contract

Force majeure in a major pandemic

To say the world has been turned upside down is all but literally true in many respects.  Where there is the slightest sneeze of Covid-19, governments have made shut down decisions that that have impacted the ability of businesses to operate and perform their contractual obligations.

A feverous question is whether COVID-19 an event of force majeure and does it relieve the affected party from its obligations?  Below we set out the issues. [Read more…]

e-Signatures – legally binding on companies?

The rise of e-signing software such as docuSign (e-signature) has become commonplace for the execution of contracts electronically.  Each state of Australia and the Commonwealth has its own equivalent to the Electronic Transactions Act 2001 (Qld) (ETA).  The use of E-signatures has streamlined the contract execution process, however a recent case in the Supreme Court of South Australia has highlighted their vulnerability.  The decision of Stanley J in Bendigo and Adelaide Bank Limited v Kenneth Ross Pickard [2019] SASC 123 (Adelaide Bank) is illustrative of this. [Read more…]

Unfair contract terms, small businesses and changes to the Australian Consumer Law

Given the often limited resources available to small businesses, it can be difficult to keep informed about the myriad of legal obligations with which they must comply.  Under section 23 of the Australian Consumer Law (ACL), businesses must ensure that they comply with the obligation not to impose “unfair contractual terms” on consumers. [Read more…]

Federal Circuit Court invalidates ‘no refunds’ clause

In a recent judgment (Ferme v Kimberley Discovery Cruises Pty Ltd [2015] FCCA 2384), the Federal Circuit Court held that a term of a cruise company’s standard conditions, which allowed the company to cancel a cruise for a wide range of reasons without giving any refunds to its passengers, was an ‘unfair term’ under the Australian Consumer Law (ACL) and therefore void. [Read more…]

Implied terms in software development contracts – the submarine in the code

The case of Peter Peter Pan’s Backpacker Adventure Travel Pty Ltd and Anor v Eye Jam Interactive[1](Pan), whilst not new, presents an interesting yet not unusual fact matrix which commonly occurs in relation to software development. There was a number of issues for the Court to resolve, primarily in regard to the ownership of the copyright in the code in the absence of a signed contract (IP Issue), and whether a term could be implied into an hourly rate contract (Implied Term) that had the effect of limiting the Respondents hourly rate claim where it was alleged that they had spent more time providing the services than was absolutely necessary.
[Read more…]

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