What is a retention of title (ROT) clause?

In commercial transactions involving the sale of goods, including intellectual property (IP), a seller should consider protecting themselves against the risk that a buyer may default on payment.  In Queensland, one such protection method is provided by section 22 of the Sale of Goods Act 1896 (Qld) (SGA), which states that a seller may reserve the right to transfer title to the property.  At common law, such a clause is known as a Romalpa clause after the case of Aluminium Industrie Vaassen BV v Romalpa Aluminium Ltd [1976] 2 All ER 552 (Romalpa case). [Read more…]

Term Sheets and Share Subscription Agreements

A share subscription agreement (Share Subscription Agreement) is a promise by a company with existing shareholders (Company), to issue and allot a number of shares at a certain price to a subscriber (Subscriber), in return for the Subscriber promising to advance funds to the Company in an agreed number of “tranches”.

A term sheet (Term Sheet) is a document that sets out the commercial terms and conditions under which a Share Subscription Agreement will be entered into.  A Term Sheet is generally not intended to create legal relations between the parties, but rather to form the basis of further discussions, which may be exclusive for a period of time and on a strictly confidential basis. [Read more…]

What is a strike out application?

In Queensland, litigious matters are commenced when a party files, and serves upon another, a pleading known as a Statement of Claim.  The party receiving this pleading then has the option to reply to the allegations with their own pleading known as a Defence.  However, where a party receives a pleading (whether that is a Statement of Claim, Defence or Reply) from their opposing party that they do not believe conforms to the requirements of form in Queensland, then they may bring an application to ‘strike out’ the parts of the pleading that does not conform.  In this article we consider the process of striking out pleadings. [Read more…]

What is an Incorporated Joint Venture?

An incorporated joint venture, also commonly referred to as a corporate joint venture, an equity joint venture or a joint venture company (Incorporated Joint Venture) is a type of joint venture where the participants (Joint Venturers) arrange for the incorporation of a separate legal entity to pursue an agreed business objective.  The Incorporated Joint Venture may acquire assets of the Joint Venturers in exchange for the issuance of securities. [Read more…]

How to compare software developers based on methodology

Written by Eban Escott, Ph.D., CEO of WorkingMouse

When it comes time to choosing the right software developer or development team for your project, there is more to consider than simply comparing an hourly rate.  There are many factors that come into play, not least the choice between onshore and offshore developers.

[Read more…]

What is a Mareva Order?

A Mareva order (Mareva Order), also known as a freezing order or asset protection order, is a special type of interlocutory injunction which restrains a defendant from dealing with the whole or part of their assets pending the outcome of legal proceedings.  In preventing a defendant from disposing of their assets in a way which may deprive the plaintiff of an effective remedy, Mareva Orders are a tool to prevent an abuse of court processes and protect the proper administration of justice.  In Queensland, Mareva Orders are dealt with in Chapter 8 Part 2 Division 2 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). [Read more…]

Is the use of a trade mark in AdWords an infringement?

The concept of ‘Googling’ has become a part of everyday life.  But does anyone ever stop to think how Google results are collated?  In the case of Veda Advantage Limited v Malouf Group Enterprises Pty Limited [2016] FCA 255 (Veda Advantage case) one company did just that, and they were not happy with the answer.  The case concerned the use of registered trade marks as keywords and in the title tags and descriptions of sponsored link advertising in the Google AdWords program. [Read more…]

Take care when alleging patent infringement

A patent entitles the holder to exploit the invention disclosed in the patent to the exclusion of all others (unless authorised by the holder of the patent).  Where the patent holder is made aware of the use of their invention by another who is not authorised to do so, they may commence patent infringement proceedings to recover the loss sustained because of the infringement.  It is important for patent holders to be aware of the provisions rules regarding making unjust threats of patent infringement.  The recent decision in Mizzi Family Holdings Pty Ltd v Morellini (No 3) [2017] FCA 870 provides an example of how the Court considered an unjust threat of patent infringement and the damages that may be payable by the maker of such threats. [Read more…]

What is an end user licence agreement?

An end user licence agreement (EULA) is a contract between two or more parties based on the proprietary rights of a licensor to grant a right to the licensee/s to use or access a product or service.  The proprietary right may be based on a variety of intellectual property (IP) rights, including copyright, trade marks, patents, designs and trade secrets.  EULAs are common in the software and web development industries, where copyright subsists in the written code of a program or website as a literary work in under the Copyright Act 1968 (Cth). [Read more…]

Federal Court rules on unfair contract terms

The recent decision of the Federal Court of Australia in Australian Competition and Consumer Commission v JJ Richards & Sons Pty Ltd [2017] FCA 1224 serves as a reminder to businesses that use standard form contracts to carefully review their terms.

[Read more…]

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