Commercial Agreements

Limitation of liability, confidentiality, force majeure, protection of intellectual property, indemnities, and warranties, dealing with a dispute between the contracting parties and termination.

No, it does not. In fact, you could have entered a contract accidentally and be liable for a term that you didn’t think you were liable for, e.g. verbally or via an email exchange.

Courts will generally not interfere with a contract agreed between two commercial parties (who are not consumers) except in very limited circumstances, e.g. if one party is left with no remedy following the other party’s breach of contract.

White there can be overlaps between the two roles, essentially, a distributor buys the products from a manufacturer to market and sell them in a particular country or region. The distributor takes on the responsibility of insuring the products and dealing with customer after-sales queries.

An agent will negotiate and possibly also execute contracts on behalf of the manufacturer in return for a commission but will not be responsible for the insurance or quality of the goods being sold. There can be overlaps where, for example, an agent may decide to test a new market and buy some goods from the manufacturer to sell them in a different country or region. The key point is whether the customer contracts with the manufacturer (agency) or directly with the person selling them the goods (distribution).

It is not always necessary to trade on the basis of bespoke commercial agreements. If you sell goods or services to consumers or to other businesses where the contract is not intended to be negotiable, it is important to have appropriate standard terms and conditions (STCs).

Standard terms and conditions (STCs) are often given a low priority, but they will always be of critical importance. With expert drafting, STCs provide a favourable legal framework for all repeatable transactions, especially those with consumers. They avoid the need for legal advice in most situations and save you money over time.

In drafting standard terms and conditions (STCs), we pay particular attention to what are usually the most important issues, for example:

• The need to ensure that the STCs are fully incorporated into every contract so that all parties are bound by them;
• Legal restrictions on the freedom to exclude or limit liability;
• Proportionate warranties and indemnities;
• Reservation of your intellectual property rights and those of your suppliers and licensors;
• If you make use of data about people in connection with the contract, data protection provisions that legitimise personal data processing;
• Any specific regulations that apply to your industry;
• STCs relating to alternative dispute resolution, choice of jurisdiction, export restrictions, retention of title, risk, and security for payment.

Ensure you ask your legal advisor to review the contract together with the other party’s terms and conditions before you sign the contract incorporating those terms and conditions.

You may also wish to have your own standard terms and conditions (STCs) reviewed to ensure they are legally compliant and suitable for your business needs before sending them to the other party with whom you intend to sign a contract.

Although the benefits of using STCs are substantial, their use is subject to certain legal and practical limitations. STCs require regular review to ensure that they take account of legislative or regulatory changes or new case law. They must also reflect changes in the business activities of your company, particularly if you change the products and services that you offer.