Technology Law

My client poached my software developers – what can I do?

Imagine this – it’s taken you almost a decade, you’ve created a successful software development business with many happy long-term clients, a stable team and a great reputation.  More recently you’ve even created a funky new millennial style brand!  One day an employee resigns and the next week another one resigns.   The following week your biggest client breaks their long-term engagement with you and then another one of your team resigns!   You get suspicious, do some investigations and discover the former employees are working in-house for your ex-client!

It is not uncommon for clients (Clients) of professional service businesses (Service Provider) to poach the employees of the Service Provider.  The software development sector is a prime example where this occurs. [Read more…]

Emojis used online can be defamatory – watch out!

In the recent New South Wales case of Burrows v Houda [2020] NSWDC 485 , the Court was faced with the difficult question of whether an emoji is capable of having a defamatory meaning.  As the case was a first for Australia, the Court relied upon UK case law, as well as the ordinary definition of ‘emoji’, in considering the meaning behind the emoji used. [Read more…]

Software patent allowed for tracking user action

In the recent case of Facebook, Inc. [2020] APO 19 (Facebook Inc.), the Patent’s office considered whether software that tracks the installation of applications on mobile devices following interactions with advertisements qualifies as a manner of manufacture and is therefore patentable subject matter. [Read more…]

The use of IRUs in a telecommunications capacity

Indefeasible rights of use agreements (IRU’s) are commonly used in telecommunications agreements for the supply of cable system capacity services.  IRU’s have specific tax treatment under section 995.1 of the Income Tax Assessment Act 1997 (Cth) and are treated as capital expenditure for suppliers and customers.  Tax considerations play a central role in structuring IRU’s. Below, we set out the key areas an IRU must cover to be tax compliant. [Read more…]

Marketplace terms and conditions – legal issues

A marketplace platform is great for doing online business and connecting service providers and customers. Notable marketplaces are Airtasker, eBay and Amazon, however marketplaces can be used by businesses looking to facilitate human connections between people, such as LinkedIn.

Whatever the purpose of the marketplace, platform operators need to have a set of terms and conditions in place which ringfence the platform operator from certain liabilities and seek to ensure that most issues between users are matters between them, and not the platform operator.  Below we outline some of the essential terms that a marketplace terms and conditions should consider. [Read more…]

Interactive Gambling Act 2001 (Cth)

In Australia the Interactive Gambling Act 2001 (Cth) (Act) sets the rules for companies that offer or advertise gambling services.  It applies to all online gambling, whether through a website, app or social media platform.  Under the Act, the provision of internet gambling services in Australia is generally prohibited, subject to some exceptions.  The Act empowers the Australian Communications and Media Authority (ACMA) to investigate complaints, write investigation reports and undertake enforcement and compliance monitoring activities. [Read more…]

Standard form IT procurement contracts – legal issues

Standard form IT procurement agreements are commonly used by businesses which have an established procurement department to standardise the commercial and legal procurement process.  Below we address key terms in standard form IT procurement agreements which suppliers should look out for when presented with one. [Read more…]

Telco reseller agreements – legal issues

There are over 800 carriage service providers (CSPs) in Australia. CSPs that do not also have a carrier licence buy network services from carriers. Each network service offered by carriers has its own set of flow down terms that must be passed down into the CSPs end user standard form of service agreement (SFA). In this article, we consider the key legal issues when entering into a reseller agreement with network service providers and the impact on the SFA. [Read more…]

Dark fibre agreements for telcos

Dark fibre refers to access to ‘unlit’ (unused) telecommunications fibre.  Generally, large telecommunications carriers and government utilities (Supplier) have dark fibre networks laid out that can be available to carriage service providers (CSP’s) to access to scale up their network.  Below we set out key elements of dark fibre and corresponding issues in telecommunications service agreements between CSP’s and their business end users (End User). [Read more…]

What is in a network access agreement?

Network access agreements are agreements between licenced carriers in which a carrier (First Carrier) gives another carrier (Second Carrier) access to its network, which the Second Carrier can then access to provide telecommunications services to end customers or other wholesale carriers.   Below we set out the key considerations, carriers need to cover in their network access agreements. [Read more…]

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