They seek to limit or exclude the risk of legal action being pursued against you, but the world of disclaimers is not as straightforward as maybe you would like and you would be wrong to assume that just by including such a clause in your contract means you are entirely risk free. 

So what does the law say?

The regulation of this area of law all centres around fairness, with consumers having additional protection against terms which would be perceived as unfair even when common law or statute could permit their use. 

As you may know the Unfair Contract Terms Act 1977 (UCTA) aims to reduce unfair terms in contracts.  

Section 2 states that you can’t limit or exclude liability for death or personal injury caused by your negligence.  

Thats why you would have all seen the provisions that state something along the lines of  ‘nothing in these terms excludes any liability that cannot be excluded by law’.. Or the like. 

It is also unlawful to mislead consumers about their legal rights under the Consumer Protection from Unfair Trading Regulations 2008, which repealed the earlier Consumer Transactions (Restrictions on Statements) Order 1976. This statutory instrument made it an offence to use certain kinds of unfair contract terms or notice.

In addition to that, contracts with consumers are governed by the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR). 

Schedule 2 to the UTCCR states that the following would be unfair:

“excluding or limiting the legal liability of a seller or supplier in the event of the death of a consumer or personal injury to the latter resulting from an act or omission of that seller or supplier”

A contract term can never legally have the effect of excluding liability for death or injury caused by negligence in the course of business, and such terms should not appear in any contracts. As well as being unfair, they are also misleading to the public and could leave you open to  risk of prosecution for unfair commercial practice so again go cautiously in this area and check in on your terms.

More general disclaimers, for example those stating that a customer’s use of equipment or premises is  ‘entirely at their own risk’ even if they are not intended for that purpose are likely to be perceived as also seeking to cover liability for death or personal injury. It could be that you simply intend to stop consumers trying to sue for loss of or damage to their property where they have acted carelessly but the fact that the intention behind a term is more limited than its potential effects does not make it automatically fair. 

Where a contract involves an inherently risky activity the use of warnings against hazards which provide clear guidelines and information, and make it very clear that the consumer needs to take sensible precautions may go some way in reducing the level of liability.

Arguably telling people they do something at their own risk is a limitation of liability in some case, and the OFT makes this point in its guidance on unfair terms. But you have to ensure that your terms are drafted correctly to achieve this benefit for instance in the case of an wellbeing event where you are seeking to limit liability for how people may feel after the event something along the following lines would be sensible; 

“By attending this event, I agree that I will only take part if I am well and in good health. I understand that the organisers will take reasonable steps to promote my safety and that I must comply with all instructions given by the organisers and anyone else providing guidance at the event.”

Disclaimers may be acceptable if they are subject to a provision stating that liability for loss or harm is not excluded or restricted where the supplier is at fault, or is disclaimed ony where someone else, or a factor outside anyone’s control,  is to blame. However, a disclaimer covering problems caused by a trader’s suppliers or subcontractors is sometimes regarded in the same way as one covering loss or damage caused directly by the trader’s own fault because the courts will sometimes take the view that a consumer has no choice as to they enter into a contract with and therefore has no contractual rights enforceable against the third party supplier.

So as you probably see the use of disclaimers is never going to be black and white other than you can be sure that it will never be lawful to seek or attempt to evade responsibility for causing death or personal injury as a result of your negligence . . .

I suppose the best way to look at it, while also trying to protect you and your business to the best lengths possible is to never try to deprive your customers of compensation in any circumstances in which they would normally be entitled to it by law.

I would love to hear your thoughts?

For a weekly helping of life, laughs and a little bit of law sign up for the weekly newsletter.

Jo x

P.S Law for Online Entrepreneurs a legal handbook to help you step into your power freely with the confidence to make the important decisions you need to scale your business is released later this month, register here for updates.

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Your businesses potential for making money hinges on the relationships that you form, from those with your suppliers right through to your clients, and/or customers. 

Those contractual relationships whether they are in writing or made verbally are fundamental to its success so leaving yourself exposed by not properly protecting yourself with clear terms could be catastrophic.

Let’s think about what a contract actually is and how they come about?

In short, it is an agreement between two parties. That’s it. Whether it’s on the back of a cigarette packet (I’m not sure that’s a socially acceptable analogy these days but hey, I was dancing my way through the nineties, so I’ll go with it), a verbal agreement or an email exchange. 

The actual existence of a formal written document isn’t necessary and the courts will recognise a contract, even in the most obscure situations if two parties have shown a clear informed intention to reach an agreement, so it’s so important for you to have control over the terms you want to be bound by, as otherwise default terms will be implied into your agreement.

When does a contract come into existence?

This is important because it determines when your customer becomes legally bound to buy from you, or vice versa, for you to provide services or goods, and ordinary contractual principles apply to electronic communications so whether you’re trading online or offline the formation of a proper contract is subject to the same rules. 

What often happens however is that the parties fail to recognise the existence of a contract or when it becomes legally binding, incorrectly working on the assumption that it is ok to change their mind and simply walk away and sadly that is not always the case.

What if a conversation took place between two parties, let’s say in January, for a programme or course starting in July? 

Under English law the general rule is that a contract is formed when the offer is accepted by the buyer and there is an intention to form a contract, additionally in e-commerce selling, that there is sufficient certainty of the terms that have been agreed. 

Anything leading up to that point is just a negotiation between two parties and either can walk away.

The position when determining if a legally binding agreement has been formed therefore between you and another is to consider whether there has been 

• an offer,
• acceptance of that offer, 
• consideration, 
• an intention to create a legal relationship 
• and sufficient certainty of the terms that have been agreed. 

Without those elements the existence of a contract is unlikely .

Despite the huge growth in the e-commerce sector there is still no clear guidance under English law of how the rules of offer and acceptance should be interpreted when contracts are formed using internet based methods of communication. 

If you are unsure, best practice would be to consider all of the circumstances and the context for the particular arrangement.

For instance a zoom call is likely to be deemed as similar to face to face selling whereas email or text may be closer to the rules for written offer and acceptance are dealt with in writing.

In our scenario, when you have provided the details of what you are selling to a customer giving them enough information to make an informed decision (offer) and they communicate a positive acceptance of that decision to you (acceptance) and subsequently pay a deposit (consideration), it is safe to assume that their intention is to create a legal relationship with you and this is when the contract is formed and becomes legally binding.

Whether or not that contract is confirmed in writing is irrele‐ vant and while it will always be preferable to confirm your terms in writing a contract will also come into existence when an agreement is made verbally. 

What can happen however is that the absence of a formal written contract leaves business owners unsure of their position and they therefore don’t feel confident to confirm that the agreement has already become contractual.

The best way to make sure the proper and intended terms are being agreed to and that your buyer understands that they have entered into a legally binding agreement with you at that point is to PUT IT IN WRITING.

I joked to a client recently that I was going to get t-shirts printed with “PUT IT IN WRITING” on as I say it so often.

But it’s actually the most important message I can give you so if you take anything away from this, please let it be this point. 

Your business is built on every agreement you enter into. I know it sounds dramatic and can feel like this doesn’t apply to you, but remember . . .

The risks to you are unlimited if something goes wrong because you can’t prove what was agreed between you and didn’t have the proper protections in place to limit your liability which could spark the beginning of the end of your business, and I don’t want that for you.

It’s not just your clients that need a contract though … Do you collaborate with other business owners? Do you buy from suppliers? Do you work with freelancers? Do you have employees? Do you work with affiliates? Do you collect people’s data? Do you need investment? 

Every single one of those parts of your business need a contract of some form so don’t get caught out.

PUT IT IN WRITING!!

And of course once you’ve established that you need a contract, it’s time to decide what that contract will look like.

For more information on the terms you need to include in your contracts to ensure you are legally compliant join the waitlist for my first book which will be released on 28th April, it’s a legal handbook that will help you step into yout power freely with the confidence to make the important decisions to scale your business, and I can’t wait to share it with you!

Jo x

P.S I’m offering you the chance to get your client contract in place with support on the draft in a zoom session for just £97 for a limited time only. The usual cost for this bespoke contact is £797.  Yes you read that right £97!!

In this live experience on the 25 April at 12pm,, I will take you through your client contract clause by clause making sure that YOU get terms and conditions that are bespoke to YOUR business and total legal protection.

Don’t leave it to chance, sign up now

The post Let’s Talk Contracts – Put It In Writing! appeared first on Jo Fisher.

Risks that you can mitigate against quite easily once you are aware of them.. but knowledge truly is power when it comes to legal protection. So until you gain the knowledge how can you be expected to know whats right and wrong, right?

And thats what we see time and time again people getting it wrong.

There’s no judgement here, ever. At one point or another every business owner will slip up (even legal professionals) so dont be too tough on yourself. All we can do is be aware of the risks and access the tools you needs to keep yourself safe when running your online business.

Here are some of the risks to be aware of;

1. Intellectual property infringement: UK law protects trademarks, patents, and copyrights. When creating content, it’s important that you ensure that it doesn’t infringe on someone else’s intellectual property rights. Failing to do so could result in legal action being taken against you and damages becoming payable which will seriously affect your cashflow or even worse shut down your business all together.
2. Data privacy and security breaches: The UK has implemented data protection laws, including the General Data Protection Regulation (GDPR) and the Data Protection Act 2018. These regulations require companies and individuals to comply with strict data protection rules. Breaching these rules can lead to substantial fines and legal consequences. You need to make sure you are aware of the rights of individuals when it comes to you holding their data and what you need to do to protect it. Make sure you have proper processes in place to keep you compliant and act quickly and professionally if someone requests information about the data you hold on them, from you.
3. Online defamation: Making false statements or publishing defamatory material about someone online can lead to a claim for defamation. This could be libel (written statements) or slander (spoken statements) and the UK has strict laws when it comes to defamation. Those who are found guilty could face significant legal and financial penalties and dont be fooled into thinking these cases are unusual. This happens every day for a whole raft of reasons from the media to business to business disputes and you can easily get caught out or at least be facing the threat of an action against you. Gone are the days when bigger businesses don’t perceive smaller businesses to be a threat and some will have whole team at the ready scaling the internet for potential defamatory content.
4. Online scams and fraud: Scammers and fraudsters use the internet to carry out their illegal activities. Working in the online space increases the risk of falling victim to these scams because your more visible so can become a target much easier – we’ve all seen he fake accounts that feel impossible to shut down. Keep reporting the accounts and know that in more serious cases there might be a claim against the social media platform for not acting appropriately. The risks to you otherwise are financial loss and legal consequences, not to mention damage to your reputation so keep your wits about you.
5. Contract disputes: Working with clients or partners online can lead to disputes, especially if the terms and conditions are not clearly defined or communicated. In the UK, contract law governs these agreements, and disputes can result in litigation and damages which can be costly, emotional and damaging to your reputation as a business, always have a proper agreement.

Advertising rules are another really important aspect to consider when working in the online space.

Here are some of the advertising rules and risks to be aware of:

1. False advertising: The UK has strict advertising regulations that require advertising to be legal, decent, honest, and truthful. Any false claims, misleading information, or deceptive advertising could lead to fines and legal action.
2. Disclosure of advertising: The UK Advertising Standards Authority (ASA) requires all sponsored or paid-for content to be clearly labeled as such. Failure to do so could lead to an investigation and with serious legal and financial consequences.
3. Advertising to children: The UK has strict rules around advertising to children, and marketers must ensure that their advertising is not misleading or likely to cause harm.
4. Social media influencers: Influencer marketing is a growing industry in the UK and worldwide, and there are specific rules that influencers must follow when promoting products or services. The ASA requires influencers to clearly disclose their relationship with a brand, and any paid-for content must be clearly labeled.
5. Online reviews: The Competition and Markets Authority (CMA) has strict rules on online reviews, and it is illegal to write or commission fake reviews. Businesses that break these rules could face fines and legal action. Stick to the facts and never intentionally set out to harm someones business simply because things didn’t go your way. There’s a professional and appropriate process to follow to even though on times you just want to scream it out loud…we’ve all been there!

It’s crucial to understand, comply and mitigate these risks to keep you protected because it’s not always just your business, pocket or pride that could be harmed.

I was recently researching a case where a coach was arrested with criminal proceedings pending against her, it may seem too far fetched to consider this risk. But, criminal action can be brought in certain circumstances in the UK for violations of online advertising regulations. For example, if an entrepreneur or company engages in false advertising that is intentionally misleading, they could be charged with a criminal offence of fraud under the Fraud Act 2006. Similarly, if they engage in aggressive marketing practices that are likely to cause harm or serious distress, they could be charged with a criminal offence of harassment under the Protection from Harassment Act 1997.  The burden of proof in criminal cases is much higher so the risk of conviction is low however the risk is still there where there is enough evidence and the stress of that situation will undoubtedly take its toll. There are also criminal penalties associated with some data protection and privacy regulations. Such as when a company or individual breaches the UK’s Data Protection Act 2018, they could be charged with a criminal offence and face fines and imprisonment.

Whilst Criminal action is not the norm, the risk is typically reserved for serious and intentional violations of the law and in most cases, civil action or regulatory enforcement action is more common. However, it’s crucial to take advertising regulations seriously and ensure compliance to avoid the risk of criminal charges… because it really can happen.

Jo x

P.S Get your copy of my Bestselling book – Law for Online Entrepreneurs a legal handbook to help you step into your power freely with the confidence to make the important decisions you need to scale your business here.

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