Commercial Law

Implied terms in software contracts – part 2

A contract relating to software may have both express and implied terms that may be in writing or be oral or a combination of both.   Express terms are those which the parties have articulated before concluding a contract.  In contrast, implied terms are those which are unlikely to be reduced to writing, but a Court may be asked to imply into the contract to give it business efficacy. [Read more…]

R&D Tax Incentive determination on clinical trials

The Australian Government Department of Industry, Science, Energy and Resources has consulted in relation to a proposed tax incentive in relation to unapproved therapeutic goods (R&D Tax Incentive).  Such incentive is proposed to enable innovation and growth to relevant companies conducting R&D activities by offsetting the costs of eligible research and development. [Read more…]

Incentivising distributors – contractual issues

Distributors and resellers (Distributors) are often independent agents who enter into an agreement to offer and sell a product or service for another business.  Given that many Distributors work externally to the main business, and directly affect its revenue, it can be practical to implement methods to help motivate the agent to achieve a certain result.  This article discusses the benefits of incentivising Distributors and provides an overview of various incentive methods that could be used. [Read more…]

Greenwashing: the ACCC’s new priority

The Australian Competition and Consumer Authority (ACCC) has released its 2022/23 compliance and enforcement priorities which include a strong focus on misleading environmental and sustainability claims.  Environmental, social and governance (ESG) is an emerging area and a new priority for the ACCC, representing the important impacts and developments within this space.  Businesses that make ESG claims, including engaging in greenwashing, cause harm to consumers and are a target for ACCC enforcement action.  This article discusses greenwashing and the law on false and misleading organic claims. [Read more…]

What is tracing in civil litigation?

Tracing is a mechanism by which civil litigants which may be able to show how certain property has ‘travelled’ over time.  This means, that it can be shown by a claimant that certain property, such as money, has moved from one point to another.  This can be useful as money or other property the subject of a cause of action can be ‘traced’ to an original place in time to combat any efforts undertaken to hide it or escape culpability by an original wrongdoer.  An example of this principle arose in the case of Toksoz v Westpac Banking Corporation [2012] NSWCA 199 (3 July 2012) (Toksoz). [Read more…]

Present entitlement and trusts – what does it mean?

Part III, Division 6 of the Income Tax Assessment Act 1936 (Cth)(Act) contains provisions that determine who must pay the income tax in respect of the net income of a trust estate.  One of the features of Division 6 is the notion of ‘present entitlement’ (which curiously is not defined) and as such the Courts have had to determine its meaning.  This article discussed how the High Court interpreted the meaning of “present entitlement” and discusses when a person is considered to be presently entitled to trust assets in different circumstances. [Read more…]

Do I have an implied software license?

A licence to use software usually authorises the terms of use of the products by an end user.   These types of licences are usually entered into by express agreement and the passing of consideration (Dundas Lawyers previously discussed software licence agreements here).  However, there are circumstances where a licence to use software may be implied from the surrounding circumstances.  This article discusses the recent Federal Court case of QAD Inc v Shepparton Partners Collective Operations Pty Ltd [2021] FCA 615 which considers factors which might give rise to an ‘implied licence’.

[Read more…]

Employsure’s Google ads found to have mislead businesses

The Full Federal Court, in the case of Australian Competition and Consumer Commission v Employsure Pty Ltd [2021] FCAFC 142, unanimously upheld the appeal by the ACCC regarding a number of Google Ads, posted by Employsure Pty Ltd (Employsure) – a workplace relations advisory company) between August 2016 and August 2018.

[Read more…]

Can email trackers be submitted as evidence?

Whether email trackers, read receipts and similar indicators that show an email has been received and, ostensibly, read can be submitted as evidence has not been substantially considered in standing jurisprudence.  This article briefly considers whether, in light of existing case law, email trackers can be submitted as evidence. [Read more…]

International companies can be bound by Australian privacy laws

The recent determination by the Australian Information Commissioner and Privacy Commissioner, Angele Falk, (Commissioner) in Commissioner Initiated Investigation into Uber Technologies, Inc. & Uber B.V. (Privacy) [2021] AICmr 34 (Uber) provides further guidance on the extraterritorial connection of the Privacy Act 1988 (Cth) (Act) though the ‘Australian link’ set out in subsections 5B(2)-(3) (Australian Link).  This article discusses how the Office of the Australian Information Commissioner (OIAC) will assess whether an entity has an Australian Link to legally bind international entities to the Act. [Read more…]

Send this to a friend