Contract negotiation

Creatives can neglect contracts at their peril.

The subject of terms and conditions traditionally for Creatives is usually the last issue on their mind. It’s also common for Creatives to acquire someone else’s terms and conditions or write their own contracts. Unfortunately the credibility of these contracts is only tested in times of dispute; so contracts drafted in bullet points format or acquired from an unreliable source generally don’t contain the correct enforceable clauses to assist the business to resolve issues that arise.

Similarly, those many companies who choose to do business on a handshake, as honourable as that sounds, find the frailty of the contract is exposed when a dispute arises, as there is no real legal detail or proper fall back position to solve disputes. Writing down the details of how you’d like to do business is a simple idea and best captured in a contract that is tailored to the relevant business sector and business type.

There seems to be a natural resistance to formality and detail, yet during times of disagreement it’s often the details that will protect a business.

Terms and conditions can be for many Creative businesses a way for outlining ‘how they want their customer to engage with their services, from quotation to completion of the work.

Colin Hardie, Director at Ubisan a web commercialisation business commented, ” Create Ts and Cs listened and managed to distill the more specific elements of my business into a coherent and highly professional set of bespoke terms and conditions…. something that would have been impossible to achieve with an“off the shelf” alternative”.

This also means, outlining your payment terms, the IP ownership and managing scope creep through effective ‘sign off’ processes captured in the Terms and Conditions. All these issues are central to ensuring you get the work done on time and in-line with your Creative business strategy while getting paid, which can assist cashflow and promote sustainablity within the business.

David Atkinson, Director at design agency CO2 Design, said,” Before we got a bespoke set of Ts and Cs, we like many others got a set from the web or looked at others, now we have a ratified contract that communicates clearly with our clients.  Also, we’ve managed to reduce the amount of debt within our business to a level we can manage, which has helped the business”.

Its also common for some potential clients to request a set of Terms and Conditions prior to doing business, if you don’t have a relevant set of Ts and Cs, then you’ll simply accept the terms offered by the client or in some cases run the risk of signing up to a contract which is packed with clauses no one knows the consequences of signing up to! Meaning you get paid and agree to the terms according to the clients terms and conditions.

David McCullough, MD of Urban Niche, a social media marketing business based in Edinburgh commented, “Urban Niche contracted Create Ts and Cs to draft a bespoke set of Terms and Conditions to support our bid for NHS business, I am delighted to say we won the business and believe Create Ts and Cs contributed greatly to our bid and ensured we had the correct commercial contract; helping us to present our business professionally and prepare appropriately for our negotiations”

Having a relevant, sector focused contract in-line with the Creative business is one way of avoiding unnecessary disputes and allows the Creative business owner to concentrate on doing the work they enjoy doing .

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Freelancers could be mistaken for employees by HMRC

If you are a freelancer, then you’re part of a strong business group that’s has growth steadily over the last year; according to the Recruitment and Employment confederation (REC) report (JobsOutlook) published this year; the report revealed that despite concerns with both the current UK economy and the Eurozone, the demand for freelance contractors still remains strong.

It goes on to say that the majority of UK employers still plan to hire more freelancers, for both short-term and long-term job contracts. Also, despite no holiday pay, lack of sick benefit, pensions etc freelancers are still able to command much higher hourly rates of pay than permanent employees – and enjoy a more flexible working hours.

However, a recent number of cases has flagged up the need for Freelancers to differentiate and protect themselves, not only for them to manage the liability within business but to clearly define the relationship between both parties regard HMRC IR35 regulations.

A recent 7 year dispute that concluded in 2011 involving Airbus UK and reported in lexology.com demonstrates how HMRC can view freelancers.  HMRC challenged the relationship between Airbus UK and their freelance contractors as suspected employees. Unfortunately, in this instance the freelancer lost the case resulting in payment of back dated tax, national insurance to HMRC.

What is scary about the Airbus dispute is the length of the dispute demonstrating the complexities of IR35, but also highlights the importance that the courts place on the factual reality of the relationship between the parties. Whilst both contractor and company can strengthen their case by ensuring that their relationship is documented within a contract, it is essential that a contract reflects the ‘reality of the relationship’. The Business entity test is part of the IR35 assessment, this check list will help you shed some light on the criteria required to comply with in order to communicate with HMRC and establish your business as a separate entity.

David Reilly, Director at Create Ts and Cs, who provides the service of bespoke contracts to companies who intent to work with contractors commented “It’s critical to protect the business by deploying the right contract when working with contractors, after all from a company perspective, it’s your end client and the work carried out must be of a standard that reflects your business. He continues “From a HMRC perspective its critical both parties differentiate themselves by catering for the IR35 issue within the contract.

A further important way of differentiating both parties is through managing risk, meaning each party acquiring their own public liability and indemnity insurance, which is also reflected in the contract between the companies. Chris Knight of Business Protect, an Insurance Brokerage says “It is becoming more common for the company to insist the contractor acquires their own insurances, after all they are a separate company or sole trader with their own requirement to protect themselves and cover their liability”.

Freelancing is not a straight forward business model and requires investment and planning to manage your risk and key stakeholders like HMRC.

Keeping HMRC off your back when employing contractors.

If you are self employed, then you’re part of a significant growing trend, the latest statistics from the Office for National Statistics show that a record 4.1 million or 14.2% of the entire workforce are self employed.

As your business develops, it’s not uncommon to consider expanding the headcount.  With a variety of pressures on business owners and the perception that employment law is complicated and employing a staff member costly, more and more companies are deciding to hire contractors instead of taking the option to employ staff.

However, a recent number of cases has flagged up the need for both parties to differentiate and protect themselves, not only for the company to manage their own liabilities but to clearly define the relationship between both parties regard HMRC IR35 regulations.

A recent 7 year dispute that concluded in 2011 involving Airbus UK and reported in lexology.com, demonstrates how HMRC challenged the relationship between Airbus UK and their contractors (self employed persons). HMRC deemed the relationship to be that of an employer to employee.  A negative outcome for either party would result in back dated tax, national insurance and employee related costs to be paid to HMRC.

The Tribunal found in favour of Airbus due to contractual clauses signed by both parties. What is scary is the length of the dispute and resources required to engage in such a dispute, once again demonstrates the complexities of IR35, but also highlights the importance that the courts place on the factual reality of the relationship between the parties. Whilst both contractor and company can strengthen their case by ensuring that their relationship is documented within a contract, it is essential that a contract reflects the ‘reality of the relationship’.

David Reilly, Director at Create Ts and Cs, who provides the service of bespoke contracts to companies who intend to work with contractors commented “It’s critical to protect the business by deploying the right contract when working with contractors, after all from a company perspective, it’s your end client and the work carried out must be of a standard that reflects your business.

He continues “From a HMRC perspective its critical both parties differentiate themselves by catering for the IR35 issue within the contract.  Also, both parties should enter into a contract that reflects their capacity to deliver, skill set and capabilities; it’s about achieving a balance.  This is best reflected in a purpose drafted contract specific to the companies involved”.

Dave Telling, Accountant and Director at Accys also commented “The problems with employment status begin when HMRC start asking questions, which is generally several years after the contracting commences.  If you don’t get it right at the beginning, the Revenue may well succeed in proving you’re an employee and you will have years of tax and national insurance to pay at once – an expensive mistake.”

Another important way of differentiating both parties is through each party acquiring their own public liability and indemnity insurance, which is also reflected in the contract between the companies. Chris Knight of Business Protect, an Insurance Brokerage says “If either party is working away from home, possibly within a client’s premises they should consider Public Liability Insurance of at least £2,000,000. If they are providing advice or their work may be subject to Errors and/or Omissions, then Professional Indemnity Insurance will be required”.

Chris continues, “It is becoming more common for the company to insist the contractor acquires their own insurances, after all they are a separate company or sole trader with their own requirement to protect themselves and cover their liability”.

It’s clear there are a number of precautions to be taken when hiring a contractor.  The steps you take to protect both companies will help ensure the experience is both a positive and profitable one.

 

An essential weapon for all SME’s when dealing with larger organisations.

According to Earl Nightingale, famous author and broadcaster “You can measure opportunity with the same yardstick that measures the risk involved. They go together”. He continues, “Wherever there is danger, there lurks opportunity; whenever there is opportunity, there lurks danger. The two are inseparable”.

In many cases, especially with smaller business, (start-up or SME) negotiating with larger organisations, there lives both an opportunity and danger. There is of course an ‘inequality’ in bargaining power. This equality is generally apparent during negotiations. Most large organisations have legal departments and it’s not uncommon for a small company to be pitched into a negotiation involving a corporate legal department.

It’s during these situations that larger organisations may question or request your Terms and Conditions and subsequently changes to your contract or certain clauses omitted. In certain circumstances, company contracts are compared and each clause examined individually; this is commonly known as the ‘battle of forms’. Experienced businesses use Terms and Conditions to position themselves professionally with potential clients and outline how they want to do business; for example getting paid, liability, protecting their IP etc. A well-drafted contract will also help the business manage risk and ultimately save money by avoiding unnecessary disputes.

The following 5 points are worth remembering before you enter into negotiations;

1/ If you don’t have a set of Terms and Condition, then its leads to the smaller company inevitably following the only contract available, that’s the contract of the larger organisation.

2/ Smaller businesses can readdress the balance when negotiating with a larger player; its how you ask that counts and having Terms and Conditions gives the SME an advantage.

3/ Such negotiations can be tense and feel overwhelming, a company with a niche product or service can be in a powerful bargaining position and not realise it, distracted by events or potential size of the opportunity.

4/ Don’t feel flattered; you will end up working harder for less and obtain less appreciation for doing so, vanity costs money!

5/ Be confident, it’s ok to feel pressured by a larger company’s demands. However the same rules apply when doing business with smaller businesses, if you have the capability to deliver services, it’s profitable for you and the risk and scope can be managed then it’s worth negotiating or perhaps in certain cases worth walking away.

Tougher Partnership Rules Could Increase Liability Risk

Legal experts are calling for a change in the law to make it easier to prosecute partnerships and individuals for criminal offences, even after the business has been dissolved and no longer officially exists.

Under current legislation, a partnership which has been dissolved no longer has any legal existence and cannot be called to account to for any allegations of wrongdoing.

The High Court has recently produced a Discussion Paper on Criminal Liability of Partnerships in which the Scottish Law Commission considers ways of preventing the prosecution of a partnership from being frustrated by its dissolution. It also examines the circumstances in which individual partners may be held criminally liable for offences committed by a partnership and asks whether legislation should be introduced to make it easier to prosecute partners as individuals.

“Where there is evidence that a partnership has committed an offence, it should be possible to prosecute that partnership, and make the partners liable for any fines,” said Patrick Layden QC TD, the lead Commissioner on the project.

“A partnership and its partners should not be able to avoid liability just by being dissolved. Our Discussion Paper explores ways to prevent this. We also consider whether it should be made easier to prosecute individual partners for offences committed by the partnership, providing an added incentive for partners to ensure that their partnerships comply with the law.”

However, even under existing legislation, many partners can find themselves embroiled in problems long after their business has ceased to exist unless the proper procedures have been followed, warns David Reilly, commercial director of Create Ts and Cs, which specialises in tailor-made commercial contracts for SMEs.

“Dissolving a partnership can already appear complicated to businesses and any new changes to the legislation must be communicated with this in mind,” said Mr Reilly.

“It not uncommon for some companies to move from being limited companies to partnerships, then back to limited company or a sole trader.

“Some business people have a tendency to go on a journey which leaves a complex legal legacy behind them especially if they don’t dissolve partnerships as they move.”

“Failing to dissolve partnership is a bit like business bigamy. Most people entering a second marriage will make sure they have been divorced first, but not all companies operate so tidily,” said Mr Reilly.

“If a partnership is not resolved it can cause problems with a lot of issues including liability, intellectual property and the relationship with suppliers.

“If there is any intellectual property created within the partnership it will require the partnership being dissolved and the intellectual property being transferred to the next business entity in order for people to use that IP in the next business venture.”

The Commission has called for the views of interested organisations and members of the public by to be submitted for consultation before 12 August so that it’s final report can be published later in the year.

The curse of the Verbal Agreement.

So what’s the problem with verbal contracts, it seems sensible on the surface, why can’t people just get on with doing business based on a rational conversation?

The problem with verbal agreements as per the famous quote by Sam Goldwyn (film boss from 1930’s)” is that they are not worth the paper they are written on”.

Of course it’s legal in certain circumstances, (depending on the type of law) also a budget to argue the issue will help, without money to contest the issue in court, how else can you prove the contract exists?

As demonstrated by the England bid to host the world cup in 2018, verbal contracts when they go wrong, generally lead to post event denial, bad feeling and an overall shambolic situation.   Listening to the commentary you would think the parties were describing two different situations rather than the same event.

Verbal agreements represent an unnecessary business risk and create ambiguity from the beginning of the client or supplier meeting.  Clear communication with clients is a difficult thing to achieve at the best of times, so omitting a written contract and relying on what everyone remembers to be the truth appears ludicrous.

The physiology of a verbal contract seems to suggest a keenness to be flexibility as a service provider or accommodating as a client.   An immediate willingness to trust without knowledge of the people involved or the full extent of the circumstances is an interesting way of exposing your business to uncertainty and all to avoid some paperwork or explore the client or supplier’s service offering or business intentions.   This isn’t to say doing business with friends is a walk in the park, sometimes familiarity can lead to you being last to be paid or expected to deliver a lot more because of the friendship.   So, arguably formality tests the strength of commitment.   Trust is a very important part of business and perhaps should be earned over time.

It only takes two minutes to type “problem with verbal contracts” into Google to find out how problematic it is to embark on a non-written agreement.  Perhaps a written contract is our way as humans, to get to know each other under the banner of legal protection, so post contract we can demonstrate those charming traits of over delivery and flexible customer service.  Impressing a company under contract is more likely to lead to both parties being satisfied rather than one disgruntled party.

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Crackdown on Unfair Terms & Conditions

 

by EasyEditor Newswire

Firms have been warned to make sure their terms and conditions are clearly defined after the Office of Fair Trading announced a crackdown on contracts which are detrimental to customers or breach consumer protection laws.

Currently around 70 per cent of enforcement cases handled by the OFT relate to terms and conditions with at least a fifth of consumers claiming to have had a problem with the small print in contracts over the last 12 months.

Research carried out by the OFT found many contracts contained small print terms that altered the deal consumers believed it to be, or had made it difficult to understand by hiding unfair terms in plain view. At least 80 per cent of cases investigated found people who had experienced a problem said that they had been caught out by a surprise.

Examples of unfair conditions were a football club selling season tickets without guaranteeing seats, extended warranties offering limited cover and an increasing number of sale and rentback deals where the tenancy offered was much less secure than many people realised.

The OFT has also raised concerns about complex, deferred or contingent charges that exceed costs such as businesses which include small print charges that don’t correspond to any service provided or which include obstructions to consumer switching such as imposing onerous cancellation terms.

“The recent economic difficulties have resulted in a lot of companies trying to tighten up on their terms and conditions but great care needs to be taken that any small print cannot be deemed unfair to customers,”

said David Reilly, Commercial Director of Create Ts and Cs, a company specialising in creating tailor made terms and conditions. “A set of Terms and Conditions drafted in plain English, can help a company to differentiate themselves by communicating clearly and openly with their client in mind”

“The OFT will take a dim view of any firm which deliberately or not tries to tie down consumers to unfair contracts.

“Every business needs to review their contracts to make sure their customers are treated properly. Creating fair and transparent terms and conditions is good business sense as it not only offers protection for both parties but builds trust with customers and encourages repeat business.”

However, the use of small print clauses are not automatically unlawful as it depends on the specifics of each contract and a number of other factors.

“On the one hand, we all know that people don’t read the small print of contracts. On the other, small print is a necessary fact of life and consumer law isn’t there to protect the careless or the over-hasty,”

said Heather Clayton, Senior Director of the OFT’s Consumer Group which is calling for the need for small print to be reconciled with the real life behaviour of consumers.

“Consumers should be free to focus on the main elements of the deal, confident that there will be no unwelcome surprises in the small print.”

ENDS

Websites Suffering Under-Investment as Designers Face Tough Competition

 

by EasyEditor Newswire                                                                                                                                                             16/12/2010

Web designers across the UK are routinely over servicing and under charging clients in a bid to keep the e-commerce revolution on track, claim experts.
While 72% of website designers have seen a rise in expectations from their SME clients the majority are struggling to maintain increasingly sophisticated sites on lower budgets and against cut-price competitors.
According to web hosting provider Fasthosts at least a third of web professionals have provided clients with out-of-hours overtime and half have performed work free of charge in a bid to demonstrate the benefits of a properly designed and maintained website.
In the last two years at least 60% of web design firms have been forced to slash their hourly rates while 56% admit to losing clients to cut-price competitors. Many have also had to deal with projects being changed half-way through or work added because client’s under-estimate the maintenance required for a good website.
“For many small firms, using external web professionals is a very sensible and rewarding option,” said Steve Holford, marketing director of Fasthosts Internet Ltd which conducted the research and found low technical understanding from clients was hindering the success of many web projects.
“It’s clear that in recent years, web designers have worked hard to adapt to the needs of clients and demonstrate the value they can deliver. With the right approach from both small businesses and the web design community, online revenues can be successfully built and so help the UK economy in its return to growth.”
However, with many web design firms feeling the pinch as a result of over servicing and under payment leading business experts have urged a review of how client expectations are managed at the outset.
“Having a bespoke set of Terms and Conditions can help manage customer expectations and encourage smooth client cooperation to ensure projects stay on track and web companies to manage cashflow,” said David Reilly, Managing Director of Create Ts &Cs. “A lack of relevant terms and conditions often leads to longer projects, lack of payment and scope creep resulting in the client taking advantage and in some cases retrospective price discounting.
“A set of properly written terms and conditions places the supplier in a position of strength allowing negotiations to start from a sensible position and reach a conclusion both parties can be happy with.
“E-commerce is now big business, worth billions of pounds a year to the UK economy. If British businesses are to compete on the world wide web they have to be prepared to invest in the technology to attract consumers. For their part, web designers have to set out the value and benefits of what they can do in unambiguous terms.”

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Firms Urged to Impose Penalties for Late Payments

by EasyEditor Newswire

 

Contracts between firms which include late payment clauses need to become a common feature of everyday business practice, claim legal experts ahead of an EU update of a directive aimed at tackling business failures.

On average, the majority of small and medium firms have to wait at least

41 days longer than the time scale for payment agreed with customers before they get their money.

The latest research from Bacs Payment Schemes found that in the current economic climate at least 37 per cent of late payers take up to three months to settle invoices, leaving small and medium enterprises (SMEs) out of pocket to the tune of over £24billion at any one time.

According to the Law Society the growing trend means businesses will have to include late payment clauses in contracts as standard if the number of firms going out of business due to cash flow difficulties is to be reduced.

“Average commercial debts caused by late payments are high in the UK, and for SMEs a lack of cash flow can be crippling. With credit less available to those businesses from banks, late payments have a far more serious consequence for SMEs,” said Robert Heslett, President of the Law Society in England and Wales.

“Considering the amount of red tape SMEs and start-ups are faced with, it is no surprise that seeking protection against late payment from customers does not come top of the to-do list. However, it could be the difference between the business surviving or not, especially in the uncertain economic climate.”

As the imminent increase in VAT to 20 per cent is expected to add to SME cash flow problems legal and business experts claim firms must take advantage of the protections already available to help them safeguard against late payments.

“Carefully worded terms and conditions can set out in clear terms how and when payments should be made with penalty clauses if a deadline is missed,” said David Reilly, commercial director of Create Ts and Cs, which specialises in tailor made terms and conditions for SMEs.

“Ts and Cs do not need to be complicated as they are intended to simply represent the formality of a business relationship.

“Properly prepared terms act as an effective deterrent for late payment and, should there be a dispute, can help solve a problem without the need for drawn-out legal action. However, if a firm needs to go to court to recover a debt it is more likely to succeed if it can be shown the debtor is in breach of an unambiguous agreement.”

The European Union is currently looking at updating a directive aimed at tackling late payments, such is the impact on the SME sector across Europe as a whole, but any resulting legislation is likely to take some time before it comes into force.

According to the Federation of Small Businesses, which represents more than 213,000 members across the UK, many government departments and agencies are still paying late despite making commitments at the start of the recession to settle invoices within 10 days.

A survey of SME cash flow found that on average 34 per cent of payments from the private sector are late compared to 31 per cent of UK central Government receipts, 30 per cent of those from Government agencies, 30 per cent from EU institutions, 29 per cent of NHS money and

25 per cent of local authority payments.

Formality and Informality in Business – Getting the balance right!

By David Reilly, Founder and Commercial Director of Create Ts and Cs                           17/04/2010

As a business owner, getting paid for the work I do is an important part of building or growing the business .  We all know cashflow is ‘king’.

With that in mind, let me establish context for the following;  this blog was inspired by a number of recent visits to the sheriff court combined with observation and personal experience.  The subject matter – which is also a talk I’ve delivered at various events across the central belt of Scotland – positions the idea that an absence of formality within business is more likely to lead to dispute, for example ‘non payment’ compared to business relationships supported by a contract or written Terms and Conditions.

So, what do I mean by Formality and Informality; formality is the presence of a contract, or progression of a business relationship from prospect to customer by way of a written agreement.  The word ‘contract’ implies Terms and Conditions of sale or bespoke contracts written to formalise the business relationship, communicating for example how the business is to be paid or how the business’s IP (intellectual property) is to be treated.  Informality on the other hand, in this instance describes an ‘absence of contract’.  Interestingly, the majority of small claims cases I’d witnessed and the overwhelming number of disputes I encounter on a weekly basis have a common theme, the business engages and transacts with another business ‘without’ the presence of a contract.

On the face of it, informality is an attractive exchange, no paperwork is required, there’s a perception of ‘getting on with the business of doing business’, a no nonsense approach and a chance for you to communicate your ability to be ‘flexible’ to your new client.

When disputes occur, particularly disputes that involve ‘non payment’ it seems the SME sized client tend to emotionally react and can take ‘non payment’ more personally than a larger organisation.  This can result in an emotionally charged dispute, as the individual feels ‘let down’ and ‘disappointed’ as a result of their unpaid efforts.

It’s clear that if you fail to Pay BT or a similar sized organisation, a process unfolds, initially involving letters and reminders, finally ending in termination of services and possible court action.  With departments dedicated to such activities and armies of staff ready to pounce, large companies are geared up for these eventualities.

So, when the individuals or directors of SME businesses reach court, generally within the Small Claims process; a natural clash of jargon ensues!  The law is interested in ‘points of law’, or what business contract exists.  The presence of a legal document or contract can help avoid unnecessary disputes in the first place and assist to communicate within the legal system which requires relevant legal criteria.  The legal system can appear alien to businesses who fail to communicate appropriate legal based arguments.  It’s not about right or wrong, it’s about ‘points of law’.

Arguably the use of contracts to encourage agreement between two companies prior to ‘doing businesses’ is an opportunity to create an environment in order to build trust between two companies, laying the path for future business and increasing the likelihood of success.  Why allocate that much trust to a business or an individual with whom you’ve never done business before!  Perhaps informality or the demonstration of the businesses to be flexible should be delivered after a contract is signed? We all like to over deliver for our clients, perhaps we should attempt to protect ourselves and the business first to ensure everybody gets what they want for the experience before we ‘over deliver’.   Maybe, part of the issue regards a businesses fear of requesting a contract reflects our own perceived value of our business.  If we believe we do a good job and can deliver a quality product or service, is it only reasonable to request formality or a contract from a potential customer before we deliver our services.

Create Ts and Cs provide a bespoke set of Terms and Conditions for your business at a fixed price, this unique approach to individualising commercial Terms and Conditions allow Start up and SME sized businesses the opportunity to protect themselves, manage risk and guard against future unnecessary disputes at an affordable price. Download: terms & conditions | privacy policy