1 Each order or............................ of я quotation for goods bu the buyer frww a contpany
shall be deenied to be an offer by the bi*yer subject to the condition.
2 implied into nil contracts for the sale of goods is the feLfowiwg term: that the seller
has the right to sell the goods and that they are fnt few.............................................. or charges.
3 Nothing in the conditions shall be ял....................................... of liability for death or
personal injury caused by the co^cmy's wgiigence.
4 Any contract between the conepany and the cuztow^r shot-id have...........................................
the standard conditions.
.5 A transaction will be treated as и................................... contract unless it is vwade i*v the
course of a business, avvd is an integral part of the business itself
& when two parties deal with each other using their own respective tertws, and these
terntb conflict, there rv.ay ее a 'battle of the forrv^' with offer and..........................................
Uv&r -rb tpu
Now does this legislation differ from a jurisdiction that you are familiar with?
ко
Licensing agreements and computer programs
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Licences and software products
Alice Glenn, a solicitor, is talking to a Dutch trainee about licensing agreements, also known as licence agreements.
'We work in a number of sectors with licensors an J licensees, establishing compliance programmes for licensing and distribution, and advising on licensing revenues. In the computer software sector, the authorised licensor grants a licence to a purchaser of the software products, under the terms of the licence. The grant of such a licence is often held, or deemed, to enter into effect with the initial installation by the purchaser of rhe product in their computer, or even upon breaking the seal of the packaging enclosing the product. In the US this is known as a shrink-wrap license. When this happens, the purchaser is deemed to accept the terms and conditions enshrined within the licence. Computer programs arc specifically prorected by copyright law in the UK under the Copyright, Designs and Patents Act 1988 as
subsequently amended. The Act provides that 'copying' a programme, or anything else falling within the definition of 'literary works', will be a breach of copyright.
I he aim of software licences is ro permit the licensee to copy the software as is necessary
for the successful use of the product, whilst restricting the unauthorised use of the
software. A software licence for products sold in mass will of necessity be non-ex elusive,
as other licences with the same terms will be granted ro other purchasers of that product.
In contrast, the purchase by a business of bespoke software, that is, made to order
software, usually involves the negotiation of a licence which allows use bv multiple
systems, and therefore copying, alrhough the number of users and their geographical
location, as well as the permitted use, may well be specified. The Licensor will usually-
reserve the right to enter into similar licences with other purchasers. In such licences, the
liability clause will often be tbe subject of much negotiation and the means for enforcing
it will he of concern to rhe licensor,",---------------------------------------------------- —
BrE: a licence; AmE: a license; BrE and AmE: to license
Exclusion and limitation clauses
'As with any other contract, the licence will contain express terms (see Unit 34). These must, however, be interpreted against a background of statutory regulation. The licensor cannot contract out of these, although the standard terms of some software licences may claim, or profess, to limit the liability7 of the supplier for loss or damages arising from the use of the software. The extent to which such clauses will be successful depends upon the loss in respect of which a claim is made, and whether or not negligence is involved. As you're aware, it's not possible ro exclude liability for death or injury due to negligence. Software licences differ crucially from other copyright permissions in that statutory regulation which has been developed alongside the developing technology has restricted the extern ro which the permissions may control use. For example, the Copyright (Computer Programines) Regulations 1992 and the Copyright and Related Rights Regulations 2003 confer rights upon licensees which cannot be contractually excluded.'
38.1 Replace the underlined words and phrases in the following clauses from software licensing
contracts with alternative words and phrases From A opposite. Pay attention to the grammatical context. There is more than one possibility for two of the answers.
The purchaser of the Licence agrees to uphold these copyrights.
Caklyn Enterprisess Benbecula, is the owner of the copyright of rhe program.
By opening the Package or installing the product, the Licensee agrees to be bound by all the terms and conditions of this Agreement.
J
Caklyn Enterprises grants a non- sole Software Licence to the Licensee.
This licence agreement starts to operate at the time you open the Package and is effective until terminated.
The Licensee may terminate tlris official document permitting use at any time by destroying the Software together with all copies.
The computer program provided along with this Licence is licenseds not sold, to you by Caklyn Enterprises for use only according to the conditions of this Licence.
If the Software is installed on a common disk and used by many systems, an additional Licence must be given by Caklyn Enterprises for each system.
The Software is taken euro of by htvv which controls its use
If any provision of this Licence shall be held by a court of competent jurisdiction to be contrary ro law, that provision will be pur into effect ro rhe maximum exrent permissible.
38.2 Choose the correct word in brackets ro complete the sentences. Look at Л and Б opposite to help you.
1 You agree that you will not cause or (cxclude/permit/rcsrrictl rhe removal of anv copyright notices from the licensed software.
2 The licensor (reserves/eonfers/pcrmits) any rights not expressly granted to the licensee.
3 Statutory regulations prevent you from (permittitig/professing/excludiag) liability under the contract.
4 The agreement (proiessed/dcemcd/confcrred) to grant an exclusive licence,
5 Use of rhe supplied software is (permitted/restricted/reserved) to a single machine.
6 The licensee is (professed/permitted/deemed) to agree to the terms of the licence when they open the software packaging.
What regulations govern licensing agreements in a jurisdiction you are familiar with? In what situations do licensees or licensors require the services of a lawyer?
To look at a case arising from a software agreement, go to: St Albans City and District Council v International Computers Ltd [Ш96] 4 All ER 481 at www.bailii.org/databases.html
Commercial leases
Nina Kahn, a partner in a Bristol law firms Real Estate, or Property, Department, is talking ro a foreign client about commercial leases.
'In tbe UK, it's possible to own either a freehold or leasehold interest in property. Freehold refers to the estate interest where ownership may be held for an unlimited time without paying rent. A freehold owner, the freeholder, ma)' enter into an agreement to lease or let the property, permitting occupation for a fixed term, or time, by another person or company who then becomes the tenant, also known as the lessee or leaseholder. The freeholder is the landlord, or the lessor. Some commercial properties, such as shopping centres, may have a complex srructure of ownership with a chain of leases so that the occupier, for example rhe owner of a small shop in rhe centre, may sublease or underlet from the tenant and be an under-tenant, or even a sub-undertenant of the freeholder, who is the head landlord.'
Terms of a commercial lease
'A commercial tenancy, the agreement by which a person can occupy a property, may be protected by the security provisions of the statutory regime. This means rhat the business tenant in occupation at the end of tenure of the contractual rerm will have a statutory right ro a renewal of the lease unless the landlord is able to show that rhe statutory grounds exempting the right apply. An example of such grounds would he the landlord's intention to occupy the property himself or то demolish or substannallv redevelop rhe property. Parties may, of course, agree to opt out of the statutory regime.
Commercial leases are often lengthy, complex documents as they set our rhe respective obligations of the parties in relation to the property, and these may vary. Such obligations would normally include:
■ tbe amount of rent, the method by which it is to be paid, penalties for late payment, and a rent review clause establishing when renr mav be increased or decreased;
■ provisions for the insurance and maintenance of the property;
■ restrictions on dealing with the property, that is, whether the tenant is to be allowed to transfer interest in the property to someone else, or to underlet to an under-tenant.
Also included among the obligations would be required conditions, permissions and covenants (agreements), and provisions for yielding up the lease at the end of the term.
A lease must be for a term certain, that is, a fixed period; However, it may include a break clause which sets our a Break Date, eirhcr on a fixed date or on a rolling basis, for example anytime after a fixed dare. After this date, the parry wirh the benefit of the break option may exercise the break by serving notice and may terminate the lease early."
Obtaining leasehold interest
'Where a new lease is to be granted, the landlord's solicitors will usually produce a draft lease for approval or amendment by the tenant's solicitor In circumstances where a renam is assigning an existing lease, that is, transferring his interest in the property, the new tenant will take rhe lease as it is and the landlord's consent to the assignment will usually have to be obtained. This may be subject to certain conditions, such as the provision of guarantors for the performance of the lease - normally rhe outgoing tenant who signs a guarantee in favour of the landlord - or the payment of a rent deposit, depending upon the conditions set out in the lease.'
39.1 Complete the definitions. Look at Л opposite to help you. There is more than one possibility for
one of the answers.
1 a person who is granted a lease by the freeholder
2 property that is held for an indefinite period
3..........................-. - a person who sub-leases from a tenant
39.2 A solicitor is holding an inirial meeting with new clients. Replace the underlined words and
phrases wirh alternative words and phrases from Б and С opposire. There is more than one
possibility for one of the answers.
We've got some questions we'd like you to help us with. What rights would we have for getting the lease extended on the shop?
As tenants, could we give the property to someone else to rent?
Ir depends on whether the landlord gives reasons excusing your rights. Or whether there's been agreement to contract out of the legislative rules for tenancy security provisions. I'll need to see the lease before I can advise you properly.
When can there be a change t o the rem
You would need rhe landlord's agr ee men г and rhere may be conditions. Unfortunately, I've not been sent a copy of rhe lease yet.
39.3 Complete this extract from a drafr lease. Look at А, В and С opposire ro help you. Words with an initial capital lerrer are assumed to be defined terms of the lease.
TENANT'S BREAK CLAUSE: ROLLING BREAK 1. TENANT'S RIGHT TO BREAK
1.1 For the avoidance of doubt, references in this (I).......................... to the Tenant and to the
(2).......................... are to the persons named us such in this lease and to their respective successors in title.
1.2 hi this clause:
(a) (3)....................................................... means the date on which this lease shall (4)............................
pursuant lo [Iris clause, and
(b) Break Notice means a notice served pursuant to clause 1.4.
1.3 The Break Notice shall specif)' the Break Date but shall nor specify as the Break Date a dare which is cither; (al earlier than [SPECfr'V EARLIEST BREAK DATE], or
(b| earlier than [six] months after the date on which the Break Notice is deemed to be have been served on the Landlord;
1.4 Subject to clause 1.5, the (5)........................... may terminate this lease at any time by (6|................
.......................... on the Landlord.
1.5 A Break Notice shall be of no effect if:
(a| the Tenant has assigned this lease before it serves the Break Notice (whether or not it has made an
application to HM Land Registry lo register the (7)...........................), or
How is the relationship between landlord and tenant regulated in a jurisdiction you are familiar with? What sort of problems may arise in leasing commercial property? How are they resolved?
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НЕЮBuying and selling commercial property
Commercial conveyancing
Nina Kahn, a solicitor specialising in commercial property, is talking to a foreign client about conveyancing - the transfer of rhe ownership of property.
' The principle of caveat emptor applies to the transfer of property in rhe UK. Contract provisions reinforce this by acknowledging that the purchaser has had an opportunity' to make full investigation of the title, that is, the right of ownership, and to check the property's physical condition and any other factors which might affect the property and its intended use.
Generally, a commercial agent will market a commercial property. The property particulars, or details, will specify the terms on which the property, or the lot in rhe of auctions, is to be sold. The particulars show whether it is to be sold by auction -to the person who makes rhe highest offer at an auction - or sold by private treaty -seller ami buyer reach an agreement.'
Note: caveat emptor - the buyer is responsible fnr checking what he buys is in good order
Sale by auction
'If the sale is to be by auction, a legal pack, prepared by the seller's solicitor, will be available to prospective purchasers. It will contain the special conditions and the auction conditions rehiring ro the sale, as well as copies of appropriate searches - documents which prove inspection of records, for example about land use and restrictions on its use, such as Local Authority searches and environmental searches. It will also contain planning permissions, warranties, or guarantees, and other documents relevant ro the property and to the transfer of ownership, such as investigation, or legal evidence, of the seller's title to the property.
The prospective purchasers must be satisfied with the seller's title and the other information. If necessary, they may raise further enquiries in advance of the bidding for the property. The signing of the sale memorandum by the purchaser or their agent at the auction constitutes the contract lo purchase. Sale, known as completion, when payment is made and the deed of transfer is passed to the purchaser, usually takes place at a completion date specified in the special conditions.'
Sale by private treaty
'In a sale by private treaty, the seller and rhe purchaser may negotiate detailed terms, either directly or via agenrs. Tbe purchaser will consider searches instructed by his solicitor. A full survey may be instructed and the seller will be asked to provide replies to pre-contract enquiries, for example about the property's physical state and tbe property's boundaries. (Commercial properrv solicitors frequently use published sets of commercial property pre-contract enquiries. When the principal terms have been agreed, they may be set out in a document and circulated as 'Heads of Terms', The seller's solicitor will then produce a draft conrract, also known as a sale agreement, which will reflect the Heads of Terms. Conditions of sale common to most property contracts, governing, for example, proof of title, how the deposit is dealt with, etc., may be incorporated into the contract by reference to published Standard Conditions.
Once the purchaser is satisfied with all the information and the form of contract, that is, the terms and conditions, has been agreed, rhe parties may proceed to exchange contracts. This constitutes a contractual obligation to complete the sale or purchase on the terms in the contract, and penalties will arise in the event of default- A conditional contract, where completion is to take place within a specified period of something happening, will usually contain a longstop date - a final date - at which point the parties may rescind the contract - cancel к - if the conditions have not been achieved.
40.1
Complete the definitions (1-7) then use appropriate words ro complete the exrract from the auction property particulars below (a-c). Look at A and В opposire to help you.
1 - law and procedures relating ro the sale and purchase of property
2 - property sold at auction
3 - the right ro hold property
4 - offers compering то purchase
5.......................................................... - the contract to purchase document
6.......................... - owner of a property who transfers the ownership for money
7....................................................... - specified rime when rhe payment is to be made and tbe
property deed transferred
Name and address of the seller
Undisclosed. To be identified in the (b)
Name, address and reference of the seller's conveyancer
Gillies and Poacher, 8 Portree Terrace, Chester. sa/GP
—........................................ -............. ------------------------ ~-----------------
40.2
40.3
Choose the correct word or phrase in brackets to complete the sentences. Look at С opposire ro help you.
1 The (purchaser/scller/soliciror) considers searches.
2 Parties may (complete/rescind/exchange) the contract in the event that the conditions have not been achieved.
3 A (full survey / pre-contract enquiry / sale agreement) is drafted by the seller's solicitor. 4- The parties (consider/evehange/instruct) contracts once all terms are agreed.
5 Standard Conditions can be (instructedAncorporated/completed) inro rhe contract.
6 The seller is asked to provide replies to (searches / investigation of the title of the properry / pre-contract enquiries).
7 Terms are (со m pi ered/negoti a ted/instructed) by seller and purchaser.
8 The (investigation of title / full survey / form of contract) is agreed by both parties.
Re-order the sentences in 40.2 above to describe chronologically the possible procedures in a sale by private treaty. Use the linking phrases below. Some activities may take place around the same time. The first one has been done for you.
tirsr of all, Шт.Ж^^МШ^^Мсл^М^М^.Г..; rhen usually
.............................................................................. and............................................................
rhat,................................................................................. and.................................................
then it's necessary that....................................................................................... and finalb
................................................................................. However,...............................................
.. After
What are the procedures for buying and selling commercial property in a jurisdiction you are familiar with? What sort of problems can arise?
To look at standard pre-contract enquiries for commercial property in the UK, go to: www.bpf.org.uk/.
Our Employment Law Department is a specialist team. We advise on relevant law, employment policy and procedure, and the formation of employment contracts. We assist in the negotiation and settlement of disputes, and take or defend proceedings before an Employment Tribunal or in a civil court.
Employment law usually involves a mixture of contractual provisions and legislation regulating the relationship between employer and employee, and governing labour relations between employers and trade unions, for example with regard to collective agreements and collective bargaining about conditions of work. Developments in case law and changes to legislation, for example from the implementation of European Community directives, affect employers and employees alike, The practice of living and working in different jurisdictions means that lawyers also have to refer to international conventions to establish legal requirements.
The main statutory rights of employees include entitlement to:
• a national minimum wage;
• equal pay for like work, that is, broadly similar work;
• a written statement of employment particulars;
• an itemised pay statement,
• time off and holidays;» statutory sick pay;
• a healthy and safe working environment;
• family and parental leave;
• protected rights on transfer of business to another employer (see the Transfer of Undertakings [Protection of Employment] Regulations 2006];
■ notice of termination of employment;
• not to have unlawful deductions from wages;
• not to be discriminated against on grounds of sex, race, sexual orientation, disability, religion, age, part-time or fixed term
employment, or trade union membership.
BrE: labour; AmE: labor
! BrE: trade union; AmE: labor union
Contract of employment
It is usual practice for employers and employees to enter into a written agreement which sets out their respective obligations and rights, and which constitutes a contract of employment, either at the commencement of employment or shortly before. Clauses in the contract generally deal with pay, deductions, hours of work, time off and leave, place of work, absence, confidentiality, restrictions on the actions of an employee once employment is ended (known as a restrictive covenant), giving notice, the grievance procedures in the event of job loss, and variation of contract (meaning parties may agree to vary terms of the contract but terms cannot be unilaterally varied, that is, by one party without agreement).
Employers are bound by the employment contract and statutory regulation as to how they may deal with employees, particularly in relation to the termination of employment. Failure to observe such obligations and regulations may give rise to a claim for wrongful dismissal (where the employer is in breach of contract), unfair dismissal (where the employer has not followed a fair dismissal and disciplinary procedure before terminating the contract), or constructive dismissal (where an employee resigns because of the conduct of his employer). Gross misconduct by the employee, for example theft from the employer, may result in summary, that is, immediate, dismissal. In other circumstances, the employee may be made redundant, for example if the employer has ceased to carry on business.
BrE: made redundant; AmE: laid off
41.1 Make word combinations from A opposite using words from the box. Then use appropriate word combinations to complete the definitions below.
employment bargaining fixed tribunal collective relations sick trade
employment union particulars time labour pay off term
1 - salary paid when an employee cannot work because of illness
2 - restricted period of employment set out in contract
3 - organisation which represenrs the workers, who are irs
members, in discussions of pay and working conditions wirh their employer
4 - specialist court dealing in disputes between employers and
employees
5 - written details of a position in a company
6 - negotiations between an employer and a trade union on terms
and conditions of employment and work
41.2 A lawyer is giving advice to a client about an employment contract over the phone. Replace the underlined words and phrases with alternative words and phrases from В opposite. There is more than one possibility for one of the answers.
-J I've looked through the contract and it seems satisfactory in relarion ro lit the period of warning that the contract is going to end. However, I think you should look for some adjustment on the (2) clause preventing you working in t he same field for three years after you've left the company. Other than that, the terms relating to being (3) let go by the company if it fails and (4! being removed from the job, with rhe related (5} procedure for makim; a complaint and (6) changes being made to vour work, are quite straightforward.
41.3 Which type of dismissal may have occurred in the following situations? Look at В opposite to
help you.
1 An employee decides to leave her job because she is moved, without consultation, to a new position in the company which she regards as a reduction in her roie. A new post covering broadly the same area as hers is offered to an outside applicant.
2 An employee is forced to leave his job because he has arrived at his place of work under the influence of alcohol on several occasions.
3 An employer has nor gone through the appropriate procedures before forcing an employee tc leave his job.
41.4 Choose die correct prefix from rhe box ro make rhe opposite of the adjectives below.
un поп- il ir
1 relevant 2 legal 3 lawful 4 restrictive 5 fair 6 statutory
What are the main statutory and contractual rights in employment in a jurisdiction you are familiar with? What rights do employers and employees have on termination of contract?
To look at more on employment relations and contracts of employment, go to: www.dti.gov.uk/employment/. To see the Employment Act 2002, go to: www.opsi.gov.uk/acts.htm
For details of employment law legislation in the UK, see the Trade Union and Labour Relations Act 1992, the Employment Rights Act 1996, and the Employment Act 2002.
Copyright and patent
Copyright
Trainees at a law firm have been asked to help prepare a section on Intellectual Property (IP) law for the monthly e-newsletter circulated to clients. Some of their preparatory notes are below.
T ype of IP interest Copyright
How the interest or right arises An automatic right arising from statute. Copyright arises as soon as an original work (literary, dramatic, musical, or artistic, as defined in the main UK statute: Copyright Designs and Patents Act 1988, and its subsequent amendments) is created and embodied in a specific media (for example on film, in a sound recording, in print, or as an electronic record). Copyright also arises in the typography (the layout) of the published works.
What protection is available? It is the expression in a particular tangible form which is protected rather than the idea itself. The copyright owner, normally the author, has exclusive rights, including the rights to make copies, to sell copies to the public, or to give a public performance of the work. The owner may license, usually in writing, the reproduction of the work.
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