"Touchstone: A basalt or slate rock used for assaying precious metals. Before accurate analysis was possible gold and silver was struck against the touchstone to test for quality against a known standard."

Advertising Puff or Downright Lies?

January 28th, 2010

BSkyB claimed that EDS had fraudulently misrepresented their ability to deliver a customer management relationship system (for which Sky was prepared to pay £48m).  The contract had a limitation of liability clause but if Sky could prove fraud then the limitation did not apply.  EDS claimed they had just mistakenly pre-estimated their ability to deliver within the timetable set.  The Court found that not only had they not taken enough care over evaluating the timetable, they knew the timetable could not be met, so their representations were false (deceitful) and the cap on liability fell away.

The truth is it is far better to raise any “difficult” issues during contract negotiations as falling out over them later on can be very costly.  If you realise that more than mere advertising puff has crept into the negotiation when it is clear the situation cannot sustain it, then raise it, as it is far more likely to be resolvable if the parties are still working closely together to achieve a common aim, than when they have fallen out due to failure or delay.  If a particular requirement is very important to you get it down in writing, better to be said than left unsaid and uncertain.  The purpose of a contract is to set out commercial and legal terms but it must be a workable document which each party understands and fairly represents their rights and obligations.

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Financing Football

January 22nd, 2010

Read an interesting item on IP Finance blog:  In the documents submitted for the Manchester United bond issue was a note that it was under investigation by HMRC for payments made in realtion to players “image rights”.  Many top flight clubs have been paying players’ companies (often offshore) for exploitation rights to their “image” (probably includes the name, photographs, voice, activities etc..).  The players would licence these rights to their companies and from there they would be licenced to the club.  As far as the clubs are concerned these are capital payments not wages and taxed as transactions without the requirement for payment of UK income tax and National Insurance contributions.  HMRC see them as tax avoidance schemes.  It is said that the downside for Manchester United could be as much as £5.3 million plus grossed up wage costs going forward.

So what is the legal status of Image Rights?  Denis Bergkamp and David Platt won their argument to entitle them to set up offshore companies to licence image rights to their club (Arsenal) but with new requirements for non-dom disclosure and the need to recoup all the public finance possible this investigation (and possible court action) could have far-reaching affects in football but may also bring to light the reality of rights afforded to sporting personalities regarding their images and answer the question as to whether they fall into the arena of proprietary rights subject to intellectual property protection.  I will be watching this with interest.

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BlogSpot

December 8th, 2009

From 28th December 2009 service providers will have to publish more information to clients and potential clients as a result of the UK implementing the EU’s Services Directive (Provision of Services Regulations 2009).  The aim is to help service providers in cross border EU trade by providing a single point of contact for regulatory matters in all EU Countries but as a consequence opens up the UK market to all EU Country service providers and imposes obligations on UK services providers.

If you are a provider of services you must make the following information available to your customers:

Your name, legal status and geographical address (together with telephone or email details – or other methods by which you may be contacted “rapidly” and “directly”).  If you are registered in a trade or similar public register, the name of that register and your registration number.  Particulars of any regulator if you are subject to an authorisation scheme in the UK or any other Country in the European Economic Area (EEA) (EU plus other Countries in this group).  Your VAT number, if registered.  Any professional body or similar institution to which you are registered, your professional title and the Country in the EEA  in which that title was granted.  Your general terms and conditions, the existence of terms concerning the competent courts and the law applicable to any services provided, the existence of any guarantees not imposed by law, the price of the services, where this is fixed or pre-determined, the main features of the service, if not clear from the context of the instructions.  If you are obliged to carry professional indemnity insurance then you must provide information about your cover, contact details for the insurer and territorial coverage.  Finally you must include contact details where customers can lodge complaints about your services.

Most businesses already provide all this information as “good practice”  but it is worth just checking your terms and website content to ensure you comply.  More guidance is available from the Department for Business, Innovation and Skills (http://www.berr.gov.uk/whatwedo/europeandtrade/europe/services-directive/legislation/page51283.html

There are some service businesses that are exlcuded from compliance (including those providing financial services, credit, insurance, electronic communications, transport and healthcare).

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BlogSpot

November 20th, 2009

Learning new skills is time consuming and requires concentration.  Friday afternoon is not necessarily the right time to take this task on!  Alternatively software manuals are written in such a way that my brain can’t follow the logic.   I am a failry logical person this this is defeating me today.   Also brings to mind the amount of  know how that businesses lose when a valued employee leaves and a proper audit of manuals and contact data is not carried out.

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IPR Mortgages

November 17th, 2009

Working today on two different matters both related to taking a charge over intellectual property.  One constructed as a conditional assignment executable on default of payment the other as a full assignment and licence back for the term of the payment schedule with provisions for redemption and default.  Interesting to see that funders (one is a Business Angel the other a Bank) are keen to take registered IPR as security.  Makes the whole debate on establishing protocols for valuing IPR interesting.

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