What is the NEC Term Service Contract? The NEC Term Service Contract, or TSC, is part of the NEC3 and NEC4 suites of contracts (see Practice Note: NEC contracts—introduction). The NEC Term Service Contract is designed to engage a contractor for a set period of time, to manage and provide a service—this might include construction works, but can be used for the provision of other services. The NEC Guidance Notes give examples of its use including maintenance of highways in a particular area, providing security personnel for a site, maintaining a nuclear power station, and providing ambulance services to a group of hospitals—in other words, both ‘hard’ and ‘soft’ facilities management services (see Practice Note: What is Facilities Management Contracting?). Like the other NEC forms, it can be used in the public and private sectors and could be used for services of any value. The NEC Term Service Contract is not intended to act like the NEC3/NEC4 Framework Contract under which there is no guarantee of work. Rather, the Contractor will carry out work continuously as stated

For the purpose of this Q&A we have assumed that: • the contract is a ‘construction contract’ for the purposes of the Housing Grants, Construction and Regeneration Act 1996 • Party A has: ◦ made supplies under the contract to Party B, and ◦ issued invoices for the supplies which provide for value added tax (VAT) to be added to the consideration for the supply, and • Party B has: ◦ paid the main amount under the invoices, but ◦ disagrees that VAT should be charged on the invoices and has therefore refused to pay the VAT An adjudicator can adjudicate on disputes between the parties to a construction contract and therefore resolve a dispute in a way which binds the parties (unless and until finally

This Practice Note considers implying terms into contracts by custom or usage. It considers how implied terms are not stated in the contract but arise ‘by implication’ to reflect the intention of the parties at the time the contract was made, the test for evidencing that a custom applies in an industry, what amounts to custom and usage and what might negate the implication of a term by custom into a contract. It also considers the difference between custom and trade usage and a specific course of dealings and how an entire agreement clause impacts a term implied by custom. Express and implied contractual terms distinguished Contractual terms may be either express or implied: • express terms—are terms which are actually recorded in a written contract or openly expressed in an oral contract at the time the contract is made. See Practice Note: Contract interpretation—express terms in contracts • implied terms—are not stated in the contract but arise 'by implication' to reflect the intention of the parties at the time the contract was made.

This Practice Note brings together the following frequently asked questions relating to the termination of commercial business-to-business (B2B) contracts: • What is the process for bringing a contract or deed to an end and replacing it with a new one? • Can I terminate a contract on reasonable notice? • What are the requirements for giving notice of termination? • We want to terminate for the other party’s breach. What do we need to consider? • To what extent can a clause survive termination? • Will force majeure or frustration terminate a contract? • What is the impact of section 233B of the Insolvency Act 1986? • Are there any special considerations for termination of agency agreements? • Are there any special considerations for termination of distribution agreements? • Are there any special considerations for termination of franchise agreements? • Will the death or incapacity of a party bring a contract to an end? • Is it possible to terminate an agreement in part only? Commercial contracts may be brought to an end in a number of different

Businesses enter into contracts on a daily basis covering many different aspects of their business. It is important that commercial entities understand and address the negotiation and performance of the contracts that they enter into. This Checklist is intended to give high level guidance to drafters of contracts and their clients on the initial contract considerations when entering into contracts generally. It does not address the particular considerations of specific contracts. For more detailed information on other considerations which may be relevant at the outset of a contract negotiation, see also: • Practice Note: Structure and form of commercial contracts • Practice Note: Key terms and conditions in commercial contracts • Practice Note: Heads of terms • Practice Note: Exclusivity in contract negotiations • Commercial contract drafting and review—checklist • Commercial contract review and execution (business personnel)—checklist See also the Contract lifecycle collection which includes links to guidance on managing commercial contracts at each of their key lifecycle stages: negotiation, creation, review, variation and termination. Consideration Description Set objectives Consider:—what you want to achieve—whether it is realistic, and—whether

Acceptance of a repudiatory breach discharges the contract. Termination occurs prospectively, meaning the parties are discharged from further performance under the contract with respect to their primary obligations and their secondary obligations come to the fore. The implied secondary obligation on the defaulting party is to pay monetary compensation to the other party for the loss sustained as a consequence of the breach. Generally, whether or not a contractual term operates after termination is a question of construction (Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Australia) Pty Ltd). If the parties expressly provide that a particular term is, or is not, to be enforceable when a contract terminates,

ARCHIVED: This Practice Note has been archived and is not maintained. It analyses the potential impact of Brexit on contractual rights and obligations for a business and considers the implications of Brexit for contract risk management in advance of IP completion day. For information on the impact of IP completion day on contracts and more generally on commercial law, see Practice Notes: What does IP completion day mean for contract clauses? and What does IP completion day mean for Commercial? This Practice Note analyses the impact of Brexit on the contractual rights and obligations of businesses and considers the implications of Brexit for contract risk management. It provides detailed guidance on assessing the contractual risk to businesses posed by Brexit and how to carry out a Brexit risk-management contract audit and contract review. See also: Brexit risk management: contract audit—checklist [Archived]. For the purpose of this Practice Note, unless expressly indicated otherwise, all references to: • ‘exit day’ are to that term as defined in the European Union (Withdrawal) Act 2018 (EU(W)A 2018), and which occurred

This Practice Note considers the distinction between statements which are representations and those which are contractual terms, and when a representation may have legal effect, whether as a collateral contract or promissory estoppel or waiver, even if it does not form part of the written contract. For guidance on the admissibility of pre-contract statements and representations when interpreting a contract’s meaning, see Practice Note: Contract interpretation—admissibility of pre-contractual negotiations and statements and related content. What are contractual terms? The terms of a contract define the existence and scope of the parties’ respective rights and obligations to one another. A contractual term is a statement that amounts to a promise or undertaking and forms part of a contract. If the term is breached, the innocent party will be able to bring a claim against the party in default for damages for breach of contract and, sometimes, terminate the agreement and claim damages—see Practice Note: Breach of contract—damages and termination. Contractual terms may be either express or implied:

Subject to the terms of the existing agreement, the existing contract might be capable of being transferred by way of assignment or novation or if neither of those are options, by way of a sub-sale. Our Practice Note: Sub-sales and assignments explains the three mechanisms as follows: • an assignment is where A contracts with B and B assigns the benefit of the original contract to C • a novation is where A contracts with B and then B novates its obligations and rights under the original contract to C, and • a sub-sale is where A contracts to sell a property to B (original contract) and before completing purchase, B then contract to sell the property to C (sub-contract) creating two back-to-back sale contracts. On completion, there can be one of two transfers (A-B and B-C; or A-C at B’s direction) Novation From the outgoing buyer’s perspective, it may be preferably to novate the agreement rather than assign it, because existing obligations

Wrongful dismissal claim [Insert in para 8.2 of claim form ET1:] 1 The Claimant was employed by the Respondent as a [insert details, eg sales manager] under a contract of employment dated [insert date]. 2 [The Claimant’s contract was terminable on [insert details, eg three months’] notice by the Respondent OR The Claimant’s contract was for a fixed term of [insert details, eg two years] from [insert date]]. 3 The following were express terms of the Claimant’s contract relating to remuneration and benefits: [Insert details of the express terms relied upon. Common examples are provided at paragraphs 3.1 to 3.7 below.] 3.1 a

[Headed notepaper of the assignor] To: [Insert name and address of recipient (ie the other party to the contract that was assigned)] [Insert date] Dear [insert name of other party to the contract that was assigned] Notice of assignment of contract We refer to the [insert name of contract or agreement] dated [insert date] between us and [insert name of recipient] relating to [insert specific purpose of agreement] (Contract). [As part of an internal reorganisation of

With automation and workflow tools becoming more and more part of daily life for lawyers, businesses are increasingly realising the benefits they can bring, including: • increased productivity • more efficiency and reduced timescales • operational efficiency and cost-savings • better data and management information • greater visibility of risk and the ability to manage it, and • speed to market—eg ability to shorten sales cycles New ways of working impact on people as well as processes and getting buy-in from the immediate team and the wider business is essential to the success of a project. Underpinning all this is the need to thoroughly analyse existing processes to gain an in-depth understanding of how workflows can be improved. Most importantly, the business needs to be ready to embrace innovation—effective change management is crucial. For more on change management, see subtopic: Managing change. This Practice Note discusses the automation of contracting and contract lifecycle management, including key areas such as what contract lifecycle management is, the challenges of contracts and how