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  • Overview

    Obtaining good quality legal advice is vital at every stage of the lifecycle of a business to reduce the risks to both you and your organisation. Taking legal advice at the outset will help increase the health of your business and your chances of a successful exit in the future (in the event that you plan on selling your organisation further down the line). We have set out below a number of key areas where speaking to a corporate and commercial lawyer would be beneficial:

    Funding

    If you are borrowing cash from a bank, the terms of the loan may be complex. The relevant bank may also ask you to provide a personal guarantee where you can be held responsible for the debts of your company. This can have serious financial consequences. A corporate lawyer can review the loan terms for you and provide you with practical advice to ensure you fully understand the agreement you are entering into.  

    Even if you are being funded by investment from friends and family, it is important that the terms of any financial arrangements are documented. Circumstances can change and plans can alter. If all parties can then refer to a formal agreement setting out the major terms, this will reduce the risk of any misunderstanding or dispute further down the line.

    Structuring options

    Choosing the right structure for your business depends on its size, complexity and goals. A corporate lawyer can advise you on the different legal aspects of the various corporate structures (including a private limited company, a limited liability partnership or other business structure) and which one would be best suited for your business. 

    Shareholders’ agreements

    If you are going into business with other people, a shareholders’ agreement (or a partnership agreement) is a good idea. This document regulates the relationship between shareholders, the management of the company, the ownership of shares and the protection of shareholders. The shareholders agreement can provide for a dividend policy, procedure in the event of a deadlock, valuation of shares and the procedure to be followed in relation to a proposed transfer of shares in the company.

    The lack of a shareholders’ agreement means an increased risk of disputes and conflict in the future, which could otherwise have been resolved by the agreed procedures set out in a formal shareholders’ agreement.

    Terms and conditions

    A company’s terms and conditions are its first line of defence against disputes. Terms and conditions should be drafted according to the precise needs of the particular business at that time. They are too important for a business to rely on freely available templates. A commercial lawyer can help to draft a company’s terms and conditions according to the business’ requirements, with a view to correctly documenting each party’s rights and obligations, allocating risk, and limiting liability in the event of a dispute. From small, independent online retailers to biotech software manufacturers, every business needs tailored terms and conditions which are up-to-date with current legislation and case law.

    Data protection

    The Data Protection Act 2018 (DPA) (incorporating the General Data Protection Regulation (GDPR)) obligates businesses to not only comply with the seven key principles of the GDPR, but also to evidence how they comply through documented policies and procedures. As a business, you will in all likelihood be processing some form of personal data, for example from your customers or employees.  

    A common example of evidencing compliance with the DPA is having a privacy policy/ notice which details the kinds of data that you collect, what is done with the data, who it is shared with, how the data is stored and when it is erased. The personal data collected and processed by your business and necessary data security measures will depend on the nature of your business. Again, templates are available online, but it is questionable whether these are suitable for a business as it grows, becoming more complex and valuable. Sanctions for breaches of the legislation have a cap of €20million, 4% of worldwide revenue or the higher of the two (e.g. Amazon’s €746million!). A properly drafted and regularly updated privacy notice will add value to your business and help to protect it.

    One of the GDPR’s data protection principles is ‘storage limitation’, i.e. you must not keep data longer than you need it. To further evidence its compliance with the legislation, a business should link ‘data retention schedules’ to its privacy policy. These schedules should detail the different forms of personal data held by the business, the period that they will be held for before destruction and the justification for the length of this period. For example, the length of time you will retain details of employees’ exposure to asbestos should be many years longer than how long you retain an unsuccessful job applicant’s CV.

    Other areas of data protection that need to be thought about include: registration and payment of fees to the Information Commissioner’s Office; applicable exemptions; mapping the life-cycle and risks of the personal data; and the lawful basis on which you send personal data to third parties, for example a supplier located outside of the UK. Businesses should also consider how they carry out e-marketing. A commercial lawyer can advise you on the different legal requirements of the DPA and draft documents to reflect the data protection needs of your business.

    Follow the link to read the rest of our: 20 Legal things series.
  • Related Services

    Commercial

    We draw on our extensive legal, commercial and industry expertise when working with you to achieve your strategic objectives.

    Corporate

    Our award winning team of corporate lawyers provide highly practical advice to help businesses of all sizes develop and grow.    

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By submitting an enquiry through 'get in touch' your data will only be used to contact you regarding your enquiry. If you would like to receive newsletters from Thomson Snell & Passmore please use the separate form below.

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