This week's edition of Commercial weekly highlights includes: commentary on the decision in EE v Virgin Mobile which considered the effect of a clause excluding liability for loss of ‘anticipated profits’ in a contract, analysis of the Information Commissioner’s Office response to Google’s decision to lift a prohibition on device fingerprinting, and news that the government will keep the Commercial Agents (Council Directive) Regulations 1993 unchanged after concluding its consultation.

The Cabinet Office has updated Procurement Policy Note 006: Taking account of Carbon Reduction Plans in the procurement of major government contracts (PPN 006). PPN 006 sets out the requirements for UK government departments and in-scope organisations to take account of Carbon Reduction Plans in the procurement of major contracts (with an estimated contract value above £5m per year). It has been updated to include a set of FAQs on the scope and applicability of PPN 006.

The Single Source Regulations Office (SSRO) has published its annual compliance bulletin, revealing similar headline key performance indicator performance to last year but low compliance with new component reporting rules and a decline in the Ministry of Defence (MOD) data verification. Around 75% of required component reports have not been submitted, and only 1 in 4 contract reports are verified. The SSRO continues working with the MOD and industry to improve compliance and ensure value for money in defence procurement.

The Welsh Government has launched a consultation seeking comments on proposed reforms to the National Health Service (NHS) general dental services contracts in Wales. The proposed reforms include plans for a single access route to NHS dental services, implementation of a revised remuneration system that is fair and transparent, disincentivising unnecessary routine dental exams, adjusting patient charges, and modifications to patient charging structures. The proposals also include updates to contract terms and conditions, including parental leave. Responses are sought by 19 June 2025.

PLEASE READ THE TERMS AND CONDITIONS BELOW CAREFULLY This is a legally binding agreement (‘Agreement’) between you (‘User’ or ‘you’) and [NAME OF SUPPLIER] whose registered address is [ADDRESS OF SUPPLIER] (‘Supplier’, ‘us’ or ‘we’). Under this Agreement, we are providing you with [NAME OF SOFTWARE AND VERSION], including all content, material, or services accessible within the software, as well as updates and upgrades to the software (unless we ask for a separate agreement to be entered into for such updates and upgrades) (the Software ), and all associated documentation and support resources (the Documentation ). This Agreement is not for the sale of the Software to you but to grant you a licence which allows you to use the Software and Documentation on the terms and conditions set out below. This means that you do not own the Software and are only allowed to use the Software in accordance with this Agreement. We remain the sole and beneficial owners of the Software and the Documentation at all times. TO OPERATE THIS SOFTWARE REQUIRES

In determining whether the transferee can apply its own absence management policy in respect of transferring employees who, prior to the relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006), SI 2006/246, were not subject to such a policy, it will be necessary to determine: • the nature of the employee’s rights and obligations under the transferee’s ‘ad hoc’ policy or arrangements • whether those rights and obligations transfer under TUPE 2006, SI 2006/246 • the nature of the proposed ‘change’ by the transferee in applying its own (non-contractual) policy • whether that change amounts to a variation of the transferee’s terms and conditions of employment and, if so • whether that change is permitted under TUPE 2006, SI 2006/246 Status of the policy or practice Policies are similar to guidelines: they are statements of usual practice, and

Claims involving dishonest conduct Depending on the circumstances, you may wish to consider Practice Note: Civil fraud—frequently asked questions (FAQ) which considers fraudulent behaviour in terms of the deliberate or intentional use of misrepresentation, deception or dishonesty to deprive, in order to make a gain or achieve an advantage for someone or something or to disadvantage or cause loss (usually financial) to another person or party. A claim in deceit A claim based on the tort of deceit may arise when a misrepresentation is made with the express intention of defrauding a party, subsequently causing loss to that party. The elements of a claim in deceit are: • a clear false representation of fact or law • fraud by the maker, in the sense that they knew that the representation was false, or had no belief in its truth, or was reckless whether it was true

A damages or compensation payment may attract VAT. This depends on exactly what the payment is for. If it is purely compensatory, such that it does not amount to consideration linked to a supply, it will be outside the scope of VAT. If, on the other hand, the recipient of the payment (the claimant) does something in return, this will be a supply for VAT purposes. As with any payment that may attract VAT, it is important to get the treatment right. If the payment is VATable the claimant will want the defendant to pay VAT in addition to the main payment of damages or compensation. If the payment is made under a settlement agreement, the agreement should provide that any VAT is payable in addition to the principal amount, otherwise the payment will be treated as VAT-inclusive. If the defendant is a business with full VAT recovery it should be able to reclaim the VAT, but only if VAT was in fact due. Much of the case law in this area derives from

This Practice Note focuses on the procedure set out in the Companies Act 2006 (CA 2006) to remove a director of a company from office and should be read in conjunction with Practice Notes: How to remove a company director and Appointment, retirement and resignation of a director. For an illustration of the steps that must be taken to remove a director, see Removal of a director—flowchart. Removal from office Resolution to remove a director A director may be removed from office by ordinary resolution of the members passed at a general meeting of a company before the expiration of their period of office and, notwithstanding anything in any agreement between the director and the company, pursuant to CA 2006, s 168. For a sample ordinary resolution to remove a director from office, see Precedent: Removal of a director—ordinary resolution. Shareholder activists may propose the removal of a director (or the entire board of directors) if they feel that there have been leadership or corporate governance failings. An activist shareholder may requisition a resolution (whether by requisitioning

This practical guidance relates to the Procurement Act 2023 regime As of 24 February 2025, the main provisions of the Procurement Act 2023 (PA 2023) are in force. Procurements begun on or after this date must be carried out under PA 2023 (where applicable), whereas those begun under the previous legislation (the Public Contracts Regulations 2015 (PCR 2015), SI 2015/102, the Utilities Contracts Regulations 2016, SI 2016/274, the Concession Contracts Regulations 2016, SI 2016/273, and the Defence and Security Public Contracts Regulations 2011, SI 2011/1848) must continue to be procured and managed under that legislation. This practical guidance focusses on public procurement under PA 2023. For background reading on the previous regime, see Practice Note: Introduction to public contracts procurement—pre PA 2023 [Archived]. For practical guidance on procedures allowing direct award under PCR 2015, see Practice Note: Public procurement—negotiated without a notice procedure—pre-PA 2023 [Archived]. Direct award The default for contracting authorities is that a competitive tendering exercise is required for contracts covered by PA 2023. However, in certain limited cases, a direct award is permitted

A B C D E F G H I J K L M N O P Q R S T U V W X Y Z Back end Contentious/disputes-focussed legal work, for example acting for a party in litigation proceedings. Benchmarking Procedure of testing whether the standard and price of services is consistent with the market standard (if any) without any formal competitive tendering. Benchmarking can also be used to measure improvements or assess performance. Best value Best value refers to the duty of every local authority to 'make arrangements to secure continuous improvement in the way in which its functions are exercised, having regard to a combination of economy, efficiency and effectiveness' (Local Government Act 1999, s 3). This improvement involves consideration of costs, making the most of money spent, and making sure that services meet the needs of communities and authorities' priorities. See Practice Note: Best value in public procurement. Bid bond Also known as a tender bond (or guarantee). These are used as part of the tender process to guarantee performance by tendering

Pre-delivery payment financing (PDP financing) has developed into a commonly used financing tool for airlines and lessors. However, the increase in the number of PDP financings has led to close scrutiny by the aircraft manufacturers into the industrial and commercial issues which arise as a result of the involvement of a financier in aircraft purchase arrangements. In any PDP financing there may therefore be significant commercial issues to be negotiated, as well as sometimes complex legal issues, particularly in relation to security, to be considered. PDP financing, and the protection available to any lender, is very different to the situation that exists under other types of aviation finance. Funding is provided while the asset itself is under construction and security cannot be obtained in the same manner as for a completed aircraft. As a result, the provisions setting out the steps that will be taken in the event of enforcement are extremely important for the manufacturer, purchaser and lender. PDPs and purchase agreements What are pre-delivery payments? Pre-delivery payments (PDPs) are stage payments which are payable by the purchaser