Whilst not applicable in all cases, when establishing/operating a business involving the sale or supply of goods and /or services it is quite important to consider having a set of terms and conditions tailored to such sale/supply.
Terms and Conditions
Prior to entering any commercial arrangement it would be prudent for a business owner that any commercial agreement or contract be drafted and/or reviewed or vetted by a suitably experienced legal practitioner. This is important as it enables a business owner to ascertain their rights and obligations under a commercial agreement in order to protect their business interests. Accordingly, such key terms and conditions which will need addressing include but not limited to the following:
- Payment obligation/terms
- Delivery and passing of legal title
- Rights of termination of contract
- Product liability
- Australian Consumer Law Protection
- Guarantees and Warranties
- Privacy
The drafting and/or review of such terms and condition are of significance as they may affect the remedies available to a party in the event of breach or default of the contact.
Licensing/Franchising their idea
In the event that a business owner wishes to grant a licence over its intellectual property or establish a franchise of over their business it would be necessary to obtain legal advice and draft appropriate documentation. Where a business owner wishes to franchise its business it will need to comply with the Franchising Code of Conduct which is administered by Australian Competition and Consumer Commission. In addition, it is mandatory for the franchisor (business owner) have the following documentation in place prior to a franchisee entering into a franchise arrangement, namely:
- Copy of the franchise code
- Franchise Agreement (in final form)
- Franchise disclosure document
As this is a highly regulated area of the law it is strongly recommended that any business owner wishing to embark on this process obtain expert legal advice.
Patents and trademarks
Increasingly a key component and asset in any business is its intellectual property as it provides a competitive advantage and relevance in the marketplace. Business owners must recognise the need to protect their intellectual property (IP) and explore strategies to protect and manage this vulnerable asset against the threats of globalisation and IP theft. As such patents and trademarks have never been as important as they are in today’s knowledge based economy. Accordingly, business owners ought to seek legal advice in the protection of its patents and/or trademarks.
The distinction between patents and trademarks may be summarised as follows:
- (Patents): A patent is a right that may be granted with respect to any device, substance, method or process that has been newly developed and will have attached (pursuant to the Patents Act 1990 (Cth)) exclusive use rights for a limited time for the owner.
- (Trademarks): A trademark is used to distinguish goods and services between traders, for example a logo, phrase, word, sound or picture. Although trademarks do not need to be registered in order to create rights, registration will significantly improve the certainty of ownership. However, a registered trademark will give rise to its legal owner right to use, license or sell it within Australia for goods and services for which it is registered.
Accordingly, when setting up a business it is paramount that all IP assets are registered in order to the establish legal ownership of such assets and therefore be in a position to assert its legal rights and maintain competitive advantage.
Ongoing legal advice
During the course of the conduct of a business the need to obtain expert legal advice will continue as business owners are challenged with ever changing compliance issues and to deal with specific events such as financing, debt recovery and the possible sale of the business.
As a small business owner you may wish to consult and engage the services of legal professionals to assist you in dealing with such legal issues and requirements relating but not limited to:
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In the event that you have any legal assistance on any of the issues raised above please do not hesitate to contact Eakin McCaffery Cox through the Ready Fund Go expert page.
