business_view_summer_2011_newsletter
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Business View
Whether you have an established website, and are perhaps
undergoing a review of its content, or you are setting up a new
website from scratch, it is important to bear in mind the applicable
policies and terms and conditions setting out the rules and
standards which you will require visitors to observe when visiting
your site. In so doing you should consider:
Privacy Policy This deals with the collection, storage and use of personal data.
Such a policy is required if, for example, you have a website which
collects basic, non-sensitive personal data (for example, a
membership application form requiring name and contact details)
to enable you to supply goods or services or to contact users with
marketing information.
By having such a policy in place you:
� provide users of your site with reassurance as to how their
personal data will be used and handled;
� help to ensure compliance with data protection requirements.
If you have a website used by children or you collect sensitive personal
information then your policy needs to be adapted in such way that
explicit consent is obtained to any processing of personal data.
A privacy policy should be displayed, or be accessible, at all points
on your website if you collect personal data.
Under the Privacy and Electronic Communications Regulations
2011, from 26 May 2011 all website owners may only use “cookies”
if the subscriber or user has consented to such use after having
been provided with clear and comprehensive information about
the purposes of such processing.
Acceptable Use Policy This is usually prepared and considered in conjunction with terms
of website use and can form part of them. If a site contains features
such as interactive access (allowing users to upload content or
information), the policy sets out the rules with which they must
comply and the right of the owner to remove any unacceptable
material and manage access to the site. It will typically deal with
issues such as defamatory statements and third party intellectual
property rights.
Terms of Website Use These set out the terms upon which you permit access to, and use
of, your site and are relied upon to:
� allow you to limit your potential liability to users of your site;
� prevent unauthorised access to the site;
� prohibit disclosure of personal security access information;
� restrict any unauthorised reproduction of material on the site;
� warn against unacceptable behaviour, eg hacking or introduction
of viruses.
Website Contracts and Policies
Corporate & Commercial News Summer 2011
CONTENTS
1–2 Website Contracts and Policies
2 Royal Wedding Memorabilia
2 Companies House - Change of Fees
2 Bribery Act 2010 - Guidance Released
3–4 Recent Cases
4 Latest News
�
Companies House– Change of FeesCompanies House has
implemented changes to
some of its fees from 6th
April 2011 and has, in
particular, raised their fees
for paper filings. This is
seen as a way to encourage people to file electronically, rather
than in paper format. Most paper filings will be withdrawn
from March 2013 as Companies House is to become a fully
electronic registry.
In the build up to the Wedding it was hard not to miss retailers
trying to cash in by selling memorabilia. Before it the Lord
Chamberlain’s office published guidelines stating that souvenirs
could bear approved photographs of the wedding couple, as well as
Prince William’s coat of arms, provided that they:
� are of a permanent kind;
� incorporate wording, such as "To commemorate the marriage
of Prince William of Wales and Miss Catherine Middleton, 29th
April 2011", to identify the commemorative function;
� are in good taste;
� are free from any form of advertisement;
� carry no implication of royal custom or approval.
Such guidelines are not legally enforceable and just indicate what
is thought appropriate.
Website Contracts and Policies continued
The Bribery Act 2010 comes into force on 1 July 2011. Bribery takes
place essentially where a public official is offered or receives any
undue reward in order to influence his behaviour in office. There is
a defence available to companies which can show that they had
adequate procedures in place to prevent bribery.
The Secretary of State has now published guidance as to what are
adequate procedures. It provides sample case studies and clarifies
some areas of uncertainty, particularly in relation to corporate hospitality.
A copy of the guidance can be found at:
http://www.justice.gov.uk/downloads/guidance/making-reviewing-
law/bribery-act-2010-guidance.pdf
Royal Wedding Memorabilia
Bribery Act 2010 –Guidance Released
Terms and Conditions of Supply These are required if you deal with the sale and purchase of goods
via your site. They cover general commercial terms such as the
price of and payment for the goods. For contracts made at a
distance, such as on the internet, there are other considerations to
address including:
� a description of how the online contract is formed;
� consumers’ rights to cancel an online contract;
� contracts with minors and customers outside the UK.
�
A Frustrating Contract A general principle in law is that where a party under contract
fails to perform its obligations it will be liable for damages.
However, where a serious event occurs which is both unexpected
and beyond the control of the parties and which will make
performance of the contract in the changed circumstances
fundamentally different from performance under the contract
the parties originally entered into, a contract can become what is
known as frustrated. This is a common law principle and the courts
apply it as narrowly as possible. However, a recent case has placed
this back on the agenda for sole traders and those contracting
with them.
In this particular case property owners entered into a contract
with a sole trader for him to provide construction services. The
sole trader was well known to them and had worked for them
and their relatives previously. During the work he suffered a heart
attack and on medical advice did not return to work. No
arrangements were made by him to get anyone else to complete
the work, which remained unfinished.
The property owners issued a claim for damages and the sole
trader contested that the contract was frustrated by reason of his
own ill health. The High Court held that, due to the relationship
of trust built up between the parties, the contract was a personal
contract and only the sole trader could fulfil it. Sub-contracting
the job was inconsistent with the personal relationship and so
the contract was frustrated by the sole trader’s ill health.
When entering into arrangement with a sole trader it would, in light
of this case, be sensible to expressly state what will happen if he is
unable to continue providing the services. [Atwal v Rochester (2010)]
Set-Off A recent case has looked at the reasonableness of set-off
provisions in standard contracts. A had engaged B, a freight
forwarder, to deliver sandstone from India to the UK on B’s
standard conditions of sale, which incorporated a clause which
excluded the remedy of set-off for all claims. A claimed that B had
overcharged it and tried to set the amount allegedly overcharged
off against outstanding invoices.
The Court of Appeal had to look at whether the set off clause was
reasonable under the Unfair Contract Terms Act 1977. It held that
the clause was reasonable on the basis that A had done business
with B over a considerable period of time and was fully aware of
its terms of business.
This case shows that courts are willing to uphold clauses that
exclude liability under standard terms and it is therefore important
for businesses to know whether certain exclusion clauses that are
generally used would be regarded as reasonable. [Röhlig (UK) Ltd
v Rock Unique Ltd (2011)]
Special Resolutions The basic position is always that the wording of a special resolution
may not be amended at the meeting held to pass it or subsequently.
However, the Courts have recently held that a typing error could be
overlooked where it was apparent from the other text of the
resolution, when read with an accompanying circular, what the
correct number of shares was meant to be. Further, in this case
the error was notified to the chairman of the meeting and the
members agreed at it that the resolution should be read as relating
to the correct figure and the minutes so stated. [ReUniq Plc]
Uncertainty of Restriction A service agreement included a post-termination restriction
enforcing an area of restraint simply described as two named
counties and “those parts of the United Kingdom to the south
thereof”. It was held that this was too uncertain to be
enforceable. In addition, it was also held that the place at which
the business was operated was also uncertain as it was not clear
whether or not it covered any place at which services were
provided to a customer. The judgement emphasises the need
for such restrictions to be carefully worded for the purposes of
certainty as well as reasonableness. [Landmark Brickwork Limited
v W Sutcliffe & Others]
Management Committees A dispute arose between shareholders as to how the affairs of a
company should be managed. It was held that a management
committee was not properly appointed and thus there could be
Recent Cases
�
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www.stoneking.co.uk email: corporate&[email protected] © Stone King LLP 2011
Our policy when giving commentary and summaries on a non-specific basis is that we do not assume liability for the accuracy of any particularstatements.
Stone King LLP - registered limited liability partnership no OC315280, registered office 13 Queen Square, Bath BA1 2HJ
Your ContactsRoy Butler Partner email: [email protected]
Caroline Leviss Associate email: [email protected]
Latest NewsOur Education and Charity Teams are expanding to provide new
capacity to meet the increased demand for independent legal
advice in the education sector. New solicitors who have just joined
us or are joining us in the next 2 months include:
Graham Burns as a partner in the Education
Team. Graham has been an education lawyer
for over 20 years, working first with national
firm Eversheds and later in his own niche
firm TPP Law, principally in the public sector
acting for local government and most
recently in establishing academies.
Nicola Berry as a solicitor in the Education Team. Nicola trained at
TPP Law and has acted as principal assistant to Graham Burns.
Lydia Brookes as a solicitor in the Education Team. Lydia trained at
Clifford Chance and qualified as a solicitor 4 years ago.
Rishi Mital as a solicitor in the Education Team. Rishi qualified as
a solicitor with niche education firm Match solicitors 3 years ago
and worked with them specialising in operational issues for
education clients.
Reema Mathur as a solicitor in the Charity Team. After training at
City firm Clifford Chance and a period at Withers doing banking
law.
Darren Hooker as a solicitor in the Charity Team. Having trained
with Stone King Darren has recently qualified.
Recent Cases continued
no binding effect on the company flowing from any of the decisions
made by it. The management commitee did not have the right to
make changes to the Articles of Association. It is always for the
members to do that and the Articles of Association will govern the
appointment of a board of directors in authority to manage the
affairs of a company. As it was not practicable to leave that to the
members in this case the Court gave directions as to the holding of
elections and who could vote [G Hussaain v Wickham Islamic
Mission and Mosque Trust Limited and others].
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