Contractual terms can be misleading – Jetstar under fire

Businesses often make broad sweeping statements, in their agreements and particularly in the terms and conditions of sale presented on their websites purporting to exclude consumer’s rights to warranties, guarantees or remedies.  In reality, such declarations can amount to a breach of the Australian Consumer Law (ACL) which recently occurred in relation to Jetstar. [Read more…]

Technology startups – top 5 legal considerations

The allure of generating income from a subscription base, operating a marketplace or your own e-commerce venture is strong and for good reason.   The success stories of tech startups and the unicorns in this space are many, but so are the failures.  If this is the path you are considering taking, these are our top 5 legal considerations. [Read more…]

Need a reseller agreement?

A reseller agreement (Reseller Agreement) is a contract that entitles one party (Reseller) to sell, market, distribute, or lease a product or service of another (Supplier).  Resellers Agreements are also known as distribution, supply or distributor agreements. Often the Supplier is also the manufacturer of the goods but they may be the importer, a developer of the service or a licensee of software or training programs. [Read more…]

Privacy Awareness Week 2019 – 12-18 May 2019

During  Privacy  Awareness  week  2019 Australian businesses  are  reminded  they  are  entrusted  with  certain  responsibilities  pursuant  to  the  Privacy  Act  1988  (Cth) (Privacy  Act).    In  particular  the  way  they  collect,  store  and  disclose  the  personal  information  of  their  customers. [Read more…]

Legal issues in software support agreements

Software developers (Developers) need to ensure that they consider how they provide support (both technical and product support) when taking their application (Software) to market.  This applies regardless of the system architecture, however it is usually more important in the case of mission critical systems and those used for businesses.  In the world of software as a service and robust mature systems how support is to be provided can often be overlooked until an important customer asks to review the terms of service, the SLA or the support contract (Support Agreement) with an eye to negotiating the levels of service they can expect. [Read more…]

Abhorrent violent material prohibited

The Australian Parliament has promptly passed the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (Cth) (Act) according to the Explanatory Memorandum in response to the events of the March 2019 mass shooting in Christchurch, New Zealand.  The Act creates various new sections of the  Criminal Code Act 1995 (Cth)(Criminal Code) and in particular section 474.33 and 474.34 creates (2) new offences in relation to “internet service providers, content service providers and hosting service providers” (Service Providers) as follows: [Read more…]

Unfair preferences – the Doctrine of Ultimate Effect

Under section 588FA of the Corporations Act 2001 (Cth), an unfair preference is defined as a transaction, such as payment of an outstanding debt, between a company and a unsecured creditor which results in that unsecured creditor receiving more than it would have received if it had to prove in the winding up of the debtor company.  It is unfair because the payment the debt results in the net value of the assets of the debtor company being reduced, to the detriment of the body of unsecured creditors as a whole. [Read more…]

Workplace Bullying by a Body Corporate

Section 789FA of the Fair Work Act 2009 (the FWA) enables a worker who has been bullied at work to apply to the Fair Work Commission (FWC) for an order to stop the bullying.  For the purposes of the FWA, reasonable management action taken in a reasonable way will not constitute workplace bullying.

A body corporate rarely directly employs workers.  Usually, an onsite care-taking service contractor is engaged (typically a company) to perform on-site duties such as grounds maintenance and the like, those duties normally being discharged by the company’s directors or employees engaged by the company. [Read more…]

Security for legal costs in cross-claims for patent invalidity

The usual position in relation to security for costs in disputes before the Federal Court of Australia is that a respondent (including a cross-respondent) may make an application for security for its legal costs to insulate itself if it is successful in defending the allegations made by an applicant against it.  What is the situation regarding security for costs where a respondent ‘cross-claims’ for revocation of a patent because it alleges that it is invalid and should never have been granted in the first place? [Read more…]

Use of a competitor’s confidential information

Many businesses try to increase market share by employing a competitor’s member of staff who may bring with them relationships and information acquired over the years.  Employees owe fiduciary duties to their employers meaning, among other things, that an employee cannot make a personal gain by using confidential information acquired in the course of their employment.  If an employee makes a personal gain by using their employer’s confidential information, the employer may be entitled to an account of profits, meaning the employee must pay the employer the amount of profit made as a result of the breach. [Read more…]

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