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Legal Issues | Created by Business Link on 26 January 2010 09:50 # Crown copyright 2007
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Legal Issues
Privacy and Electronic Communications Regulations Tips for complying with the Privacy and Electronic Communications Regulations Distance Selling Regulations Provision of Services Regulations Related guides on businesslink.gov.uk Related web sites you might find useful 15 16 17 17 17 15
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Created by Business Link on 26 January 2010 09:50 You can personalise content from the Business Link website and download it in PDF format. This is a free service
Legal Issues | Created by Business Link on 26 January 2010 09:50 # Crown copyright 2007
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Introduction
Introduction The importance of protecting intellectual property Intellectual property management conducting an audit Getting legal protection for your intellectual property Assistance with intellectual property protection Intellectual property rights and your employees Intellectual property and freelance contractors Prevent intellectual property infringement Protecting your business name and domain name Respect other people's intellectual property Helplines Related guides on businesslink.gov.uk Related web sites you might find useful All businesses have intellectual property (IP), regardless of their size or sector. IP can mean a brand, invention, design or other kind of creation, and it can be legally owned. Your IP is likely to be a valuable asset. It could include the name of your business, the products or services you make or provide, or the written or artistic material you create. Securing and protecting it could be essential to your business' future success, so it's vital to understand your rights and how the law can help you. This guide explains the importance of conducting an audit of your business' IP. It sets out the different kinds of legal protection available for IP available (including patents, trade marks, design rights, registered designs and copyright) and explains the range of things you can do to protect and manage your IP rights.
You can find this guide on http://www.businesslink.gov.uk/northeast by navigating to: Home > Exploit your ideas > Protecting your intellectual property > Protecting intellectual property
Your IP can: set your business apart from competitors be sold or licensed, providing an important revenue stream offer customers something new and
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Legal Issues | Created by Business Link on 26 January 2010 09:50 # Crown copyright 2007
Legal Issues | Created by Business Link on 26 January 2010 09:50 # Crown copyright 2007
on how to get patent protection for your business. You can only patent an invention if no one has done so before you. To see if there is an existing patent you need to carry out a patent search. Find out about patent searches on the British Library website Opens in a new window. Rules came into force in 2007 which, among other things, introduced flexible and user-friendly patent litigation procedures and also simplified and updated administrative requirements. Find information on the patents rules on the Intellectual Property Office website Opens in a new window. Trade marks A trade mark is the distinctive way in which your business' goods or services are represented - in the form of slogans, symbols, words, logos, brand names or shapes, for example. See our guide on how to use trade marks in your business. You can take legal action to prevent someone else using your trade mark if you have built up sufficient trading reputation and goodwill in it - but this can be difficult to prove. For added protection it's a good idea to use trade mark registration to safeguard your trade mark. You can find out about trade marks on the Intellectual Property Office website - Opens in a new window. Design right and registered designs Design right gives automatic but limited protection for the appearance of three-dimensional objects. A registered
design gives added protection and applies to both two-dimensional and three-dimensional objects. See our guide on design right and registration. You can get information on design on the Intellectual Property Office website Opens in a new window. Copyright This is the automatic protection the law affords original literary (including software), artistic or dramatic work and sound recordings that are the result of intellectual effort or creative skill. This could cover your website's content, technical drawings or instruction manuals, for example. See our guide on copyright for your business. You can get information on copyright on the Intellectual Property Office website Opens in a new window.
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This does not just apply to those who are developing inventions in a research and development department. Staff could also be creating potentially valuable IP if, for example, they're compiling databases, writing marketing material or producing training brochures. The good news is that rights to IP created by employees generally belong to the employer. Showing that a member of staff has an employment contract is usually enough to prove you own all IP rights. But it's a good idea to state the position explicitly in separate clauses of employees' contracts. This prevents any confusion arising perhaps over work created outside office hours or as a by-product of specified work. You may also want to ask employees to record information relating to any innovative work they do in a logbook.
Legal Issues | Created by Business Link on 26 January 2010 09:50 # Crown copyright 2007
Legal Issues | Created by Business Link on 26 January 2010 09:50 # Crown copyright 2007
intellectual property asset you have. It could also be the most important. Your business' reputation is tied up with its name so you don't want somebody else trading on it. If the name of your business is distinctive to the goods and services you provide, you may be able to take legal action against anyone using it in the same or a similar field. You will get additional legal protection if you register the name as a trade mark. For further information, see our guide on how to use trade marks in your business. Protect your name on the internet If you want to set up a website for your business you will probably want to register a domain name incorporating your business name, or any trade marks you have. To register a domain name you first need to check whether it's available. You can search domain names ending in .uk on the Nominet website - Opens in a new window. If you want a domain name ending in .com, you can search domain names ending in .com on the Verisign website Opens in a new window. Many web hosting companies offer domain searching and registration facilities. However, having a trade mark doesn't give you an automatic right to a domain name incorporating your trade mark. Someone may have already registered the domain name you want for the same or different goods and services. But you may be able to take legal action if you think: someone is using a domain name to
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Under the Trade Marks (Relative Grounds) Order 2007 the registrar can now register a trade mark that is the same as or similar to an existing trade mark, unless the owner of the earlier mark successfully opposes the new application. However, it is still worth checking that no one has registered the same or a similar trade mark before you make your application. If you want to make, use, sell or import someone's invention, you should carry out a full patent search. You should also do a search if you're considering applying for your own patent. See our guide on how to get patent protection for your business. If you want to make, sell, use or import goods you should carry out a full design search. See our guide on design right and registration. If you want to use original creative work you should find out whether it is covered by copyright. See our guide on copyright for your business. Making a mistake and infringing upon someone else's rights could be costly, so it is worth obtaining professional help. You can get help with your searches from a patent attorney or trade mark attorney. Search for a trade mark attorney on the Institute of Trade Mark Attorneys (ITMA) website - Opens in a new window. You can find a patent attorney on the Chartered Institute of Patent Attorneys (CIPA) website - Opens in a new window.
Helplines
Intellectual Property Office Central Enquiry Unit 08459 500 505
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Trade mark guidance on the Intellectual Property Office website - Opens in a new window Design database on the Intellectual Property Office website - Opens in a new window Copyright information on the Intellectual Property Office website - Opens in a new window Trade mark, patent, copyright and design advice on the Intellectual Property Office website - Opens in a new window Patent attorney directory on the CIPA website - Opens in a new window Trade mark attorney listing on the ITMA website - Opens in a new window Solicitor directory on the Law Society website - Opens in a new window Domain name search on the Nominet website - Opens in a new window Trade mark and domain name advice on the Intellectual Property Office website Opens in a new window Global domain name checker on the Network Solutions website - Opens in a new window Domain name scams information on the Office of Fair Trading website - Opens in a new window Patents database search advice on the Intellectual Property Office website Page 10
Legal Issues | Created by Business Link on 26 January 2010 09:50 # Crown copyright 2007
Opens in a new window Patents database on the Intellectual Property Office website - Opens in a new window IP advice on the Intellectual Property Office website - Opens in a new window Patents search and advisory service on the Intellectual Property Office website Opens in a new window
Legal Issues | Created by Business Link on 26 January 2010 09:50 # Crown copyright 2007
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Introduction
Introduction E-commerce Regulations Tips for complying with the E-commerce Regulations Regulations applying to telephone and fax marketing Privacy and Electronic Communications Regulations Tips for complying with the Privacy and Electronic Communications Regulations Distance Selling Regulations Provision of Services Regulations Related guides on businesslink.gov.uk Related web sites you might find useful The ways in which electronic marketing can be undertaken to promote the services of e-commerce providers are also regulated. This guide introduces you to the various regulations and provides practical advice on how to ensure that you comply with your legal requirements. However, it is not a substitute for professional legal advice. E-commerce is all about selling goods and services via the internet. The trader and customer are not face to face at any point, with business conducted remotely, regardless of location. This can pose a number of challenges to the formation and enforcement of contracts. A number of legislative initiatives affect business conducted online - they can be complex and change regularly. As far as e-commerce transactions are concerned, the legislation is primarily intended to ensure that online contracts are legally binding.
You can find this guide on http://www.businesslink.gov.uk/northeast by navigating to: Home > IT & e-commerce > E-commerce > E-commerce and the law
E-commerce Regulations
The E-commerce Regulations came into force in August 2002. They implement the European E-Commerce Directive into UK law and one of their main aims is to ensure that electronic contracts are legally binding and enforceable throughout Europe. The Regulations apply to businesses that: sell goods or services to businesses or consumers on the internet, or by
Legal Issues | Created by Business Link on 26 January 2010 09:50 # Crown copyright 2007
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Legal Issues | Created by Business Link on 26 January 2010 09:50 # Crown copyright 2007
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How to comply when contracting online If your business forms contracts online you must provide your customers with information about: all technical steps required to conclude the contract, eg 'click this box' whether the concluded contract will be filed by you and whether it will be accessible the languages offered for the conclusion of the contract any relevant codes of conduct to which you subscribe, and information on how these can be consulted electronically You must make sure that your website allows customers to go back and correct any mistakes made in their order before the order is placed. Once a customer has placed an order electronically, you must acknowledge receipt without undue delay.
Legal Issues | Created by Business Link on 26 January 2010 09:50 # Crown copyright 2007
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committing an offence.
Communications Regulations, corporate bodies may also opt-out of receiving such emails, but there is no 'opt-in' requirement. It is important to remember that it is also a requirement of the Regulations that unsolicited advertising emails must contain both the identity and the contact details of the sender. Cookies The Privacy and Electronic Communications Regulations also cover the use of 'cookies'. These are files downloaded from a web server to the website visitor's computer. They can provide the owner of the website with personal details about the visitor such as what purchases were made from the site, what files were downloaded and the information viewed. The aim of the regulations is to allow the visitor to choose whether they want cookies on their computer. In practice this is likely to involve providing them with information about cookies, and how to disable them should they wish to do so.
Tips for complying with the Privacy and Electronic Communications Regulations
The Privacy and Electronic Communications Regulations are enforced by the Information Commissioner's Office (ICO). If the Information Commissioner finds a business to be in breach of the Regulations an Information Notice requesting further information, or an Enforcement Notice will be issued. A fine may be imposed for breach of an Enforcement Notice. Criminal sanctions may also be imposed.
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Legal Issues | Created by Business Link on 26 January 2010 09:50 # Crown copyright 2007
All of these actions can damage the reputation of your business and adversely affect the goodwill of your customers. So, if you use electronic communications as a marketing tool, you should ensure that each communication is clearly identifiable as relating to the advertising or marketing of a product. This means that any commercial communication sent by email or text message should be clearly identifiable as such through its header - other required information can then be set out in the main body of the communication. Electronic communications as a marketing tool should also: identify the person on whose behalf it is sent clearly identify any promotional offer - including any discount, premium or gift - and any conditions that must be met to qualify for it (these must be easily accessible, clear and unambiguous) provide the recipient with 'opt-out' rights You should obtain prior individual consent from your customer through them 'opting in', though there are some limited exceptions for existing customers.
They only apply to transactions between businesses and consumers (individuals acting outside the course of their business) and do not include business-to-business contracts and auctions. Under the Regulations, consumers have the right to: details in writing about the supplier and the terms of the transaction written confirmation of their orders further information, including a notice of cancellation rights, the complaints procedure, after-sales services and guarantees delivery within 30 days unless otherwise agreed Consumers have a cooling-off period of seven working days in which to cancel the contract, starting from when the goods are received, without having to give a reason. If no details of the cooling-off period have been given by the supplier to the consumer, it is extended to three months. The right to withdraw can be exercised by the consumer even after the goods have been delivered, or the services have been provided. The consumer is entitled to receive a full refund for a cancelled contract within 30 days. There are some exceptions to these rights of cancellation, including: contracts for the provision of accommodation, transport, catering or leisure services, where these services are supplied on a specific date or for a specific period the sale of customised goods or perishable goods
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Legal Issues | Created by Business Link on 26 January 2010 09:50 # Crown copyright 2007
Legal Issues | Created by Business Link on 26 January 2010 09:50 # Crown copyright 2007
Online selling regulations guidance on the Office of Fair Trading website Opens in a new window TPS and FPS contact information on the Information Commissioner's Office (ICO) website - Opens in a new window Privacy and Electronic Communications Regulations guidance on the ICO website - Opens in a new window Premium rate scams information on the Office of Fair Trading website - Opens in a new window Download a guide to the Provision of Services Regulations from the BIS website (PDF, 814K) - Opens in a new window
Legal Issues | Created by Business Link on 26 January 2010 09:50 # Crown copyright 2007
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Introduction
Introduction Formation of online contracts Essential terms of a contract Issues to consider when selling online Protecting consumers Complying with the Distance Selling Regulations Resolving legal disputes Related guides on businesslink.gov.uk Related web sites you might find useful Although trading over the internet is often seen as a more informal way of doing business, the same rules apply as with the formation of other types of contract. The issue can be confused by the fact that in e-commerce the trader and customer are never face to face and are sometimes in different countries. Recent e-commerce regulations are intended to ensure that electronic contracts are binding and enforceable throughout Europe. This guide will explain the essential terms of online contracts and provide advice on the main issues to consider when selling goods online. However, it is not a substitute for professional legal advice. In UK law certain elements must be present for contracts to be legally binding. These elements are an offer, an acceptance, consideration and an intention to create legal relations.
You can find this guide on http://www.businesslink.gov.uk/northeast by navigating to: Home > IT & e-commerce > Legal issues > Trading online - understanding e-commerce contracts
satisfied: offer - one party must contract with the other, eg offer to buy goods acceptance - the other party must expressly accept the offer intention to create legal relations both parties to the contract must intend the contract to be legally binding consideration - in England and Northern Ireland there should be some consideration being exchanged between the parties, eg money paid for goods You should note that there is no general requirement for contracts to be in writing or for the parties to actually sign a contract. When is the contract formed? Generally an advertisement on a website will not constitute a formal offer to contract (although care should still be taken when designing an advertisement). A contract would be formed once a customer makes an offer by placing an order and the supplier accepts this offer. The terms and conditions about when the contract is formed should be clear - for example when the supplier sends back a confirmation email. This will help to avoid situations where you are unable to meet the customer's expectations for any reason, if commercial circumstances change. However, automatically generated confirmations of orders can potentially cause confusion about when the contract is formed. So you should ensure that you word them in such a way that they are not legally an acceptance of a customer's offer.
Legal Issues | Created by Business Link on 26 January 2010 09:50 # Crown copyright 2007
are usually the most contentious. There are restrictions on the ability of businesses to limit their liability. Generally, clauses limiting liability need to be reasonable in order to be enforceable. There are stricter rules for businesses dealing with consumers, so that it is more difficult for businesses to impose exclusion of liability clauses. Dealing with consumers and business customers For some businesses dealing with both consumers and other business customers, it is usually better to have two sets of terms and conditions - one to use in connection with sales to consumers and the other for dealing with other businesses. Business customers also have similar protections to consumers from misleading advertising under the Business Protection from Misleading Marketing Regulations 2008.
Legal Issues | Created by Business Link on 26 January 2010 09:50 # Crown copyright 2007
The legislation gives the consumer a cooling-off period of seven working days to cancel the contract. See our guide on e-commerce and the law. Financial services Retail financial services sold at a distance are regulated by the Distance Selling Directive for Financial Services. 'Financial services' are defined as banking, insurance, investment or payment services. Consumer purchasers must receive information about the service. They have a cooling-off period of up to 30 days, depending upon the individual member state's laws, according to the financial service. The right of withdrawal does not extend to financial services which could involve speculation, such as foreign exchange, collective investment schemes, transferable securities, futures, options, and exchange and interest rate instruments.
Protecting consumers
Consumers in the European Union (EU) benefit from an increasing range of laws and regulations concerning sales and services contracted face to face or remotely. Selling goods to consumers The EU has established a minimum level of consumer protection for the purchase of goods in the single market. This legislation stipulates that the supplier must sell goods that comply with their description, match the quality of samples or models, have the same quality and performance characteristics of such goods, and are fit for any purpose accepted by the supplier. The consumer has two years from the delivery date to seek redress for faults demonstrably present at the time of delivery, in goods which should have lasted for this length of time. Distance selling Distance Selling Regulations apply to contracts concluded when the supplier and purchaser are not physically present in the same place at the same time. This covers email and internet contracts, as well as contracts resulting from press advertisements, mail order catalogues or those made by telephone.
Legal Issues | Created by Business Link on 26 January 2010 09:50 # Crown copyright 2007
Legal Issues | Created by Business Link on 26 January 2010 09:50 # Crown copyright 2007
home jurisdiction. Therefore online businesses dealing with consumers must be prepared to comply with consumer protection regulations in each market to which they sell. Reducing uncertainty To reduce uncertainty in the event of a dispute, e-commerce providers should specify in their terms and conditions the governing law and jurisdiction for disputes. English law is the popular choice for international trade and is often chosen by parties with no other connection to the UK.
the BIS website (PDF, 134K) - Opens in a new window Download a Distance Selling Regulations guide from the Office of Fair Trading website (PDF, 127K) - Opens in a new window Distance Selling Regulations summary on the Department for Business, Innovation & Skills website - Opens in a new window Distance selling of financial services directive on the euroITcounsel website Opens in a new window Model contracts on the Centre for Effective Dispute Resolution website Opens in a new window
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Introduction
Introduction Sample website usage terms and conditions Sample privacy policy Sample website disclaimer Sample internet copyright notice & guidelines Sample business email disclaimer Sample acceptable internet use policy Sample acceptable email use policy Related guides on businesslink.gov.uk Related web sites you might find useful When using the internet for business, you need a clear written set of company internet policies. This is important from both business and legal perspectives. For example, you need to inform visitors to your website about how the site operates and how you might use any personal data. You also need to make clear the copyright of site content. At the same time, you need clear guidelines on how your staff should use the internet and email, both for personal and business use. This guide gives sample wording for common internet-related statements and notices. It aims to show you the main issues that these notices should cover. This should help you to write your own statements according to your business' needs. These sample internet policies and notices can be used and modified without copyright infringement.
You can find this guide on http://www.businesslink.gov.uk/northeast by navigating to: Home > IT & e-commerce > Legal issues > Sample internet policies and notices
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website usage Welcome to our website. If you continue to browse and use this website you are agreeing to comply with and be bound by the following terms and conditions of use, which together with our privacy policy govern [business name]'s relationship with you in relation to this website. The term '[business name]' or 'us' or 'we' refers to the owner of the website whose registered office is [address]. Our company registration number is [company registration number and place of registration]. The term 'you' refers to the user or viewer of our website. The use of this website is subject to the following terms of use: The content of the pages of this website is for your general information and use only. It is subject to change without notice. Neither we nor any third parties provide any warranty or guarantee as to the accuracy, timeliness, performance, completeness or suitability of the information and materials found or offered on this website for any particular purpose. You acknowledge that such information and materials may contain inaccuracies or errors and we expressly exclude liability for any such inaccuracies or errors to the fullest extent permitted by law. Your use of any information or materials on this website is entirely at your own risk, for which we shall not be liable. It shall be your own responsibility to ensure that any products, services or information available through this website meet
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Sample privacy policy This privacy policy sets out how [business name] uses and protects any information that you give [business name] when you use this website. [business name] is committed to ensuring that your privacy is protected. Should we ask you to provide certain information by which you can be identified when using this website, then you can be assured that it will only be used in accordance with this privacy statement. [business name] may change this policy from time to time by updating this page. You should check this page from time to time to ensure that you are happy with any changes. This policy is effective from [date]. What we collect We may collect the following information: name and job title contact information including email address demographic information such as postcode, preferences and interests other information relevant to customer surveys and/or offers What we do with the information we gather We require this information to understand your needs and provide you with a better service, and in particular for the following reasons: Internal record keeping. We may use the information to improve our products and services. We may periodically send
Legal Issues | Created by Business Link on 26 January 2010 09:50 # Crown copyright 2007
better website, by enabling us to monitor which pages you find useful and which you do not. A cookie in no way gives us access to your computer or any information about you, other than the data you choose to share with us. You can choose to accept or decline cookies. Most web browsers automatically accept cookies, but you can usually modify your browser setting to decline cookies if you prefer. This may prevent you from taking full advantage of the website. Links to other websites Our website may contain links to other websites of interest. However, once you have used these links to leave our site, you should note that we do not have any control over that other website. Therefore, we cannot be responsible for the protection and privacy of any information which you provide whilst visiting such sites and such sites are not governed by this privacy statement. You should exercise caution and look at the privacy statement applicable to the website in question. Controlling your personal information You may choose to restrict the collection or use of your personal information in the following ways: whenever you are asked to fill in a form on the website, look for the box that you can click to indicate that you do not want the information to be used by anybody for direct marketing purposes if you have previously agreed to us using your personal information for direct marketing purposes, you may change your mind at any time by
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accuracy, reliability, suitability or availability with respect to the website or the information, products, services, or related graphics contained on the website for any purpose. Any reliance you place on such information is therefore strictly at your own risk. In no event will we be liable for any loss or damage including without limitation, indirect or consequential loss or damage, or any loss or damage whatsoever arising from loss of data or profits arising out of, or in connection with, the use of this website. Through this website you are able to link to other websites which are not under the control of [business name]. We have no control over the nature, content and availability of those sites. The inclusion of any links does not necessarily imply a recommendation or endorse the views expressed within them. Every effort is made to keep the website up and running smoothly. However, [business name] takes no responsibility for, and will not be liable for, the website being temporarily unavailable due to technical issues beyond our control.
Sample internet copyright notice This website and its content is copyright of [business name] - [business name] [year]. All rights reserved. Any redistribution or reproduction of part or all of the contents in any form is prohibited other than the following: you may print or download to a local hard disk extracts for your personal and non-commercial use only you may copy the content to individual third parties for their personal use, but only if you acknowledge the website as the source of the material You may not, except with our express written permission, distribute or commercially exploit the content. Nor may you transmit it or store it in any other website or other form of electronic retrieval system.
Legal Issues | Created by Business Link on 26 January 2010 09:50 # Crown copyright 2007
use of the individual to whom it is addressed. Any views or opinions expressed are solely those of the author and do not necessarily represent those of [business name]. If you are not the intended recipient of this email, you must neither take any action based upon its contents, nor copy or show it to anyone. Please contact the sender if you believe you have received this email in error.
Legal Issues | Created by Business Link on 26 January 2010 09:50 # Crown copyright 2007
Facebook and LinkedIn. Monitoring [business name] accepts that the use of the internet is a valuable business tool. However, misuse of this facility can have a negative impact upon employee productivity and the reputation of the business. In addition, all of the company's internet-related resources are provided for business purposes. Therefore, the company maintains the right to monitor the volume of internet and network traffic, together with the internet sites visited. The specific content of any transactions will not be monitored unless there is a suspicion of improper use. Sanctions Where it is believed that an employee has failed to comply with this policy, they will face the company's disciplinary procedure. If the employee is found to have breached the policy, they will face a disciplinary penalty ranging from a verbal warning to dismissal. The actual penalty applied will depend on factors such as the seriousness of the breach and the employee's disciplinary record. [These procedures will be specific to your business. They should reflect your normal operational and disciplinary processes. You should establish them from the outset and include them in your acceptable use policy.] Agreement All company employees, contractors or temporary staff who have been granted the right to use the company's internet access are required to sign this agreement confirming their understanding and acceptance of this policy.
Legal Issues | Created by Business Link on 26 January 2010 09:50 # Crown copyright 2007
Where it is believed that an employee has failed to comply with this policy, they will face the company's disciplinary procedure. If the employee is found to have breached the policy, they will face a disciplinary penalty ranging from a verbal warning to dismissal. The actual penalty applied will depend on factors such as the seriousness of the breach and the employee's disciplinary record. [These procedures will be specific to your business. They should reflect your normal operational and disciplinary processes. You should establish them from the outset and include them in your acceptable use policy.] Agreement All company employees, contractors or temporary staff who have been granted the right to use the company's email services are required to sign this agreement confirming their understanding and acceptance of this policy.
Monitoring [business name] accepts that the use of email is a valuable business tool. However, misuse of this facility can have a negative impact upon employee productivity and the reputation of the business. In addition, all of the company's email resources are provided for business purposes. Therefore, the company maintains the right to examine any systems and inspect any data recorded in those systems. In order to ensure compliance with this policy, the company also reserves the right to use monitoring software in order to check upon the use and content of emails. Such monitoring is for legitimate purposes only and will be undertaken in accordance with a procedure agreed with employees. Sanctions
Legal Issues | Created by Business Link on 26 January 2010 09:50 # Crown copyright 2007
Intellectual property and copyright information on the Intellectual Property Office website - Opens in a new window Creating IT policies guidance on the AUPcheck website - Opens in a new window IT policy implementation guidance on the Lasa Knowledgebase website - Opens in a new window Email policy guidance on the is4profit website - Opens in a new window
Legal Issues | Created by Business Link on 26 January 2010 09:50 # Crown copyright 2007
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