Your standard terms and conditions (i.e. the legal basis on which you are willing to do business with your customers) should be the first legal document that you put in place when you are starting a business. You should consult a specialist commercial contracts lawyer (like me!) and discuss what your business does, the key processes within your business and your typical customers. The lawyer will then draft you a robust set of standard terms that you will use for each future transaction, with you just stating the points particular to each customer (such as the exact services or goods and price) in the purchase order or in a schedule. You pay one upfront fee and use the terms and conditions again and again, safe in the knowledge that your business is properly protected. They are essential for any business for the following reasons:
1. written terms and conditions help to create certainty as to the agreement
Oral contracts are in theory just as enforceable as written contracts, but the main problems with oral contracts are evidence and certainty. You may forget some of the terms that have been agreed with the passage of time or there may be a dispute as to what was actually agreed.
Similarly, with emails back and forth, it can be difficult to work out what was actually agreed. It is much easier to have your standard terms and conditions to hand that have been drafted by a lawyer and clearly set out the position on all important matters. It will also cost you a lot more in legal fees if you have any dispute if a lawyer has to spend time reading through chains of emails to work out what the contractual position is rather than it already being drafted in plain English.
2. written terms and conditions help to minimise legal disputes and the chances of you being taken to court
If you do have clear written terms covering all of the necessary areas of your provision of goods or services, the chance of a legal dispute is minimised as a lawyer will advise the customer that the terms are clear on the matter and they would have little chance of winning if the matter were to go to court. Accordingly, you are less likely to be taken to court.
3. written terms and conditions help you to cover all of the important matters and not overlook the things that are less obvious
As a non-lawyer, you will probably consider the more business related terms such as price, payment terms and delivery costs, but you may not think about limiting your liability, disclaiming your liability for failure or delay caused by force majeure, protection of your intellectual property rights and the passing of title and risk. A well drafted set of terms and conditions will fully protect your position.
4. written terms and conditions help you to enforce your agreement
If you have clear terms and conditions, it will be clear where a customer has breached the contract. Written contracts are much easier to enforce should you wish to take a customer to court (for example for non payment).
5. written terms and conditions help you to provide good customer service
A clear set of terms and conditions that are applied consistently to all customers can assist you with providing good customer service. With regard to the protections for you, it will not come as a surprise to the customer when you seek to enforce a right specified in the terms. But moreover, in addition to including protections for you as the supplier, you can also include rights for your customers in your terms to provide them with reassurance as to how you will handle the agreement, for example sections on complaints, refunds and insurance.
6. written terms and conditions help to avoid mismatched expectations
Mismatched expectations are not good for your business! For example, if you are supplying products, your customer may expect delivery within 2 days. You might actually require 2 weeks as you are importing the goods from overseas. If you spell this out clearly in your terms and conditions, you will have less disgruntled customers and save time on administration in answering calls from customers wondering where there products are.
If you are a supplier of services, a written contract is almost more important for this reason. If you are a website designer for example, it is always advisable to have as detailed a specification as possible so that there are no mismatched expectations as to timescales, layout, further charges etc.
7. written terms and conditions help you comply with the law
There may be certain regulations that apply to your particular industry that you would be wise to make reference to in your terms and conditions. If you are carrying on an e-commerce business, the law requires you to provide certain information to your customers in writing prior to conclusion of the contract and this is usually set out in written terms and conditions. The Provisions of Services Regulations that came into force in late 2009 require suppliers of services to provide the customer with certain information and the appropriate place for this is in the terms and conditions.
Email or call us now to discuss your standard terms of business and the protections that you need!
I have heard of many people who are setting up a business and spent ages pondering a name for the business, spent a fortune on a website, logo, business cards and other marketing materials and then for one reason or another discover they can no longer use their business name and have to re-do the website, logo, business cards and other marketing materials etc at great expense. Make sure this doesn’t happen to you by following my top tips for choosing a business name:
1. Check that your proposed name or a very similar name is not already registered at Companies House. You can check online for free here or google “Companies House webcheck”. Although only limited company names and LLP names are registered at Companies House, you may want to register as a limited company, if not at the start of your business at some stage in the future, and you won’t be able to register your business name if there is already a company registered with the same or a similar name.
2. Check that your proposed name or similar is not registered with the Business Names Registry. This register includes the names of businesses which are not necessarily limited companies and LLPs and therefore won’t be found on the Companies House search. It is not mandatory to register so this database doesn’t contain all of the business names out there but it is still worthwhile doing a search. You can search online for free here.
3. If you want to form a limited company or LLP (or there is a chance that you might want to do so in the future), check that the name does not include a sensitive word (such as British, National, International, European, Association, Authority, Chartered, Council, Institute, Society, Charity, Insurance, Register, Trust, Health Centre, Parliament, Government, Royal, Queen, Prince) as you need to obtain the approval of the Secretary of State for these names to be registered and they will only be approved if it is absolutely appropriate for you to use the name.
4. Ensure your proposed name is not the same or very similar to a registered trade mark of a product or service in the same market as you. If it is, you may risk the owner of the trade mark bringing an action against you to stop you using the name or at the least will not be able to register the name as your own trade mark. You can search online for free here.
5. Make sure your name is capable of being trade marked as you may wish to trademark your business name at some stage in the future. See my article on this point.
6. Carry out a domain name search to check that the domain names are still available. It might be worth registering both .com and .co.uk and having a redirection to prevent somebody else from using them. You can search online for free at Nominet – Also do a google search to check that a competing business isn’t using a similar name because if it is, you might run into problems with passing off down the line.
7. And finally, not really a legal point, but if you are hoping to expand internationally, make sure that your name doesn’t have meanings or associations that you would rather it didn’t in those jurisdictions.
I hope that this is helpful but if anyone has any questions, please get in touch!
Twitter can be a fantastic marketing tool, but you need to be aware of the legal implications when you use it for your business.
1. Make sure you comply with advertising regulation
The CAP Code now applies to websites, Facebook and Twitter (and any other non-paid-for online space under your control such as other social networking sites). The CAP Code says, amongst other things, that advertising should:
The Advertising Standards Authority (“ASA”) is generally reactive in that it tends to deal with complaints received rather than actively reviewing marketing communications. This may influence the approach to compliance. However it is worth noting that the ASA’s sanctions are also being increased so that it can:
2. If you are paid to endorse products, make this clear in your tweets
One way to do this might be to include the word “#spon” or “#ad” in your tweet, but you must make sure that all the circumstances of your tweet comply with the advertising regulations set out in point 1 above. The ASA recently investigated complaints about Rio Ferdinand and Katie Price advertising Snickers chocolate bars by sending out a series of unexpected tweets (Rio Ferdinand’s were about knitting and Katie Price’s were about the Euro zone economic crisis), followed by a tweet saying “You’re not you when you’re hungry @snickersUk #hungry #spon” with a link to a picture of the relevant celebrity eating a Snickers bar.
The complaints were that it was not clear from the tweets that the celebrities were being paid to advertise the chocolate bars, in particular the first “teaser” tweets which mentioned neither Snickers nor sponsorship. In this case the ASA did not take any further action because, although the first four tweets formed part of an “orchestrated marketing campaign”, they did not mention Snickers, and the final tweet made it clear that the celebrities were being paid for the endorsements.
In this case the ASA accepted that the sponsorship was made clear by a combination of:
If you are paid to endorse products, then you will have to check very carefully that your particular tweets make this clear.
3. Don’t make any defamatory statements
At least two people have faced claims for libel or slander after making comments about another person on Twitter. The first was a politician who claimed on Twitter that his rival in a by-election campaign had been removed from a polling station by the police. The rival claimed in the High Court that the statement was untrue and defamatory and the Twitter user was reportedly obliged to pay £3,000 in compensation plus both sides’ legal costs.
The second is an Indian business-man who is facing a libel claim from former New Zealand cricket captain, Chris Cairns, after he made match-fixing claims on Twitter against Cairns. The claims (which Cairns states are “wholly untrue”) were repeated on a cricket website. These cases demonstrate the need to be very careful when writing about other people on Twitter and other social networking forums online.
4. Tweets are considered public property so don’t disclose confidential information
We’ve all heard of emails “going viral” and so can tweets. Tweets can be published in other media, including newspapers, and may be credited to you. So don’t write anything in a tweet which you would not want to read in a newspaper with your name next to it! Remember that even replies to individual tweets or re-tweets are still public statements. You must also avoid disclosing any confidential information about you, your clients or any third party.
5. Don’t infringe anyone’s intellectual property
You should not tweet anything which might be protected by copyright or any other intellectual property right. This includes all sorts of material, including photos and articles, so check with the author or owner first and if in doubt, don’t tweet it.
6. If you have employees, put in place a social media policy
As a business owner, you and your business could be affected by tweets sent by your employees. So you should put in place a social media policy and make sure your staff is aware of it. We can help you with your social media policy, so get in touch if you would like our help with this.
7. If you are an employee, state that the views you express are yours rather than your employer but still be careful what you say!
You can do this in your Twitter profile. However, be warned that you cannot stop people making the link between your tweets and your employer, and this could land you in trouble. A member of staff at the Department of Transport had a disclaimer in her Twitter profile stating that the tweets were personal opinions and were not representative of her employer. This disclaimer did not stop The Independent from publishing her tweets (about her job, her feelings towards work and wider political issues such as describing a course leader as “mental” and posting links to tweets attacking government “spin” and Whitehall waste) in an article about her employer. She complained to the Press Complaints Commission, but they found that because tweets are public property this was not an invasion of her privacy.
8. Jurors must not discuss or comment on cases
If you are a juror you could be found guilty of contempt of court if you tweet any information about your case. Contempt of court can be punished by a prison sentence.
9. Court documents can be served on you via your twitter account
In a case where a twitter poster was impersonating someone else, there was no easy way of identifying the impersonator, so the court allowed court papers to be served on the Twitter account. The victim was Donal Blaney, who runs a blog called “Blaney’s Blarney”. The impersonator had set up an account called @Blaneysblarney together with a photograph of the real Donal Blaney and a link to the real blog. The High Court has also allowed court proceedings to be served via Facebook where the defendant’s postal address was uncertain. So don’t think that hiding behind a Twitter alias will protect you.
10. Freedom of information requests can be made via Twitter
If an authority has a Twitter account, then freedom of information requests to that authority can be made via Twitter, as long as the requestor provides his or her real name (either in their Twitter account name or their Twitter profile) and an email address. This was confirmed by the Information Commissioner’s Office in its monthly newsletter, which stated that the authority should reply to the request either by email or by publishing the reply on the authority’s website and sending to the requestor a link to the relevant webpage. The request need not even be tweeted directly to the authority. It is sufficient to refer to the authority in an “@mention” (e.g. “@ICOnews”), because the authority is able to check for @mentions.
For free solicitors advice or if anyone knows any other legal issues to be considered when using twitter, please do let us know and we will add them to the list.
© Suzanne Dibble, small business law expert 2012
It is becoming more common these days for business start up and small businesses (especially internet marketers) to buy or hire “lists” to market to. It’s a complex legal area and one that can land you in hot water so pay close attention to theses 3 things you must know before paying good money to buy or rent a list.
1. Sorry to break it to you but you can’t market to individuals (see my post on email marketing for the distinction between an individual subscriber and a corporate subscriber) if they hadn’t originally consented to their personal details being passed on to another organisation. When the seller collected their details, there should have been some “opt-in” wording such as “‘We’d like to pass your email address to other companies so that they can send you on-line offers too. If you agree to this, tick here” and only the details of the individuals who ticked the box should be included in the list. “Opt out” wording such as “We will pass your details to third parties unless you write to us and tell us you don’t agree” will not be deemed to be consent. Not many privacy policies contain this explicit consent, so ask the seller of the list to provide evidence that they have obtained the consent of their list.
2. You can’t rely on the “soft opt in” rule (being the rule where you can send information of similar products or services to existing customers (or individuals who had expressed an interest) as long as you provide the right to opt out) and may only market to individuals if express consent as set out above has been provided.
3. You may only market to individuals who have expressly consented to receiving the relevant type of information from third parties if:
a. They have not already contacted you requesting an opt-out;
b. You provide your identity and contact details when you contact them; and
c. You provide a valid contact address for opt-out requests.
If you fail to check whether you have the right to market to the individuals on your list and an individual objects to your contact and reports you to the ICO, you could face an investigation and a hefty fine of, in theory, up to £500,000. So make sure you ask the right questions of the Seller. Ideally you should ask your lawyer to draw up a database sale agreement (particularly where the list has a large price tag) which would include warranties and indemnities from the Seller confirming that the individuals on the list had provided the necessary consent and that the Seller owned all intellectual property rights in the database.
Of course, we can help you with a database sale agreement, so if you want to secure your investment in the list, get in touch with us!
© Suzanne Dibble, business law expert, 2013