- 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.
M&A Diligence: when term sheets can be legally binding (again)
Back in March 2016, we reported on the case of New Media Holding Company LLC v Kuznetsov  EWHC 360, where the High Court held that a term sheet was legally binding, even though the document referred to itself as being a “Term Sheet describing principal terms and conditions of Company share management and control” and, on the face of the document, made no reference to consideration. Despite Mr Kuztenov arguing that the term sheet was a “casual and informal” document, the Court was swayed by the fact that it had been drafted by lawyers and the rights granted to the other party were expressed in unqualified legal terms. It even contained an express governing law and jurisdiction clause, the purpose of which the court found difficult to understand “absent an intention to create a legally binding agreement”. The term sheet was therefore deemed to be legally binding and not “merely a document that was aspirational”.
The recent case of Arcadis Consulting (UK) Limited v AMEC (BSC) Limited  EWHC 2509 (TCC) serves to re-iterate that term sheets can form the basis of a legally-binding contract, although the Arcadis case involved a number of forms of contract passing between the parties, rather than just one term sheet.
The facts of the case were that Arcadis and AMEC were in the process of negotiating the terms of an agreement for the design of a car park, and became involved in a “battle of the forms” where one party would send a version of the agreement to the other, only to receive a different set of terms in response. Various versions went between them and no formal contract was ever signed. However, during the process, AMEC sent a letter to Arcadis instructing Arcadis to begin work (which it did).
A dispute later arose over liability and whilst AMEC argued there was no contract between it and Arcadis, Arcadis countered that a binding agreement did exist and it included a term contained in the last version of the document circulated by Arcadis which limited Arcadis’ liability. Whilst the court agreed that there was a binding contract between the parties, it concluded that the terms of this contract were limited to the brief summary set out in the instruction letter. No other terms of the versions circulated between Arcadis and AMEC applied (including the liability limitation clause); on that basis, Arcadis’ liability was uncapped.
As in the Kuznetsov case, the decision in the Arcadis case provides a helpful summary of the applicable principles determining whether or not there is a binding contract between parties, with the judge referring to the elegant summary of Lord Clarke in RTS Limited v Molkerei Alois Müller GmbH  1 WLR 753:
“It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they had regarded or the law requires as essential for the formation of legally binding relations. Even if certain terms of economic or other significance to the parties have not been finalised, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be a precondition to a concluded and legally binding agreement.”
Applying this to term sheets in an acquisition or fundraising context, it is important for the parties to ensure all key commercial terms of a deal are contained within any document agreed between them. Parties also should think carefully about performing a contract which is still being negotiated – otherwise, they run the risk of creating a binding contract by conduct which fails to incorporate the non-finalised terms.