This time last year, I – like all my colleagues and clients – was wondering what a global pandemic meant for business. The pundits were talking about massive job losses and an economically deadly global recession. As a commercial solicitor, I was fielding queries from clients worried how they could be expected to meet their obligations, when their customers were not necessarily expected to meet theirs. In mid-April 2020, I had completed the instructions that I had received before the pandemic and there was a palpable holding of breath, whilst we all waited to see what would happen next.
However, instead of a ghastly round of entrenchment and disinvestment, our clients have been (really) busy building their businesses and keeping me occupied on a range of projects covering the spectrum of commercial law. Since last May it’s been a hectic year and I have learnt to relax into the occasional quiet day as they have been rare.
Here’s a flavour of the sorts of instructions that we have received in the last few months.
Terms of Business
A professional services client wanted standard terms of business prepared for his services including drafting express limitations of liability clauses.
Kingsway Enterprises Limited is a client of ours that produces door systems for hospitals and mental health establishments. The goods are designed to reduce the chances of patients harming themselves. With such a unique and specialist product portfolio, our client asked us to help them understand their potential exposure to litigation and the steps they could take to mitigate such risks. We advised them with regard to updating their terms of business and preparation of appropriately worded disclaimers and also advised the client regarding the representations made by sales and marketing staff and processes and procedures to avoid inadvertent acceptance of liability.
Our client was entering negotiations with third parties for licensing or otherwise exploiting their intellectual property rights in the education sector. We prepared a mutual non-disclosure agreement to ensure that the terms of the discussions and details of the client’s IP were protected, including clauses for non-solicitation of employees, suppliers and customers and non-circumvention clauses which could be used to protect specific interests, as needed.
Over the last six months, we have been supporting an office equipment provider client with various projects including renegotiating and redrafting their nationwide franchise agreements.
Another client is a supplier to the food and drink industry and has entered heads of terms with another market participant to develop their market offering. We are working with the client to draft a third party logistics and distributor agreement.
A client developed a professional development course for sales professionals. The course contains various photographs, video clips and memes to illustrate the salient points. The client sought our advice in relation to fair use of such copyrighted materials and what processes and procedures were needed to ensure copyright law compliance. We were able to reassure the client that the nature of the use was fair and to advise on steps to take to ensure no breaches of copyright.
Another client was acquiring the intellectual property interests of a new plant variety. We advised the client on the appropriate terms and drafting of both the commercial arrangements and the intellectual property assignments relating to registered trademarks, patents and plant variety rights.
Another client was working with students in relation to understanding the impact of accommodation on health and well-being, particularly during the challenges of the Covid-19 pandemic. The client requested support on ensuring data protection compliance in relation to collating survey data for the project. We advised the client with regard to developing the data collection exercise anonymously, thus circumventing the need for extensive data protection related compliance.
Supply of Services agreements
Nourish Limited, a provider of cold storage facilities wanted to formalise arrangements with a long-standing customer and address some of the new issues throw-up by the Covid-19 pandemic. We prepared a full form warehousing agreement, taking into consideration industry practice and including discussion and negotiation with the customer about their requirements.
Post-Brexit transition considerations
Our client needed to update the data processing elements of its terms of business to be compliant with the Data Protection Act 2018 and the changes to the application of the General Data Protection Regulations following the end of the Brexit transition period. We provided an up to date data processing schedule setting out the client’s obligations and addressing the updates needed.
A provider of consultancy services to property developers wished to engage independent consultants in relation to finding land with potential for property development and in particular to establish a range of commercial outcomes for a successful “find.” We advised the client on the sorts of obligations that needed to be considered in regard to such an agreement including indemnities relating to intellectual property and drafted a suitable agreement.