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Legal advice

New rights for consumers coming soon! Get ready or face a fine..

Friday, July 24th, 2015

Have you heard about the new Consumer Rights Act coming into force on 1st October 2015? It creates a number of new consumer rights in relation to the sale of goods, services and digital content by traders to consumers.

We are updating our terms of business template now to ensure it is in line with the new law. Get in touch if you’d like us to help update yours! In particular, CHECK YOUR REFUND POLICY!

Here’s a brief summary to help you ensure you’re not falling foul of the law.

Consumer Rights image

Don’t wait until you are in court to sort it out!

If you sell goods

  • Along with all the existing standards like fitness for purpose, satisfactory quality, correspondence with description, goods must match a sample, there are new standards, including:
  • Goods must match a model seen or examined by the consumer, except where the trader has brought differences to the consumer’s attention.
  • New standard for installed goods – they will not conform to the contract if they are installed incorrectly.
  • A new right to reject faulty goods within 30 days for a full refund (NB this does not apply to perishable goods). You can extend this deadline, but you can’t reduce it.
  • Where a consumer prefers a repair/replacement, the time limit for a right to refund is paused until the goods are returned by the trader. If the item still doesn’t conform to the contract upon return, then the consumer’s right to reject is extended by a minimum of 7 days.
  • Once the 30 days has passed, traders now have one opportunity to repair or replace the faulty item, after which, if repair/replacement is not possible or successful, the consumer can request money off or reject the goods for a full refund.
  • After the first 6 months, any refund may be reduced by a deduction for use to take into account the use the consumer has had of the goods. However, if they make the request for a refund within 6 months, traders will not be able to make a deduction for use for the majority of goods.

If you supply Digital Content

Digital content includes paid for content and content that comes free of charge with physical goods.

  • A new right to repair or replacement if the digital content is faulty.
  • If the fault can’t be fixed within a reasonable time, or without causing the consumer significant inconvenience, they can get some, or all of their money back.
  • If they can show the fault has damaged their device and the trader hasn’t used reasonable care and skill, the consumer may be entitled to a repair or compensation.
  • The consumer has a right to a refund if the business does not have the right to provide the digital content.

If you provide Services

  • Consumers have a new right to ask the trader to repeat or fix a service if it’s not carried out with reasonable care and skill, or get some money back if they can’t fix it within a reasonable time.
  • If services aren’t provided within a reasonable time, they now have a right to a price reduction.
  • If a price has not been agreed upfront, what the consumer is asked to pay must be reasonable.
  • If a time hasn’t been agreed upfront, it must be carried out within a reasonable time.

 Special points to note:

  • Do you know about the pre-contract information requirements set out in the Consumer Contracts Regulations? They are implied terms, which means they apply automatically and if you haven’t given all the necessary information to the consumer before they enter into a contract with you, you will be in breach of contract and liable for refunds. Ask us if you aren’t sure what we’re talking about!
  • Terms governing price and subject matter must be prominent and transparent in your terms of business. So you cannot reduce them in size and hope nobody notices!
  • Law enforcement agencies will be able to obtain a court order if you fail to comply with the Consumer Rights Act. If you do not comply with such a court order, you may end up with a penalty of an unlimited fine and/or two years imprisonment. So it’s a good idea to get to grips with the new law ahead of 1st October!!

Fire safety and your legal duties as a business owner

Wednesday, July 1st, 2015

 

Given the heat wave, I thought it would be apt to remind everyone that you are potentially responsible for fire safety of your premises and if you are not compliant, you could face prison not to mention the guilt of having put people’s lives at risk. You are a ‘responsible person’ ie legally responsible for others’ safety if:

  • You are an owner, landlord or occupier of business or other non-domestic premises
  • You have paying guests eg you run a B&B or let self-catering property

SO here is what to do in 5 easy steps:

Step 1:carry out a fire risk assessment of the premises and review it regularly. Keep a written record if your business has more than 5 people.

Step 2: tell staff or their representatives about the risks you’ve identifiedflame image

Step 3: put in place, and maintain, appropriate fire safety measures

Step 4: plan for an emergency

Step 5: provide staff information, fire safety instruction and training

Find out here how to make sure your premises are safe from fire. Now sit back and relax with a nice cool drink !

If you need help on checking if your business ticks all of the regulatory boxes, just give us a call. We are here to help..

 

3 biggest mistakes to avoid when dealing with website developers

Tuesday, February 3rd, 2015

In the heat of excitement about launching a new service or product on-line, most budding entrepreneurs appoint a website developer. The discussion focusses on the design and functionality and cost.  People rarely think of entering into a proper contract- after all what could go wrong and anyway “It’s my mate’s friend……”

Copyright Optimum Design Technology

Copyright Optimum Design Technology

Well I hate to be a doom and gloom merchant, but here are some real stories and facts about what can happen with no terms in place:

  1. You may not get your website on time! I had a client who did have a contract with her developer, but it did not say when the website had to be ready. She did not see this and went ahead and bought all the stock that she was going to sell via her website in time for Christmas. The website was not ready in time for Christmas. She was unable to sell the stock and went bankrupt with no recourse against the developer.
  2. You may not own the content and design. Without an agreement to the contrary, if somebody designs something for you such as a website or a logo, they will own the intellectual property rights in that content, even if you have paid them. So you may find you just have a licence to use your content which can be withdrawn at any time! If you later want to sell the website and brand, it may not be yours to sell!
  3. Your website developer may be able to shut you down. Many developers offer to host your website as well as carrying out the development. Most people think that is very convenient and that it is all one and the same thing. I would strongly advise against this and make sure YOU are in control of hosting at all times. To use a non-IT analogy, your website is like the stage set for a play in a theatre. Your website designer is the set designer. By allowing the website designer to do the hosting, it is like giving the designer the keys to the theatre aswell and keeping none for yourself.Would you do that? I have had many a client come to me where they have fallen out with the webdesigner and the webdesigner has simply pulled the plug on the hosting and the whole website disappears.

So I would strongly advise that in your first step into the world of on-line business, please draw up a proper agreement with your developer- even if they are a friend. If you do not know where to start,we can help. Look out for our next blog with the checklist of key terms for website development contracts.

 

Calling all on-line sellers: New Consumer Contracts law applies to YOU!

Sunday, October 12th, 2014

From June 2014 new regulations apply to everyone who:

  • sells to consumers ( as opposed to businesses)
  • without meeting face to face e.g. sells online or over the phone ( so- called “Distance Contracts”) or door- to -door ( so-called “off- premises contracts”)

Previously the Distance Selling regulations applied but they have now been overtaken by the Consumer Contracts Regulations which impose a number of additional steps sellers must take otherwise they face criminal charges, shut down orders and bad publicity! The purpose of the law is to provide consumers with more transparency on who they are actually dealing with, what they are buying and alerting them to the fact that they may change their mind once they have clicked on ‘BUY’!

Distance Sales

“If only it were this simple!”

In a nutshell the obligations mean that a trader must:

  1. Provide so-called ‘pre-contract’ information i.e. information about the service or products before the customer is committed to buying the service or products AND
  2. Provide certain information after the contract is concluded

What  ‘pre-contract’ information must be provided?

  • Key information about the identity of the trader and the products and many other things too many to list here
  • If the consumer has a right to cancel, a Model Cancellation Form which must follow the set format specified in the Regulations. The consumer does not have to use it, but the trader must nevertheless provide it!

Note that failure to provide this information is a criminal offence so you need to act now to make sure you comply! There are additional penalties too: your customer’s right to cancel is extended and you will have no right to charge them for the use of the service or products up to the point that they cancel.

When and how must you supply the pre-contract information?

The trader must give the pre-contract information and cancellation form before the consumer is bound by the contract- so in practice any time before they are committed e.g. by clicking on ‘Buy Now’ or other button or if contracting over the phone, any time before they place their order.

The trader can give the pre-contract information and Model Cancellation Form to the consumer by either of the following methods:

  • On paper
  • If the consumer agrees, on another “durable medium” e.g. e-mail

What information must be provided once the contract has been concluded?

The trader must give the consumer one of the following:

    • A copy of the signed contract.
    • Confirmation of the contract.

The copy or confirmation must be provided within a “reasonable time” after the contract is formed, and in any event no later than the time of delivery of any goods or before performance begins of any service.

By what means must you provide the information?

By good old fashioned paper letter or by email. Note that the email must set out the full terms and you cannot simply send an email with a link to your terms. This is because the idea is that there is a record of what has been agreed that cannot be altered at a later date. If you just provide a link, the terms at the end of the link could be altered at some point in the future.

Where do you start????

We know you are a busy entrepreneur and news of these new laws and obligations is probably the last thing you need or have time for, so we have done the work for you.

Just 3 easy steps :

  1. E- mail us for our free questionnaire to see if you comply with new law. It will only take 3 minutes and will reveal if you do or not comply with the new law.
  2. If you don’t comply, turn to our ‘oven ready’ document shop which has brand new template for selling goods and digital products online which complies with new law. It has all of the relevant pre-contract information and model cancellation form.
  3. If you sell services, drop us a line or give us a call so that we can check your terms or provide you with fresh ones.

Alternatively, you can trawl through over 100 pages of the Regulations and work it out for yourself. Enjoy!!

The law for on-line sales has changed. Are your terms up to date?

Friday, September 5th, 2014

“Your statutory rights are not affected…” Do you actually know what this means?

As a business owner, you may not be aware that your customers have certain rights by law and even if your terms say otherwise. These are so-called “statutory rights” because they are granted by statute. Usually these overide any other terms you may seek to enforce. Set out below are key provisions in relation to online sales that became law recently. If you do not comply with them, you may have the law knocking at your door…

Consumer Contracts Regulations  2013

These regulations replaced the Distance Selling Regulations  and apply to distance contracts entered into on or after 13 June 2014. Note that the Consumer Contracts Regulations apply only partially to some sector-specific contracts (including for example goods made to the customer’s specification, goods liable to deteriorate or expire rapidly and goods for which the price is dependant on fluctuations in the financial market) and do not apply at all to others (including food and beverages delivered by roundsmen).

SO, if you sell online to consumers you must:

  • provide certain information before your customer enters into a transaction with you ( such as who you are, right to cancel etc) and this must be confirmed on a durable medium, such as an e-mail.
  • make it clear when proceeding with the transaction will trigger a payment (for example by labelling the payment button with “Order with obligation to pay”)
  • get the consumer’s express prior consent before taking any additional payments (for example, pre-ticked boxes will not be permitted).
  • allow consumers to cancel the contract within a cooling off period of 14 days. This period can be extended by up to 12 months if you fail to provide the information. So saying nothing and hoping the 14 days will come and go is not an option!
  • deliver goods within 30 days, unless otherwise agreed with the consumer.
  • not offer a premium rate telephone line to contact you about an existing contract.

Payment Surcharges Regulations

These apply to contracts entered into on or after 6 April 2013 (with some sectoral exclusions from scope). These impose a ban on charging the consumer an excessive fee for using any given means of payment. For example, charging an excessive fee for using a credit card as opposed to a debit card.

If your terms are out of date or you have none (!), then our ‘oven-ready’ document shop has a ready made template that you can use. It comes with comprehensive guidance notes and 30 minutes free advice if you get stuck. See here for more details.

'Oven-ready' document shop

Always open for business!

Get the terms of business that YOU want

Monday, June 23rd, 2014

As you may have gathered from previous newsletters, I am fond of unusual presents especially ones where you experience something different. To add to my experience of flying a jumbo jet (in a simulator of course!), I was recently given a voucher for the more grounded thrill of learning how to carve a wooden spoon.  Nowhere near as exciting I hear you say, but once our goblin-like teacher with a long wispy beard had explained that the knife we were about to use was so sharp it could in fact cut your finger off, he had my full attention!

We proceeded to start with a giant log which we honed down with the aid of a very sharp axe to the rough size of a spoon and then the whittling

Like lovely wooden spoons, t's & c's come in all shapes and sizes!

Like lovely wooden spoons, t’s & c’s come in all shapes and sizes!

started with our knives. Amazingly, as we gradually shaved off the outer bark and experimented with the various whittling techniques, the shape of a spoon began to emerge. Being a sailor at heart, I tried to emulate the hull of a boat for the bowl and surprised myself how satisfying it was to feel the round shape gradually develop due to my efforts alone.  The point I am getting to is that contracts and terms of business are just the same as a lump of wood and they too can be whittled down and shaped until they are in the shape you want them to be.  Many new business owners do not realise this.

I have come across several clients recently who have presented me with contracts that they have signed which were totally against them. They were virtually signing their entire business away. When I asked why on earth they had agreed to those terms, many confessed that they thought they had no choice. They were pre-printed and surely that was that. The answer, my friends, is absolutely NOT! Why do you think politicians and lawyers work through the night? Because they are negotiating the terms of a treaty or a contract with the other side and are not willing to back down until a fair deal is reached. They are whittling!

So my plea to you is that you can do the same. In any deal going forward, no matter how large or small you are, you should do the following:

  1. READ the contract from beginning to end ( this is your log to use the wood analogy!)
  2. Identify which bits you don’t like or don’t understand- the knots and bumps!
  3. Get out your ‘contract knife’ and chop and whittle away at them until you are happy with the terms. If you don’t know how, this is where a lawyer comes in. You tell him or her what it is you want and we do the rest.
  4. DO NOT SIGN until you are happy that you know and agree with the terms

Bigger businesses will often say it’s their terms or nothing else and then you have to weigh up how much you are willing to sacrifice to secure their business. You may decide it is worth it, but you should always go in with your EYES WIDE OPEN and know what it is you are committing to.

Be a savvy business owner and sharpen your knife!

How to stay best friends in business

Thursday, February 13th, 2014

Chances are, you are one of the many entrepreneurs who have set up business with your best friend. One of you is the creative person, the other the more managerial type. Between you, you have the perfect skills to run your dream business and before you know where you are, the kitchen table has become your HQ and the business is flying along. “What could possibly go wrong”, I hear you ask? “We have known each other for years and don’t need a formal agreement with each other. There is already enough to think about just running the business. We have set up a limited company so what more do we need?” Shareholders Agreement, Staying Best Friends

The answer is that you need to remember that you two are the foundations of the business. You are investing every spare waking minute on it, possibly hard earned savings too, maybe even re-mortgaged your house. You may not necessarily fall out, but have you agreed what is to happen if:

  • One of you meets the partner of their dreams and wants to sail off into the sunset (keeping up the Valentine’s theme 😆 )?
  • There is a juicy offer on the table from an investor, but one of you doesn’t want to sell up?
  • One of you wants to invest in a major piece of equipment, but your friend disagrees?
  • There is the pitter-patter of little feet and your partner suddenly doesn’t pull her weight anymore..
  • Illness or worse strikes? Should your friend be able to leave his/her shares to her friends and family rather than you have first refusal?

A common issue in the case of 50:50 shareholders is that as time goes by, one person is doing the lion’s share of the work and the other is doing less and feelings of resentment start to creep in.  Suddenly it seems wrong that profits should be split equally and yet you don’t want to risk your friendship.

These are some of the many issues that are covered in a so-called “Shareholders Agreement”. It covers all eventualities that you may encounter while running the business and provides a game plan for you to follow. It may feel hard and possibly pessimistic to have to imagine the “what if’s”, but I promise you that dealing with these issues now, will truly make your business run more smoothly. To this end, I have created the “Staying Best Friends Pack”.  It consists of:

  • A 50:50 Shareholder Agreement template
  • Guidance notes to help you complete it
  • 30 minutes consultation
  • 2 hotline call @15 mins each valid for 6 months from purchase

All of this is now available in our ‘oven-ready document shop’ here

5 truths on using freelancers without a contract

Sunday, December 1st, 2013

Many small businesses start off by using freelance contractors as and when needed rather than permanent employees. This makes perfect sense until one knows exactly what the business will need by way of help and whilst capital is still limited and unpredictable. HOWEVER, it does NOT mean that the agreement itself with the sub-contractor can be ignored and without one, a business could risk losing not just money, but its entire business! This is why:

  1. There is no implied duty of confidentiality owed by a self-employed consultant (as there would be for an employee). So all of your business information, client and supplier contacts that you may share with your contractor are exposed and free for them to use as they please! Therefore, it is important to impose express confidentiality obligations on the consultant which cover his/her activities both during and after the engagement.
  2. Everything created by the freelancer belongs to the freelancer-even if you have paid for it! For those businesses in the creative industry, it is vital to understand that if you sub-contract a creative project, the intellectual property rights (e.g. copyright) arising as a result of services provided will normally belong to the consultant and NOT to you. As you will usually want to take ownership of these rights, it is important to include specific assignment provisions in the consultancy agreement.
  3. They may not be insured. If the job or project you outsource would cause a big loss if the contactor gets it wrong, you can use the agreement to impose an obligation on the contactor to take out insurance to cover his/her liability and have added peace of mind.
  4. Unwitting overcommitment.Without an agreement, there is the risk that the terms between you and the sub-contractor are not at all clear and that statements you have made casually become legally binding.
  5. They may actually be an EMPLOYEE.You may be inadvertently creating an employer- employee relationship and not only have to account to the tax man for PAYE and NIC, but also face claims for maternity/paternity pay, unfair dismissal and redundancy claims if you do not follow the proper process!

If you need terms to get you started, we have a  Freelance Contractor Agreement in our ‘oven -ready’ document shop to put your mind at rest.

Freelance helpers

3 tips on how to ‘hurricane-proof’ your business!

Monday, October 28th, 2013

As you batten down the hatches in preparation for St Jude’s Storm, have you remembered to check your business terms? What if the storm cuts all power and you can’t open your shop or provide your website? What if you are OK but your sub-contractors are affected? Here are 3 key areas to check:

  1. Check your insurance policy: what damage is covered by your policy? Does it include storm or flood damage? Does it extend to just your home or do you also have an extension for your business or indeed a seperate policy specifically for your business. What are you entitled to if your business is interrupted? Have your camera ready so you can take pictures to back up any claims.
  2. Check your Terms of Business: I am assuming you have some! If not please get in touch quickly…If you can’t deliver your products or service, check what the procedure is for alerting your customers. Towards the end of your terms, you should hopefully have a so-called “Force Majeure” clause. This sets out that in the event of something happening which is beyond your control such as storms, flooding, acts of war, both parties are temporarily relieved from their obligations under the contract. Usually you will have to alert the other side- a bit like playing your joker card- and a timetable is kicked off whilst the unexpected circumstances continue. If it carries on too long, either party can elect to end the contract with no penalty. Check what period you have stated in your terms- it is usually 30 days.If you do not have a force majeure clause, then you need to see what commitments you have made to your customers and what the process is for deviating from the commitment. You may have built in a buffer zone and still be within it. At the very least you will have to let your customers know that you can’t deliver or will be late…. Customers would much rather know than be left in the dark!
  3. Check your supplier’s terms: If you are on the receiving end and are expecting deliveries or have sub-contracted some services out, what if they can’t deliver to you or to your customers? Do their terms include a force majeure clause or can they be held to account?

So the bottom line is to grab your contracts now and study them quickly. If you don’t have time or don’t know where to look, we are happy to help and- touch wood- still open for business!

Photo courtesy of the Telegraph

Photo courtesy of the Telegraph

Simulate failure for success!

Thursday, August 29th, 2013

This may seem an odd thing to do, but when putting an agreement together with another person or business, it is vital to think of what could possibly go wrong. In most instances of entrepreneurs setting up in business, they are usually doing so with a family member or best friend. Thoughts of them doing a runner or not pulling their weight will most likely not cross anyone’s minds. Nine times out of ten, people proceed with no agreement at all and this is a big mistake.

Contributed by Andy Voss (1635) on 02.08.2000.

Contributed by Andy Voss (1635) on 02.08.2000.

Just think of an airline pilot. They spend hours in a simulator, rehearsing every possible scenario both good and bad. The worst scenarios are the most valuable and in the recent tragic helicopter crash off Aberdeen, it was said that it was thanks to the pilots skills, that not more had died. He too will have rehearsed complete engine failure. If he hadn’t, it could have been a lot worse.

Large business have entire disaster recovery plans where they put mechanisms in place should the entire office be wiped out due to a natural disaster or there be a simple electrical failure eg hospitals. Small businesses should do the same.

I know it is not nice to think about things going wrong. Even if your family member or best friend stay loyal and hard working to the end, they may be subject to events beyond their control such as illness or the pitter patter of tiny feet or their other half moving jobs to another part of the country… My advice is to grasp the nettle and when entering into any kind of arrangement, have a contract in writing which sets out not only all of the positive elements of who will do what, but also all of the worst case scenarios.  That way, if they should happen, you will be prepared. Best still, pick up the phone to your lawyer and let them guide you and prepare an agreement tailored to your needs.

To get you thinking, look out for our forthcoming tips on “should the worst happen”.