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

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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&commercial@stoneking.co.uk © 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: rab@stoneking.co.uk

Caroline Leviss Associate email: crl@stoneking.co.uk

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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