- At Kemp Little, we are known for our ability to serve the very particular needs of a large but diverse technology client base. Our hands-on industry know-how makes us a good fit with many of the world's biggest technology and digital media businesses, yet means we are equally relevant to companies with a technology bias, in sectors such as professional services, financial services, retail, travel and healthcare.
- Kemp Little specialises in the technology and digital media sectors and provides a range of legal services that are crucial to fast-moving, innovative businesses.Our blend of sector awareness, technical excellence and responsiveness, means we are regularly ranked as a leading firm by directories such as Legal 500, Chambers and PLC Which Lawyer. Our practice areas cover a wide range of legal issues and advice.
- Our Commercial Technology team has established itself as one of the strongest in the UK. We are ranked in Legal 500, Chambers & Partners and PLC Which Lawyer, with four of our partners recommended.
- Our team provides practical and commercial advice founded on years of experience and technical know-how to technology and digital media companies that need to be alert to the rules and regulations of competition law.
- Our Corporate Practice has a reputation for delivering sound legal advice, backed up with extensive industry experience and credentials, to get the best results from technology and digital media transactions.
- In the fast-changing world of employment law our clients need practical, commercial and cost-effective advice. They get this from our team of employment law professionals.
- Our team of leading IP advisors deliver cost-effective, strategic and commercial advice to ensure that your IP assets are protected and leveraged to add real value to your business.
- Our litigation practice advises on all aspects of dispute resolution, with a particular focus on ownership, exploitation and infringement of intellectual property rights and commercial disputes in the technology sector.
- We have an industry-leading reputation for our outsourcing expertise. Our professionals deliver credible legal advice to providers and acquirers of IT and business process outsourcing (BPO) services.
- We work alongside companies, many with disruptive technologies, that seek funding, as well as with the venture capital firms, institutional investors and corporate ventures that want to invest in exciting business opportunities.
- Our regulatory specialists work alongside Kemp Littles corporate and commercial professionals to help meet their compliance obligations.
- With a service that is commercial and responsive to our clients needs, you will find our tax advice easy to understand, cost-effective and geared towards maximising your tax benefits.
- At Kemp Little, we advise clients in diverse sectors where technology is fundamental to the ongoing success of their businesses.They include companies that provide technology as a service and businesses where the use of technology is key to their business model, enabling them to bring their product or service to market.
- We bring our commercial understanding of digital business models, our legal expertise and our reputation for delivering high quality, cost-effective services to this dynamic sector.
- Acting for market leaders and market changers within the media industry, we combine in-depth knowledge of the structural technology that underpins content delivery and the impact of digitisation on the rights of producers and consumers.
- We understand the risks facing this sector and work with our clients to conquer those challenges. Testimony to our success is the continued growth in our team of professionals and the clients we serve.
- We advise at the forefront of the technological intersection between life sciences and healthcare. We advise leading technology and data analytics providers, healthcare institutions as well as manufacturers of medical devices, pharmaceuticals and biotechnological products.
- For clients operating in the online sector, our teams are structured to meet their commercial, financing, M&A, competition and regulatory, employment and intellectual property legal needs.
- Our focus on technology makes us especially well positioned to give advice on the legal aspects of digital marketing. We advise on high-profile, multi-channel, cross-border cases and on highly complex campaigns.
- The mobile and telecoms sector is fast changing and hugely dependent on technology advances. We help mobile and wireless and fixed telecoms clients to tackle the legal challenges that this evolving sector presents.
- Whether ERP, Linux or Windows; software or infrastructure as a service in the cloud, in a virtualised environment, or as a mobile or service-oriented architecture, we have the experience to resolve legal issues across the spectrum of commercial computer platforms.
- Our clients trust us to apply our solutions and know-how to help them make the best use of technology in structuring deals, mitigating key risks to their businesses and in achieving their commercial objectives.
- We have extensive experience of advising customers and suppliers in the retail sector on technology development, licensing and supply projects, and in advising on all aspects of procurement and online operations.
- Our years of working alongside diverse software clients have given us an in-depth understanding of the dynamics of the software marketplace, market practice and alternative negotiating strategies.
- Working with direct providers of travel services, including aggregators, facilitators and suppliers of transport and technology, our team has developed a unique specialist knowledge of the sector
- Your life as an entrepreneur is full of daily challenges as you seek to grow your business. One of the key strengths of our firm is that we understand these challenges.
- Kemp Little is trusted by some of the worlds leading luxury brands and some of the most innovative e-commerce retailers changing the face of the industry.
- HR Bytes is an exclusive, comprehensive, online service that will provide you with a wide range of practical, insightful and current employment law information. HR Bytes members get priority booking for events, key insight and a range of employment materials for free.
- FlightDeck is our portal designed especially with start-up and emerging technology businesses in mind to help you get your business up and running in the right way. We provide a free pack of all the things no-one tells you and things they dont give away to get you started.
IT Outsourcers Beware: The impact of the Enterprise and Regulatory Reform Act 2013
The Enterprise and Regulatory Reform Act 2013 (“ERRA”) has received Royal Assent and covers a number of practice areas in particular corporate, competition, employment and commercial. Under the ERRA the Government has the power to introduce secondary legislation to increase the existing protection over ‘essential’ supplies to insolvent companies and individuals.
The changes implemented under the ERRA amend the Insolvency Act 1986 (“IA”). The IA currently makes provision in Section 233 for administrators/liquidators/supervisors in various insolvency-like scenarios to require the continuing supply of gas/electric/water/phone services provided that future payment for these services is guaranteed but without having to be forced to guarantee that outstanding charges are paid.
Section 92 of the ERRA amends Section 233 of the IA to increase the scope of the essential supplies beyond gas/electric/water/phone to goods or services supplied for the purpose of enabling or facilitating anything to be ‘done by electronic means’ (ERRA Section 92(2)(b)). While the full list of essential supplies will become known following a Government consultation (scheduled to report later this year) the inclusion of “done by electronic means” is understood to mean that certain IT services will be included.
The IT services covered will, subject to certain conditions explained below, need to be provided to a company which enters administration or a voluntary arrangement. The Department for Business, Innovation & Skills (“BIS”) has announced that they will publish the detailed implementation timetable shortly.
Effect on IT suppliers
Under the ERRA suppliers in the IT sector will be required to provide essential supplies to a customer if it enters into administration or a company voluntary arrangement but not liquidation (as liquidation is a terminal process) . The supplier and customer cannot contract out of this obligation even if the customer receives a benefit such as a lower charge as a result. Once an event of insolvency occurs the supplier must, subject to the exceptions set out below, obtain the consent of either the applicable insolvency practitioner or the Court to terminate their supply or change the terms of supply.
The Government will consult with affected parties as to the impact of the proposals prior to implementing the new powers. The secondary legislation to be enacted following the consultation is likely to void any contractual term that would:
(a) automatically terminate the supply agreement;
(b) grant the supplier a right to terminate the supply agreement; and
(c) result in or enable the supplier to make changes to the supply terms (including increasing charges),
in the event of the customer entering into administration or a voluntary arrangement.
The rationale for the amendments introduced under ERRA in relation to IT services is that certain IT services should now be regarded as essential operational business services and warrant the same degree of protection in insolvency as traditional utilities. The Government is keen to avoid customers being held to ransom by suppliers of core IT services which cannot quickly be sourced from alternative suppliers. As it is vital that a business seeking to come out of insolvency has access to essential suppliers, the suppliers of such services have a significant advantage over other creditors in negotiating new terms and demanding payment of outstanding charges. This combined with the tougher economic climate over the past few years, which has seen a steady increase in the number of occasions under which companies would benefit from the new legislation, has seen increased support for legislative change.
The ERRA amendments also come against the backdrop of recent government legislation to restrict the ability of technology and IT suppliers to terminate contracts or change the terms of supply on account of an insolvency process to ensure continuity of supply. In 2011 the Investment Bank Special Administration Regulations (SI 2011/245) came into force and prevent suppliers from terminating the supply of certain essential services (e.g. hardware and software used for trading, financial data, communications infrastructure and data processing) to investment banks in Special Administration unless various conditions are satisfied. .
The Government has indicated that it is planning to add to the list of suppliers who as a result of being obliged to provide essential services can seek personal guarantees from the applicable insolvency practitioner prior to continuing the supply of essential services. At present the list of these suppliers only covers utilities such as electricity, gas, telecommunications and water. It is widely expected that following the consultation the Government will add IT suppliers to the list.
Nothing in the ERRA will have any effect on the supplier’s position in relation to pre-insolvency debts. Therefore they would remain a creditor and would be subject to the Insolvency Rules, which set out the procedures and priorities of claims in the event the customer becomes insolvent. Suppliers cannot require the customer to pay any outstanding pre-insolvency amounts as a condition of further supply.
While under the ERRA there is an obligation on a supplier to continue the essential supplies there are exceptions to this obligation. The supplier, if it falls within the list, is entitled to:
(a) subject to certain exceptions to be clarified in secondary legislation, require a personal guarantee from the insolvency practitioner as a pre-requisite to continue supply following the customer’s insolvency; and
(b) cease providing the post-insolvency services in the event that they have bills unpaid for more than twenty eight (28) days following the due date.
These exceptions mean that an insolvency practitioner is unlikely to require a supplier to provide the essential services unless they have a genuine belief that there is a realistic chance of saving the customer. It remains to be seen to what extent insolvency practitioners will be willing to give personal guarantees (as their general position is not to agree to any personal liability on the basis that they are acting as agent of the company). This is particularly the case for voluntary arrangements where management retains control of the business with the insolvency practitioner acting as supervisor.
What do these ERRA Changes mean for IT Customers/Suppliers
While the exact scope of the ERRA amendments relating to the scope of ‘electronic means’ will not be known until following the Government’s consultation it would be prudent for either customers or suppliers to review their standard terms and existing agreements to consider:
- the validity of any clauses contained in the terms which grant a supplier termination right on insolvency related events as a matter of course – which the new ERRA/IA provisions might negate;
And suppliers might look to consider if their terms should contain:
- a requirement for the customer to ensure that any insolvency practitioner appointed will provide a personal guarantee to cover the cost of supply in an event of insolvency;
- a right to terminate in the event the insolvency practitioner does not provide the guarantee; and
- a right to terminate in the event that the post-insolvency fees are overdue by twenty eight days or more.
Enterprise and Regulatory Reform Act 2013 – Section 92
Enterprise and Regulatory Reform Bill
The Insolvency Service – Support for the rescue of viable insolvent businesses