Seven Steps For Setting Up
An Incorporated Association in NSW
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Posted by Regie Anne Gardoce on 2 December 2019

If you’re thinking of setting up a sporting group, cultural club or charity — that’s great! It’s a fantastic way of contributing and giving back to your community.
You might have heard others who’ve set up similar organisations talk about their legals, getting things registered, or setting up an entity.
And you might already have a few team members with various skill sets, who you want to give particular roles and purposes within your new organisation.
When you’re thinking about starting a venture like this, the first step is to always think about your business structure.
As a not-for-profit, there are a few different options for you (we’ve written about them here!).
And, if you’ve already looked around, you might have decided to go with an Incorporated Association (IA) structure.
However, there are different regulators of IAs for each state in Australia. In this article, we’ll be referring to the regime in New South Wales, but the concepts are similar in other States and Territories, too. 
So, if you want to set up an IA in New South Wales, you might be asking yourself: where do I even begin?
Don’t stress! Here’s everything you need to understand about setting up an IA. 
What Is An Incorporated Association?
An IA structure can be used by any organisation driven by a recreational, cultural or charitable purpose.
It is a way of structuring not-for-profits in a way that runs a little like a company.
Just like a Pty Ltd Company, you’ll need to register an IA as a separate legal entity.
But, unlike shareholders’ rights to make a profit, IAs have ‘members’ that drive the objectives of the IA.
In a nutshell, those under an IA structure are driven by purposes and rules.
And it is run by an elected management committee.
Why Register An Incorporated Association?
Setting up your venture as an IA is a great way to make a difference, and it also helps to make sure your members are protected with the limited liability a normal company offers. 
These benefits have made IAs a particularly popular choice of structure for many not-for-profits. 
Take, for example, our pro bono client The Rough Period, who we helped set up as an IA in NSW. 
This structure has made it possible for them to get an Australian Business Number (ABN), be registered as a charity with the ACNC, and obtain Deductible Gift Recipient (DGR) status, which has in turn allowed them to access grants and donations. 
By registering as an IA and getting legal help, The Rough Period have been able to focus on their mission of helping homeless women access safe and clean sanitary items. 

How Is An Incorporated Association Different From A Company Limited By Guarantee?
The other popular structure for not-for-profits is a Company Limited by Guarantee (CLG).
There are pros and cons for using both to structure your not-for-profit, but there are some key differences you should be aware of.
For example, a company limited by guarantee can operate across Australia. On the other hand, an IA registered in NSW can generally only operate legally in NSW.
And, there are different requirements for members — while IAs need at least five members, a CLG would only require one.
Particularly, a CLG will require a board of directors whereas IAs require a public officer.
For The Rough Period, they felt the requirement of a public officer was much more suitable for a small charity, which is why they went ahead with the IA structure.
If you want to find out more about setting up a charity and the difference between CLGs and IAs, we’ve written an article on how to set up a charity.
7 Steps For Setting Up An Incorporated Association In NSW
So you’ve decided to go ahead with an Incorporated Association structure — great!
Just like every other state in Australia, there are specific rules you have to follow when setting up an IA in NSW. 
We’ve done the homework for you, and we’ve broken the process down into seven easy steps.
Step One: Choose A Name.
Just like any organisation, the first step is to choose your name.
Generally, in the case of Incorporated Associations, your name would reflect your purpose.
It’s also important to make sure that the name isn’t already used by another organisation (you can check this on the Australian Securities and Investments Commission website, or on the NSW Incorporated Associations Online Register).
Step Two: Establish Objects Of The Association
We’ve mentioned a few times that an IA is generally driven by a purpose or an objective.
One of the legal requirements of setting up an IA is that you have this objective in writing.
Your first move should be to have a conversation with your team around the the association’s purpose, and how to express this in a few sentences.
Step Three: Draft The Constitution
Next, you’ll need a Constitution. 
This is the main document governing the relationship between the association and its members, who will all be bound by the Constitution.
Since every IA is required to have a Constitution, NSW Fair Trading has put together a Model Constitution — which is a good place to start. 
However, you’ll need to tweak the Constitution to make sure it’s customised to your organisation.
For example, you’ll have to think about how to structure the following for your association:

Committee Structure — the number of members; allocation of office-bearers such as  President, Vice President, Secretary, Treasurer; and 3 ordinary non-office bearers.
Member Fees — for example, each member might have to pay $1 upon joining and continue to pay an annual $2 fee. This could also be a good source of ongoing income to cover administrative costs such as maintaining domain registration and bank fees.

A very important thing to note is that this Model Constitution is not appropriate if you are a charity that wants to register for Deductible Gift Recipient (DGR) status. Specific clauses will need to be added for DGR purposes.
Step Four: Prepare Form A2
Once you’ve drafted your Constitution, you’ll then need to prepare Form A2 (which you can download here).
This form is the actual application for registering an IA, which can only be authorised if you have 5 or more individuals, or if you have an already existing unincorporated body.
It will include questions around your proposed name, constitution and your objects (see Steps 1-3 above).
Step Five: Prepare For Formation Meeting
Now, it’s worth remembering that, without the collective will of the members, there is no association. 
It’s really important to make sure everyone is driven by the same purpose and that you have the right structures in place to do so.
This is why we highly recommend organising a ‘formation meeting’ to get everyone together in the same room and agree upon the key principles for the association.
To prepare for the formation meeting, you’ll first need to create an agenda. 
Your agenda would typically contain the following items:

Your proposed name
Your proposed ‘objects’
Adoption of Constitution
Election of office-bearers, committee members and first public officer
Creation of any relevant subcommittees
Signing of Form A2 and authorisation of public officer to lodge the form and pay the fee

After this, you’ll need to send this agenda to the potential members with a date for the formation meeting. Remember: for an IA you need at least 5 prospective members.
Step Six: Public Officer To Lodge Form A2
Once you’ve had the formation meeting and agreed on all the formal roles, to become a legally registered IA, you need to lodge the Form A2 that you’ve been preparing.
This should be done by the Public Officer of the IA (more about the role here).
Step Seven: Set Up Your ABN, Bank Account And Other Ad-Hoc Necessities!
After you’ve lodged the Form A2 and Fair Trading has approved your application, you’ll need to set up a number of ad-hoc necessities for your IA.
Just like a normal organisation, you’ll need an Australian Business Number (ABN).
Among other administrative tasks for your organisation, you’ll also need a bank account to use going forward for any organisation-related expenses.
Once that’s done, you’re ready to go and start running your organisation!
Need Help Setting Up An Incorporated Association in NSW?
If you need help with any of the steps above, we’d be happy to help!
Our lawyers have helped hundreds of small businesses and organisations get on their feet, because getting your structure right from the very beginning is crucial.
Need help getting started? Or not sure what structure is right for you?
Come and talk to us! We’d love to chat – you can reach us on 1800 730 617 or [email protected].

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About Latest Posts Regie Anne GardoceRegie is a legal consultant at Sprintlaw. She has experience across law and tech start-ups, while still completing her Bachelor of Laws and Bachelor of Commerce at UNSW. Latest posts by Regie Anne Gardoce (see all) Seven Steps For Setting Up An Incorporated Association in NSW – December 2, 2019 Why Non-Disclosure Agreements (NDAs) Are An Important Tool For Your Business – November 26, 2019 Cancellation Fees For Services – How They Can Protect Your Small Business – November 11, 2019

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Rent-A-Chair Agreements In The Hair Salon Industry
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Posted by Alex Solo on 27 November 2019

If you’re working in the hair salon industry, you’ve probably heard of Rent-A-Chair Agreements. 
Under a Rent-A-Chair Agreement, a salon can engage a hair stylist as an independent contractor, allowing them to manage their own clients out of the salon. 
Basically, these agreements allow a stylist to run their own business through someone else’s salon. 
In return, the stylist gets to rent a chair and pays the salon owner. This could be on a commission basis (a percentage of their earnings) or an amount attributed to rent. 
Although Rent-A-Chair Agreements are growing in popularity and can work out well for both sides, they can be complicated and difficult to navigate. 
But don’t stress! Whether you’re a salon owner or a stylist, we’ll guide you through everything you need to know if you’re considering entering into a Rent-A-Chair Agreement!  
A Salon Owner’s Guide to Rent-A-Chair Agreements
As a salon owner, Rent-A-Chair Agreements are great if you’re looking to add depth to your available stylists without employing additional staff. Having an extra stylist on hand broadens the client base your salon can serve. 
But it’s not as simple as clearing out space for an extra chair in your salon!  
Below are some key points you’ll need to be aware of if you’re considering Rent-A-Chair Agreements as a salon owner. 
Sham Contracting
When entering into a Rent-A-Chair Agreement, your first consideration as a salon owner should be whether you’ll treat the stylist as an independent contractor or as an employee. 
This has serious consequences if you get it wrong, so it’s important you’re informed and don’t fall foul of the “sham contracting” obligations under the Fair Work Act. 
This isn’t something you can just sweep under the rug. The Fair Work Ombudsman frequently investigates Rent-A-Chair arrangements to make sure salons and beauty parlours aren’t engaging in sham contracting. 
So, how can you protect yourself? 
Basically, you’ll need to limit your control over the stylist and ensure you’re treating them as a contractor, not as an employee.  
If you structure your payment arrangements with the stylist as if they’re an independent contractor (i.e. you don’t pay superannuation or leave), but treat them like they’re an employee (i.e. you control what they do and when), you’ll risk incurring significant fines and penalties for sham contracting. 
Sham contracting is a complicated issue, and there are a number of factors a court will consider when determining whether a staff member is an employee or contractor. 
To help you handle these arrangements properly, you can read about the differences between independent contractors and employees here. Of course, be sure to seek legal advice if you’re unsure!  
Subleasing
Entering into a Rent-A-Chair Agreement can complicate things between you and your landlord. 
This is because renting out a chair might be considered as ‘subleasing’, which may be restricted under the lease agreement with your landlord. 
So, before you enter into a Rent-A-Chair Agreement, it’s important to review the terms of your lease to confirm that this is something you’re actually allowed to do!
Your lease may require landlord approval to sublease of any part of the space. Alternatively, subleasing may be totally prohibited.
You can try to negotiate a position that gives the landlord a small incentive for approving the sublease, or speak to a lawyer about how to proceed.
Brand and Client Experience
Moving to more commercial considerations, maintaining a consistent client experience when you have independent contractors working within your salon can be a challenge. 
While you can require that your employees wear a uniform and follow particular processes to deal with clients in a particular way, independent contractors don’t necessarily have to follow these same rules.
As a result, you may run the risk of delivering an inconsistent brand and client experience, which may damage your salon’s reputation. 
Products
Independent contractors generally bring their own tools, products and equipment.
So, in the case of Rent-A-Chair Agreements, contractors don’t necessarily have  to use the products your salon uses. 
If your salon has a distribution partnership with a particular brand, you should let this brand know if independent contractors are using other products in your business.
And, if the stylist wants to use your products, you could charge them additional costs to do so. Always remember that these stylists run separate businesses. 
Day to Day Functions 
Independent contractors have a lot of freedom over the way they work. 
They can  choose their own hours, decide how many clients they want to take on, and are under no obligation to accept work you give them. 
This isn’t necessarily a bad thing, but it could introduce a bit of uncertainty into your salon’s operations.
To establish some certainty, your Rent-A-Chair Agreement could stipulate that the contractor must work during general salon opening hours.
However, to avoid the risks of sham contracting, you’ll need to be careful about how much control you impose under the Rent-A-Chair Agreement.
If giving up this level of control concerns you as a salon owner, you may want to think about hiring a casual employee instead. 
On the other hand, not having this control may also be one of the biggest incentives for entering into a Rent-A-Chair Agreement — you don’t have to manage an independent contractor and can dedicate more time to other areas of your business.
Client Payments
Strictly speaking, booking facilities and payments should be handled separately (i.e. with separate Eftpos machines) by independent contractors as, at the end of the day, they are running their own businesses and are responsible for managing their finances. 
This brings up clear practical considerations – such as administrative costs.
You may want to consider the time you’ll spend managing the payment arrangements when you consider how much you earn from the stylist.
Training 
If you have particular techniques or styles that you want to keep consistent throughout your salon, engaging contractors could threaten this. 
As an employer, you’re able to ensure all your staff are trained in a certain way, and perform services following particular processes and packages. 
To maintain some consistency, you could explicitly require in your Rent-A-Chair Agreement that contractors are to be competent in certain styles. 
What’s The Gist?
Overall, there are two key legal risks salon owners should be aware of when it comes to Rent-A-Chair Agreements: sham contracting and subleasing. 
Additionally, as outlined above, there are some key commercial considerations that may affect your operations. 
If you think Rent-A-Chair is right for you, you can speak to a lawyer about a Contractor Agreement with Rent-A-Chair provisions. 
A Stylist’s Guide To Rent-A-Chair Agreements 
If you’re a stylist, being a contractor may seem like an unconventional way of working. There are many benefits, as well as risks, associated with being your own boss. 
As a contractor, you’re somewhat of a ‘free agent’. But with this freedom comes significantly more risk and personal expense than you’d experience if you were an employee. 
What Are My Entitlements? 
Being hired as a contractor means you’ll no longer be entitled to many of the benefits available to an employee.
Importantly, you aren’t entitled to receive paid leave, superannuation, and several other entitlements (read about them here). 
You are also responsible for managing your own payment systems, invoices and clients. 
Although most people welcome the freedom associated with running your own business, it’s crucial to remember that you won’t get paid leave and will only get paid by your clients.   
Do I Need Insurance? 
As an independent contractor, you should always get your own professional liability insurance and personal injury insurance.  
If you are using and/or selling your own products through your business, it’s also a good idea to have product liability insurance, too.
Insurance brokers can help you to bundle appropriate industry insurance. Insurance obviously comes at a price, so you should factor these costs into how you structure your payment arrangements with the salon. 
Equipment 
As a contractor, you typically bring with you whatever tools and equipment you need to complete the job; everything from scissors to blow-dryers to treatments and dyes. 
Bringing your own products to work can be quite expensive, and you may be competing with the other products available in the salon. 
Some weeks, it may be that you don’t make enough to offset the cost of buying your own products for your clients. 
This is a key risk associated with being a contractor. To protect yourself, you may want to set up an agreement with your suppliers where you are not bound to purchase any particular quantity of products. 
Should I Share Clients With Other Stylists?
Once in a while (or maybe often!) a client will want to make an appointment but you can’t see them for weeks. What do you do? 
The client may want to use other staff in the salon out of convenience. This is probably better for you than the client going to another salon. 
It’s important that you come to an understanding with the other stylists on how to share clients, as well as any profit share that may apply.
What’s The Gist?
With great freedom comes great responsibility! 
Being a contractor can be a fantastic arrangement, allowing you to work how you want, when you want. 
But it also comes with additional responsibilities, costs and risks. 
The best thing you can do to protect yourself and your business as an independent contractor is entering into a comprehensive Rent-A-Chair Agreement with the salon owner.
What Needs To Be In A Rent-A-Chair Agreement?
A Rent-A-Chair Agreement should cover things like the type and standard of services the contractor will perform, insurance requirements, confidential information, indemnities and termination provisions.
Depending on your situation, this agreement may also need to reflect some industry specific-items — such as sharing products, sharing clients, and sub-lease obligations.
Broadly, Rent-A-Chair Agreements are pretty similar to traditional contractor agreements. However, as mentioned earlier, the key difference is how the payments are structured. 
The payments could be structured in a number of ways. For example, you might consider: 

Fixed Rent: meaning the stylist pays the salon owner a set portion of rent on a periodic basis;
Commission Percentage: meaning the salon owner takes a commission from the stylist’s earnings from clients;
Pay Per Use: meaning the stylist pays a set amount each time they use the salon; or
A combination of any of the above (e.g. a small rent and a commission). 

Each payment structure has risks and advantages that are different for stylists and salon owners. 
For example, the certainty of fixed rent for a salon owner is risky for a stylist if they don’t see enough clients to cover the costs of rent. 
When considering how to structure your payments, think about what level of certainty and flexibility you require and talk to a lawyer about the best approach for you.
What To Take Away
Before you enter into a Rent-A-Chair Agreement, it’s important to stop and think about how you should structure your relationship with the stylists or the salons you work with. 
If you’re engaging or working as an independent contractor at a hair salon, then it’s essential to put a Rent-A-Chair Agreement in place.
These agreements come with risks for both salon owners and stylists. 
However, Rent-A-Chair Agreements can be mutually beneficial if you share financial risk. 
Getting the key details agreed upon in writing will not only protect the parties involved, but will save both sides a lot of day-to-day hassles and confusion down the track.
Get In Touch With Us
If you need help figuring out whether an independent contractor relationship is right for you, or if you’re ready to put together a Rent-A-Chair Agreement, we’re here to help! 
Get in touch with our team at 1800 730 617 or [email protected].

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About Latest Posts Alex Solo Latest posts by Alex Solo (see all) Rent-A-Chair Agreements In The Hair Salon Industry – November 27, 2019

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Why Non-Disclosure Agreements (NDAs) Are An Important Tool For Your Business
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Posted by Regie Anne Gardoce on 26 November 2019

At Sprintlaw, we’ve spoken to thousands of small businesses and startups.
Often, their biggest concern is protecting the confidential information that keeps their business unique and competitive.
Whether it be protecting your startup’s intellectual property at its early stages, or just wanting to keep early commercial discussions private, most of the time the solution could be a simple Non-Disclosure Agreement (NDA).
You might have heard other businesses say it’s important to have an NDA, and you might be thinking it’s time for you to have one sorted, too.
But what is an NDA and when might you even use it?
This article will quickly walk you through everything you need to know about NDAs.
What Is A Non-Disclosure Agreement?
Put simply, a Non-Disclosure Agreement is a confidentiality agreement. It is an agreement by the parties not to disclose confidential information to other people.
A Non-Disclosure Agreement is a legal contract between parties who are about to share confidential material, information or knowledge; and want to make sure that it is actually kept confidential.
When Do I Need A Non-Disclosure Agreement?
For small businesses and startups, there are various situations in which you may need an NDA.
If you’re a startup about to pitch to investors, you may want to have an NDA drafted to make sure that any confidential information you share about your business model is not disclosed to anyone else.
Or, if you’re any small business about to engage with another party, and you’ll be disclosing your business’ sensitive and key information, an NDA is a good way of making sure that this information does not spread.
When you’re engaging with investors, suppliers or even contractors, it’s natural that they’ll have access to some of your confidential business information.
This could include anything from your internal business admin documents to your client databases.
The last thing you want is somebody using this information and sharing it with others, and this is where an NDA may come in.
In many ways, an NDA protects confidential information that could also be seen as the ‘intellectual property’ of your business — the intangible assets that keep your business unique from its competitors.
And, while there are many ways to protect your intellectual property, navigating through these options could be a little bit overwhelming.
So, having an NDA is usually a good place to start.
This kind of contract can be handy no matter what kind of business you’re running (and this is why most businesses like to have an NDA ready for whenever they might need it).
Why Is A Non-Disclosure Agreement An Important Tool For My Business?
An NDA is more than just a legal contract that might often be used as a scare tactic!
At Sprintlaw, we’ve seen how an NDA is a great tool for small businesses and startups.
Why?
Whenever you engage in important commercial discussions, it’s always important to make sure that all parties are on the same page.
Having an NDA between you and another party instills a degree of trust and confidence, which in turn can assist in open negotiations.
For this reason, NDAs are a valuable tool for businesses as both parties can feel reassured that any confidential information and intellectual property is protected.
Need help with an NDA?
Thinking it’s time to get an NDA sorted for your business?
We’re here to help!
An NDA is a great way to keep your important business information as confidential as possible.
And, even if you don’t have a particular reason to need one now, it’s always a good idea to have an NDA handy for your business (you never know what might come up!).
At Sprintlaw, we’ve helped hundreds of startups and small businesses make sure they’re prepared for situations where their confidential information is at risk.
Whether you need help preparing an NDA or are looking for other ways to keep your information protected — we’d love to chat with you!
You can reach us at 1800 730 617 or on [email protected]. 

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About Latest Posts Regie Anne GardoceRegie is a legal consultant at Sprintlaw. She has experience across law and tech start-ups, while still completing her Bachelor of Laws and Bachelor of Commerce at UNSW. Latest posts by Regie Anne Gardoce (see all) Why Non-Disclosure Agreements (NDAs) Are An Important Tool For Your Business – November 26, 2019 Cancellation Fees For Services – How They Can Protect Your Small Business – November 11, 2019 Everything You Need To Know About Starting An eCommerce Business – November 11, 2019

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Working As A Contractor
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Posted by Abinaja Yogarajah on 21 October 2019

Working as a Contractor 
Working as a contractor is increasingly being taken up by many Australians with the rise of the gig economy. From an employer’s perspective, there are many factors that legally distinguish your employees from your contractors. 
An independent contractor is someone who performs work for a company under their own ABN. 
Contractors often can either operate their business and have many clients, or do work for one company at a time. 
If you’re a contractor, it can be difficult to navigate your responsibilities, particularly when it comes to complex areas like superannuation, tax, insurance and putting together an invoice. 
But don’t stress! Below, we’ve outlined everything you need to know if you’re working as a contractor. 
Your Responsibilities as a Contractor
Contractors have many different responsibilities pertaining to superannuation, tax and insurance. 
Superannuation 
As contractors aren’t entitled to superannuation from the company they are performing work for, you could consider making voluntary personal contributions to your chosen super fund. 
Taxation
The sharing economy is subject to many different taxes such as goods and services tax (GST), income tax or any other tax that applies to earnings. The sharing economy is where people purchase assets or services for a fee through a digital platform like a mobile app, or website. 
When considering your income tax options as a contractor, you may be eligible to enter a voluntary agreement with the hirer company that allows them to withhold tax for you. 
You should also be careful about rules around Personal services income (PSI). PSI rules could impact the deductions you can claim. 
Insurance
Contractors are not entitled to paid sick leave. Similarly, they’re not entitled to worker’s compensation in the event of a work-related incident.
For these reasons, contractors should consider income protection insurance, liability insurance and asset and revenue insurance. 
You can read about these different types of business insurances here.

Creating Invoices: What to include
As a contractor, it is a good idea to have a proper invoicing system. It helps you protect your business’ cash flow, maintain good records and ensure you’re on track to meet your tax obligations. 
An invoice shows the record of purchase for your customers and gives details of the purchase, the specific type of service or product and the agreed upon price. 
If your business is not registered for Goods & Services Tax (GST), your invoice is called a ‘regular invoice’ and will not include a tax component. 
If you make a taxable sale of more than $82.50, then you’re required to provide your GST registered customers with a tax invoice. 
Tax invoices must be labelled ‘tax invoice’ and must include the GST amount for each item. 
Tax invoices must include seven compulsory elements to be valid. It must clearly determine: 

That the document is intended to be a tax invoice 
The seller’s identity 
The seller’s ABN or ACN 
The date the invoice was issued 
A brief description of items sold (including the quantity and price) 
The GST amount (if any) payable (you can learn how to calculate GST here) 
The extent to which item sold includes GST. To do this you can either show the GST amount for each item or clearly state that the total price includes GST 

These tax invoices will need to include the buyer’s identity or ABN if the taxable sale amount exceeds $1000. You can find more specific information on invoicing here. 
Whilst these are the basic requirements for creating a tax invoice, you can find detailed  tips here to make your invoices more unique and suited to your business. 
Different Types of Invoices
As a contractor, there are many different types of invoices you can send to your customers. 
Here’s a breakdown of the most common types of invoices: 
Pro forma invoice
This can be thought of as a pre-invoice, which is sent before completing work for a customer. It details to your customer how much to pay once you perform your service or deliver your goods. Whilst it does present a commitment to provide something, the terms in a pro forma invoice can change.
Interim invoice
This breaks down the value of a large project into multiple payments. This invoice can be sent in intervals as you complete a large project. It is very helpful in managing your small business’ cash flow as you can charge customers on an ongoing basis for materials, labour and other operating costs.
Final invoice
This is sent after you complete a project, and unlike a pro forma invoice, is a demand for payment. This generally includes an itemised list of goods and services you provided. Sending a final invoice as soon as a project is completed is helpful in keeping cash flows into your business at a healthy rate.
Past due invoice
When your customers do not send you payment by the due date on the final invoice, a past due invoice may be sent. This acts as a reminder and may also include any late fees or interest incurred as a penalty for the delayed payment.

Recurring invoice
This is used to bill customers for recurring, on-going work. Similar to a utility bill, these invoices allow you to charge the same amount regularly on an agreed-upon billing interval.

Credit memo
This can be used to acknowledge any dues you owe to your customer. It is generally equal to or less than the amount originally paid by the customer, and it is often used for returns, faulty goods or mistakes in shopping. 
Talk to a Lawyer
Having a contractor agreement is an extremely important document to secure your revenue streams and dictate payment terms. Whether you are a business engaging a contractor, or an independent contractor providing services to a client, we can help!

If you have any questions, or think you might need a Contractor Agreement or a Service Agreement, you can reach us on 1800 730 617 or email [email protected].

What Do I Need If I’m Working As A Contractor?
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About Latest Posts Abinaja YogarajahAbinaja is a legal consultant at Sprintlaw. With an interest in tech and intellectual property, she’s worked in the technology industry while studying a law degree at Macquarie University. Latest posts by Abinaja Yogarajah (see all) Working As A Contractor – October 21, 2019 Understanding Co-operatives: How Could They Work For My Business? – October 4, 2019

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How Do I Protect My Intellectual Property?
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Posted by Regie Anne Gardoce on 18 October 2019

In any business, your intellectual property (IP) is usually what makes you stand out from your competitors.
It could be anything from your logo to the software code of your tech product and even your company’s marketing material. 
Since your IP plays a crucial role in keeping your business competitive, the last thing you want is someone stealing it.
So, you might be asking yourself: how do I protect my IP?
In Australia, there are four types of IP protection — trade marks, copyright, designs and patents (you can read about them in our IP guide).
Each type of IP is very different and has its own rules and processes.
This article will walk you through these various types of IP, how you can protect it (or transfer it), and where else you might come across IP concerns in your business.
What Are The Types Of Intellectual Property?
Intellectual property is usually made up of your business’ intangible assets that drive your revenue and define your brand.
There are four main ways you can protect your intellectual property — trade marks, copyright, designs and patents.
So, let’s go through them.
Trade Marks
A trade mark is usually something unique that identifies your business, product or service.
This could include your logo, your business name, a product line or a catchphrase (you can even trade mark a colour!).
Before you start your business, it’s a good idea to ask yourself two questions:

Am I infringing another business’ trade mark?
Should I register my own trade mark?

Firstly, you should ensure as early as possible that you’re not operating with a trade mark that’s already registered under another business.
The last thing you want is another business taking action against you for breaching their rights. This could lead to a string of infringement notices, cease and desist letters and court proceedings — ultimately sucking up a lot of money that could have been saved by doing your research early on.
This action could also be quite damaging to your business’ reputation and finances, meaning that you’d potentially have to rebrand your business from the ground up.
You can avoid infringing another business’ trade mark by doing a quick search on IP Australia to check whether it is safe for you to use your brand.
This leads us to the second point: registering a trade mark yourself.
You want to make sure your business’ brand is owned exclusively by you so that nobody else can use it in the same way. You can do this by registering a trade mark through IP Australia.
Generally, a successful trade mark application gives your business the exclusive right to use that trade mark for up to 10 years in Australia.
And, if you’re thinking of expanding your business overseas, it’s also a good idea to explore international trade marks.
Copyright
When you’ve come up with a creative business idea, you might then start to think of ways to protect it.
But you cannot protect just an idea. 
Instead, copyright only exists in something that is expressed in material form. So, if you have a creative idea and want the benefit of copyright protection, you’ll need to put it down in some material form (like in writing, film, or even software code).
You may be confused because in other countries, like the US, copyright is a right that can be publicly ‘registered’ like a trade mark.
However, Australia doesn’t have a system of ‘registering’ copyright. As long as the unique idea is written down in some material form, the work is generally automatically protected by copyright.
So, what can you do to get the benefit of that copyright and ensure it isn’t infringed? 
For starters, you can have copyright disclaimers across your website, book or other work to make it clear that you own that copyright.
You could also have strong IP clauses in your commercial contracts to protect your copyright from any party you do business with.
For example, if you hire a developer to create an app for your business, you’d generally want to make sure the copyright belongs to you. Ideally, you’d have a really strong IP clause in the Development Agreement to make this clear.
Similarly, you could insert strong IP clauses into your employment contracts, so that any work your employees create over the course of their employment is automatically owned by your business.
Since there are many different layers of copyright work and rules around it, it’s a good idea to speak to a lawyer to help you understand what kind of copyright protection you have and how you can uphold it.
Designs
So far we’ve spoken about protecting IP that is generally written down — but what about designs?
In Australia, you can register a design on IP Australia to protect your business’ particular unique design that makes it stand out from its competitors.
Whether it be the shape of your product or the sketch of a fashion item, it could be a good idea to register a design in IP Australia to prevent others from copying it and benefiting from it commercially.
There are multiple rules around designs, as well as minimum requirements on what can be registered as a design.
If you’d like a better understanding on how you can register a design and what kind of IP protection it offers, just get in touch with us!
Patents
If you’re developing a new invention or innovation, you might consider registering it as a patent through IP Australia.
A patent is a type of IP right that spells you out as the sole owner of a particular device, substance, method or process that you’ve created. It means nobody else can benefit from your creation for a set period of time.
In Australia, patent laws can be a difficult legal maze to navigate.
There are strict requirements for what can be accepted as a patent and the application process can be a headache.
Before considering a patent, it’s a good idea to speak to a lawyer to help you understand your options and whether a patent is right for your business.
What About Confidential Information?
Depending on who you ask, some lawyers like to think there is a fifth category of IP (even though it technically isn’t ‘property’ in that you don’t own it).
Confidential information works like IP in many ways and is equally important for your business — so it’s important to talk about it together with all the other IP.
Confidential information could include the trade secrets, client information, know-hows and technical expertise that you’re privy to in the everyday course of your business.
The last thing you want is someone finding out about that confidential information and using it in the wrong way.
Why? 
This could breach your client’s trust in how you protect their personal information, and it could also potentially damage your business if your trade secrets fall into the hands of your competitors.
There are a few ways you can protect your confidential information.
For starters, many businesses like to use a Non-Disclosure Agreement (NDA) for general use in commercial discussions they have with anyone in the course of their business.
An NDA is essentially a contract where the party you engage with promises to not disclose any confidential information you reveal in that commercial discussion.
To protect you, a good lawyer will make sure all your commercial contracts contain solid confidentiality clauses.
If you wanted to know more about confidential information, we’ve previously written a more in depth article about this topic and why confidential information is important.
Can I Transfer My Intellectual Property?
In any business, there will be times where you’ll need to transfer IP.
Especially in the case of copyright, the original author generally has ownership rights to the copyright-protected work.
For example, if you had your logo designed by a graphic designer, they technically own that work.
So, it’s important to make sure your business does not breach any copyright-protected work and owns all its appropriate IP assets.
In this situation, you would normally put in place an IP Assignment Deed, which essentially transfers ownership of the work from the graphic designer to your business.
This way, your business would formally own the rights to its logo and you’ll be able to use it in any way you wish.
Alternatively, businesses can also let others use their IP in a way that doesn’t require them to transfer ownership. This is called an IP licence.
A licence is where the IP owner gives permission to someone else to use that IP for a certain fee and under particular conditions.
For example, if you want to grow your business’ brand but don’t have the resources to do so, you can let other businesses trade under your logo through a licence.
They would normally have to pay you a fee to do so, and you could set out particular conditions of the licence while still retaining ownership of that logo.
Business Structure
If your IP lies at the very core of your business, it’s a good idea to understand the implications of your business structure on how your IP is controlled.
For example, if you register as a company and make sure all the IP is held under the company, then the business’ IP stays within the company even if its shareholders and directors change.
This would be a different story with sole traders, where the IP moves with that sole trader.
A popular way for companies to really protect their IP is through what we call a ‘dual company structure’.
This involves registering two separate companies: a holding company and an operating company.
Under this structure, the operating company will be the entity that conducts business as usual. Meantime, all the business’ important assets (such as its IP) can be protected within the holding company.
This means that if something were to happen to the business, only the operating company would be affected. The IP would remain safely protected in the holding company.
A dual company structure can be tricky, but if you’re serious about keeping your IP safe in the company, speak to one of our lawyers!
IP Clauses in Contracts
While registering a trade mark or setting up a dual company structure are great ways to really protect your IP, you can also take steps to protect your ideas in your everyday course of business.
The best way to do this is by ensuring that your commercial contracts have strong IP clauses.
This means clarifying who creates the IP and who owns the IP.
For example, anyone who creates work under the course of their employment would generally not be the owner of that IP. Employment contracts normally have IP clauses that would ‘assign’ this IP to the business.
These kinds of IP assignment clauses are also quite common in other legal documents you come across in your business — from Shareholder Agreements to Development Agreements and even in the terms and conditions for your business.
So, whenever you engage any other stakeholder as part of a commercial relationship, it’s a good idea to make sure you have a contract in place that spells out how IP will be handled.
What To Take Away…
As you can probably tell, IP protection is a complex and very tricky area.
But it’s important to get it right, especially if your IP is central to your business’ operations and competition in the market.
There are many ways you can protect your IP — including through the four main types of IP protection, choosing the right business structure and having clear IP clauses in your contracts.
So, what’s the best solution for you?
It’s different for everyone, so we recommend you speak with one of our lawyers to help you understand your rights and obligations under Australian IP law and what you can do about it.
At Sprintlaw, we have a team of expert lawyers who specialise in IP across a number of industries.
If you need help understanding how you can protect your IP, we’re here to help! 
Feel free to get in touch with us at 1800 730 617 or [email protected].

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About Latest Posts Regie Anne GardoceRegie is a legal consultant at Sprintlaw. She has experience across law and tech start-ups, while still completing her Bachelor of Laws and Bachelor of Commerce at UNSW. Latest posts by Regie Anne Gardoce (see all) How Do I Protect My Intellectual Property? – October 18, 2019 NDIS Providers – Make Sure You’re Doing It Right – October 11, 2019 What is Sprintlaw Counsel and why are businesses using it? Here are 5 reasons why it might be for you. – September 24, 2019

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NDIS Providers – Make Sure You’re Doing It Right
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Posted by Regie Anne Gardoce on 11 October 2019

The National Disability Insurance Scheme (NDIS) is rolling out across Australia to provide support for Australians with disabilities, their families and their carers.
Many businesses are rolling in to become “NDIS providers” to offer support services to NDIS participants.
But there are a number of rules and regulations you need to be aware of if you intend to become an NDIS provider. 
A new NDIS Quality & Safeguards Commission has also been set up to monitor NDIS providers in Australia. 
Since the NDIS is a relatively new scheme, the rules and regulations surrounding it are constantly changing, so it’s important to stay ahead of these changes.  
This article will walk you through what you need to know as an NDIS provider, what you need to do, and why it’s so important!
Where Do I Begin?
As a service provider under the NDIS, you’re technically operating as your own business (but you are working within a government scheme).
So, to get started, there are a number of things you have to do as any business would.
From deciding your business structure and registering your company to having employment contracts set in place — you want to make sure you have all your legals in good shape.
You can read our Business Legals 101 Guide if you’d like more information about taking these first steps.
But if you would like to become an NDIS service provider, you’ll have to satisfy several criteria before you even register.
Registering as an NDIS service provider can be a tricky and lengthy process, but don’t stress! 
The NDIS has put together a handy Provider Registration Checklist to help you understand what you need to do and how to do it.
So, what other legals do you need to think about?
Let’s go through them.
What Laws Do I Need To Comply With?
As an NDIS service provider, the biggest consideration you’ll need to make is the number of requirements and regulations you must comply with.
We’ll go through some of these throughout this article but, at a high level, you’ll first need to make sure you comply with the Australian Consumer Law.
To give you an overview of what you’ll need to know, the Australian Competition and Consumer Commission (ACCC) has put together a useful guide for businesses that supply to consumers with disabilities.
Particularly, service providers must comply with the minimum requirements for Terms of Business, Price Guides and Support Catalogues outlined by the NDIS. 
The NDIS is a heavily regulated area and there are a number of different standards and regulations you’ll need to follow.
A good lawyer can help you figure out where you stand and what you need to do.
NDIS Quality & Safeguards Commission
In 2018, the NDIS Quality & Safeguards Commission was introduced and is now effective in almost all states across Australia.
Put simply, all NDIS providers will now be monitored by this Commission to make sure they comply with:

NDIS Practice Standards
NDIS Code of Conduct
Behaviour Support Requirements (if applicable)
Work-Screening Requirements

NDIS Service Providers are also obliged to have in-house systems in place to deal with complaints, resolutions and incidents (and, in some cases, these must be reported to the NDIS Commission).
The Commission can also assess the ‘suitability’ of NDIS providers.
While these might seem like a lot of requirements to comply with, the extent to which you’re obliged to comply will depend on the independent nature of your business.
Speaking to a good lawyer can help you understand how all these requirements may affect your business, and what you need to do to make sure you’re compliant.
So, that’s the compliance side.
But what kind of contracts do NDIS service providers need?
NDIS Service Agreements
Like any business providing services, you’ll need a Service Agreement.
This is generally the contract you have with your customers that draws out the agreed details of your services, from the scope of work to payment terms.
But NDIS providers are required to have specific Service Agreements with NDIS participants. 
The NDIS requires that particular things be included in these Service Agreements — for example, if you want to charge participants for certain services, these will need to be explicitly set out.
NDIS Service Agreements are to be the result of a collaboration between the participant (or their nominated representative) and you as the provider.
This is because the essence of the NDIS is to support the independence and workforce participation of people with disability. It is also designed to enable people with a disability to exercise control and choice in their lives.  
So, while you might already have a template you use for regular business, as an NDIS Service Provider you must specifically consult the participant on decisions about how supports and services are provided.
You may have your own service agreements that you’d like to maintain, or you may need to negotiate with participants to come to a middle ground. 
On top of this, the NDIS has particular requirements surrounding what you can and cannot change in your Service Agreement.
For example, you can only charge establishment fees if they are set out in your Service Agreement. 
If you need help drafting an NDIS Service Agreement, it’s a good idea to chat with a lawyer who can help you understand how to do it right and what needs to go into your Service Agreement.
Privacy Policy
On top of an NDIS Service Agreement, it’s really important to also have a privacy policy.
While a privacy policy is generally not mandatory for small businesses, there are some exceptions.
One of these is if you’re a private sector health service provider in Australia.
Most NDIS service providers will be considered a health service provider, so you must have a privacy policy that complies with the Australian Privacy Principles. 
And you might need to comply with specific state or territory privacy requirements related to health, too.
For example, in New South Wales, Victoria and the Australian Capital Territory, private sector health service providers must comply with both Australian and state or territory privacy laws when handling health information.
Employment Obligations
In Australia, employers have a number of obligations which are monitored by the Fair Work Commission.
To ensure you’re meeting your obligations, a good place to start is putting in place employment agreements that comply with the National Employment Standards.
And you must also give a Fair Work Information Sheet to your employees before or as soon as they start working for you.
But the NDIS also has a number of specific requirements for employees working under the NDIS scheme.
For starters, employees must have met the NDIS worker screening requirements (which are different in each state and territory).
Employees must also comply with all the relevant NDIS standards and laws.
For example, the NDIS Quality & Safeguards Commission recommends that your employees take an orientation e-learning module called ‘Quality, Safety and You’.
So, before you hire anyone, you need to make sure that they understand the requirements of working in the NDIS and that they obtain the appropriate screening checks. 
What To Take Away
Like any business, there are a number of legals you need to consider when getting started as an NDIS provider.
Generally, when you’re starting a business, your primary focus is ensuring you comply with the relevant laws and are protected from any liability.
But for NDIS providers, the situation is more complex.
There are many specific NDIS requirements and minimum standards you’ll have to comply with across your business and employees.
You’ll also need to be prepared to negotiate services and agreements with participants, as the NDIS encourages participants’ active participation.
On top of this, you’ll need to make sure you have the right processes in place (such as worker screening and in-house complaints management) to comply with NDIS standards.
Speak To A Lawyer
All these different rules and requirements might seem like a headache — but don’t panic!
Speaking to a good lawyer can help you make sure you’re doing everything right.
At Sprintlaw, our lawyers can guide you through what you need to know as an NDIS service provider and what you should do about it.
From advice on complying with NDIS standards to drafting your NDIS Service Agreement, we’d love to help!
You can reach our friendly team on 1800 730 617 or simply drop us a line at [email protected].

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About Latest Posts Regie Anne GardoceRegie is a legal consultant at Sprintlaw. She has experience across law and tech start-ups, while still completing her Bachelor of Laws and Bachelor of Commerce at UNSW. Latest posts by Regie Anne Gardoce (see all) NDIS Providers – Make Sure You’re Doing It Right – October 11, 2019 What is Sprintlaw Counsel and why are businesses using it? Here are 5 reasons why it might be for you. – September 24, 2019 The Ins and Outs of Shareholders Agreements and Company Constitutions – September 10, 2019

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Understanding Cooperatives: How Could They Work For My Business?
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Posted by Abinaja Yogarajah on 4 October 2019

Choosing the right business structure for your business or cause can be a difficult process to navigate. 
In the process of looking at your various options, you might have stumbled across the concept of “cooperatives”. Well, what are they?
In short, a cooperative may be an unconventional business structure, but it provides a perfect framework to bring people together in a democratic and equal way. 
What Is A Cooperative?
Cooperatives are people-centred enterprises that are fuelled by their members. The purpose of the cooperative is to help the members materialise their common economic, social and cultural needs and aspirations. 
These organisations operate on concepts of sharing responsibility, democracy and decision-making in order to benefit all members. 
A cooperative is its own separate legal entity, and the liability of the entity is separated from its members. 
In order to register a cooperative, you’ll need a minimum of five members and all these members have equal status and voting rights. 
What Can A Cooperative Do?
Cooperatives can be involved in various social and commercial activities, as long as it is defined within its rules. 
They generally fall into four categories. 

Consumer Cooperatives – where the cooperative’s members buy and sell goods to other members at a competitive rate, for example, the Co-op Bookshop or The Wine Society     
Marketing Cooperatives – where members brand, market and distribute their products and services, for example, Dairy Farmers Milk Co-op
Service Cooperatives – where members provide each other services such as health, electricity or housing
Community Cooperatives – where members share resources, information and skills that encourage ownership and participation 

The Two Types Of Cooperatives
Broadly speaking, cooperatives are either distributing or non-distributing. 
Here’s an explanation of how they’re different:
Distributing Cooperatives (‘Trading’ Cooperatives) 
Distributing cooperatives distribute parts of its surplus to members through bonus shares, dividends or rebates. 
If you’re forming a distributive cooperative, you need to have share capital and at least five active members. 
Each member has to buy the minimum amount of shares that is stated in the cooperative’s rules. 
Distributing cooperatives are suitable for ventures that are designed to make money for its members.
Non-distributing Cooperatives (‘Non-trading’ Cooperatives)   
Non-distributing cooperatives are more suitable for a community organisation and do not distribute any surplus to members. They tend to exist for a particular cause or to support a community, instead of pure profit-making purposes.
Non-distributing cooperatives use their surplus to support their activities and may have share capital, although this is optional. 
If a non-distributing cooperative is wound up, members get back the original value of their shares, at most. 
A Future For Cooperatives 
In recent economically uncertain times, particularly after the global financial crisis, there has been a renewed interest in cooperatives. 
Traditionally, cooperatives have been most common in the agricultural sector.
However, for some people who are dissatisfied with traditional companies and their focus on short-term profitability, cooperatives present an interesting prospect as a different kind of a business model. 
Particularly in cases where profit margins trump the interests of various stakeholders – such as employees, the wider community and the environment – there is an opportunity for cooperatives to thrive. 
Cooperatives and Sustainability 
Cooperatives as a structure are very suitable for environmental and social causes, as their fundamental principles are closely aligned with the social dimensions of sustainability. In many fields, such as creative industries and ‘green economies’, cooperatives have an advantage as they are more democratic and conducive to collaboration. 
Cooperative enterprises present viable and sustainable responses to our changing world, from renewable energy to social care cooperatives. 
Additionally, cooperatives often work with vulnerable groups such as migrant workers and refugees and focus on employment creation and work integration. The International Labour Organisation further found that cooperatives are prevalent in the care economy and, in the absence of affordable health care, are innovative providers of multiple services. They play a complementary role to governments in providing child care, disability, reproductive and mental health care. 
Cooperatives are truly a versatile business structure that can be used for a myriad of causes, not just for those with an explicit focus on sustainability. They’re increasingly being used in a wide range of businesses from banks to housing or grocery stores.

Need Help Setting Up A Cooperative? 
Cooperatives are a unique structure that can be used for many different types of businesses or causes. If you’re unsure of which business structure to set up, or you’d like to get started with setting up a cooperative – let’s have a chat! 
You can get in touch with us at 1800 730 617 or [email protected]. 

Want to know how can cooperatives work for my business?
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About Latest Posts Abinaja YogarajahAbinaja is a legal consultant at sprintlaw. With an interest in tech and intellectual property, she’s worked in the technology industry while studying a law degree at Macquarie University. Latest posts by Abinaja Yogarajah (see all) Understanding Cooperatives: How Could They Work For My Business? – October 4, 2019

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Excluding Liability for Death and Injury
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Posted by Esha Kumar on 3 October 2019

Many recreational service providers, including gyms and rock climbing centres, offer their customers opportunities to participate in activities that have the potential to cause injury or even death.
If you provide recreational services, you’ll need to ensure your terms and conditions cover you for these risks.
Otherwise, you’ll increase your chance of getting sued and being liable for large sums of money. 
Clauses in your business’ terms and conditions can exclude your liability for death and injury. 
However, doing this correctly is difficult because the laws in this area are very complex.
Before you add any exclusion clauses into your business terms and conditions, it’s important to know what they are and how they can protect you. 
What Is An Exclusion Clause?
An exclusion clause has the potential to fully exclude your liability if something goes wrong while a customer is using your service.
Exclusion clauses can be found in a lot of simple customer contracts. They’re particularly common in the terms and conditions of businesses that provide recreational services. 
However, inserting an exclusion clause into your business’ terms and conditions isn’t always  simple due to the range of laws and regulations that vary from state to state. 
What makes this complex in Australia is the interaction between the law of negligence and the Australian Consumer Law and the existence of different defences in each of the state and territory Civil Liability Acts (CLAs). 
Here are three key areas to consider if you’re thinking of adding an exclusion clause to your business’ terms and conditions.
Negligence
Negligence can often be a difficult area of law to navigate.
As a recreational service provider, you owe a duty to your clients that your services will be of a particular standard and that you will not be negligent. 
You may exclude liability for negligence if you draft your contract correctly. However, if your negligence also means a breach of a consumer guarantee under the Australian Consumer Law (ACL), there are very specific provisions on how that may be done. 
Generally speaking, if you are able to correctly exclude the consumer guarantees under the ACL, you will also exclude your liability for negligence. 
Australian Consumer Law
The ACL protects consumers when they purchase goods or services by providing automatic rights, such as the ‘consumer guarantees’. 
Generally, under the ACL, it’s your business’ responsibility to guarantee that activities will be provided with due care and skill. 
If a person using your services is injured as a result of your negligence, they may be able to sue your company for not complying with the ACL’s consumer guarantees. 
In most scenarios consumer guarantees cannot be contracted out of. However, recreational service providers may exclude their liability under the ACL so long as the liability relates to injury or death. 
There are some limitations to this. For example, you cannot exclude your liability where you have been reckless or if it relates to associated services (such as paid lockers in a gym). 
Another important consideration is that In some states, you’ll need to include specific wording in your business contracts to effectively exclude your liability for death and injury under the ACL. 
The Civil Liability Act
Each State and Territory has a different Civil Liability Act (CLA.
These Acts set out the civil liability regime in each State or Territory and may have a significant impact on your recreational service provider business.
In some states, you may be able to exclude your liability under the CLA through a risk warning. 
This is difficult to do for a variety of reasons. For example, under the Western Australian legislation ‘a risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity’. 
Such legislatie guidance is quite confusing and unhelpful. A careful analysis of the type of risk that you’re trying to warn a consumer about, as well as existing case law, is required to draft a risk warning that will be able to protect you. 
Having a lawyer guide you through this process will ensure that you have the necessary protections to cover your liability when it comes to the specific risks involved in your recreational services business. 
What To Take Away…
As a recreational service provider, it is important to know what steps you can take to exclude your liability for death and injury. This is a very complicated area, so if you’re considering how best to protect your business, give us a call or email us at [email protected] and we’ll happily help you out!

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About Latest Posts Esha KumarEsha is a legal consultant at Sprintlaw. She has experience in both the media and legal industries and is currently completing her Bachelor of Laws at the University of Sydney. Latest posts by Esha Kumar (see all) Excluding Liability for Death and Injury – October 3, 2019 What Do I Need In My Gym’s Terms And Conditions? – August 20, 2019 Franchise Agreements – What Do I Need To Know? – July 10, 2019

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What is Sprintlaw Counsel and why are businesses using it? Here are 5 reasons why it might be for you.
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Posted by Regie Anne Gardoce on 24 September 2019

Over the last two years, Sprintlaw has quickly cemented itself as a leader for legal tech innovation in Australia (we won Innovator of the Year at the Australian Law Awards 2019!).
Recently, we launched Sprintlaw Counsel – a tech-powered subscription legal service that allows enterprises to outsource their “business as usual” work such as contract reviews.
We have already helped a number of forward-thinking businesses through this simple subscription service, removing the headaches that usually come with traditional legal services.
Here are 5 reasons why Sprintlaw Counsel might be for you.
 
1. You’ll have your own on-demand, dedicated legal team.
When you sign up for a Sprintlaw Counsel subscription service, you have access to our online portal and cloud-based tech tools.
And it’s more than just accessing legal templates. 
Sprintlaw Counsel offers an on-demand, responsive and tailored experience. Whenever you want a consultation or need legal advice, simply log in and submit your task.
You’ll receive a dedicated account manager and full access to a team of expert lawyers. Our lawyers were trained at Australia’s top law firms and specialise in commercial contracts and business law.
If you need a contract drafted, we’ll draft it tailored to your specific needs. 
Or, if your counterparty gives you a contract, we can review and redline it so you know exactly what you’re getting into.
 
2. We don’t bill by the hour. 
Sprintlaw is changing the game for legal services and we’re starting with price transparency.
We’re not your traditional lawyers. We don’t bill by the hour. And there are no hidden costs. 
Sprintlaw Counsel’s flexible and cost-effective legal plans make it easier for you to decide what’s best for your business.
Just like your phone and internet plans, we have both prepaid and subscription plans available, and our packages are tailored to the specific size and requirements of your business.
Our fixed-fee pricing is transparent and locked in. There are no surprises: you’ll always know the cost of your legal bill from the very start.
 
3. You can monitor your tasks in real-time.
With our custom-built technology, you’ll know exactly where your work is at.
Simply log in to our online portal, where you can request and see where your task is up to on our dashboard, real time.
On the dashboard, you can see which lawyer is assigned to each task, its progress and when it’s estimated to be done.
Think of it like ordering anything online — we’ve designed everything to be an easy and seamless experience for our clients!
 
 
4. We’re quick and efficient.
We know that getting work done quickly is important to you.
As a tech startup, we keep technology at the very core of our business to fit our clients’ busy schedules.
We’ve eliminated the arduous, paper-heavy admin seen in traditional law firms.
Instead, we’ve created custom-built workflow automations that are embedded into the way we operate our business.
We have automated bots that do the routine, administrative tasks from client updates to time tracking and invoice management. The best part is that you no longer have to pay for all these overheads either.
Basically, our tech takes care of the routine admin stuff. This way, we can move quickly and provide you with the best quality legal services.
 
5. Your team can focus on more meaningful work.
With Sprintlaw Counsel, you can leave the routine “business as usual” legal work with us — from everyday contract reviews to drafting simple contracts.
Here’s how we like to think about the kinds of legal work your business needs to get done.
Where Sprintlaw Counsel fits into your business’ needs.
Your valuable internal resources should focus on doing the high risk or high value work, while we can take care of the low risk, low value everyday legal tasks. This will then free up your internal resources to spend more time doing more meaningful work.
And, depending on the size and scale of your business, Sprintlaw Counsel’s integrated technology and lawyer solution can replace your in-house legal team altogether with our affordable, high-quality outsourcing service.
 
Get in touch
Local and multinational enterprise clients are already jumping on board to use our integrated technology and lawyer solution.
If you’re keen on using tech-powered lawyers to support your enterprise, let’s have a chat! 
You can email us at [email protected] or give us a call at 1800 730 617.

Want to know more about Sprintlaw Counsel?
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About Latest Posts Regie Anne GardoceRegie is a legal consultant at Sprintlaw. She has experience across law and tech start-ups, while still completing her Bachelor of Laws and Bachelor of Commerce at UNSW. Latest posts by Regie Anne Gardoce (see all) What is Sprintlaw Counsel and why are businesses using it? Here are 5 reasons why it might be for you. – September 24, 2019 The Ins and Outs of Shareholders Agreements and Company Constitutions – September 10, 2019 What Type Of Contract Do I Need If I’m Working With A Developer? – August 30, 2019

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The Ins and Outs of Shareholders Agreements and Company Constitutions
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Posted by Regie Anne Gardoce on 10 September 2019

So you’ve just set up a company and might be asking yourself: what’s next?
You might have heard others tell you that you need a Shareholders Agreement and Company Constitution.
They are the key foundational documents you’ll need when setting up a company – so you’re on the right track!
But, like many founders and business owners, you might be confused about what they are and how they’re different. 
There are many types of companies but, put simply, there are the shareholders who own the company, and the directors who manage the day-to-day affairs of the company.
Since there are various people and roles that make up a company, it’s important to put the right legal documents in place to address:

Rights and responsibilities of shareholders and directors
Rules on running the company (meetings, special decisions) 
Holding and transferring shares
Processes for disputes

What “the right legal documents” are depends on how your company is set up, the shareholding structure, board composition, and the risks of your particular business.
This article will discuss Constitutions and Shareholders Agreement – their purpose, their differences, and whether you need either or both for your company.
 
What Are They And How Are They Different?
A Constitution is a set of ground rules about how the company will be run, including the directors’ powers and duties, holding of meetings and voting. 
Meanwhile, a Shareholders Agreement usually sets out more specific, detailed rules around the relationship between shareholders and directors, and how the capital in the company can be held and transferred.
And that’s the basic difference. 
Legal industry practice is that Constitutions are quite general, while Shareholders Agreements are more specific. 
There can be a crossover between the two – hence all the confusion!
On one hand, a Constitution may specify rules around issuing and transferring shares.
On the other hand, a Shareholders Agreement can do that while including more specific rules, for example:

Valuing shares
“Drag” along and “Tag” along rights 
Events of default
Share vesting

If you have both a Constitution and a Shareholders Agreement, they need to be carefully drafted to minimise crossover and ensure consistency.
So that’s how a Constitution and a Shareholders Agreement are different. 
But, just how important is it to have each document?
 
Company Constitutions
Why Should I Have A Constitution?
So, we know that a Constitution is a formal and broad document that governs the way a company is managed. 
Even though the Corporations Act sets out some basic rules on how to govern a company, it’s important to have a Constitution to cater for more specific scenarios.
Also, having good processes formally set out in writing can be very useful to keep your company on track.
 
How Do I Get A Company Constitution?
If you don’t yet have a Constitution – don’t stress! 
When you register your company, most incorporation providers will give you a standard Constitution.
Even if you don’t have one, the Corporations Act has “replaceable rules” that will act as your Constitution.  
They’re called ‘replaceable’ rules because, if they are not suitable for you, you can “replace” them with a Constitution.
If you’re not sure, it might be a good idea to seek a lawyer’s help and get some advice on your requirements.
 
What’s Usually Included In A Constitution?
A Constitution typically covers the following:

Powers and duties of directors
Issuing and transferring shares
Holding annual meetings
Voting on decisions at meetings
How the company can enter into contracts

If you’re still not sure what else is included, you can have a look at the replaceable rules as a useful guide.
This is similar (but different!) to what you can expect to see in a Shareholders Agreement.
 
Shareholders Agreements
 
Why Should I have a Shareholders Agreement?
Whenever you have two or more shareholders in a company, it’s a good idea to have a Shareholders Agreement in place to protect everyone’s rights.
A Shareholders Agreement sets out how the control of the company will be divided between the shareholders and directors.
You might be thinking that, in the early stages, things may seem clear cut now between you and other shareholders.
But there are issues you might not expect to come up later down the track.
This is where a Shareholders Agreement comes in – it’s always helpful to have pre-agreed rules and processes in place.
And, often a potential shareholder will want to see some form of agreement before buying-in to your company.
Drafting a Shareholders Agreement from the outset makes sure that you and the other shareholders are on the same page, and potential shareholders know what they’re signing up for. 
 
What’s Usually Included In A Shareholders Agreement?
A Shareholders Agreement specifically defines the relationship between the shareholders, the company and the directors.
A Shareholders Agreement would typically cover the following:

Selling and issuing shares 
Appointing and removing directors
Requirements for specific decisions 
First rights of refusal

Depending on how you want to structure your company and share capital, these details will need to be tailored to the specific needs of your company.
A good lawyer can help draft a Shareholders Agreement that reflects the interests of your company, and advise you on any other issues that you may not have considered yet!
 
Could I change a Constitution or Shareholders Agreement later on? How?
In short, yes. 
As your business grows and time goes on, you may need to update your Constitution or Shareholders Agreement.
For example, you may need to change the Constitution if you move to a new company structure or respond to any changes to the law that requires you to do so.
Changing a constitution can be a bit tricky, as it will require a “special resolution” (which needs at least 75% of shareholders to vote for it to pass).
Or, if a new shareholder is coming on board, you may need to update the Shareholders Agreement to suit them too. 
You could do this with a Deed of Amendment signed by all parties, or you can simply add a new shareholder through a Deed of Accession.
 
What To Take Away…
Constitutions and Shareholders Agreements are similar but ultimately different, important legal documents.
Constitutions are general, high-level rules about company governance. 
Shareholders Agreements are more specific rules determined by the specific shareholders of that company. 
It may be most efficient and cost-effective to rely on the replaceable rules or a template constitution, and only set out specific rules in a Shareholders Agreement.
What you should do ultimately depends on the size, structure and specific needs of your company, and a lawyer can help you figure out the way forward.
 
Talk to a lawyer
If you’d like to chat more about whether you need a Company Constitution or a Shareholders Agreement (or both!), we have a friendly team of expert lawyers who draft these legal documents everyday. 
You can reach us at 1800 730 617 or [email protected]. 
There may also be other documents you need – such as Terms and Conditions for your business and Employment Contracts. 
If you’re not sure about what legal stuff you’ll need to do when starting a company, read our Business Legals 101 Guide or just get in touch with us!

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About Latest Posts Regie Anne GardoceRegie is a legal consultant at sprintlaw. She has experience across law and tech start-ups, while still completing her Bachelor of Laws and Bachelor of Commerce at UNSW. Latest posts by Regie Anne Gardoce (see all) The Ins and Outs of Shareholders Agreements and Company Constitutions – September 10, 2019 What Type Of Contract Do I Need If I’m Working With A Developer? – August 30, 2019 Are You Accidentally Franchising? – August 12, 2019

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What Type Of Contract Do I Need If I’m Working With A Developer?
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Posted by Regie Anne Gardoce on 30 August 2019

Whether you’re creating a new App, website or software, most small businesses will need to outsource an independent developer to build it.
And, if you’re paying an independent developer to build your platform, it’s a good idea to put down the details in writing.
You’ll need a contract, commonly called a ‘Development Agreement’.
What is a Development Agreement? What does it include? And why do you even need it?
This article will walk you through the issues and risks you need to consider when working with a developer, and explain how a Development Agreement can minimise those risks.
 
Why Do I Need A Development Agreement?
A Development Agreement is a contract between your business and the developer who is creating something for you. 
Often, there can be a lot of back and forth between yourself and the developer to agree to what the developer will do for you.
And, sometimes miscommunications and misunderstandings may lead to potential disputes and issues down the track.
This is why it’s important to have an agreed contract to fall back on. 
Especially for development projects with specific deadlines, a lot of money involved, and a lot of stake for your business – you want to make sure the process is as smooth as possible.
Having a Development Agreement in place puts you both at ease, as it is an opportunity for you and the developer to agree on specific terms and deadlines.
It’s also a great way for you both to clarify your understanding of the project and what’s involved to avoid any confusion or disputes later.
And, if a dispute does come up, a Development Agreement can set out the right process for handling it and help you avoid costly litigation.
 
What Should I Look For In A Development Agreement?
A Development Agreement is essentially a Contractor Agreement, with specifics included about what the developer will create for you. 
But, each project is different, so each Development Agreement is different! 
So, next we’ll go into key things that you should look for in a Development Agreement. 
However, you should consider these things in the context of the specific needs of your business, the risks in the platform you are developing, and the developer you are working with.
 
Scope Of Work
A Development Agreement will set out the scope of work (SOW) for the developer. 
A SOW is basically just what the developer will do and when they’ll do it. 
Generally, this is in the ‘Order Form’ or ‘Schedule’ section of the contract.
A SOW is crucial for a Development Agreement because it sets out the “what” and “when” of the services. 
Generally, a SOW includes:

The activities the developer will perform
The deliverables the developer will produce
A timeline of milestones and deadlines to be met
The fees for the service
The project start date 
The project  delivery / completion date

Whether it’s a simple website or a company-wide system for all your employees or clients, the SOW’s level of detail will depend on the value and risks of the platform being built.
So, you’ll need to negotiate with your developer to make sure that the scope of work is clear from the very beginning.
 
Payment Structure
There are different ways you can structure payment terms in a Development Agreement.
Your developer may want you to pay for the development upfront or with a deposit.
As the customer, to minimise your risks, you may want to pay as much as possible at the latter end of the contract, rather than upfront. 
This will ensure you’re not handing over payments without receiving any services. 
So, you can meet halfway.
A middle ground is to structure the payments in milestones, so upon blocks of completed services, you pay for that milestone. 
This is better for you than paying upfront, while also  being more comfortable for the developer. 
Making sure payment terms are clear in your contract is always important – especially in Development Agreements! 
 
Protecting Intellectual Property
Probably the most important consideration when working with a developer is balancing the intellectual property rights of yourself and the developer.
On one hand, if a developer is developing an app for your business, you want to make sure that you own the IP rights to the developed platform.
But on the other hand, the developer might also want to retain some rights to use the work they created.
They may want to showcase the work they created for you on their portfolio as part of their marketing drive to attract future clients.
And, sometimes the work they provide is made up of a library of different assets that they may need to use for future work.
So, in practice, it can often be difficult to negotiate the extent to which both parties can use or own the IP afterwards. 
It’s important that both you and your developer are on the same page around what the developer can and cannot do with the platform after they’ve created it for you – so make sure you get it down in writing! 
 
Warranties
It’s also important that warranties from the developer are included in your Development Agreement.
Warranties include a promise from the developer that they have the skills and expertise to build the platform to the standard you expect.
And, that they promise to fix any defects in the final deliverable they provide (rather you paying for additional services).
Warranties can also promise that the platform won’t infringe others’ intellectual property rights.
There are warranties and consumer guarantees under the Australian Consumer Law (ACL) that will apply in certain circumstances regardless of what a contract says.
Also, in June 2019, changes were made to the ACL around warranties, where specific wording must be used in a contract if express warranties are given for goods or services. 
So, you need to make sure you use the right warranty wording in your Development Agreement.
 
Restraints
You might want to prevent the developer from doing certain things that could harm your business (and vice versa).
For example, your contract could include restraint clauses, which would prevent either of you from taking the other party’s clients or employees away from one another.
And, you could also prevent the developer to do any future work for any of your competitors (which could be difficult to negotiate).
But, under Australian law, restraints need to be reasonable in the circumstances to be enforceable. 
This will depend on the specific nature of the development project- its size, scale, and importance to your business – and the level of access that the Developer has to your clients, and involvement in your business.
It’s a good idea to talk to a lawyer about how you structure any restraints to ensure they are enforceable.
 
Confidentiality 
When a developer does work for your business, you might be giving them access to your computer systems, client lists, price lists, and a variety of other business secrets. 
So, a confidentiality clause can be useful to require the parties to keep confidential each other’s confidential information.
 
Disputes
A Development Agreement may also include a clause that sets out what will happen if there is a dispute between both parties.
This could include mandatory mediation (at shared expense or one party’s expense) and best efforts to not proceed to litigation. 
 
Termination
Unfortunately, there’s always the risk that things may not work out between you and the developer.
Or, things might change for your business and you may not require something to be developed anymore.
So you want to make sure you have the right to abandon the contract if needed (especially in longer-term projects).
A Development Agreement will generally have a termination clause which would allow either party to terminate the contract earlier than the expected delivery date.
For example, you could specify that you need written notice within a specific time period. 
Or, you can also specify particular circumstances either party could terminate the contract immediately (such as a serious breach of the contract).
Though this may not be the case for you, it’s always a good idea to be prepared for when things don’t work out (and this is why having a contract in important).
 
What To Take Away…
Using an independent developer is a great way to outsource technical expertise to create a website, app or software for your business.
It’s important to make sure you have an agreement in writing to point to if any potential disputes, confusion or deadlocks arise later down the track.
A Development Agreement should include a number of important clauses.
From defining a scope of work to payment structures, intellectual property rights and termination; it’s always a good idea to have a contract set out from the very beginning.
A contract could help if a developer creates the same platform for a competitor, stops work right before the launch of your business, or refuses to fix a problem with the platform.
There are a number of considerations you’ll need to make to mitigate your risks and avoid disputes as much as possible – and a lawyer can help you walk through your needs.
 
Talk to a lawyer
At sprintlaw, we have a team of expert technology lawyers who know how to make sure your Development Agreements are clear, concise and protects your rights. 
We can also review agreements if you’ve been provided with a Development Agreement from a developer.
And, if you’re a developer, we can also draft an agreement that makes sure you’re protected.
If you have any questions, or think you might need a Development Agreement, you can reach us on 1800 730 617 or email [email protected].

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About Latest Posts Regie Anne GardoceRegie is a legal consultant at sprintlaw. She has experience across law and tech start-ups, while still completing her Bachelor of Laws and Bachelor of Commerce at UNSW. Latest posts by Regie Anne Gardoce (see all) What Type Of Contract Do I Need If I’m Working With A Developer? – August 30, 2019 Are You Accidentally Franchising? – August 12, 2019 Choosing The Right Structure For Your Social Enterprise – August 12, 2019

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What Do I Need In My Gym’s Terms And Conditions?
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Posted by Esha Kumar on 20 August 2019

Running any business means you will need well-drafted terms and conditions to cover yourself if you happen to run into some legal trouble.
Especially if your new business is a gym, your terms and conditions need some extra oomph as the risks involved in running a gym are much higher than other types of businesses.
Where Do I Start?
When a customer decides to become a member of your gym, you should provide them with two main documents:

Terms and Conditions (attached to)
A Membership Form

Both of these documents are legal essentials when it comes to starting a gym.
Once a customer signs your membership form, they will be bound by all the provisions you decide to include in your terms and conditions.
The agreement will also protect you from any liability if you fall into any trouble with anyone who decides to use your gym.
What Do I Include?
Well drafted business terms and conditions are necessary to protect the relationship between you and your gym members. 
Generally, terms and conditions will outline the rules your gym members must follow when using your gym, and they should be attached to any membership form. 
These are the five main things you must include when drafting terms and conditions for your gym.

Payment

Any set of gym terms and conditions must clearly outline the payment options and obligations of its customers.
This includes how your customers are going to pay for the membership and how their fees will be deducted from their bank account. 
There are different methods of payment you can consider, such as direct debit or accept as-you-go payments. 
Direct Debit
You need to take extra care with direct debit as there are various laws regulating the use of this payment method.
If a member using direct debit decides to cancel or stop their payments, your terms and conditions must provide the steps they should take to do so.
You should also set out a way for your members to dispute any direct debits and what happens if the direct debits fall through. 
Automatic renewals
Sometimes, your gym members might decide to have automatic renewals of their membership. 
Make sure this option is clearly spelt out in your gym terms and conditions otherwise their membership contract might be unenforceable. 

Suspension and Termination 

Including provisions for suspension and termination in your terms and conditions are very important.
This is because suspension or termination clauses provide options to your members if they want to end their membership.
Suspension
A suspension clause is handy for your members if they temporarily want a break from the gym for a short period – for example, if they’re going overseas over Christmas.
You can provide an option for your members to suspend their membership for certain time blocks depending on the needs of your business. 
Termination
A termination clause is required in all gym terms and conditions.
You always need to give your members an “out” if they decide they no longer require your services. 
Your termination clause can include different notice periods.
In some instances, you might also require the clients to pay a cancellation fee before they decide to discontinue their membership. 
However, there are certain laws around what’s permitted around cancellation fees, so be careful with what you include!
Depending on how you draft up your terms and conditions, you can also include a provision that gives you the right to terminate any customer’s membership if they breach any of the rules and regulations set out in their membership contract. 

Personal Injury

The safety of gym-goers is one of the most important aspects of your gym terms and conditions. 
This is because your gym will be likely to have a range of equipment and opportunities that have the potential to injure those who use them.
Although you can never contract out of all safety requirements, a personal injury clause will limit your liability to some extent in case something does go wrong. 
Your personal injury clause should say that your gym and its employees won’t be liable for any loss or injury that a member suffers if a member didn’t read health disclaimers the services your gym provides. 
A well-drafted personal injury clause will also protect you should any of your customers decide to sue you for any personal damage they have received because of using your gym. 

Refund Policy

As a gym owner, it’s important that you include provisions for refunds. 
This is because the Australian Consumer Law (ACL) has mandatory consumer guarantees which you must abide by. 
Offering a refund is one of these guarantees. 
Refund policies give your gym members the option to have their money returned depending on any breaches of your gym’s terms and conditions. 
Depending on your circumstances, some customers might be entitled to a cooling-off period.

Privacy Policy 

It’s also good idea to include a privacy policy in your gym terms and conditions or even on your website.
This is because when people join your gym, they’re going to be releasing information which is considered as ‘sensitive’.
A privacy policy will require your gym members to agree that the personal information they provide to you might be used for a range of purposes, including marketing.
There may be some members who don’t want their information used for purposes other than using the gym.
In these situations, make sure you have an ‘opt out’ option so members can choose to not have their personal information shared. 
What To Take Away…
If you have a gym, or thinking of starting a gym, it’s important that you have well-drafted terms and conditions before you get things off the ground.
There are extra things you need to think about when protecting your business from any liabilities to those who decide to use your gym.
Looking for some guidance? Or are you unsure about where to start? Feel free to contact us at [email protected], we are happy to help you! 

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About Latest Posts Esha KumarEsha is a legal consultant at sprintlaw. She has experience in both the media and legal industries and is currently completing her Bachelor of Laws at the University of Sydney. Latest posts by Esha Kumar (see all) What Do I Need In My Gym’s Terms And Conditions? – August 20, 2019 Franchise Agreements – What Do I Need To Know? – July 10, 2019 Competitions – Do I Need A Permit? – June 6, 2019

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Are You Accidentally Franchising
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Posted by Regie Anne Gardoce on 12 August 2019

As your business becomes successful, you might ask yourself: what’s the best way for me to scale?
Many small businesses do this by letting others use their intellectual property to help them expand.
There are two common ways to do this – licensing and franchising. 
But, there is an important difference between the two.
And if you’re not sure, you may end up walking into the territory of “accidental franchising”.
Once you become an accidental franchisor, you could be breaching the Franchising Code of Conduct if you don’t comply with all the requirements under the code.
So – how can you tell the difference?
This article will walk you through the difference between franchising and licensing, and why you need to know about them before deciding which road to take.
The Difference Between Licensing And Franchising
Licensing and franchising have one main thing in common: you are letting others use your intellectual property.
The main difference between the two is the degree of control you have when doing so.
What is Licensing?
Licensing is when you permit another business to use your intellectual property (IP) in exchange for a “licence fee”.
This could include anything from the logo to copyrighted work or a trade mark that you own. 
The benefits?
When licensing, you can expand your brand while still maintaining ownership of your intellectual property.
At the same time, you’re able to increase revenue without incurring all the capital outlays involved in expanding operations.
It’s also quick and simple – all you need is an IP Licence Agreement (we can help you draft one!).
This is a contract where you can specify what you are licensing, the licence fee, duration of licence and the scope of the licence.
And, you can be very specific on the terms and conditions of using your intellectual property.
But, there are risks.
When you “licence” your intellectual property, you may lose control over how others use your branding, which could impact your business altogether.
So, it’s important to make sure you have a solid IP Licence Agreement that specifies the purpose and scope of the licence.
Scenario:
Jeff runs a successful cafe in his local neighbourhood. He knows all his customers’ names and favourite orders, which is why the brand is so strong. The business is making a name for itself and so Jeff considers ways to scale without the expenses. 
He decides to “licence” his brand out by letting different cafes in other neighbourhoods use his logo and business name in exchange for a licence fee.
What Is A Franchise?
A franchise is when you allow an independent business to operate using your business’ trading name and operating structure.
If you’re the franchisor, you’ll have more control over what the franchisee can do with your brand.
The terms of the franchising arrangements are typically set out in a Franchising Agreement and Operations Manual.
We recently wrote an article on Franchising Agreements and what they’re all about here.
There are also a number of other legal documents involved to help franchisors protect their brand and intellectual property.
These include:

Franchise Instruction Sheet
Disclosure Document
IP Licence Agreement
Confidentiality and Non-Compete Agreement
…and more!

So, going down the franchise route might be a good idea, because you have more control over how your brand is used.
It’s also a better option because you can provide training, marketing assistance and the everyday know-hows of using your brand the way you want.
If you’re still stuck on franchising, the Australian Competition and Consumer Commission (ACCC) has detailed information here.
Scenario:
Let’s go back to Jeff. Instead of “licensing” his brand out to other local cafes, he decides to start franchising.
This means he allows other independent businesses to use his entire brand name and operating structure.
So, other local cafes would be using Jeff’s cafe brand while having different management.
But, Jeff controls how they use his brand through a number of legal documents to make sure that they only use his brand name in a way that aligns with what Jeff would want.
When Are You “Accidentally” Franchising?
You become an “accidental” franchisor when you think you’re just licensing IP, but the law deems that you are, in fact, franchising.
Franchising is definitely the better option for businesses who want to control and protect how their brand and intellectual property is being used.
It’s also a great way to diversify risk, grow your brand recognition and scale your small business.
But, with the number of legal documents involved, franchising can be quite expensive for small businesses.
So, many small business owners use an IP licensing model to expand while also minimising costs as much as possible.
But when this looks like franchising, you become an accidental franchisor and have breached the Franchising Code of Conduct.
Here are some features of a business that might make you “look” like you’re franchising:

Providing operational and training support
Exercising significant control over operations
Overseeing a promotional or marketing plan

Put simply, if you are being more involved in the sale, service, promotion or distribution of the brand you are “licensing” – you are accidentally franchising.
The ACCC regulates the area of franchising and a breach of the Franchising Code of Conduct could result in a financial penalty of up to $63,000.
They have more information on how they investigate franchising misconduct here. 
What To Take Away…
There is a very fine line between IP licensing and franchising.
So, it’s important to know the difference between the two.
And deciding which option is best for you will depend on the nature of your relationship with the other business who is using your intellectual property.
It will also depend on the extent to which you intend to exercise control of your brand.
If you’ve already decided whether you’d like to pursue an IP licensing model or franchise model, we can help you!
We have fixed-fee packages to assist you in getting started.
If you’re still stuck – not a problem! 
Let us know and we can arrange for a consultation with one of our specialist lawyers who can walk you through your next steps.
Feel free to reach out at [email protected] or 1800 730 617.

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About Latest Posts Regie Anne GardoceRegie is a legal consultant at sprintlaw. She has experience across law and tech start-ups, while still completing her Bachelor of Laws and Bachelor of Commerce at UNSW. Latest posts by Regie Anne Gardoce (see all) Are You Accidentally Franchising – August 12, 2019 Choosing The Right Structure For Your Social Enterprise – August 12, 2019 “Free Repair if Faulty” Is No Longer Enough Under New Laws – Make Sure Your Business Is Doing It Right – July 2, 2019

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Choosing The Right Structure For Your Social Enterprise
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Posted by Regie Anne Gardoce on 12 August 2019

What Is A Social Enterprise?
Traditionally, businesses are set up to make a profit. Not-for-profits are set up to do social good.
But what if you want to do both?
Social enterprises sit right in the middle of this spectrum – they are a rising group of organisations who want to create profit and social impact.
Starting a social enterprise is a great way to create both financial and social value.
But, just with starting any organisation, the first challenge is always choosing the right structure.
What Is The Right Structure For A Social Enterprise?
In Australia, there are legal structures for corporations making a profit and for not-for-profits.
But in Australia there is no specific legal structure that’s called “social enterprise” or one that is specifically designed for social enterprises.
Instead, social enterprises must use any of the existing legal structures to achieve their objectives.
But, choosing the right structure is an important first step.
You’ll need to make sure your structure complements your purpose, growth strategy and the sources of finance you’d like to pursue.
More importantly, you’ll need to ask yourself: do you want to make a profit?
We’ll walk you through some of the most common structures for social enterprises.
And, we’ll also talk about how some innovative social enterprises are changing the game in this space and creatively utilizing their legal structure to complement their strategy.
Pty Ltd Company
Most social startups and new social enterprises are jumping into a Proprietary Limited (Pty Ltd) company structure. 
This is the most common business structure under which most normal profit-driven businesses operate.
A company is a separate legal identity to its owners, which means that you won’t be personally liable for any debts that the business incurs.
There are shareholders (the owners of the company) who are paid dividends, while the directors are the ones who make the decisions.
A company structure is good if you need to raise some capital to grow your social enterprise because most investors are familiar with the structure.
Companies are regulated by the Australian Securities & Investments Commission (ASIC) under the Corporations Act.
You can read our Business Legals 101 Guide to help you understand what you’ll need to get started.
Company Limited by Guarantee
A common option for not-for-profits is a ‘Company Limited by Guarantee’ (CLG) structure.
In a CLG structure, there are no shareholders or dividends.
Instead, there are “members” of the association who come together for a purpose that’s not profit-driven.
A CLG structure is attractive for government grants and philanthropic donations because you have a social purpose.
CLGs are also regulated by ASIC unless you register as a charity.
If you become a registered charity, you’ll need to report to the Australian Charities and Not-for-profits Commission (ACNC) instead.
Incorporated Association
An Incorporated Association (IA) is another option for not-for-profits and runs a little like a company.
It is a separate legal identity, and its “members” have rights. 
But, they do not have a right to make a profit the same way as shareholders.
Instead, those under an IA structure are driven by purposes and rules.
And it is run by an elected management committee and secretary.
Therefore, this structure also helps attract grants and donations.
There is a different regulator of IAs in each state, so these purposes and roles must be lodged with the relevant regulator (find out more here).
If you want to find out more about setting up a charity and the difference between CLGs and IAs, we’ve written an article on how to set up a charity.
The Hybrid Structure
While there are structures for not-for-profits on one end, and structures for businesses on the other; social enterprises kind of need to be both at the same time.
So – how can social enterprises do this?
Recently, social enterprises have discovered a new way of looking at it: The Hybrid Structure.
This essentially involved setting up a not-for-profit (CLG or IA structure) and a Pty Ltd company separately.
Under this hybrid structure, the social enterprise typically operate under both entities using a web of legal documents to ensure strong governance.
It can be very tricky to manage two entities – so why do social enterprises do it?
This structure is popular because having a private company on the one hand means that you can raise capital from investors.
On the other hand, the CLG structure can also attract grants as well as lower administrative burdens.
That being said, managing two entities can be a big challenge – and we can help you understand how to do it! 
A New Legal Structure?
In the United States, there is a ‘benefit corporation’ legal structure that mandates both profit-making AND creating social impact and value.
In Australia, however, there is no specific legal structure like this.
Yet, some social enterprises are pushing to make this happen.
Australian crowdfunding platform – Chuffed – are currently pursuing what they call a ‘Social Benefit Company’.
Essentially, Chuffed is set up as a Pty Ltd company.
But, the social purpose that drives their social enterprises is embedded in their Shareholder Agreements and Company Constitution.
This means that they can make a profit and attract capital investment while still upholding the integrity of their social mission.
Now backed by Blackbird Ventures, you can read more about Chuffed’s story to a Social Benefit Company on their blog post.
Certifications
On top of legal structure or rules embedded in legal documents, you may also want to consider certification for your social enterprise.
In Australia, you can apply for a B-Corp certification which is administered by an organisation called B-Lab .
To encourage using business as a force for good, and also push for a Benefit Corporation model in Australia, B-Lab certifies social enterprises to verify their leadership in social innovation and entrepreneurship. 
They are active all around the world – with big names such as Ben & Jerrys, Patagonia and Etsy all certified as B-Corps.
To attract investors, community awareness and also support the move towards a Benefit Corporation model, this is a great way to help your social enterprise’s growth.
What To Take Away…
We’ve discussed the most common legal structures for social enterprises, and the new ways of doing it too.
There are also other types of legal structures available to social enterprises (we’ve only discussed the most common!).
From co-operatives to Indigenous Associations, you can read more about them in this guide.
Choosing the right structure for your social enterprise is important to get right from the outset.
Your structure will determine what kind of finance you can source, whether you can make profit and how decisions are made.
Particularly, there are a number of regulations on what you can and cannot do depending on your structure.
So, you’ll need to make sure your structure also suits your long-term strategy as a social enterprise.
And there are different regulators with a range of reporting obligations and minimum standards.
The size and financial position of your social enterprise may also influence which structure is most suitable for you.
This can be a lot to think about but don’t worry, we can help!
If you’d like to book a consultation to help you decide on a structure, or you’d like to get started with the relevant legal documents – let’s chat.
You can get in touch with us at 1800 730 617 or [email protected].

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About Latest Posts Regie Anne GardoceRegie is a legal consultant at sprintlaw. She has experience across law and tech start-ups, while still completing her Bachelor of Laws and Bachelor of Commerce at UNSW. Latest posts by Regie Anne Gardoce (see all) Choosing The Right Structure For Your Social Enterprise – August 12, 2019 “Free Repair if Faulty” Is No Longer Enough Under New Laws – Make Sure Your Business Is Doing It Right – July 2, 2019 Do Your Employees Have The Right To Work In Australia? – June 25, 2019

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Franchise Agreements – What Do I Need To Know?
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Posted by Esha Kumar on 10 July 2019

As a franchisee, buying a franchise is an exciting opportunity for those who’ve always wanted to start their own business. 
However, running a business can be difficult to navigate – and it gets even more complicated when it comes to buying a franchise. 
This is because there are certain rules that you must comply with.
These rules are also dependent on the franchising network you want to join. 
The starting point for buying and selling your own franchise is drafting a Franchise Agreement. 
Here are the key things you need to know as a franchisee about a Franchise Agreement. 
 
What Is A Franchise And What Do I Need?
A franchise is a type of business structure whereby the owner of a business (the franchisor) licenses others (the franchisee) to use the business’s trade name and operating structure. 
If you’re thinking of becoming a franchisee, you will need:

A Franchise Agreement
Operation Manual
… and other legal documents!

A lawyer will be able to help with most of this, but the most important legal document you’ll need is a Franchise Agreement.
 
What Is A Franchise Agreement?
A Franchise Agreement is one of the 5 essential documents a franchisor (the person licensing the franchise) needs to give you, the franchisee (the person operating the franchised business).
The document outlines four main things:

Key terms of the business
The franchisee’s obligations
The franchisor’s obligations
Procedures that will be relevant to the purchaser / incoming franchisee 

Along with these provisions, the Franchise Agreement will contain clauses that are distinct from a normal business sale agreement.
It’s important to know that no two franchises are the same.
This is because franchisors have the opportunity to structure their franchise differently to other existing franchises. 
Therefore, these kinds of clauses are needed to specify the relationship between you and the franchisee in a way which is specific to the franchise business you are purchasing. 
According to the Franchising Code of Conduct, every franchisor has to present a Franchise Agreement to any potential franchisee.
However, the code does not set out a specific structure for the Franchise Agreement.
This is why it’s crucial that you have a lawyer review any Franchise Agreement as there might be some specifications specific to you as the franchisee, that have been left out. 
 
What’s The Difference Between A Franchise Agreement And A Licence? 
You might easily get tripped up when it comes to the difference between a Franchise Agreement and a Franchise Licence. 
Generally, a Franchise Licence will authorise you to sell branded products from the franchise. 
On the other hand, a Franchise Agreement will allow you to actually set up a franchised business. 
This means that, in a Franchise Agreement, you have access to all of the company’s intellectual property, assets, suppliers and know-hows.
But in a Franchise Licence, you’re only authorised to sell the products under their brand.
Franchise Agreements tend to be more comprehensive (and therefore more restrictive to franchisees) than licensing agreements. 
If you are bound by a Franchise Agreement, you have to abide by all of the franchise rules and regulations as effectively, you are a representative of their entire company.
Knowing the difference between a Franchise Agreement and a Franchise Licence is important as depending on which agreement you enter into, your obligations will be quite different. 
 
What Are The Main Franchise Agreement Provisions?
As a potential franchisee, there are certain things that you should look for in a Franchise Agreement. 
Training and Support
The franchisor should provide you with training and ongoing support for your staff.
Depending on the franchise, the training might be different. For example, some might include administrative and tech support, while others won’t.
Geographical Location & Exclusivity
The Franchise Agreement will also include specifics on location and where you are going to operate the franchise. 
Sometimes, a Franchise Agreement will include an exclusivity provision which will ensure that no other franchisee can open a franchise in your location. 
Duration
Another important provision that must be included in any Franchise Agreement is its duration. 
The length of your Franchise Agreement will help you decide whether you can sustain running the business for that time period or whether you need to adjust the period depending on your capacity. 
Fees
Fees including the initial franchisee fee which covers the cost of using the franchisor’s logo and operating system as well as the royalties you pay to the franchisor must be included in the Franchise Agreement.
Renewal & Sale Rights
Renewal and sale rights should also be included in the Franchise Agreement. 
These terms will outline your options to terminate the agreement or renew if you wish to continue running the franchise. 
Some franchisors also allow you to sell the franchise. 
If you decide that you no longer want to run the franchise for any reason, this option may be useful to have in your agreement. 
 
What If I Want To End My Franchise Agreement?
If you don’t want to sell your franchise or want to end your Franchise Agreement before the agreed date, it is a good idea to have a termination clause.
A termination clause is effective if one of the parties to the contract breaches any of the terms within it.
Most Franchise Agreement termination clauses have two outcomes:

Suspension – the agreement won’t be in operation until both parties solve the issue and agree on a date for it to resume
Termination – the agreement will no longer be effective 

Whether you’re a franchisor or franchisee, it is in the interest of both to have a termination clause included in the Franchise Agreement. 
This is because it provides a way out if things were to turn sour between both parties. 
 
What To Take Away…
As a franchisee, the process of buying and selling a franchise can be a complicated process.
It’s important to seek advice from an experienced lawyer who can advise you on the process and whether your Franchise Agreement includes the relevant provisions to make the sale seamless and successful.
If you’re considering selling your franchise or are interesting in purchasing one, don’t hesitate to give our team a call on 1800 730 617 or email us at [email protected] – we are here to help! 

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About Latest Posts Esha KumarEsha is a legal consultant at sprintlaw. She has experience in both the media and legal industries and is currently completing her Bachelor of Laws at the University of Sydney. Latest posts by Esha Kumar (see all) Franchise Agreements – What Do I Need To Know? – July 10, 2019 Competitions – Do I Need A Permit? – June 6, 2019 What Do I Need To Know About Convertible Notes? – May 29, 2019

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“Free Repair If Faulty” Is No Longer Enough Under New Laws – Make Sure Your Business Is Doing It Right
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Posted by Regie Anne Gardoce on 2 July 2019

The Australian Consumer Law (ACL) now has a new provision affecting businesses all across Australia.
This law took force on 9 June 2019 and requires businesses to include mandatory wording for warranties against defects.
What does this mean exactly? Who does it apply to? And how will it affect your business?
This article will break it down for you: we’ll explain what these warranties are, the new laws and what impact it could have on you.
What Is A “Warranty Against Defect”?
A number of warranties already exist under the ACL. Some of these are implied by law and cannot be excluded and some are voluntary that businesses can make in addition to the implied warranties (more about the different warranty types here!). 
Often businesses promise to repair, replace, fix or resupply goods and services if they are defective. 
This is what we call ‘warranty against defects’: a voluntary promise by a business that the goods or services it provides come with remedies, if faulty. Voluntary in the sense that they’re not required to give those warranties under the ACL.
Generally, such warranties are provided with a simple statement which could be along the lines of “Replacement guarantee if the machine breaks down in the next five years”.”.
Whenever such wording is used by a business – whether on signage in store, Terms and Conditions, receipts or website – it is likely that this is a ‘warranty against defects’, for the purposes of the ACL.
The Australian Competition and Consumer Commission (ACCC) provides some examples of the different types of warranties against defects here. 
What Are The New Laws?
The change to the ACL introduces mandatory wording for these warranties for businesses who offer services, or services and goods together (there is already mandatory wording for businesses who only sell goods).
This means that a simple statement is no longer enough – the ACL has introduced specific wording that every service business must include in their warranties against defects.
If your business offers services to consumers and makes warranties against defects, you will need to use the following wording in your warranty documents:
Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled: 

to cancel your service contract with us, and

to a refund for the unused portion, or to compensation for its reduced value. 

You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.
If your business offers goods AND services together, you will need to include the following wording in your warranty against defects:
Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

to cancel your service contract with us, and

to a refund for the unused portion, or to compensation for its reduced value.

​You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service’.
Who Does It Apply To?
This new mandatory wording specifically only applies to businesses who offer services, or goods and services, to consumers.
The ACL draws out the specific definition of who is seen as a “consumer”.
But, there are exceptions.
The new laws do you not apply to services if they are not supplied directly to a consumer.
For example, if you have a contract to transport or store goods for another business to reuse, develop or resell; you do not have to use this wording.
This wording is only mandatory for businesses who offer services that will not be carried on or engaged further by another trade or profession.
Further, this mandatory wording does not apply to service or supply contracts with insurance, gas, electricity or telecommunications services.
What Does This Mean For My Business?
If your business offers goods or services (or both!) to customers directly, then it is most likely that you will need to comply with this new law.
This means that, before 9 June 2019, you will need to update your warranty documentation to reflect the exact wording provided above.
If you don’t, then you may be in breach of the ACL and will have committed an offence.
The ACCC outlines the fines and penalties for breaches of the ACL here.
Related Requirements
It is also important to understand other requirements around warranties for defects.
The ACL requires you to include particular information in your warranty documentation and present that information in a specific way. 
In addition, any warranty against defects must be provided with the actual good or service you are selling and not just referred to in an external document. 
If you’re still confused, more information on warranties and the new laws can be found here.
Want a consultation with a lawyer to advise you on what to do next? Or need help redrafting your Terms and Conditions to suit the new laws?
We’re here to help! Feel free to call us on 1800 730 617 or drop a line at [email protected].

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About Latest Posts Regie Anne GardoceRegie is a legal consultant at sprintlaw. She has experience across law and tech start-ups, while still completing her Bachelor of Laws and Bachelor of Commerce at UNSW. Latest posts by Regie Anne Gardoce (see all) “Free Repair if Faulty” Is No Longer Enough Under New Laws – Make Sure Your Business Is Doing It Right – July 2, 2019 Do Your Employees Have The Right To Work In Australia? – June 25, 2019 Colour Trade Marks And Why You Should Watch Out For Them – June 11, 2019

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Do Your Employees Have The Right To Work In Australia?
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Posted by Regie Anne Gardoce on 25 June 2019

Whether you are engaging with new employees or contractors, you have a positive obligation to make sure your worker has the right to work in Australia. 
The Fair Work Commission keeps an eye out for employers who don’t comply with this obligation (and the Australian Border Force too!).
And, under the Migration Act, employers could be fined up to $255, 000. 
This article will talk about your obligations, what could happen if you don’t comply and what you could do to avoid the headache of penalties.
 
What To Know
It is your responsibility as an employer to check whether your workers can legally work in Australia.
This includes employees, contractors and any other workers you source from labour hire arrangement or recruitment agencies.
And it applies to both paid and unpaid work.
But how do you know someone is illegally working in Australia?
Put simply, a person does not have a right to work in Australia if they are one of two things.
First, those who are illegally staying in Australia. 
They are called “unlawful non-citizens” – foreign citizens without a valid visa in Australia.
Second, those “lawful non-citizens” who have a valid visa to stay in Australia but with work-related restrictions.
If you’re not well-versed in all the different types of visas and their working conditions – don’t fret!
Head over to the Australian Government’s Visa Entitlement Verification Online (VEVO), where you can check what working conditions are attached to each visa. 
You need the worker’s permission to access their VEVO details, so make sure you get this permission as part of your on-boarding process!
 
What Happens If You Don’t Comply?
As an employer, you could face penalties if you employ a person who does not have a valid right to work in Australia.
You can be fined up to $102,000 (and, for more “aggravated” breaches such as forced or exploitative labour, this number can go up to $255,000).
In 2013, the law was changed to introduce stricter provisions.
Employers could still face penalties even if they unknowingly employed a person without valid working rights.
This new law places a positive obligation on every employer to actively make sure that their employees have valid working rights. 
Employers who fail to comply with this obligation could be liable for fines up to $76,500. 
It’s also worthy to note that even executive officers could be held personally liable if they:

were aware of the breach,
influenced the employer in the breach, or
failed to take reasonable steps to prevent the breach.

 
What To Do
The last thing you want is the headache of an investigation and heavy fines facing your business.
Under the Migration Act, employers must take “reasonable steps” to check the working status of their employees and contractors.
This includes keeping records of your employees’ working status and making the necessary enquiries. 
Don’t turn a blind eye if you suspect a worker doesn’t have the requisite visa status! 
Particularly, if you are employing someone who has a temporary working visa, you are obliged to continue to check their work rights until their employment contract ends.
So – how do employees prove that they have valid working rights in Australia?
Medicare cards, driver’s licenses or tax file numbers are not sufficient proof of working rights.
To prove they have a right to work in Australia, your employees can provide the following documents:

Australian birth certificate and a photo ID
Australian citizenship certificate
Australian passport
New Zealand passport
New Zealand Birth Certificate and a photo ID
Certificate of evidence of resident status
Valid visa with relevant work rights

To avoid penalties, it’s a good idea to make sure you are proactive about checking your employees’ work rights from the very beginning.
For example, you can:

Post job advertisements specifying that they must have valid working rights in Australia before applying
Introduce employee screening processes with compulsory reviews of employees’ work rights when they start work with you
Review any contracts you have with third-party labour hire or recruitment companies to make sure they are also checking the rights of suggested workers

And, if you have any employees who are on temporary visas, be sure to schedule regular check-ups of their working status.
If you have further questions around employing (or sponsoring) visa-holders, the Department of Home Affairs has a handy resource here.
For any questions about other obligations you have before taking on a new employee, you can view a checklist here. 
 
What To Take Away…
The duty to check whether your workers have the right to work in Australia is something that can often be forgotten.
While you might be employing a person in good faith, you are required by the law to take reasonable steps to check their working status.
It’s a good idea to be proactive because “not knowing” is no longer an excuse.
Investigations are a headache, fines are heavy and the last thing you want is finding out a valuable employee is illegally working for you.
Still have questions?
We’re here to help – you can get in touch with our friendly team at 1800 630 617 or [email protected].

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About Latest Posts Regie Anne GardoceRegie is a legal consultant at sprintlaw. She has experience across law and tech start-ups, while still completing her Bachelor of Laws and Bachelor of Commerce at UNSW. Latest posts by Regie Anne Gardoce (see all) Do Your Employees Have The Right To Work In Australia? – June 25, 2019 Colour Trade Marks And Why You Should Watch Out For Them – June 11, 2019 Why It’s Important To Maintain Confidentiality In The Workplace – June 7, 2019

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Colour Trade Marks And Why You
Should Watch Out For Them
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Posted by Regie Anne Gardoce on 11 June 2019

In any business, your intellectual property (IP) is what makes you stand out as a unique business.
One particular way of protecting that IP is through registering a trade mark.
Trade marking your business name, the name of your product or service, or even your logo gives you an exclusive right in Australia to use it however way you wish.
But did you know a business can also trade mark a colour?
Whether you’re a new business or you’ve been around for a while, it’s always a good idea to do your research around trade marks.
This article will talk about trade marked colours and why your business should be thinking about them.
What Is A Trade Mark?
In any business, a word, phrase, symbol or logo is usually important in having your brand recognised by your customers and community.
To make sure nobody else uses it, and that your brand stays unique, it can be legally registered as a trade mark through IP Australia – our national register of trademarks, patents and other IP protection.
A registered trade mark in Australia is valid for 10 years (and if you’re thinking of expanding overseas, you may also want to consider international trademark protection). We wrote an article about trademarks here.
Can You Trade Mark A Colour?
You can trade mark a number of things and – yes – a colour is one of them.
A lot of big international companies whose brand relies heavily on a particular colour will often apply to have that specific colour trade marked.
Why?
They want to make sure that colour is only associated with their brand, which keeps their image unique and exclusive.
So, if you’re a small business owner who is thinking of using a particular colour to be central to your business, it’s a good idea to check if that colour is already protected with a trademark.
Colour Trade Mark Examples
It’s quite difficult to have a particular colour trade marked because colours are commonly used everywhere.
So, for a colour to be trade marked, it would have to be clearly unique and specifically well-known to be associated to a business’ brand.
A lot of the existing trade marked colours are those associated with big international brands who’ve poured a lot of time, money and resources into making sure that colour is only theirs to use.
Multinational confectionery leader – Cadbury – spent years in court trying to fight for the right to the colour purple as a trade mark against Nestle.
And even Mattel’s iconic fashion doll Barbie has trade marked their popular bright pink that has been used across all their products and branding for the past 60 years.
You might not even know that the original pale yellow used in Post-It notes is also protected by a trade mark.
So, if you’re using any of these colours primarily as part of your brand, it’s possible that you are infringing on an IP right.
Not sure whether your business is already using a trade marked colour?
It’s easy – you can conduct a quick search on Google or on IP Australia’s Trade Mark Register.
Or if you’re still not 100% sure, you can set up a lawyer consultation with our friendly team at sprintlaw and we’d be happy to help.
The Tiffany Blue
Perhaps the most well-known trade marked colour is Tiffany & Co’s iconic turquoise blue that stands out on its classic Tiffany blue box.
In May 2019, a small Australian business owner was sent an infringement notice by Tiffany & Co for using the same blue listed on its website as their main product (you can read more about it here).
This business had already been running for five years, and were completely unaware that the particular colour of their main product was already an IP right protected by a trade mark.
So, even if you’re not familiar with a particular brand’s colour, it’s a good idea to do a quick search on whether you are using an already existing trade marked colour.
Not doing your research beforehand is not an excuse, it’s important to be aware of other companies’ trade marks.
Why?
Infringement warnings are a headache and rebranding is expensive – especially if you already have an established business!
What’s The Risk?
As you can see, operating with a trade mark that is already registered under another business can result in an infringement notice to ask you to stop operating with their trade mark.
In the worst case scenario, your business could be sent a Cease and Desist Letter. This is a letter from the trade mark owner requesting that you stop using the trade mark, or they will commence legal action against you.
Failure to comply can lead to court proceedings and a lot of $$ that you could have saved by doing your research earlier on.
This could also be quite damaging to your business: it means you would have to potentially recreate your business brand from the ground up.
And, if your business is already quite established, the last thing you want is to bear the cost of rebranding your entire business.
It’s expensive, time-consuming and a headache when you have to change what your customers are already familiar with.
This could also mean bad publicity for your business – you could lose the trust and confidence of your customers for a silly mistake that could have been avoided altogether.
What Do I Do Now?
The best thing to do is to be proactive.
Whether you’re new to the business scene or a seasoned player, it’s so important to think about how trade marks might affect your business.
If you don’t have anything trade marked, it’s a good idea to consider whether you want to protect your business name, logo or product name under a trade mark.
Then, you need to check if anything you already use in your business’ brand is already trade marked in Australia.
Not sure how to approach this? No problem – that’s what we’re here for.
Our friendly team at sprintlaw can offer you a legal consultation that includes an Intellectual Property Health Check for your business.
We offer fixed-fee packages on registering trade marks, which already includes all associated admin fees, so there are no hidden fees!
If you’re keen on making sure your business’ IP protection is in good shape, contact us at [email protected] or 1800 730 617.

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About Latest Posts Regie Anne GardoceRegie is a legal consultant at sprintlaw. She has experience across law and tech start-ups, while still completing her Bachelor of Laws and Bachelor of Commerce at UNSW. Latest posts by Regie Anne Gardoce (see all) Colour Trade Marks And Why You Should Watch Out For Them – June 11, 2019 Why It’s Important To Maintain Confidentiality In The Workplace – June 7, 2019 Raising Capital From Friends And Family – How To Do It Right – May 28, 2019

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Why It’s Important To Maintain Confidentiality
In The Workplace
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Posted by Regie Anne Gardoce on 7 June 2019

In any business, the know-how of the day-to-day activities of your business is what keeps your business up and running.
More importantly – it is usually what makes you stand out from your competitors.
So, making sure that this expertise and information is kept within your business is very important.
It might seem straightforward and normal business etiquette, but you want to make sure our business is safe from any potential breaches of confidentiality.
This article will talk about workplace confidentiality –  why it’s important, and what you can do to maintain it.
Why Is Confidentiality Important?
Workplace confidentiality refers to any confidential information that you come across in the course of business.
There are three main types –

the personal information of customers
employee information that managers collect, and
“proprietary information”

This article will focus on the third of these – proprietary information, which you can otherwise simply call “business information” or “trade secrets”.
Business information can include anything from business documents to the ins and outs of business processes, financial data, list of clients, the software code of your product and marketing strategy.
Normally, this kind of information isn’t available to the public, and most definitely not your competitors.
Why?
In today’s highly competitive climate, this confidential information is what could give you an edge over your competitors – so you want to keep it safe!
Examples Of A Breach of Confidentiality In The Workplace
To help you understand the importance of maintaining workplace confidentiality, it would be good to explore the different ways it can be breached.
Let’s start with some examples.
If your former employee leaves to work for a competitor and shares your list of clients, this could potentially leave your business dry.
Or, imagine a contractor creates a software code for your new product, but then uses the exact same software code when they are contracted under another business.
Then that would mean you have an identical product to another business.
This is the last thing you want happening to your business, and so there are a few things you can do to avoid it.
Maintaining Confidentiality In The Workplace
There are legal and non-legal steps you can take to make sure that confidential information is protected in and outside of your workplace.
Do You Have It Down In Writing?
Confidentiality Clauses
It’s always a good start to make your approach to confidential information clear from the outset when you bring new employees, contractors, service providers, suppliers or customers on board.
You would start with a legally binding contract, but it’s always a good idea to include a “confidentiality clause”.
This is an important first-step: safeguard your business information from being stolen by anyone that comes into contact with your business.
Non-Disclosure Agreements/ Confidentiality Agreements
Confidential information can sometimes make its way outside of the workplace – so you want to make sure you’re protected from that too.
Even though you may not be formally engaging with someone as an employee or contractor, you might still be sharing business information through commercial discussions.
For example, an investor may be interested in your business.
This could involve a series of discussions where you might be disclosing lots of confidential business information to make your business look good – from your financial data to clientele and sales strategy.
If this is the case, it is always a good idea to have a Non Disclosure Agreement (NDA), or a Confidentiality Agreement, to make sure that investor doesn’t use or share that confidential information anywhere else.
Not sure how these work? IP Australia gives you a quick run-down here.
IP Assignment Deeds
This is a type of legal document that completely transfers ownership of any intellectual property (IP) created by one person to another person.
IP is key to the success of many businesses – and making sure that your IP is protected also makes sure that your business is protected (we wrote about IP here!).
In business, having this legal contract will make sure that any employees, shareholders or contractors who access or contribute to any intellectual property made within the course of your business will therefore assign that IP right back to you.
For example, if you hire a contractor to help create your company logo, you want to make sure that company logo belongs to your company.
Otherwise, that contractor will have every right to resell and distribute that logo to other businesses.
Under an IP Assignment Deed, that contractor will assign all rights of the logo to your company, so that only you and your company have an exclusive right to use it.
If you’re not sure about what protecting intellectual property means for your business, you can read our guide.
Confidentiality Policies
Lastly, you may also want to consider a Workplace Policy.
When you run a workplace, it’s important to make sure all your workers understand their roles, responsibilities and obligations.
Well-drafted workplace policies ensure your guidelines are consistent and practical.
This is a good opportunity to include rules around workplace confidentiality, which will constantly remind your workers that you take it very seriously.
Do You Have Office Practices To Protect Your Confidential Information?
While it’s great to have confidentiality policies and contracts, there are non-legal steps you can take too.
In today’s world, technology has made it easier to access all kinds of sensitive and confidential information within a business.
You want to make sure that you are using a secure storage platform that prohibits outside access or potential security threats.
Moreover, there are many new tools that enable you to restrict access and permissions to certain information and documents within your business.
This helps narrow down who can see sensitive and confidential information, and also promotes a workplace culture of confidentiality.
For example, you could restrict all the accounts and financial data of your business to the specific people who work with this information directly.
This avoids other workers from accidentally (or intentionally) stumbling across this sensitive information, which may invite bias, discrimination and criticism.
Next Steps
So, we spoke about why maintaining workplace confidentiality is important.
Where to from here?
As a first step, it’s a good idea to seek a lawyer’s help to make sure that all your contracts include confidentiality clauses.
Then, it’s good to start thinking about IP Assignment Deeds, NDAs and Confidentiality Policies.
You want to make sure you’re doing it right, as these confidentiality clauses can be tricky, and sometimes its wording can leave a few gaps.
Further, there could be specific legal requirements for confidentiality agreements.
Each state in Australia has its own laws relating to workplace privacy and surveillance (more details at the bottom of this page).
So you want to make sure you seek a lawyer’s help to draft your contracts and pay particular attention to the confidentiality provisions that would give you peace of mind.
If you’d like help getting your contracts straightened up to protect your confidential information, or would like a consultation on your options going forward, we’re here to help!
You can reach us at 1800 730 617 or [email protected].

Need help with protecting confidentiality for your business?
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About Latest Posts Regie Anne GardoceRegie is a legal consultant at sprintlaw. She has experience across law and tech start-ups, while still completing her Bachelor of Laws and Bachelor of Commerce at UNSW. Latest posts by Regie Anne Gardoce (see all) Why It’s Important To Maintain Confidentiality In The Workplace – June 7, 2019 Raising Capital From Friends And Family – How To Do It Right – May 28, 2019 Property Stylists: Making Sure You’re Legally Protected – May 22, 2019

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Competitions – Do I Need A Permit?
 
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Posted by Esha Kumar on 6 June 2019

Competitions are a great way for many businesses to promote the goods and services they provide.
They can also help to get traction and lead to growth for your business.  
At first glance, it may seem simple to get one up and running.
However, there are strict rules and regulations in each of the States and Territories when it comes to trade promotions and competitions.
If you’re unsure about whether you need a permit for the competition you want to run, don’t fret.
Here are the need-to-knows when it comes to running a competition in Australia
What Are The Types Of Competitions?
There are two types of competitions a business can run:

A game of chance
A game of skill

What’s the difference?
A game of skill tends to require more effort from the entrants.
Most of the time, people who enter games of skill need to create an original piece of work as their entry.
You don’t need to provide the reasons as to why the entrants did or didn’t win but it’s a good idea to keep a record of your judging process.
The winner of the competition is chosen for their skill.
An example of a game of skill is a competition which asks its entrants to answer a question in “25 words or less” or submit a unique piece of work like a photo or video.
On the other hand, the winner of a game of chance is based on pure luck.
Entrants don’t need to demonstrate any skill in a game of chance.
Examples include entering your email address or tagging a friend in a facebook post, in exchange for an entry.     
I Am Running A Game Of Chance – Do I Need A Permit?
Depending on what State you’re based in, you might need to purchase a permit to run a game of chance, whether it be offline or online.
For games of skill, you generally don’t need a permit.
Depending on the State or Territory in which you wish to run the competition, you may need a permit.

 

New South Wales
According to the liquor and gambling regulations in NSW, all games of chance require a permit. You can get one from NSW Fair Trading here.

South Australia
A permit is needed for all competitions if the price of the prize is more than $5000. Apply here.

Northern Territory
A permit is needed for competitions where the value of the prize is more than $5000. Apply here.

Australian Capital Territory
A permit is needed for games of chance where the value of the prize is more than $3000. Apply here.

Victoria, Queensland, Western Australia, Tasmania
No permit needed.

Do I Need Anything Else For A Competition?
Once you’ve got the relevant permit, you have to consider the legal docs you might need before opening your competition to the public.
It’s important to know that, regardless of whether you’re running a game of chance or a game of skill, you will need well-drafted competition terms and conditions and a privacy policy that complies with the Australian consumer protection laws and the Privacy Act.
These terms & conditions will outline the essential provisions that need to be made clear between you and the entrants.
These provisions include the eligibility criteria of the participants, competition duration, how the prize can be claimed and what happens if the winner is unable to claim their prize.
For a game of chance in New South Wales, Queensland and Victoria, there are a few extra things which you need to consider.
A game of chance requires that the draw must occur within 12 months of the permit being issued.
Once the winners are decided, they must be notified and published within 48 hours of the draw occurring.
Winners of a game of chance have to be provided with at least three months to collect their prize.
If the prize is worth more than $500 you must publish a public statement of the winners online or via print.
It’s important that your terms and conditions have the relevant information included in them as it promotes fairness and verifies the genuineness of the competition.
What To Take Away…
Running a trade promotion or competition is a great way to boost the visibility of your business.
A competition permit may be necessary to ensure that your competition is fair and reasonable, along with competition terms and conditions.
If you’re unsure about where to start when it comes to the legals of running a competition for your business, feel free to contact us on 1800 617 730 or send us an email at [email protected]  – we are here to help!

Need help with setting up a competition for your business?
We can help! Just get in touch and we can walk you through your options.
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About Latest Posts Esha KumarEsha is a legal consultant at sprintlaw. She has experience in both the media and legal industries and is currently completing her Bachelor of Laws at the University of Sydney. Latest posts by Esha Kumar (see all) Competitions – Do I Need A Permit? – June 6, 2019 What Do I Need To Know About Convertible Notes? – May 29, 2019 Why Should I Use E-signatures? – May 13, 2019

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