Check If Your Website Complies With The Law

Does your website show all the information that is needed to comply with the law?

Our free Site Checker can give you the answer with a click of a button:  fill in the website URL and an email address, and you will receive a report with an assessment of your compliance. You can also check out other websites.  The Site Checker is available via our homepage and this link.

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In recent years, a lot of new legislation has been introduced, both in the UK and the rest of Europe.  Much of this is designed to protect consumers when buying goods or services online.  But every trading company has to provide details of its company registration, address etc., and it is surprising that even some larger companies do not always fully comply.   Nor do the fraudsters.  Our Site Checker does not cover everything but it does deal with the basics for any company that is trading online.

For more information, we have articles on this blog dealing with the regulations in more detail:

Employment Law Update October 2016

Our partners Moore Blatch have several updates for us:

Read more updates and commentary at the Moore Blatch website.

Slavery in the UK, Brexit and more: Employment Law Update August 2016

 

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Employers were chickening out of their duties to provide decent working conditions and payment. Photo by sponselli

 

 

 

 

 

 

 

 

 

 

Slavery in the UK

For the first time, a UK company has been found guilty under the Modern Slavery Act 2015 of unlawful treatment of workers. This supplier of eggs to the big supermarkets were failing to pay their trafficked workers as well as a range of other breaches.  Large sums are to be paid out, and big companies should note their obligation to check supply chains for slavery and trafficking in the UK. Read more on Slavery in the UK

What does Brexit mean for UK employment law?

Moore Blatch reports that “newly appointed Secretary of State for Exiting the EU David Davis has given a strong indication that existing employment law is unlikely to undergo radical change.” However, there is some uncertainty and EU workers are likely to be particularly affected once Article 50 is triggered.

Moore Blatch is urging local businesses which employ significant numbers of EU nationals, to plan for a worst case scenario, where EU nationals are no longer automatically able to work in the UK and are subject to the same points-based system currently applied to non-EU nationals.   Should this occur, locally the food and drinks and agriculture sectors could be hit hard as they, in particular, employ many EU workers and rely heavily on that workforce.

Read more on Brexit here and  advice for businesses here

 

 

Employment Law Update June 2016

Our partners Moore Blatch have several updates for us:

Read more updates and commentary at the Moore Blatch website.

New Law to Help Self Builders moves forward

A Government bill to help enable more people to build their own homes has passed its final stage in the House of Commons. It has all party support and goes to the House of Lords this week.

The purpose of the Self Build and Custom Housebuilding Bill – the brainchild of South Norfolk MP Richard Bacon – is to make it easier for an individual or a group of individuals to obtain land in order to build a house to live in. It places a duty on local councils to keep a register of people who wish to build their own home and who are actively seeking to acquire serviced plots of land in the local authority’s area. The Bill then requires each local council to take account of its ‘self build register’ when exercising the functions of planning, housing, regeneration and the disposal of land.

In Laying the Foundations: a Housing Strategy for England (2011), the Government set out plans to enable more people to build or commission their own home – there is an aspiration to double the size of the self-build market, creating up to 100,000 additional self-build homes over the next decade. Various measures have been introduced to ease the path for those wanting to build their own home including (repayable) funding; an exemption from the Community Infrastructure Levy; amendments to planning guidance; and improved access to public sector land.

Our thanks to NACSBA , the National Custom & Self Build Association, for this information.

ContractStore teams up with Artquest to offer contract templates for artists

ArtQuestContractStore is delighted to announce a partnering arrangement with Artquest. This is mainly intended to help artists who need contract documents to support them in their work.

To mark the occasion, together we have developed a Consignment Agreement for use by artists when sending their work to a gallery for exhibition and sale.

Quentin Matsys (1456/1466–1530) - The Yorck Project: 10.000 Meisterwerke der Malerei. DVD-ROM, 2002. ISBN 3936122202. Distributed by DIRECTMEDIA Publishing GmbH.

Art and law join together in our new agreement with Artquest. Quentin Massys’ Portrait of a Lawyer c. 1510.  Distributed by DIRECTMEDIA Publishing GmbH.

 

The Artist Consignment Agreement (document A246 in the ContractStore catalogue), is available as a free download for a limited period.

Also, Artquest subscribers can benefit from a 15% discount on all ContractStore templates. These include a Design Agreement, a Model Release Form, and Art Gallery – Artist Agreement among the 250 contract templates for sale from our website.

Fine of £300,000 for sending spam is overturned on appeal.

A £300,000 penalty issued by the Information Commissioner (ICO) against a Mr Niebel   for sending unwanted text messages ‘on an industrial scale’ has been cancelled on appeal.

Hundreds of thousands of messages were sent from hundreds of unregistered sim cards seeking out potential claims for mis-selling of PPI loans or for accidents.  And there was no evidence to show that he made any effort to make sure that the recipients consented or that he retained any record of consents. He did not even  bother to register with the ICO under the Data Protection Act (DPA) as a controller of data.

Under the regulations in place since 26 May 2011 the ICO can impose fines of up to £500,000.   But the regulations say the contravention must be serious. It must also be “of a kind likely to cause substantial damage or substantial distress”.

The fine imposed by the ICO covered messages sent before and after these new regulations came into effect. In fact only 286 of the messages were sent after 26 May, a tiny proportion of the total.

In his judgement, Judge NJ Warren said that the effect of the contravention was likely to be widespread irritation but not widespread distress. “Given the scale of the contravention, there is the possibility of some distress in very unusual circumstances but we cannot construct a logical likelihood of substantial distress as a result of the contravention. We conclude that the contravention is not of a kind likely to cause substantial distress. “ So he cancelled the penalty notice.

Even if it does not cause distress, spamming is still illegal and you need to be sure to obey the rules if you want to send out marketing material.  Direct email marketing to consumers is acceptable if the sender has “obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient”, where the marketing is for “similar products and services only” and providing the recipient can easily unsubscribe  so as to refuse the use of their contact details for that marketing in future.

Exclusion Clauses – Ensure Explicit Drafting

Exclusion clauses in contracts need to be drafted very specifically and all limits on liability must be set out explicitly. The recent case of Markerstudy Insurance Co. Ltd v Endsleigh Insurance Services Ltd [2010] EWHC 281 (Comm) is a stark reminder of those principles.

Brief summary of the facts

The defendants, Endsleigh, were engaged by Markerstudy to provide claims handling services concerning a number of agreements. Markerstudy alleged numerous breaches of these agreements which whilst individually may not have been significant, collectively they amounted to losses of £14m. In its defence, Endsleigh sought to rely on numerous limitation and exclusion clauses contained in the contracts.

The court was required to determine two points of construction:

Firstly in relation to the exclusion of liability where the clause provided as follows: “Neither party shall be liable to the other for any indirect consequential loss (including but not limited to loss of goodwill, loss of business, loss of anticipated profit or savings and all other pure economic loss) arising out of or in connection with this Agreement.”  The claimant maintained that by virtue of this clause the defendant was exempted from liability for indirect and consequential losses only. The defendant submitted that it was also exempted from direct losses falling under the heads of loss specified in the clause.

Secondly in respect of the cap on liability; the clause provided that Endsleigh’s total liability in contract, tort, misrepresentation, restitution or otherwise, be limited to the aggregate amount of fees received under the contract. The defendant maintained that this cap of approximately £3.9m included any claims for interest.

The decision

On the interpretation of the exclusion clause, the court found in favour of the claimant, stating: “The use of the phrase ‘including but not limited to’ is a strong pointer that the specified heads of loss are but examples of the excluded indirect loss.” In respect of the cap on liability; the court found in the defendant’s favour in respect of contractual claims for interest.

What are the commercial implications?

This case clearly highlights the need to be explicit and to draft in express terms whenever you are seeking to exclude or cap liability under a contract. If you want to include specific exclusion then parties must consider the specific structure of the clause. Parties need to understand the risks they are accepting and that this allocation is reflected in the contract. SO

1 Consider the commercial negotiations as preparation for any contract;

2 Consider risk allocation – parties should consider how the allocation of risk should be apportioned appropriately between the parties and this allocation needs to be reflected in the contract in express and explicit terms;

3 Ensure that any limitation or exclusion in an agreement does not invalidate your insurance.

4 Know the heads of loss that you want to exclude and the precise nature of the cap on liability which should be stated explicitly in the contract.

5 The term indirect or consequential loss is not a precise term; it should only be used at the end of an exclusion clause as a final catch all precaution and to avoid the potential contamination of the entire clause.

Example of an exclusion clause

1. Neither party shall be liable to the other for any:

a) loss of goodwill

b) loss of business

c) loss of anticipated profit or savings

d) pure economic loss; or

e) any indirect or consequential losses arising out of or in connection with this Agreement.

With respect to any cap on liability, clearly state the precise nature of the cap on liability or a specific figure.

Contributed by Sharonjeev Benning-Prince

 

What You Need to Know about Partnership Agreements

One advantage of setting up a business as a partnership is that, unlike a company, there is no need to register the business.

 

In fact there are very few formalities, which is one reason why it is sensible to have a written partnership agreement that sets out the basic rules between the partners for running the business.

The main difference between a partnership and a limited company is that a partnership does not have a separate legal personality apart from its members in a way that a limited company does.  (The situation is different for a limited liability partnership, but that is more like a company and has to be registered at Companies House).

So the partners are jointly and severally liable for the obligations of the partnership i.e. each partner can be sued for the full amount of any liability of the partnership. There is no limit on liability

Also, the partners are taxed on an individual basis, by reference to their share of the profits each year.

The law governing partnerships goes right back to 1890 and it is a lot easier to read than today’s statutes.  But while it has stood the test of time, the Partnership Act does not always deal with issues as the partners want to deal with them.

Why You Need a Partnership Agreement

Without an agreement, there can be uncertainties as to the relationship between the partners and how the partnership should be run.  For example, in the absence of a partnership agreement, on the death of a partner, the partnership has to be dissolved.  This might not be in the interests of the surviving partners who wish to keep the business going.

Similarly, in the absence of any agreement to the contrary, the partners have the right to share equally in the capital and profits of the business.

What specific terms should you consider for your partnership?

Here are some of the basics to cover in the agreement that all the partners need to sign.

  •  Name, Business, Start Date

When starting the business you need to agree on the name and start date of the business and the annual accounting year. Also, you need to agree on the scope of the business and write all these details down.

  • Capital & Profits

How much money or other assets – e.g. equipment or knowhow – will each partner put into the business to get it going?  Also, you should specify the profit shares – otherwise all profits are divided equally.

And if there are loans to the business form any of the partners, these need to be documented.

  • Drawings

In most modern firms, each partner will draw an agreed amount out of the income each month, rather like a salary, and his profit share will then be adjusted at the end of the year. But usually the agreement will say that if there is not enough money in the bank, drawings cannot be taken.

  • Management & decision-making

There should be an arrangement for holding regular meetings of the partners where the business will be reviewed and decisions taken. In a small firm this may mean that all the partners need to agree before any decision can be implemented.  But often there will be a majority vote on routine matters and unanimity reserved for the important issues – introducing a new partner, raising a loan or buying property etc.

If the partnership decides to delegate some decisions to an individual partner, this should be recorded – either in a partnership decision or in the agreement.  And it is advisable to require that partner to report to partnership meetings, so that all the partners know what is going on

The procedure for meetings, quorum, who will act as chairman, circulation of minutes etc. can usefully be covered in the agreement.

  •  Accounts

Preparation of regular management accounts is another important matter as well as having a firm of accountants appointed to prepare the annual accounts of the business.

  • Permitted partnership expenses

Petty arguments over what expenses can be charged up to the firm are best avoided, so spell out the main points in the agreement and decide any changes at a formal partners meeting.  Mobile phones, laptops, car expenses etc. can all be covered.

  • Holidays

As partners are not employees of the business they do not have any statutory rights so you need to set out the holiday entitlement of the partners, as well as maternity leave etc.

  • Retirement or death of a partner

With current legislation a fixed retirement age can be problematic, as the partnership may face a claim for age discrimination.  But you need to have a reasonable notice period if anyone wants to leave the partnership – maybe six months or longer, preferably to take effect at the end of the financial year.

If a partner dies, the agreement should say what happens to their share – it will probably need to be paid for by the surviving partners in proportion to their shares in the business.  This also applies when a partner retires.

Accounts will need to be prepared by the firm’s accountants when a partner retires, and the firm may want to retain enough to cover any tax liability that is anticipated before paying the retired partner’s final profit share.

Repayment of capital to a partner who retires or dies may be spread over a period

  • Expulsion

Hopefully there will be no need to expel a partner for misconduct but you should have a clause to deal with this possibility.  This will also specify how any money due to her will be repaid – probably only after any losses she caused the firm have been quantified and recovered.

  • Restrictions on partners

Serious harm can be done to a business if one of the partners, without any consultation, makes commitments to third parties, and you should include a clause designed to avoid those risks.  In addition, any partner who fails to comply should be required to indemnify the others so that they do not suffer loss.

Restrictions on a partner having an interest in any business that competes with the partnership may also be required, and this can be particularly important if a partner leaves, to prevent him/her from taking business away.  Departing partners should also be prevented from poaching staff.

  • Other clauses are needed to deal with issues such as confidentiality and disputes.

Related Downloads:

ContractStore has three forms of partnership agreement – for partnerships with two, three or more than three partners. We also offer partnership agreements for use in India

Travis Perkins Building Contracts into Business

We’ve partnered up with Travis Perkins to bring construction companies the great news that they can wave goodbye to high legal costs. Travis Perkins is a leading supplier to the UK building and construction industry, offering more than 100,000 product lines to professionals and self-builders.

The new partnership between Travis Perkins and ContractStore.com focuses on a range of low-cost specialist contracts for the construction industry, including Terms & Conditions, Collateral Warranties, and contracts for Supply of Works and Services.

A Start-Up Pack for Builders is also available, containing the key document templates for running a construction business.

Although written by expert lawyers, these documents come without the hefty High Street price tag, providing large organisations through to self employed contractors with the opportunity to be legally protected as they prepare for the upturn.

With a recent survey by Close Invoice Finance revealing that almost a quarter of SMEs in the South East have to wait for payment over 31 days after the agreed terms, Giles Dixon, founder of ContractStore.com believes that many in the construction industry, particularly self-employed contractors and smaller outfits, could be exposing themselves to bad debt and crippling cash flow issues in 2010 by failing to have adequate contracts and terms in place.

“The recession may be over but it will be some time before we start to see improvements in day to day business. Stabilising cash flow is a huge issue for most businesses at the moment and absolutely paramount for those working in construction and isn’t helped when customers can easily default without consequence.

“This new partnership with Travis Perkins is designed to help those in the industry to obtain adequate legal protection and minimise risk of disruption to the business for an affordable price,” says Dixon.

Contact us if you’d like to know more or browse our construction documents.

New December Regulation Surprise for Small Businesses

Costly legal fees are history with new virtual service for Construction Industry

The construction industry is waving goodbye to expensive legal fees thanks to a new partnership that delivers professionally drafted legal documents online for a fraction of the price found on the High Street.

The new partnership between Travis Perkins and ContractStore.com brings a range of low-cost specialist contracts for the construction industry, including Terms & Conditions, Collateral Warranties, and contracts for Supply of Works and Services.

A Start-Up Pack for Builders is also available, with the key document templates for running a construction business. Although written by expert lawyers, these documents come without the hefty High Street price tag, providing large organisations through to self employed contractors with the opportunity to be legally protected as they prepare for the upturn.

With a recent survey by Close Invoice Finance revealing that almost a quarter of SMEs in the South East have to wait for payment over 31 days after the agreed terms, Giles Dixon, founder of ContractStore.com believes that many in the construction industry, particularly self-employed contractors and smaller outfits, could be exposing themselves to bad debt and crippling cash flow issues in 2010 by failing to have adequate contracts and terms in place.

The recession may be over but it will be some time before we start to see improvements in day to day business. Stabilising cash flow is a huge issue for most businesses at the moment and absolutely paramount for those working in construction and isn’t helped when customers can easily default without consequence. This new partnership with Travis Perkins is designed to help those in the industry to obtain adequate legal protection and minimise risk of disruption to the business for an affordable price,” says Dixon.

Firms can save even more money too, as if documents are ordered via www.contractstore.com/travisperkins, a further 15% discount will be added.