Commonly Asked Questions

  • Privacy policies: how must you treat personal information?  How can you commercialise data?
  • Data breaches: what are your obligations?
  • Terms and conditions of use: effective documents need to be tailored to the demands and practicalities of your business, while still making sense to the end user.  Is there a risk that unfair contracts legislation could render your standard form contract void?
  • Website development agreement: who owns the IP?
  • Software development agreement: is the developer a contractor or an employee?  How do you give them an appropriate level of flexibility while still retaining control and requiring certain standards?
  • Confidentiality agreements and non-disclosure agreements: are they justified or will it scare away an interested party?
  • Defamation: in the age of social media and smartphones, how do you avoid getting caught up in an online defamation case?
  • Employees: sensible employment agreements and incentives (for example, employee share schemes) are crucial for sustainable companies
  • Cross-jurisdictional issues: the internet is global – is your technology breaking laws overseas?
When starting a new business, you must decide what form of business entity will provide you with the greatest benefit. Four key considerations are:
  • Tax management (not paying more tax than you need to)
  • Asset protection (protecting your assets from being seized if you are sued)
  • Cost (the cost of setting up and maintaining the structure)
  • Succession planning and general flexibility (some structures are easier to “exit” than others)

Different business structures have different legal requirements, liability limitations and tax consequences. Commonly new businesses are set up in one of the following ways:
  • as a sole trader
  • as a partnership
  • as a company
  • through the establishment of a trust

You need to take the time to work out how you and your business partners will interact with one another. Having a clear understanding of your rights and responsibilities will reduce the likelihood of disputes in the future. Importantly, once you all have a clear understanding of your rights and responsibilities, that understanding should be recorded in a legally binding agreement. Important questions to ask include:

  • how will decisions relating to the business be made?
  • what happens when a business partner wants to leave the business?
  • in what circumstances can a business partner be required to leave the business?
  • what happens if a business partner dies or becomes incapacitated?

A business name is simply a name or title under which a business trades. It identifies your business to your customers, allows you to differentiate your business from your competitors and enables your customers to make an emotional connection to your business and brand.

If you choose to operate as a company, you will need to register your company with the Corporate Affairs Commission (CAC). If you want your company to trade under a different name, then you are also required to register the trading name with CAC as a business name. If you choose to operate as a sole trader, partnership or a trust, and not as a company, then you will have to register your business name with CAC. If your business name is your, or your partner’s, first name and surname, then there is no need to register.

It is important to note that registration of a business, company or domain name does not in itself give you any proprietary rights – only a trade mark can give you that protection.

Also note that for companies that deal in securities, depending on the scope of your business, you might be required to register with the Securities and Exchanges Commission (SEC).

Some of the key issues commonly covered by terms and conditions are:

  • How to place an order for goods and/or services
  • Price and payment terms
  • Terms of delivery of goods
  • Refunds and returns policy
  • Use of confidential information and ownership of intellectual property
  • Business warranties
  • Limits on business liabilities
  • Restrictions of website use
  • Governing law and jurisdiction

All businesses in Nigeria regulated by the Nigeria Data Protection Regulations 2019 (NDPR) must have a privacy policy (those that are not should maintain a policy as a model of best practice).

The NDPR sets out the information that a privacy policy must contain. It maintains the existing obligations to clearly disclose the kind of personal information which an entity collects, how that information is collected, the purposes for which it is collected, and how it may be used or disclosed. In addition, it is now mandatory to include how an individual may complain about a privacy breach, how the entity will deal with such a complaint, whether or not personal information is likely to be transferred overseas, and if possible the countries to which it is likely that personal information will be transferred.

Entering into contracts is a necessity for all businesses. The law of contracts requires parties who enter into agreements to stick to them. Occasionally, a party may breach the contract because of financial hardship, technological failures or operational issues. So, what do you do when the other party has breached their contract? While it may be instinctive to sue the other party, this isn’t always in your best interests. There may be other steps you can take that will resolve the matter more quickly without substantial costs.

1. Talk to the Other Party

Contract breaches happen for all sorts of reasons. In some cases, it will be in your interest to discuss the breach and work out a suitable resolution rather than end the relationship.

2. Amend or Alter the Contract

As a contract is a private agreement between two parties — it is up to those parties to agree to terms, fulfil obligations and decide what to do when the other party fails to meet a condition. When a party faces a breach, rather than jumping to terminate the agreement, it can amend the contract to reflect the change in parties’ circumstances, positions or needs.

3. Terminate the Contract

Following a breach, a party may be entitled to terminate the agreement. This right typically arises where the other party had breached an essential term of the contract.

However, a breach does not always give you this right – and if you’re unsure about whether you’re entitled to terminate a contract, it is best to engage a lawyer to review your contract before acting.

4. Sue for Damages

A breach of contract usually entitles the party not in breach to recover their losses in court. This remedy is referred to as ‘damages’. The purpose of damages is to put you in the position you would have been had the breach not occurred.

  • Protecting intellectual property (for example, imposing confidentiality, registering trade marks, applying for patents, and providing for contractual ownership of software code)
  • Obligations to past employers
  • Financing
  • Employment and workplace issues
  • Contracting with suppliers
  • Director’s duties (in the case of a company)

Please contact us for further assistance.