law of Property Act 1925 and relates solely to business tenants) that warns a tenant who is in breach of covenant (other than the covenant to pay rent) of the landlord’s intention to forfeit the lease on ground of the breach of covenant.

Why is it important?

“Forfeiture” is the right of the landlord to re-enter the commercial property and take back possession of the property if a covenant has been breached.

For the notice to be valid and binding the notice must specify the breach of covenant and if the breach is capable of remedy , require the tenant to remedy it and pay monetary compensation to the landlord for the breach.

A landlord can only serve such a notice if the lease contains a right to forfeit the lease (i.e. a right of re-entry). The notice must also contain certain prescribed information. If the tenant does not remedy the breach within a reasonable time the landlord can start forfeiture proceedings in the County Court.

Risks

A landlord who wants to forfeit the lease must avoid “waiving” the breach of covenant. Waiver occurs where a landlord becomes aware of a breach of the lease but does not take action against the tenant within a reasonable period or acknowledges the continuation of the lease by for example demanding rent or service charges or accepting rent payments from the tenant.




Break notice


What is it? A Break Notice, also known as a Break Clauses or a break option, is an important contractual provision in a lease which allows either a landlord or tenant to bring a Lease to an early end. Some landlords often have a vested interest in making life difficult for a tenant seeking to exercise its option to break the lease by making the option subject to stringent conditions. Why is it important?

Break Notices are akin to options and are therefore strictly construed by the courts . From the tenant’s perspective, a properly drafted Break Clause gives them the opportunity to avoid being tied into a lease that they can no longer afford. This is a safety-net for a tenant – especially if they are just starting out.

Understandably though, a landlord who is receiving a steady rental income may be reluctant to lose a tenant, particularly in tough economic times.

Risks

Any tenant seeking to exercise the option to break the lease must check the lease carefully and ensure they follow the landlord’s “break clause conditions” to the letter. It is crucial when taking a lease that a tenant understands that the conditions of the Break Clause can easily defeat an option to break unless followed to the letter. If the conditions are not strictly followed the termination is not valid and the tenant remains a lessee until the expiry of the lease, the next break clause date or until the tenant is able to assign the lease with the landlord’s consent if there is such a provision in the lease.

A properly advised tenant should refuse any condition, other than up-to date payment of principal rent and giving up occupation.




Tenant's agreement to exclude security of tenure


What is it?

The Landlord and Tenant Act 1954 provides tenants of business premises with rights of ‘security of tenure’. This means that once a business tenant’s lease expires, the tenant has the right to request a new lease on the same terms as the previous lease (subject to agreement on terms, such as the amount of rent, any legislative updates etc), except where the landlord has a statutory ground to refuse a new lease (for instance, if the tenant has failed to pay rent or the landlord wishes to redevelop the premises).

Why is it important?

When agreeing to enter into a commercial or business lease, one of the things that will be discussed when agreeing Heads of Terms is whether your lease will be ‘protected’ with security of tenure, or ‘contracted out’ i.e. excluded’ from security of tenure. It is quite common for landlords to require that security of tenure rights are excluded from a lease. They do this by asking the prospective tenant to sign a notice in front of an independent solicitor agreeing to the exclusion of security of tenure under the lease.

Risks

This notice means that a tenant of commercial premises will not have the automatic right to request a renewal of their lease at the end of the term of the lease, leaving the landlord free to let the property to another tenant at the end of the term. This is because landlords often wish to retain strict control over the occupation of their property. If security of tenure is excluded, you the tenant, must vacate the property at the end of the lease in accordance with its terms unless you have negotiated a new lease with the landlord separately.




Landlord's notice to exclude security of tenure





Section 25 Notice


What is it?

This is a notice by the landlord under s25 of the Landlord and Tenant Act 1954.

Why is it important?

It allows the landlord to start a procedure which will end either in the tenant being granted a new lease or in the tenant vacating. This notice cannot be given before the last year of the lease terms nor after the tenant has served a request for a new tenancy under s26 of the Act.

Risks

The s25 notice must state the date on which the landlord intends to bring the existing lease to an end.




Section 26 Notice


What is it?

This is a notice given by the tenant requesting a new tenancy upon the termination of the old tenancy.

Why is it important?

The s26 request must specify the date on which the existing lease is to end.

Risks

This notice cannot be served before the last year of the agreed lease term nor can it be served after the landlord has served a s25 notice.




Licence for alterations


What is it?

This is a licence from the landlord to the tenant giving the tenant the right to carry out specific works or alterations to the property that is being let. The alterations may be major or minor.

Why is it important?

The Licence should include provisions as to the manner in which the tenant will carry out the works, timescales, reinstatement and (to the extent applicable) the Construction (Design and Management) Regulations 2015. Drawings and specifications showing the proposed works should be attached to the Licence so that it is clear what the landlord is consenting to.

If the proposed alterations are not substantial (e.g. the erection of demountable partitioning or signage) you can use a simple Letter- Licence to Alter.




Section 27 Notice


What is it? A tenant has the right under s27 of the 1954 Act to bring the tenancy to an end by giving at least three months’ notice before the date on which the tenancy would otherwise expire. If the lease term has expired but the tenancy is still continuing under the 1954 Act the tenant may bring that continuing tenancy to an end by giving not less than three months’ notice in writing to the landlord.





Managing licenses


Running an online business


Protecting your IP


Business Relationships


Writing a business plan


Health & Safety

Cookie Policy


What is it? A cookie is a small text file that that is stored on a website user’s computer to collect information. Why is it important? If you have cookies on your website you should have a cookie policy that informs users to your website what the cookies do, why you are collecting the information and how they can turn off cookies within their computer browser. Risks You must also get their consent and the consent must be clearly given.




Terms of Business


What is it? Your Terms of Business set out the terms and conditions on which you conduct your business and is the contract between you and your customer. Why is it important? Written terms and conditions of business are important especially when there is a dispute between your business and a customer or supplier. Written terms of business will clarify the scope of your services or the goods you agreed to sell or supply and certainty as to the agreed price, payment method, guarantees, warranties, remedies of the buyer if there is a dispute. Risks When selling goods and services online you must comply with certain legal requirements including the distance selling regulations.




Commission Linking Agreement


What is it? If you are linking your website to another website in order to share commission with the other website owner or to benefit from extra sales you need a Website Commission Linking Agreement.




Consent Notices


What is it? The law provides that if your website is based in the EU or if you are targeting customers in the EU and your site uses one or more cookies you need to display a cookie consent notice. To comply with the law your need to do three things:

  1. Let users to your website know that you are using cookies.
  2. Provide a link where they can learn more about how you use the data you gather.
  3. Provide a way for your website users to consent to the use of cookies.
Consent can be explicit opt-in consent and implied consent. For explicit consent, users have to click a button, select a checkbox or complete some other specific activity to opt in to the use of cookies. The most common way to do this is to display a banner at the top or bottom of your website with a link to your Privacy policy and a button to consent to the use of cookies and hide the banner. For implied consent a clear notice must be provided, and the user must be made aware that a specific action will be understood to be implied consent to the use of cookies. One way that implied consent is obtained is by displaying a prominent cookie notice that ends with a statement like “By continuing to use this site you agree to the use of cookies”. The law applies whether a user is on a smartphone, tablet, a laptop, computer or other device. So when you set up your cookie notice you must ensure that the notice appears and functions well on all devices. There are also plugins for Cookie consent notices.




GDPR Compliance


What is it? The Data Protection Act 2018 and the General Data Protection Regulation (GDPR) regulates the processing of personal data by companies in the UK, specifying, for example, that data must be kept accurate and secure. A data protection policy is a statement of how you handle personal information given to you by your customers. The Privacy and Electronic Communications Regulations set out a variety of rules which apply to the use of email marketing campaigns and regulates the use of cookies. Pure Business Law can assist you with all your data compliance matters.




Terms and conditions for sale of goods to consumers via a website


What is it? Your Terms of Business or Terms and Conditions sets out the rights and obligations of the buyer and the seller in any sale of goods. Standard terms and conditions for the sale of goods help to make each party to the contract (whether a business or consumer) aware of their rights and obligations from the start. Why is it important? If you are dealing with a consumer there is a considerable amount of legislation eg the Consumer Rights Act 2015 aimed at protecting consumers which must be taken into account when preparing your terms and conditions. Make sure you do things right when creating your terms and conditions.




Terms and conditions for supply of services to consumers via a website


What is it? Your Terms of Business or Terms and Conditions sets out the rights and obligations of the buyer and the seller in any supply of services. Standard terms and conditions for the supply of services help to make each party to the contract (whether a business or consumer) aware of their rights and obligations from the start. Why is it important? If you are dealing with a consumer there is a considerable amount of legislation eg the Consumer Rights Act 2015 aimed at protecting consumers which must be taken into account when preparing your terms and conditions. Make sure you do things right when creating your terms and conditions.




Email footer and disclaimer


What is it? An email footer sets out information required by law about limited companies and limited liability partnerships. The Companies Act 1985 requires all business emails from a private or public limited company to include the company’s registered name, registered number, place of registration and its registered office address. Why is it important? An email disclaimer is a notice or warning added to an email designed to protect the email sender from breaches of confidentiality, contractual claims. Virus propagation and employee liability. An email disclaimer is optional.




Website terms and conditions


What is it? If you have a website it is a good idea to create website terms and conditions as it helps to ensure that customers and users know how a website can and cannot be used. They set out the legal rights and obligations between you and users of your website. They cover the acceptable uses of the website, prohibited use of the website, registration, password and security, linked websites, disclaimers and limitation of liability.




Privacy policy


What is it? A website privacy policy is a statement of how you handle personal information given to you by your customers. When you trade on the internet you will most likely be handling personal information because you keep records of your customers or website users. Why is it important? A website privacy policy helps build trust in your website and informs your visitors how their personal data is protected. In the UK the main legislation governing the collection, processing and distribution of personal data is the Data Protection Act 2018 and the General Data Protection Regulation (GDPR).




Website Terms of Use or Online Terms of Use


What is it? Your Website terms of use set out the legal rights and obligations between you and users of your website. Even if you do not sell goods on your website, you should have a written set of terms and conditions to cover all permitted and prohibited uses of your website, including any registration requirements, linked websites, disclaimers, limitation of liability and associated subscription fees.





Managing licenses


Running an online business


Protecting your IP


Business Relationships


Writing a business plan


 
 
 
 

Planning & Highways

Notice of breach of covenants


What is it?

This is popularly called a Section 146 Notice (it is a notice required to be served by section 146 of the Law of Property Act 1925 and relates solely to business tenants) that warns a tenant who is in breach of covenant (other than the covenant to pay rent) of the landlord’s intention to forfeit the lease on ground of the breach of covenant.

Why is it important?

“Forfeiture” is the right of the landlord to re-enter the commercial property and take back possession of the property if a covenant has been breached.

For the notice to be valid and binding the notice must specify the breach of covenant and if the breach is capable of remedy , require the tenant to remedy it and pay monetary compensation to the landlord for the breach.

A landlord can only serve such a notice if the lease contains a right to forfeit the lease (i.e. a right of re-entry). The notice must also contain certain prescribed information. If the tenant does not remedy the breach within a reasonable time the landlord can start forfeiture proceedings in the County Court.

Risks

A landlord who wants to forfeit the lease must avoid “waiving” the breach of covenant. Waiver occurs where a landlord becomes aware of a breach of the lease but does not take action against the tenant within a reasonable period or acknowledges the continuation of the lease by for example demanding rent or service charges or accepting rent payments from the tenant.




Break notice


What is it? A Break Notice, also known as a Break Clauses or a break option, is an important contractual provision in a lease which allows either a landlord or tenant to bring a Lease to an early end. Some landlords often have a vested interest in making life difficult for a tenant seeking to exercise its option to break the lease by making the option subject to stringent conditions. Why is it important?

Break Notices are akin to options and are therefore strictly construed by the courts . From the tenant’s perspective, a properly drafted Break Clause gives them the opportunity to avoid being tied into a lease that they can no longer afford. This is a safety-net for a tenant – especially if they are just starting out.

Understandably though, a landlord who is receiving a steady rental income may be reluctant to lose a tenant, particularly in tough economic times.

Risks

Any tenant seeking to exercise the option to break the lease must check the lease carefully and ensure they follow the landlord’s “break clause conditions” to the letter. It is crucial when taking a lease that a tenant understands that the conditions of the Break Clause can easily defeat an option to break unless followed to the letter. If the conditions are not strictly followed the termination is not valid and the tenant remains a lessee until the expiry of the lease, the next break clause date or until the tenant is able to assign the lease with the landlord’s consent if there is such a provision in the lease.

A properly advised tenant should refuse any condition, other than up-to date payment of principal rent and giving up occupation.




Tenant's agreement to exclude security of tenure


What is it?

The Landlord and Tenant Act 1954 provides tenants of business premises with rights of ‘security of tenure’. This means that once a business tenant’s lease expires, the tenant has the right to request a new lease on the same terms as the previous lease (subject to agreement on terms, such as the amount of rent, any legislative updates etc), except where the landlord has a statutory ground to refuse a new lease (for instance, if the tenant has failed to pay rent or the landlord wishes to redevelop the premises).

Why is it important?

When agreeing to enter into a commercial or business lease, one of the things that will be discussed when agreeing Heads of Terms is whether your lease will be ‘protected’ with security of tenure, or ‘contracted out’ i.e. excluded’ from security of tenure. It is quite common for landlords to require that security of tenure rights are excluded from a lease. They do this by asking the prospective tenant to sign a notice in front of an independent solicitor agreeing to the exclusion of security of tenure under the lease.

Risks

This notice means that a tenant of commercial premises will not have the automatic right to request a renewal of their lease at the end of the term of the lease, leaving the landlord free to let the property to another tenant at the end of the term. This is because landlords often wish to retain strict control over the occupation of their property. If security of tenure is excluded, you the tenant, must vacate the property at the end of the lease in accordance with its terms unless you have negotiated a new lease with the landlord separately.




Landlord's notice to exclude security of tenure





Section 25 Notice


What is it?

This is a notice by the landlord under s25 of the Landlord and Tenant Act 1954.

Why is it important?

It allows the landlord to start a procedure which will end either in the tenant being granted a new lease or in the tenant vacating. This notice cannot be given before the last year of the lease terms nor after the tenant has served a request for a new tenancy under s26 of the Act.

Risks

The s25 notice must state the date on which the landlord intends to bring the existing lease to an end.




Section 26 Notice


What is it?

This is a notice given by the tenant requesting a new tenancy upon the termination of the old tenancy.

Why is it important?

The s26 request must specify the date on which the existing lease is to end.

Risks

This notice cannot be served before the last year of the agreed lease term nor can it be served after the landlord has served a s25 notice.




Licence for alterations


What is it?

This is a licence from the landlord to the tenant giving the tenant the right to carry out specific works or alterations to the property that is being let. The alterations may be major or minor.

Why is it important?

The Licence should include provisions as to the manner in which the tenant will carry out the works, timescales, reinstatement and (to the extent applicable) the Construction (Design and Management) Regulations 2015. Drawings and specifications showing the proposed works should be attached to the Licence so that it is clear what the landlord is consenting to.

If the proposed alterations are not substantial (e.g. the erection of demountable partitioning or signage) you can use a simple Letter- Licence to Alter.




Section 27 Notice


What is it? A tenant has the right under s27 of the 1954 Act to bring the tenancy to an end by giving at least three months’ notice before the date on which the tenancy would otherwise expire. If the lease term has expired but the tenancy is still continuing under the 1954 Act the tenant may bring that continuing tenancy to an end by giving not less than three months’ notice in writing to the landlord.





Managing licenses


Running an online business


Protecting your IP


Business Relationships


Writing a business plan


 

Managing employee performance

Share Purchase Agreement


What is it?

A Share purchase agreement (SPA) is an agreement setting out the terms and conditions relating to the sale and purchase of shares in a company. Share purchase agreements are often complex documents which can become lengthy and create significant delay, friction and cost if not dealt with by experienced, business minded lawyers.

Why is it important?

There is often a choice and negotiation over whether it’s best for either or both parties to buy/sell assets rather than shares. This would depend on whether the current owner (seller) is a limited company. If not, there can be no share sale! Further, where a buyer wants to preserve as many customer relations as possible, they may elect to buy the shares as opposed to assets.

The seller’s solicitor usually draws up the draft share purchase agreement.

Risks

While the buyer’s solicitor will try to protect the buyer the interest of the seller’s solicitor is to minimise this protection, in particular by limiting the seller’s liability for misrepresentation. However, in practice, where there is fraudulent misrepresentation the seller will still be liable so the buyer may accept such clauses since they are not valid if the seller can prove fraudulent misrepresentation.

Please contact us if you require specialist commercial lawyers to review, draft, negotiate, amend or generally advise on a share purchase agreement.




Asset Purchase Agreement


What is it?

An asset purchase agreement is an agreement setting out the terms and conditions relating to the sale and purchase of assets of a business. In an asset purchase, the company itself will be selling the assets, whilst in a share sale, the individual shareholders will be the sellers.

Occasionally a buyer will prefer to acquire certain assets of a business rather than acquire all of the shares in a company and therefore, both its assets and liabilities.

A buyer will normally prefer to buy the assets of a business, while the seller will prefer to sell the shares. The main benefit of an asset purchase is that a buyer may selectively pick the assets and liabilities they want to acquire and there is generally less risk of hidden liabilities than with a share purchase.

Risks

The main disadvantage of an asset sale, as opposed to a share purchase agreement is that each item must be transferred in accordance with its proper rules and made enforceable against third parties (eg through consents and approvals). This is especially the case for customer contracts, as a third party may view the transaction as an opportunity to renegotiate their contract thereby adding delay and additional costs to the transaction.

In addition, there may be other important contracts that are non-transferrable, or licences and consents unique to the seller which may not be transferrable.

In an asset sale it is vital to identify what exactly is being purchased. Assets transferred as part of an Asset purchase agreement may include:

  • Plant and machinery.
  • Premises;
  • Stock;
  • Contracts;
  • Know-how; and
  • Goodwill.

Please contact us if you require specialist commercial lawyers to review, draft, negotiate, amend or generally advise on a share purchase agreement.




Disclosure Letter


What is it?

A Non-Disclosure letter or Non-Disclosure Agreement, also called a Confidentiality Agreement, is a legal contract between two or more parties by which the parties agree not to disclose information (which is intended to be kept secret) that they have shared with each other during a business relationship to third parties.

Why is it important?

This Agreement may either be one-way (unilateral) or two-way (mutual), depending on whether both parties will be providing the secret information. If one party will be providing the secret information to the other, it is called a Unilateral Non-Disclosure Agreement.

For example, where an inventor of an idea is sharing the idea with another person, the inventor is the disclosing party and the other party is the receiving party. If the two parties will share the secret information between themselves, it is called a Mutual Non-Disclosure Agreement.

This Agreement can be used to share intellectual property, share commercial trading information or formalize a business relationship, for example, between an employer and an employee





Reorganisation & Redundancies

Terms and conditions for supply of services to business customers


What is it? Terms and conditions set out the rules and specifications which apply in every supply of services that a seller makes and helps to make everyone aware of their rights and obligations from the outset. Why is it important? Make sure you protect your business interests with professionally prepared terms and conditions. When supplying services to a business your terms and conditions should cover issues such as timing and termination of supply, orders, specifications, obligations, pricing, payment, intellectual property, confidentiality, warranties, liability and termination.




Terms and conditions for sale of goods to business customers


What is it? Terms and conditions set out the rules and specifications which apply in every sale of goods that a seller makes and helps to make everyone aware of their rights and obligations from the outset. Why is it important? When selling goods to a business your terms and conditions should cover the nature of products to be sold, orders, delivery, pricing, payment, risk, warranties, defects, liability and confidentiality.




Terms and conditions for supply of services to consumers/businesses


What is it?

There are different terms and conditions for the supply of services to businesses (B2B contracts) and the supply of services to consumers(B2C contracts). When a business deals with a consumer (ie someone who buys goods or services for personal use, as opposed to buying the goods or services on behalf of a business) the consumer is given more legal protection than a business.

Why is it important?

Any business that is entering into a contract with a consumer must abide by a wide range of consumer law requirements such as the Consumer Rights Act 2015, the Sale of Goods Act and Supply of Goods and Services Act , the Consumer Contracts Regulations , the Misrepresentation Act and the Data Protection Act.

Risks

The T&Cs for supply of services to consumers should be used when

  • You are supplying services with or without goods to customers not acting in the course of a business (i.e. consumers).

The T&Cs for supply of services to businesses should be used when

  • You are supplying services with or without goods to customers acting in the course of a business (i.e. Businesses).




Consent Notices


What is it? The law provides that if your website is based in the EU or if you are targeting customers in the EU and your site uses one or more cookies you need to display a cookie consent notice. To comply with the law your need to do three things Let users to your website know that you are using cookies. Provide a link where they can learn more about how you use the data you gather. Provide a way for your website users to consent to the use of cookies. Consent can be explicit opt-in consent and implied consent. For explicit consent, users have to click a button, select a checkbox or complete some other specific activity to opt in to the use of cookies. The most common way to do this is to display a banner at the top or bottom of your website with a link to your Privacy policy and a button to consent to the use of cookies and hide the banner. For implied consent a clear notice must be provided, and the user must be made aware that a specific action will be understood to be implied consent to the use of cookies. One way that implied consent is obtained is by displaying a prominent cookie notice that ends with a statement like “By continuing to use this site you agree to the use of cookies”. The law applies whether a user is on a smartphone, tablet, a laptop, computer or other device. So when you set up your cookie notice you must ensure that the notice appears and functions well on all devices. There are also plugins for Cookie consent notices.




Terms and conditions for sale of goods to consumers/businesses


What is it?

There are different terms and conditions for the sale of goods to businesses (B2B) and the sale of goods to consumers(B2C).

Why is it important?

The T&Cs for sale of goods to consumers should be used when

  • You are supplying goods with or without services to customers not acting in the course of a business (i.e. consumers)

The T&Cs for sale of goods to businesses should be used when

  • You are supplying goods with or without services to customers acting in the course of a business (i.e. businesses)




Terms and conditions for sale of goods to consumers via a website





Terms and conditions for supply of services to consumers via a website





Heads of terms


What is it? This is similar to a Memorandum of Understanding (MOU)s, Term sheet or Letter of intent. The heads of terms set out the key terms agreed by the parties before entering a business transaction. It is not contractually binding. Heads of Terms are usually set out in a letter or document setting out the key terms agreed by parties who intend to enter a binding contract. It is also known as Letter of Intent, a Memorandum of Understanding (MOU) or a Term Sheet. It is a useful tool when two or more parties intend to enter a future contract and want to identify, describe and agree, without it being contractually binding, the terms to be further negotiated and then recorded in a contractually binding contract. There will occasionally be statements in heads of terms which are exceptions to the general approach that heads of terms are not binding: this will occur if the parties put in statements which heads of terms expressly state are to be of legally binding effect until a definitive contract is signed. If that is the case those statements will generally be binding. Why is it important? Heads of terms are useful to set out the progress made during negotiations, reduce the potential for misunderstandings, indicate the major issues which still need to be resolved and make it clear what the parties intend when they enter into the contract. The disadvantage of Heads of terms is that it can take up a considerable amount of time and may distract the parties from working on negotiating a full and detailed binding contract. Risks There have been occasions when the parties to a proposed commercial arrangement never actually agree or sign a definite contract and have gone on to implement their deal based only on the Heads of terms. This creates a very uncertain legal position which may lead to disputes and legal problems.




Letter of intent (LOI)


What is it? A Letter of Intent is a pre-contract, non-binding document setting out the key terms agreed by parties who intend to enter into a binding contract. It is also known as Heads of Terms, a Memorandum of Understanding (MOU) or a Term Sheet. It is a useful tool when two or more parties intend to enter into a future contract and want to identify, describe and agree, without it being contractually binding, the terms to be further negotiated and then recorded in a contractually binding contract. There will occasionally be statements in a letter of intent which are exceptions to the general approach that a letter of intent is not binding: this will occur if the parties put in statements which the letter of intent expressly states are to be of legally binding effect until a definitive contract is signed. If that is the case those statements will generally be binding. Why is it important? A letter of intent is useful to set out the progress made during negotiations, reduce the potential for misunderstandings, indicate the major issues which still need to be resolved and make it clear what the parties intend when they enter into the contract. The disadvantage of a letter of intent is that it can take up a considerable amount of time and may distract the parties from working on negotiating a full and detailed binding contract. Risks There have been occasions when the parties to a proposed commercial arrangement never actually agree or sign a definite contract and have gone on to implement their deal based only on the letter of intent. This creates a very uncertain legal position which may result in disputes and legal problems.




Invoice


What is it? An invoice is a statement setting out the goods and or services that have been supplied by a seller to a buyer and the money owed for those goods and or services. It is created by a seller or supplier to request payment for goods sold and or services provided. It is also called a bill. Why is it important? It identifies the trading partners, specifies the terms of the deal and provides information on the payment figure, the available methods of payment and the payment terms i.e. the maximum amount of time that a buyer had to pay for the goods and or services that they have purchased from the seller.




Sales of goods agreements


What is it?

A Sale of Goods Agreement (sometimes called a Sales Agreement or Sales Contract) is a contract entered into between a buyer and a seller of goods for the sale and purchase of specific goods by the buyer. When you sell goods, you create a sale of goods contract.

Why is it important?

The terms in a sale of goods contract may vary depending on whether it is a sale to a consumer (i.e. a B2C contract ) or a sale to a business (i.e. a “commercial” sale or B2B contract.) A consumer is someone who buys goods or services for personal use, as opposed to buying the goods or services on behalf of a business. Consumers who act as the buyer in a contract for a sale of goods are given more legal protection than businesses. The legal protection is given to help the party considered to be the more vulnerable party to the contract ie the consumer as opposed to the business.

The sale of goods agreement will set out the seller and buyer’s obligations, the terms on which the seller is willing to sell and transfer the goods to the buyer, the nature of the goods to be sold, the price, payment terms, shipping and collection details, delivery time and what happens at the end of the contract.

Risks

A Sale of Goods Agreement can be made orally or in writing. However, having a well-written Sale of Goods Agreement can help protect one or both of the parties if there is a problem with the sale eg goods are late in arriving or the goods have been damaged or destroyed.




Purchase order


What is it? A purchase order is prepared by a buyer when the buyer orders goods or services from a seller. The purchase order will indicate the type of goods, quantity of goods and the price the buyer is willing to pay for the products and or services. Once the seller accepts the purchase order it becomes a legally binding contract as the seller has agreed to sell the goods and or services at the prices put forward by the buyer. The seller will then issue an invoice to the buyer based on the purchase order. Why is it important? Purchase orders are important for businesses as it is instrumental in tracking expenditure, makes orders easier to track, helps avoid audit problems and provides contractual legal protection for the buyer and the supplier. Alongside a purchase order system, it is vital that a company has strong credit management practices to safeguard cash flow from bad debts and late payment. A strong debt collection process is vital to ensure payment is made when the goods or services have been delivered. Invoice promptly and accurately and chase up with reminders. If a customer will not pay or ignores payment requests take action – Appoint a debt collection agency, take debt recovery action through the courts or pass the debt to a solicitor. Pure Business Law has experienced debt collection lawyers who can assist you with debt recovery.




Services agreement


What is it? A Service agreement also known as a Service contract or Contract for Services is a written agreement between a service provider and a customer setting out agreed terms for the supply of services. The terms should include details of the services to be provided, location of provision of the services, payment. Limitation of liability clause, tools or materials to be used, termination of the agreement, ownership of intellectual property clause and dispute resolution clauses. Why is it important? A services agreement is required when a business wants to engage another business to supply services. If your business is the service provider, you should use a service contract whenever you are hired by a customer to complete a service. If you are the customer and the service provider does not supply the contract, you can use a Service agreement to ensure that the terms of the service relationship are clear.





Managing licenses


Running an online business


Protecting your IP


Business Relationships


Writing a business plan


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Pure Business Law is the trading name for Pure Business Law Ltd-a private limited company registered in England & Wales with company registration number 10405413. Registered office and Principal place of business : Excel House, 3 Duke Street, Bedford. MK40 3HR. VAT number 265 5386 75.

 

 

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Reorganisation and Redundancy

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