Advice On Business Contracts

Our Team drafts your commercial contracts with precision and clarity using plain English to avoid future disputes. We carefully consider the legal requirements and follow recent developments in the law to ensure that our advice to you is timely and accurate.

Clarity is very important in contract drafting as it avoids subjecting the contract to multiple interpretations which often lead to disputes that can potentially cost your business multiple thousands of pounds. Clear contracts also foster trust in the business relationship as there is no confusion from the beginning regarding the intention of the parties in the underlying commercial transaction or project.

The plain English writing technique is a high-level skill not widely used among the legal professionals. It is complex as it requires a deeper understanding of the technical aspects to be able to effectively communicate often complex legal concepts in ordinary English. Our team uses this powerful drafting technique to deliver contracts that are free from legal jargon and easy to understand.

We also employ other contract drafting techniques to produce contracts that are well structured and accurately reflect the agreement between the parties.

Risk Analysis and Reporting

The key job for our commercial team is to limit your business’ exposure to various risks so that your business can operate smoothly. Through contract review, commercial drafting or risk analysis, our team can identify, assess, evaluate, your potential risk in the context of a commercial transaction or project.

When required, our team will carry out an extensive risk assessment of your contract allocating the risks identified as high risk, medium risk or low risk and producing a report which is a comprehensive analysis of all the risks identified in your contract. Our team will develop strategies to help you address or mitigate the risks identified. It is your prerogative to act on our recommendations in line with your business aims.

Alternatively, you may only require a high-level contract review and a report on only the high-risk areas in your contract. Our team is on hand to assist with a structured written advice to meet your specific business goals.

We carry out comprehensive risk analysis to produce data audit reports and independent assurance reports designed to meet your regulatory compliance obligations. This can vary from an individual data protection audit or technology project, or through a broad audit of aal of your business’ processes and systems for compliance purposes. 

We take a meticulous approach to our contract review, innovating solutions to the thorny issues in your contracts to protect your business from serious reputational, financial, regulatory and legal risks. Our team pays attention to detail ensuring a comprehensive review of your contract is carried out when required. For instance, a thorough review of a supplier/customer contract can be carried out when needed before you commit to either a sale or purchase of a product or service that is crucial or ancillary to your business.

Our team assists other businesses to evaluate transactions before making binding commitments, ultimately saving them money and various risks in the future. You do not have to wait until a dispute is raised by the counterparty before you ask us to step in. Whether you decide to commit to a new business relationship or need to end an old business arrangement with a supplier, manufacturer or customer; whether this is for the purpose of smoothly running your business or scaling your business or indeed in the context of succession planning, our Commercial team is all the help you need.

We diligently work to achieve a successful outcome on your commercial deals. Our work on contract negotiation varies from leading negotiation strategy on our clients’ behalf, to providing written advice to support our clients’ legal and/or procurement teams to effectively negotiate with a counterparty. Whether you want us to lead with the negotiation and deal directly with the counterparty, or simply want us to provide you with strategic points for you to consider and apply in your negotiations until the deal is complete, we are here to support you.

Our team is experienced in supporting clients with contract negotiation for a broad range of contracts. We understand when you need to compromise to maintain a long-standing business relationship and achieve a win-win situation in your commercial deal. We also understand when you need to heavily push-back on terms that will be detrimental to the business interests of your organisation. We are happy to engage you to fully understand your requirements and build negotiation strategies that are aligned to your business objectives.     

A poorly drafted exclusion and limitation clause in a commercial can potentially bankrupt your business. We take extra care to ensure that your liability exposure is limited throughout the contract and especially in the exclusion and limitation clause.

We adopt approaches used by the courts in addition to common approaches used by contracting parties to ensure that your limitation of liability clause is effective.

We always ensure that the clause is drafted in accordance with the legal and legislative controls that affect the clause. Drafting or reviewing an exclusion and limitation of liability clause is a complex one. There are many methods we use depending on the context, but you can rely on our team to effectively review and/or draft this important clause with great care and expertise.

These may be backbone agreements that are regarded as crucial to the growth and success of the business. They may relate to the core product or service provision by the business without which the business cannot grow or exist. Alternatively, they can support with the smooth operation of a business down the supply chain.

The award-winning team at Wilson Browne will consider all the key legislation that is relevant to your contract relating to the business to business sale and supply of goods or services. As these key legislations impact the supply agreements, we recommend that you leave it to the experts in our team to ensure that you have a legally enforceable contract that adequately minimises your risks while also helping you to achieve your business objectives.

You may decide to trade based on standard terms and conditions, or you may instruct us to draft a bespoke contract which you decide to negotiate with a supplier or customer. We will always tailor our advice to your business needs.

Standard terms and conditions provide a cheap and efficient way of concluding contracts without consulting a legal advisor each time. They also provide a consistent way of applying uniform terms across all of a business’ supply chain. Small businesses seem to regularly trade on standard terms although they are also common in medium-sized and large businesses as well.

Issues arise when another party does not agree to the standard terms or prefer their own standard terms; a situation called the ‘battle of the forms’. In addition, a business may fail to take the required steps to ensure that they have effectively incorporated the standard terms into a contract, leading to exposure to disputes.

Another issue is that a party to a contract may be able to establish that there was a ‘course of dealing’; this is where they prove that the parties have been consistently trading on other contract terms separate to the counterparty’s standard terms for a period. Another key issue to consider is that exclusion and limitation of liability under standard terms and conditions is subject to the reasonableness test set out in the Unfair Contract Terms Act 1977.

These and other issues not mentioned are all complex legal issues that we consider when dealing with your standard terms and conditions. We are here to support you to produce standard terms and conditions that will stand legal scrutiny along with additional advice on how to ensure there is effective incorporation.

We appreciate these are legal issues that you need support on; that is why we are here to provide the guidance you need to avoid the common risks that arise from using templates commonly found on the internet that are not tailored to your business or your commercial transactions.

As standard terms and conditions will not be relevant or suited to every transaction or party, you may decide to produce a bespoke agreement that you are able to negotiate with another business for the procurement of goods or services.

Bespoke agreements cost more and they require more time to produce in comparison with standard terms and conditions, but they permit a business to accommodate specific arrangements with a particular supplier or customer.

They also make disputes less likely in the future as the parties will have had an opportunity to negotiate and agree to terms that best suit their respective commercial interests. As bespoke agreements are more accommodating, they are useful when a business undertakes to establish long-term supplier relationships which bring certainty in revenue.

We can also design unique bespoke agreements that meet your emerging business needs. Our team of innovative and experienced legal professionals will work with you to understand your business aims and then design an agreement from scratch to satisfy your requirements.

These are main agreements for long-term supply of goods and/or services often involving multiple suppliers with one customer or vice versa. They are useful in supporting a business’ scaling plans. Your business will become an approved supplier or customer if it enters into a framework agreement with a public body. The benefits of this for your business are many.

Either a framework agreement or a master services agreement acts as an umbrella or an overarching agreement setting out the standard terms in relation to the sale or supply of goods or provision of services under call-off contracts, work orders or sale orders. For instance, a parent company in the private sector may use a master services agreement or a framework agreement which applies to all of its subsidiaries, while the call-off contracts or sale orders may only concern a specific subsidiary that a supplier or customer is directly dealing with.

They are a great way of establishing long term arrangements or long-standing business relationships where the parties are likely to trade on similar goods or services for a period, providing an opportunity for repeat orders for goods and services without entering into a fresh contract each time. They are common in public sectors where public procurement laws apply.

While the benefits are many, these agreements are very complex and carry significant risk so extra care and expertise is required to deal with them. Our experienced team can support you with the contract reviewing, contract drafting and contract negotiation involving framework agreements or master services agreements.

Distribution agreements can be part of a business’ scaling plans helping businesses to agree commercial terms for product distribution between a supplier or manufacturer and a distributor, usually within an agreed geographical location also called territory. Distributors can have exclusive rights to distribute a product within an agreed territory where the manufacturer is not permitted to supply, except for direct sales. In other cases, more than one distributor can supply the same product within the territory and may also have a right to appoint other distributors. This is called non-exclusive distribution.

We can help you navigate the related complex issues so that your negotiations with a counterparty regarding a distribution agreement are effective and efficient. For instance, failure to clearly define the distributor’s scope of authority and exclusive rights within the agreement can have damaging effects on both parties. We ensure that it is clear from the start as to the nature of the exclusivity rights accorded to the distributor; we make appropriate recommendations to address this issue where it is not correctly reflected in your contract.

Making distribution agreements compliant with UK competition laws and addressing any EU competition law concerns is daunting and requires expertise. Even though the UK left the EU, some agreements may still be caught in the EU competition law regime regardless that the business is established in the UK. We can assist you to consider the application of the competition laws in the UK and EU in the context of negotiating your distribution agreement to ensure it is legally compliant.

In most cases, you may just want assurance that the contract is legally compliant or does not expose you to any major risk without a need for us to make amendments to it. We are more than happy to do this for you, provided you understand that we retain the responsibility to signpost you to any huge concerns that we identify on our review so that you can consider whether they are worth pursuing.

Manufacturers or suppliers need to adequately protect their intellectual property to avoid exposure to misuse and infringement. If you are a supplier or manufacturer, our team can negotiate or draft intellectual property clauses that help to provide sufficiently robust protection for your intangible property.

When dealing with cross-border distribution agreements, choice of jurisdiction, applicable law or forum for dispute resolution can be heavily contested. This is because your business can potentially be involved in an expensive and time-consuming commercial claim logged in an unfamiliar legal system. In our experience, it is not always possible to agree to England and Wales as the preferred jurisdiction or English law as the applicable law for interpreting the contract. Together, we can explore ways to reach an amicable compromise with the counterparty.

For example, a client we advised opted to follow International Commercial Terms (Incoterms) to make some key clauses in a cross-border distribution agreement subject to international trade standards. There is also an option to use the International Chamber of Commerce as the forum for arbitration, providing neutral ground for any disputes that may arise in your cross-border agreements. We can advise you on the risks or benefits of adopting such approaches in comparison to choosing the jurisdiction of the counterparty who is not established in the UK.

A manufacturing agreement is an agreement entered between a manufacturer of goods and a customer that requires manufacturing services in a business-to-business context. Our team can assist either a manufacturer or a customer to negotiate the terms and conditions for the manufacture of the goods which the customer intends to resell or incorporate with their own product.

There are many issues that need careful consideration when reviewing or drafting a manufacturing agreement – requiring additional time and expertise due to the complexity of the agreement. In some cases, we will be reviewing a third-party contract that has been presented to our client for negotiation or approval and signing. However, in other cases we may be instructed to draft a bespoke contract manufacturing agreement from scratch. We can support you in both cases.