What Is A Share Sale? 
A buyer has two options when it comes to purchasing a company. They can either buy it in the form of a share sale or in the form of an asset sale. 
A share sale is when the shareholder sells shares in a company—including its assets, liabilities and debts. 
On the other hand, an asset sale is just that—the owner can purchase assets in the company, such as client lists, trade marks, goodwill, etc. 
How Does The Process Work? 
There are two types of share sales:
When you’re selling all of the company’s shares When you’re only selling a portion of the company’s shares 
If it is only a portion of shares being sold, the buyer would need to enter the Shareholders Agreement with the existing shareholders. This can be carried out through a Deed of Accession or by creating a new Shareholders Agreement. 
A Deed of Accession is useful because the existing shareholders don’t have to re-sign anything. A new Shareholders Agreement will involve getting all the Shareholders (old and new) to sign it. 
What Do I Need To Think About During A Share Sale?
Firstly, if you’re a buyer, it is important to conduct due diligence to minimise the risks and be aware of the liabilities and debts of the company. 
It is also important to know what type of shares you’re purchasing or selling. There are different types of shares, such as preference shares or shares with different voting rights. 
If applicable, it’s also important to look at the existing Shareholders Agreement or Company Constitution. This is to make sure that the share sale is consistent with those documents. For instance, in some cases, there may be a right of first refusal where the existing shareholders must be offered the shares first, before selling it to third parties. 
Key Terms To Include In A Share Sale Agreement 
To ensure the share sale goes smoothly, some key things you should address in a Share Sale Agreement are:
Shares: The agreement should include the number of shares a buyer is purchasing, and the type of share. This determines what type of rights they have. Price: The number of shares and the purchase price of the shares will determine the total amount the purchaser will pay—an obvious and critical piece of information in these agreements. Completion: This will state when, where and how the seller will transfer the shares to the buyer. This could include things like providing a signed transfer form and share certificates.Pre-Sale Conditions: There could be pre-sale conditions that need to be fulfilled. These could be in relation to confidentiality or a promise to keep existing employees.Warranties and Indemnities: These terms are statements and promises that are representations about the business and the shares that are being sold. If the seller makes false representations, then this allows recourse for the buyer in the form of compensation or termination. Restraints and Non-Competes: These are where all the shares in the company are being sold. The agreement may contain clauses relating to restraint of trade, non-poaching or non-solicitation clauses. Dispute Resolution and Termination Procedures: If there are any disputes, there needs to be efficient dispute resolution mechanisms stated in the agreement. Similarly, termination procedures should address the consequences of termination and monetary relief (if applicable). 
Need A Lawyer?
Whether you’re deciding between an Asset Sale or Share Sale, it can be useful to speak to a lawyer. 
It’s important to get your Share Sale Agreement together in an efficient manner, particularly as there are ASIC obligations relating to registration that must be completed. 
Don’t hesitate to give us a call on 1800 730 617 or email us at [email protected] for a free, no-obligation chat about your share sale arrangement.
The post Understanding Share Sales appeared first on Sprintlaw.

If you’ve entered into a contract for the supply of goods or services, you may have come across the idea of standard terms and conditions. In fact, you might have your own standard terms and conditions that have been written specifically for your business. 
These terms and conditions help to protect your rights, limit your liability, and avoid unnecessary disputes by establishing some ground rules around how you engage with other businesses.
But what happens if your standard terms and conditions are different from a party you’re looking to do business with? Whose terms and conditions will apply? 
In some cases, opposing terms and conditions may lead to a ‘Battle of the Forms’. This battle determines whose terms and conditions will govern the business relationship, so it’s important you to maximise your chances of coming out on top!
What Is A Battle Of The Forms?
A Battle of the Forms arises when two parties are negotiating the terms of a contract and each party wants to contract on the basis of its own terms. One party will make an offer subject to its standard terms and conditions. The other party will appear to accept the offer, but according to its own standard terms. 
It may seem like the parties have reached an agreement, especially in relation to the key subject matter (such as what they are buying and selling, and at what price). 
However, as both parties will have prepared standard terms and conditions that tend to favour themselves, finer details—such as timeframes for payment and delivery, or dispute resolution processes—may be inconsistent.
An Example Of A Battle Of The Forms
Leila was recently approached by Tom to supply coffee beans for his new cafe. Following this, Leila provides Tom with a quote and her standard terms and conditions of supply. Tom then issues a purchase order, containing his own standard terms and conditions of purchase. Leila starts supplying Tom with coffee beans.
Neither Leila or Tom reads the other party’s terms and conditions. Although they agree on the product, quantity and price, they have different terms surrounding when Tom needs to make payment.
A dispute arises between Leila and Tom, with each side arguing that their own terms and conditions apply in relation to when payment should be made.
This is a common scenario and it can cause a lot of headaches—especially for small businesses that already have a lot on their plates. But rest assured: it can be avoided!
So, Whose Terms And Conditions Apply?
Before we answer the question of whose terms and conditions will prevail in a battle of the forms, it is helpful to understand how contracts are formed. 
In Australia, the formation of a contract involves an offer and acceptance. 
In the scenario above, Leila makes an offer when she provides Tom with her terms and conditions of supply. Following this, Tom has two options: to either accept Leila’s exact terms and conditions, or to make a counter-offer by responding with his own terms and conditions. 
When the terms of a purported acceptance are not the same as the offer, it is generally considered to be a counter-offer. So, in this scenario, by sending Leila his standard terms and conditions along with his purchase order, Tom will likely be seen to be making a counter-offer. 
It is up to the party who made the original offer to accept or reject the counter-offer, either expressly or by their conduct. 
Here, the last shot rule comes into play. This rule generally determines priority between each party’s terms and conditions. Whoever had the “last shot”—or whoever made the last offer—will have their terms and conditions applied. 
As Leila started supplying Tom with coffee beans after he presented her with his terms and conditions, her conduct will constitute acceptance of his counter-offer. As a result, Tom’s terms and conditions will likely apply. 
It is important to note that not every case will be this simple. There are other factors that can displace the last shot rule. 
For example, there may be situations in which a party’s terms and conditions expressly states that they are the applicable terms and conditions. Or there may be cases where there’s no clear offer, counter-offer, or acceptance. In these more complex cases, it’s recommended that you seek professional legal advice to find out where you stand.
How Do You Fire The Last Shot?
In most business arrangements, things will run smoothly and, hopefully, you won’t need to discuss opposing terms and conditions. However, it’s important to be prepared in case this happens. After all, unclear contract terms can be time consuming and expensive to resolve.
Here are some things you can do to maximise your chances of firing the last shot:
Expressly reference your terms and conditions during contract negotiations, as well as in all relevant documents (such as your quote or purchase order). Make sure to provide the other party with a copy of your terms and conditions.If the other party sends you their own standard terms and conditions, you should express in writing that you do not accept them and that you will only proceed on your terms and conditions. Again, make sure to provide them with a copy of your terms and conditions. This will minimise confusion about the grounds on which you are willing to buy or sell. 
Other things you can do to avoid a Battle of the Forms include:
Where practical, enter into a contract that includes the agreed terms and conditions, and has been signed by both parties. This makes it clear which terms and conditions will apply to the agreement.
Before you begin performing any contractual obligations, make sure it is clear whose terms and conditions apply. Don’t start executing your obligations until the issue is resolved. For example, don’t start delivering goods or making payments until you’re clear on where you stand. Where there is an ongoing relationship, it may be worthwhile to negotiate a set of terms and conditions that is appropriate for both parties and that will apply to all future transactions. This can help build a strong, positive relationship.Remember, you are protected from unfair terms and conditions under the Australian Consumer Law, so the other party can’t make you agree to these. 
Need Help?
If you’re not sure whether your standard terms and conditions will apply, or if you’d like some assistance drafting your own standard terms and conditions, Sprintlaw has a team of friendly lawyers ready to help! 
Get in touch with us for a free, no-obligations chat on 1800 730 617 or at [email protected].
The post The Battle Of The Forms: When 2 Parties’ T&Cs Go To War! appeared first on Sprintlaw.

Given the legal profession’s love for language – and its often confusing use of words for similar principles – it’s no surprise that some may be confused between ‘deeds’ and ‘agreements’.  
Aren’t these just fancy words for contracts? Do they have the same effect? Or are they in a different ballpark all together? 
This article will explain the difference between deeds and agreements, and help you decide which is best for your situation. 
What Is An Agreement?
In general, it can be considered that all contracts are agreements. However, whether an agreement is binding (that is, enforceable by law) depends on the circumstances of the agreement.
A written agreement usually refers to an exchange between multiple parties, where one party will provide goods/services to another party in return for ‘consideration’. This ‘consideration’ is commonly monetary compensation, it can also be anything of value.
Elements Of An Agreement
For an agreement to be legally enforceable, there must be
An offer and acceptance of the offer;An intention by the parties to be legally bound by the agreement; andConsideration, which is some form of exchange of value from one party to the other. Consideration is a very broad term that can mean much more than just money (though this is the most common form of consideration). 
Agreements can be expressed in written form or can be agreed upon orally. They are enforceable regardless of which form is used. 
For example, a typical agreement may state: I offer to mow your garden, and you accept and agree to pay me $30. 
 In this scenario, there is a clear offer and acceptance from the parties, as well as a clear intention to create legal relations. Lastly, there has been consideration provided in the form of the $30 monetary payment.  
What Is A Deed?
A deed is a form of promise or commitment to do something. 
A deed emphasises the fact that a party is honestly indicating their intention to follow through with what they have promised.   
A deed is commonly used to show a party’s intention to:
Transfer an interest in propertyCreate an obligation that a party must act on
How Is A Deed Executed?
In NSW, for a deed to be enforceable, it must be in writing. 
The deed must also be signed, sealed and delivered to the counterparty for it to be binding.
You will also need a witness who is not a party to the deed. 
So, What Are The Key Differences Between Deeds and Agreements?
The main thing that differentiates a deed from a binding agreement is that, in order for a deed to be binding, consideration is not necessary.
Furthermore, while an agreement is enforceable whether it is made orally or in writing, a deed must be executed in writing. 
But how do courts determine whether something is an agreement or a deed? 
This is often decided by considering parties’ true intentions. If the person executing a deed is intending that the document will be immediately binding on themselves, it’s more likely to be seen as a deed rather than an agreement.
Another key difference between deeds and agreements is limitation periods. A limitation period is the amount of time after a certain event has occurred that a party can initiate legal proceedings.
For a breach of contract, the limitation period is usually 6 years after the breach. When it comes to deeds, given their unique nature, it is common to find a limitation period of 12 years. 
What To Take Away…
To avoid confusion as to whether a document is an agreement or a deed, words that explicitly show the intention of the document should be used. For instance, you may specify that the document is “to be executed as a deed”. The wording and format of the document is vital to show your intentions and avoid future headaches. 
Deciding whether you wish to execute a deed or an agreement will depend on the circumstances of each individual case. 
As a deed is binding once it has been ‘signed, sealed and delivered’, it may be commonly used when parties are unsure about whether there has been sufficient consideration provided. This will ensure that the obligations under the proposed agreement are legally binding. 
What’s more, some states require that certain transactions must be executed by a deed in order to be valid. 
If you are unsure about what form of instrument or agreement to use, it is important that you seek legal advice.
At Sprintlaw, we have a friendly and experienced team of lawyers ready to help! Get in touch for a free, no-obligations chat at [email protected] or on 1800 730 617.
The post The Difference Between Deeds And Agreements appeared first on Sprintlaw.

Social media has become a great platform for creativity, content creation and entertainment.
And, for many, it’s a fantastic money-making opportunity.
Whether you’re on the way to becoming an Instagram influencer or a rising star on TikTok, social media can open up additional income opportunities through sponsored content. 
It’s a great way to earn some extra cash (and maybe, one day, it’ll turn into your full-time career!). But, as your brand grows, it’s smart to start thinking about your legal set up. It’s never too early to start legally protecting yourself. 
If you’re trying to make money off social media, you should be asking yourself:
What does this mean for me legally?Am I running a business?What contracts will I be agreeing to?What happens if things go wrong later?How do I protect myself?
In this article, we’ll walk you through 3 key legal points to consider if you’re trying to make money off social media. 
1. Let’s Get Down To Business… Do You Need To Formally Set Up As A Business To Make Money On Social Media?
If you’re looking to earn income in return for work you’re performing for others on social media (like sponsors or brands), you’re essentially running a business—and that’s great!
However, this is when you need to start thinking about your business structure and how you want to manage your social media activities.
As a first step, you should think about what structure you’ll choose for your business. Often, newcomers and first-time businesses will set up as a sole trader. This means that you’ll be running your business under your own name. Generally, you’ll need an Australian Business Number (ABN)—and you can use this when sending out invoices. 
Setting up as a sole trader is perhaps the most practical option for influencers who are just starting out. It keeps your operating costs low, while still allowing you to officially operate as a business. 
However, as your business grows, being a sole trader might expose you to increased risk as you engage with more people. In this case, it’s a good idea to start thinking about whether to register as a company.
Registering a company means that you set up an entirely separate legal entity that has limited liability. 
Basically, running a company means that if you incur any business debts, your personal assets are generally kept separate from your business dealings. Conversely, being a sole trader means you’re operating under your own name and may be personally liable for your business debts.
However, setting up as a company can be expensive and you’ll have ongoing compliance obligations such as ASIC Annual Reviews. 
Choosing a business structure depends on your budget and your plans for your growth as an influencer. But don’t panic: you can always change your business structure if your social media business evolves. 
2. Content Is King… So Protect Yours!
As your platform grows, the more important it becomes to protect your brand and the content you’re producing. 
This could mean protecting your social media handle (or the name you give to your platform), your style or your logo. You don’t want anyone else profiting from your platform!
In Australia, there are various ways you can protect your brand. As a first step, you might want to apply for a trade mark for your brand name or your logo. For example, if you’re starting to sell merchandise with your branding on it, you’ll want to make sure that you own the rights to that branding.
If your trade mark application is successful, you’ll have the exclusive right to that trade mark for up to 10 years. This means that if anyone else uses your trade mark without your permission, you can enforce your right to the trade mark against them. 
Your content might also be protected by copyright. In Australia, copyright is ‘automatic’. You don’t need to manually register it. Copyright generally arises as soon as you express a creative idea in material form (for example, through uploading a video on YouTube or posting your digital art on your Instagram). 
The last thing you want is someone copying your content and making money off of it.
To avoid this, you should make it clear from the very beginning that your work is your own copyright. For example, you could have a Copyright Disclaimer on your YouTube channel. This will make it extra clear that the copyright of the works belongs to you. 
However, it’s just as important to avoid accidentally using someone else’s intellectual property in your content. You could face hefty penalties for infringing someone’s copyright or using their trade marked materials. For instance, you should be careful about using another business’ logo in your content or copying someone else’s artistic style. 
The last thing you want is to enter into a legal dispute with another business over branding! If you’re not sure where you stand, it’s a good idea to speak to a lawyer.
3. Get Your Head Around Contracts 
While you may not be at this stage just yet, signing contracts will be a huge part of your life  if you start to make money from social media. 
So, it’s important to understand what they mean for you.
One of the most common contracts you’ll come across are Influencer Agreements. This is the contract you’ll be given if a brand engages you to promote their products on social media as a ‘brand ambassador’ or ‘sponsor’.
It’s a good idea to make sure you have a good read of this contract before signing (or have a lawyer look at it).
Remember: you can still be legally bound to the terms of a contract even if you never actually read it!
If a brand provides you with a contract, it’s important to understand what you’re getting yourself into. You should have a think about:
Payment: How will payment work? Will the brand give you free products in return for your promotion, or will you also receive a commission?Intellectual property: If you create video content to promote a brand (which may contain their trade marked logo), who has the rights to that content?Cancellation/ Term: How long will you enter into this relationship with the brand? Will you be an ongoing ambassador, or are you doing a one-off promotion?Disputes: What happens if something goes wrong between you and the brand? What happens if a customer or follower is unhappy with the product you’ve promoted?
As an influencer, when you’re up against bigger brands, it’s even more important to be careful before signing contracts. This is where a lawyer should step in to help you understand how it all works.
Speak To A Lawyer
Though your brand might still be growing, it’s always a good idea to think about your legals sooner rather than later.
Whether you’re hoping to make money on YouTube, Instagram, TikTok or any other site, we’re here to help.
Our expert lawyers can help with setting up a business, protecting your brand, reviewing your contracts and more. Get in touch with us for a free, no-obligations chat on 1800 730 617 or [email protected].
The post 3 Things To Consider If You Want To Make Money From Social Media appeared first on Sprintlaw.

In the course of running a business, there may be some situations where you might run into a dispute with another business (though, let’s hope this doesn’t happen!).
In these situations, there can be a lot of back and forth between both of you. And, if you’ve finally come to “settle” on an agreement to end the dispute, you want to avoid any further headaches.
This is where a Deed of Settlement steps in.
What Is A Deed of Settlement?
A Deed of Settlement is effectively a legal document that is signed by both parties to settle a dispute.
Generally, both parties sign a Deed of Settlement to avoid any further legal costs or disputes. 
The terms within this document are legally binding to reflect whatever both parties agreed.
For example, you might have entered into a lengthy dispute with another business around debt recovery.
To settle the dispute and avoid any more headaches, you might both agree to settle for a certain amount of money. And, you want to make sure this issue doesn’t come up again.
So, whatever you’ve agreed to “settle” on should be put down in writing.
In your Deed of Settlement, you can include any remaining payment obligations or confidentiality requirements to make sure that both parties don’t ruin each other’s reputation by spreading word about the dispute.
This keeps the end of the process clean, and ensures that any remaining obligations will be completed by signing a legally binding agreement.
It’s always a good idea to formalise any agreement you make. And it’s even more important to do this if you want to avoid any further disputes.
What Is Included In A Deed of Settlement?
This would really depend on the situation.
But, typically, a Deed of Settlement will include two main types of clauses:
Release clauses: Parties agree to release each other from any future claims, demands and actions against each other.Default clauses: Setting out consequences if one party doesn’t fulfil their obligations under the deed.
Need Help?
If you need help ending a dispute by putting together a Deed of Settlement, we’re here to help!
You can reach out to us on 1800 730 617 or [email protected] for a free, no-obligations chat.
The post Ending A Dispute With A Deed of Settlement appeared first on Sprintlaw.

Operating tours is an exciting business concept. However, there are some risks involved.
And this is why it’s always important to think ahead—what legals do you need to hit the ground running?
Generally, the first step is to have a contract with your customers.
We call this Tour Terms and Conditions.
Why Do I Need Terms & Conditions For My Tour Business?
Just like any business, you need terms and conditions—these form the contract between your customers and your business.
And, if you have a lawyer draft them for you, you’ll have a legally binding agreement that protects you as much as possible.
Typically, your T&Cs will cover:
Payment: How does it work?Cancellation: What if someone wants to cancel?Liability limitations: To what extent is your business responsible for your customers?
But, in a tour business, there are extra risks involved, and additional considerations you’ll need to make. Some things you’ll need to think about, and factor into your T&Cs, are:
What if someone gets lost while on a tour? What services do you provide? What won’t you do for your customers? Do you give customers any equipment? What happens if this equipment is damaged or lost?Are you accountable for what happens to customers during the tour?
This is where an experienced lawyer can help. They can walk you through the common risks for your business and how you can manage them with a contract.
Do I Need A Waiver?
In any business that exposes its customers to high-risk recreational activity, it’s always a good idea to have a waiver in place.
While it’s not legally required, having a waiver is a good way to provide yourself with extra protection.
As you’re running a business that opens itself up to risks of injuries or harm, a waiver reduces the risk of these situations being used against your business in the long run.
What About A Privacy Policy? Do I Need One Of Those, Too?
As with any business, you’ll also need a Privacy Policy if you’re operating a tour business. 
And, depending on what kind of information you collect, you might need quite a specific Privacy Policy.
For example, if you collect any health or sensitive information for the purposes of your tour, you need to have a very specific Privacy Policy that deals with the use, collection and storage of sensitive information. 
At Sprintlaw, we’ll make sure your Privacy Policy complies with the Australian Privacy Principles and protects the unique operations of your business. 
Need Help?
If you need help understanding your contracts, or just navigating the legal landscape of setting up a tour business, we’re here to help!
You can reach us on 1800 730 617 or at [email protected] for a free, no-obligations chat about your specific situation.
The post How To Set Up A Tour Operator Business appeared first on Sprintlaw.

If you’re in the car rental business, you’re dealing with a lot of valuable assets that you hire out to customers day-to-day.
In this case, it’s a good idea to make sure that you’re protected if anything goes wrong. As such, it’s best practice to have a contract between you and whoever hires your vehicles.
A Car Rental Agreement sets out the legal obligations of both parties when a car rental business hires out a vehicle. 
Why Do I Need A Car Rental Agreement?
A Car Rental Agreement can potentially limit your liability in the event of an accident. 
When renting out a car, there are also multiple cost variables your business will have to take into account. As cars can be worth thousands of dollars, it’s important both parties are clear on who is responsible for any damage to such a valuable asset. 
And, at the end of the day, it’s always a good idea to make sure that both you and your customer are on the same page.
We can draft a simple, clear contract that you can reuse for all of your customers, addressing the unique needs of your car rental business. 
What’s Included In A Car Rental Agreement? 
Generally, a Car Rental Agreement will include:
A description of the car being hiredThe length of time of the hireConsequences of damage to or loss of the carAccident and third party insuranceExcess, payment details and termsOther vital protections to limit your liability
We’ll also include specific terms for your car rental business, such as:
Toll prices Cleaning fees Petrol fees DepositLate chargesFees in the event a customer incurs a fine while using the rental car
Need Help?
Our lawyers were trained at top tier law firms and are experts in contract drafting. Contact us at [email protected] or on 1800 730 617 to find out more. We’re available for a free, no-obligations chat to help you understand what contracts you need for your specific situation.
The post Understanding Car Rental Agreements appeared first on Sprintlaw.

Agreements between multiple parties can be a complex area to navigate. A Deed of Guarantee & Indemnity can be useful in order to help parties avoid future disputes by allowing a party to guarantee that the obligations of another party will be met. 
But what is a Deed of Guarantee & Indemnity and what does it do for you? 
Here’s what you need to know.
What Is A Deed Of Guarantee & Indemnity?
A Deed of Guarantee & Indemnity is a document signed by parties in order to confirm that one of the parties to a contract will guarantee the performance of one of the other parties. 
An easy example for this is in the context of loans, where one party will guarantee that another party repays a loan by a certain date, otherwise they will repay it for them.
When Do I Need A Deed Of Guarantee & Indemnity?
A Deed of Guarantee & Indemnity can be useful for you in a number of situations. For example, you may look at getting one if you are lending money to a company and wish to ask the director to personally guarantee that they will cover the loan if their company is unable to at the date of repayment. It is a method of ensuring that you will be repaid even in the event of the borrower being unable to make payment. 
In its most general sense, though, a Deed of Guarantee & Indemnity will be useful when you are looking for assistance in obtaining funding or services which you may otherwise have a hard time getting, based on capital. 
What Is Included In A Deed Of Guarantee & Indemnity?
A Deed of Guarantee & Indemnity typically includes clauses regarding:
Details of what is being guaranteed
Indemnity
Releases 
Need Help?
A good lawyer will be able to draft your Deed of Guarantee & Indemnity to ensure that the agreement is clearly set out for all parties involved, and that you are protected if a dispute arises.
At Sprintlaw, we focus on drafting comprehensive, easy to understand and user-friendly agreements for businesses. 
Feel free to get in touch with us to get things started with your Deed of Guarantee & Indemnity! Our friendly team can be reached at 1800 730 617 or at [email protected] for a free, no-obligations consultation.
The post What Is A Deed of Guarantee & Indemnity? appeared first on Sprintlaw.

A Teaming Agreement is a contract between two or more entities to jointly tender for work to complete a service or other project together. 
A Teaming Agreement allows two businesses or parties to join their resources together for a specific project without having to establish another entity. 
By having a well-drafted Teaming Agreement, you can avoid disputes further down the track.
What Is Included In A Teaming Agreement?
Teaming Agreements typically address the following issues:
Parties’ rightsParties’ obligationsHow payment will be sharedTermination clausesDispute resolution clausesIntellectual property ownershipConfidentiality 
Need Help?
We specialise in drafting high quality contracts, and have assisted many businesses with Teaming Agreements. Don’t hesitate to contact us at [email protected] or on 1800 730 617 for a free, no-obligations chat about your specific situation.
The post What Is A Teaming Agreement? appeared first on Sprintlaw.

If you’re about to sell or buy a business, that’s great!
However, entering into a business transaction can be a big expense.
In some situations, the vendor might agree to lend all or part of the purchase price to the purchaser.
To put this agreement into writing, you need a Vendor Finance Agreement.
What Is A Vendor Finance Agreement?
This contract is essentially an agreement between a vendor and a purchaser, where the vendor agrees to lend all or part of the purchase price to the buyer.
It’s typically used when the buyer does not have the full funds available to complete the business purchase.
In this case, the vendor might agree to loan all or part of the purchase price to the buyer for a set period, and with an agreed interest rate.
What Is Included In A Vendor Finance Agreement?
The most common terms we’ve seen in a Vendor Finance Agreement include:
Payment scheduleInterest rateConsequences of defaultRights on liquidation of the businessLiability protection
However, each transaction is different! As such, it’s important to speak to a lawyer to understand exactly how to protect yourself and have a contract tailored to your situation.
Need Help?
If you need help putting together a Vendor Finance Agreement, we’re here to help!
You can reach us on 1800 730 617 or at [email protected] for a free, no-obligations chat about your situation.
The post Vendor Finance Agreements: What You Need To Know appeared first on Sprintlaw.

Whenever a client agrees to engage with your business for work, it’s best practice to make sure they sign something before you start working with them.
An Engagement Letter sets out the terms on which your business is entering into a relationship with your clients.
The purpose of an Engagement Letter is to set out the expectations of both parties to the agreement. 
It’s really important to have the terms on which you’re entering into a business relationship written out in this formal agreement. An Engagement Letter ensures both parties understand what services are being provided and how they’ll be delivered.
An Engagement Letter also serves as the common foundation between your business and its customers—establishing clarity through the progression of your business relationship.
When Do I Need An Engagement Letter? 
Engagement Letters are generally used when a professional services firm is engaged by their client for a piece of work. 
Most businesses use Engagement Letters when onboarding new clients. 
Generally, Engagement Letters are less formal than a contract. However, they are still legally binding. 
Importantly, Engagement Letters reduce liability and clearly outline the roles and responsibilities of both your business and its customers. 
What’s Included In An Engagement Letter? 
Engagement Letters outline the scope of services to be delivered to your customer. This lets your customer know exactly what they’re paying for and what they will be receiving.
You can also use an Engagement Letter to specify how your customer can proceed with additional services.
Even though Engagement Letters are intended to be brief, they efficiently communicate the scope of services to be provided to your customers, the terms and conditions of your business, and deadlines. 
Some common provisions you can find in an Engagement Letter include:
Payment and late payment Scope of services to be provided Liability protections Intellectual property ownershipConfidentiality Duration, termination and deadlines 
Need Help? 
Having a properly drafted Engagement Letter is essential to your business’ operations. It helps set your expectations with your clients and customers, secures your payments, protects your intellectual property, and prevents other legal risks from arising. 
However, if you don’t have legal experience, it can be hard to know whether you’ve got it right. 
Having a lawyer draft a strong Engagement Letter will give you clarity around the terms on which you’re working with your clients. It’ll also relieve you from the stress associated with the legal side of the business, so you can focus on what you love to do!
If you’re looking to get an Engagement Letter written up, feel free to shoot us an email at [email protected] or give us a call on 1800 730 617. We’re available for a free, no-obligations chat to discuss your specific situation.
The post Why It’s Important To Use A Business Engagement Letter With Your Clients appeared first on Sprintlaw.

If your business is operating similarly to businesses such as Airbnb, Ebay and Uber, you may be running what’s called an online marketplace. 
Whether you’re just starting out or you’re looking to take your existing online marketplace to the next level, it’s important to have the right legals in place. This will set you up for success and protect you from future risk. 
In this article, we’ll run through everything you need to know for building a strong online marketplace — the risks you need to be aware of, the key legal contracts you’ll need, how to deal with your sellers, and more. 
What Is An Online Marketplace?
An online marketplace is an introductory service. It is a platform that introduces sellers to potential buyers (and vice versa), and helps facilitate transactions (for example, by allowing payment through the marketplace). 
A traditional goods-based marketplace like Gumtree allows sellers to list their items online. When a buyer wants to purchase, they will pay on Gumtree. From there, it’s really up to the buyer and seller to communicate how it all works – from negotiating price to arranging delivery.
Some marketplaces, like Airtasker, extend to service-based offerings. This works the same way as your traditional marketplace, but basically connects customers to service providers such as cleaners, tutors or handymen. And newer marketplaces are getting creative with how goods or services are shared on their marketplace. 
But no matter how simple or complex your marketplace is, it’s important to understand the legal steps required to set it all up. 
What Are The Risks Of Setting Up An Online Marketplace?
Setting up an online marketplace involves connecting multiple parties all in one place. Naturally, this carries some risks. These include:
Liability: When working between multiple parties, there’s a lot of room for mishaps, so you don’t want to be liable for what happens between the parties connecting on your site.Privacy: It’s common to collect personal (and sometimes sensitive) information during the course of your business, so you’ll want to be transparent about how you do that.Paying people correctly: In some marketplaces (think Ubereats or Deliveroo), there are issues around treating sellers as contractors or employees. This is important because employees have certain entitlements that aren’t extended to contractors, so you need to make sure you’re meeting employment standards. 
What Contracts Do You Need When Running An Online Marketplace?
Now that we know the risks involved in setting up a marketplace, it’s important to understand how to manage them. 
From the legal side of things, setting up the right contracts will ensure you limit these risks as much as possible. Below, we’ll run through the key contracts you need to put in place for your online marketplace. 
Marketplace Terms and Conditions
Marketplace Terms and Conditions set out the terms that users need to comply with to use your marketplace. This includes describing the buyer-seller relationship, disclaiming information about using the marketplace, and limiting liability for what happens between buyers and sellers. 
Since a marketplace involves a relationship between multiple parties, you’ll need terms and conditions that your buyers and sellers agree to. Put simply, you want to make sure that everyone is on the same page.
For example, it’s important that sellers understand:
The standard of ‘acceptable use’How membership or registration worksHow payment works on your platformThe extent of your liability (this is where disclaimers come in!)
As for the customers on your platform, you should ensure they understand: 
What it means to register an accountHow payment works on your platformWhat happens if they’re not happy with what they receiveWho is responsible when something goes wrong
Terms and conditions need to be carefully drafted, so it’s crucial you speak to a lawyer to ensure this document addresses your marketplace’s specific set up (we’ve written more about this here). 
Website Terms and Conditions
As an online marketplace, you will need Website Terms and Conditions (just like any other business that runs a website). It’s important for any e-commerce store to have these in place, given the large volume of general traffic on websites. 
Website T&Cs will limit liability for anything that goes wrong while users are browsing your website. For example, if there is a bug or the website crashes, the last thing you want is to be held responsible for any damage or loss this may cause. 
Additionally, it’s crucial to have a copyright disclaimer protecting your copyright ownership of your website. This can also be included in your Website T&Cs.
Privacy Policy
Your marketplace will most likely be dealing with a lot of personal information, like users’ phone numbers or emails. As such, you need to have a Privacy Policy in place. 
This Privacy Policy will disclose to your users how your marketplace handles personal information. It will determine how your marketplace sellers are required to handle customer information, too. If you use cookies on your website, you may also need a Cookie Policy to further protect you on the privacy front. 
In any business, it’s generally good practice to have a Privacy Policy that tells your users how you collect, store and protect their information. But there are some instances in which you might need to think about privacy a little deeper:
Collecting sensitive information: If you’re collecting any health or sensitive information, there are additional regulations that may apply to you. For example, if your marketplace connects people to a health professional, and they’ll need to disclose some health information, you’ll need the customer’s consent before collecting it. We’ve written more about collecting health information here. GDPR: If you think you might be collecting any personal information from anyone in the EU, be aware of the General Data Protection Regulation (GDPR). This regulates the way you collect and use people’s information, and how you should let them know you’re collecting it. You may need a GDPR Privacy Policy for your marketplace. 
Choosing The Right Business Structure For Your Online Marketplace
Another way you can manage the risks associated with running an online marketplace is by adopting the right business structure. Let’s walk through some common business structures you may select for your online marketplace. 
Sole Trader/Partnership
If you’re just starting out, it probably makes the most sense to operate under a sole trader or partnership structure. This means that you’ll be running the business under your own name.
This is a great way to keep costs low and tasks simple. But you need to keep in mind that, under this structure, you’re personally liable for any business debts. 
Company
A company might sound more daunting, complex and expensive to run. But it’s actually the safer option when setting up a marketplace. 
A company structure means your marketplace is separate from you, so you won’t be personally liable for any business debts. 
Figuring Out The Best Payment Structure For Your Online Marketplace
Once you’ve decided on your business structure, you need to think about how you’ll be receiving money. This will be your payment structure. 
The 3 main payment structures are:
Commission-based: You get a percentage of the seller’s earningsSubscription-based: Customers can make recurring payments to use your marketplaceListing fees: Sellers make a one-off payment for listing items 
Each payment structure is different and needs to complement your marketplace, so it’s important to understand which one is suited for your business. 
Determining Whether Your Sellers Are Employees Or Contractors
As we mentioned earlier, it’s important to know if your sellers are employees or contractors so you can ensure you’re paying them correctly. Employees have certain entitlements under the National Employment Standards, but contractors don’t. Here are some of the main differences:
Employees:
Are entitled to sick leave, annual leave, minimum wage, etc. Are covered by the business’ insuranceAre controlled by the business (in terms of things like work and wages)
Contractors:
Are their own ‘boss’ (they control their own work and how much to charge)Need their own ABN Need their own insuranceAre not entitled to National Employment Standards
A recent case with Uber Eats discussed the main differences between employees and contractors in the food marketplace — we’ve written about it in detail here. 
So, are your marketplace sellers contractors or employees?
In marketplaces, sellers are generally considered contractors because their work is not controlled by the marketplace. They sort out their own prices and negotiate with the customers themselves. 
This might get tricky where your sellers provide services on an ongoing basis, which is similar to an employment relationship. 
Uber Eats drivers, for example, are independent contractors but claimed in a recent case that they were employees because of the nature of their work. However, it was decided that they were not employees because they were not obligated to perform work at Uber’s request. 
If your sellers are independent contractors, they need an ABN and they need to comply with your payment structure. 
If they are employees, you need to ensure they have their minimum entitlements under the National Employment Standards. 
If you still need help figuring out whether your marketplace sellers are employees or contractors, we’ve written about it here. 
Need Help Setting Up A Marketplace?
Setting up a marketplace can be a long process with lots of legal considerations. With the right help, your marketplace can easily take off! 
Whether you need help with your terms and conditions or business structure —  or if you just don’t quite know where to start — Sprintlaw has a team of experienced lawyers who are ready to help. 
Feel free to reach out to us at [email protected] or contact us on 1800 730 617 for a free, no-obligations chat about setting up your online marketplace.
The post Building A Successful Online Marketplace: Legal Tips appeared first on Sprintlaw.

Having a contract with your international business partners is essential. 
As an example, let’s suppose we have a Supply Agreement between an Australian manufacturer and a German distributor.
Ordinarily, both parties will be required to perform what each promised under the contract. But, as is common in many commercial relationships, things can go wrong and parties can get into a dispute.
This can be even more complicated for cross-border transactions. If the German distributor does not honour the terms of the contract, how will the Australian manufacturer enforce its rights since both parties live in different jurisdictions with different laws?
The answer boils down to you having a well-drafted contract that can trigger enforcement in several jurisdictions.
So, if you are undertaking overseas transactions and wondering whether your contracts are enforceable in different jurisdictions, read on! This article will address all the important clauses and issues to be aware of when drafting cross-border contracts.
The Governing Law And Jurisdiction Provisions
If you are thinking of going to court to enforce your contract, then the governing law and jurisdiction clauses are fundamental to your ability to enforce an international commercial contract.
Why are they important?
The governing law provision determines the law of the jurisdiction that will regulate the contract.
The jurisdiction provision, on the other hand, determines the jurisdiction whose courts will hear disputes between the parties.
For example, if the parties choose the laws of New South Wales as the governing law, then the laws of New South Wales, and Australian contract law generally, will apply for the purpose of interpreting the terms agreed by the parties. 
Likewise, if the parties choose New South Wales as the jurisdiction of choice, then the courts of New South Wales will hear any disputes arising from the contract between the parties, while also adopting Australia laws to interpret the contract.
How Can I Include The Governing Law and Jurisdiction Provisions In An International Commercial Contract?
These clauses are usually set out as one of the last clauses of any contract. Look out for clauses titled ‘Governing Law’ and ‘Jurisdiction’, or something similar.
These clauses are very frequently negotiated when drafting up international contracts.
This is because you and your foreign business partner might want your respective country’s laws to be included in the contract.
If both of you are unable to reach an agreement on the applicable law and jurisdiction, then you may reach a compromise by adopting a uniform international convention ratified by your respective countries. For example, Australia and Germany are member states of this international commercial framework called the Contracts for the International Sale of Goods (often known as the Vienna Convention or CISG), which could be adopted as the governing law of the contract.
This could be a compromise governing law that aligns with the commercial principles in both Australia and Germany.
What About Enforcing The Contract?
Suppose the Australian manufacturer gets a judgment from an Australian court in its favour, which can, on paper, be enforced on the assets of the German distributor in Germany. But practically, how will the Australian manufacturer go about this process?
This is where it gets complicated.
In July 2019, a new Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters was adopted, which may make enforcement of foreign judgments easier. However, this is not yet in force and its effect will depend on the rate of adoption by countries around the world.
In the meantime, the enforcement of an Australian judgement overseas may be a complicated task, and it will depend on the bilateral treaties in place between the countries. 
In the above example, the worst case scenario for the Australian manufacturer is that they’ll have to commence a fresh action in Germany. 
The same rule will apply vice-versa if you need to enforce a German judgement in Australia.
So, as an alternative to enforcing a foreign judgment, international commercial arbitration comes into play.
What Is International Commercial Arbitration?
Arbitration is a private dispute resolution process where parties to a commercial contract agree to refer disputes to a third party, known as an arbitrator. Ultimately, the arbitrator will make an award for the determination of parties’ rights and liabilities.
An award has the same binding effect on parties as a court judgment. The former, with far-reaching impact. This makes arbitration very popular in resolving cross-border commercial disputes and often more preferable than court litigation.
In other words, the major advantage of arbitration is the enforceability of arbitration awards in numerous jurisdictions.
This is facilitated by The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (‘the New York Convention’) which ensures the recognition and enforcement of awards in any of its member countries. Currently, 157 countries – including Australia – have ratified the New York Convention.
The New York Convention allows you to enforce an arbitral award in any country that is a member state as though it was a judgment of the national court in that state.
This is quite different from court litigation, where recognition and enforcement of a foreign judgment in the court of other countries is largely dependent on the principles of reciprocity.
Does International Arbitration Cost Less Than Litigation?
International arbitration could be expensive but it’s worth it for big transactions.
You can also tailor arbitration proceedings to meet your financial needs. For instance, you may choose to appoint one instead of three arbitrators, set a timeframe for the arbitration proceedings, and so on.
What Is In An International Arbitration Clause? 
Make sure your contract has an international arbitration clause that suits your needs and can be enforced in different jurisdictions. You will need to get legal advice on the following:
The seat of the arbitration: This will be the country whose arbitration law would govern the arbitration proceedings. You should be careful not to select a jurisdiction that is not hospitable to arbitration.The venue of the arbitration: This is not to be confused with the seat, which has legal ramifications. The venue is literally the physical location, so it’ll come down to what’s convenient for the parties (including where you’d prefer to sneak in a holiday!).The language to be used in the arbitration.Choice of substantive law: This would govern the interpretation of the contract and disputes arising from it.Arbitration rules that would govern the arbitration process – for example, those of an arbitral institution such as the Australian Centre for International Commercial Arbitration (ACICA) or the International Chamber of Commerce (ICC).The number of arbitrators:The usual practice is to appoint one or three.
What Is The Effect Of A Valid International Arbitration Clause? 
If your arbitration clause is drafted properly, the other party will be prevented from commencing an action arising from the contract in any court in virtually all the countries of the world. 
This could be done by submitting an application that would stop the proceeding in the court where the action is commenced. The court will then refer the matter to arbitration in compliance with the arbitration clause in the contract.
What Are The Problems With Enforcing An Arbitral Award? 
Suppose that you have now won an arbitral award in your favour.
So, what next?
From a commercial perspective, an arbitral award is not worth the paper if it cannot be enforced.
Many parties in arbitration proceedings are unable to enforce awards in their favour due to the legal and strategic decisions they made, or failed to make, during the contract drafting stage.
Below are some of the issues you should consider when negotiating an international arbitration clause.
Location Of Assets
Identifying the location of the other party’s assets before you sign on the dotted line will ease the enforcement process of the award.
In fact, a clear understanding of the requirements for enforcement in the relevant locations should influence your choice of seat, governing law and jurisdiction during negotiation. 
Obviously, you want proceedings to take place where the other party’s assets are situated to ensure a seamless enforcement process. This would place you in an advantageous position if the losing party defaults in complying with the award.
For instance, if the losing party refuses to pay you the money claimed in an award, you know which of its assets you will monetise to offset your claim.
To do this, you will apply to the court where the assets are located for freezing orders. This will secure the assets of the other party from being moved to another location.
It’s important to get this right before the award is made.
If it is impossible to locate the assets of the other party, you should demand some form of security upfront. This may be in the form of bank guarantee or payment into an escrow account.
Arbitration Laws Of The Seat Of Arbitration
When negotiating the seat of arbitration, you should ask yourself the following questions:
● What are the legal grounds for objecting an arbitral award in the seat of arbitration?
● What disputes cannot be settled by arbitration in the seat of arbitration?
● How do their courts treat non-nationals?
Answers to the above questions are important because variances exist in the legal requirements of different countries. Even among New York Convention member states, arbitration laws are similar but not identical in all cases.
Restrictions In The International Arbitration Clause
You should be careful not to include stringent restrictions that could undermine the enforcement process.
Examples could be the qualifications of arbitrators or setting a restricted time frame within which the arbitration would take place.
This could play to the advantage of the party against whom the award is made to frustrate the enforcement process if those stipulations were not complied with.
Incapacity of Parties In An Arbitration Proceeding
An award will be ineffective if made in an arbitration proceeding that involves a party that lacks legal capacity to participate in the proceeding.
This is more important if you are dealing with a state actor or an agency of a state actor. 
You should ensure that all necessary authorisation needed to confer legal capacity has been sought and obtained. This could be challenging but it will be worth your effort in the long run.
Legal Grounds For Objecting The Enforcement Of An Arbitral Award
An award cannot be enforced on its own. Sometimes, you might need the intervention of the court to enforce it.
The last thing you want to happen is for the court to refuse to enforce the award. It’s important to keep in mind the grounds for refusal that are set out in the laws of each jurisdiction. 
In Australia, these are:
Incapacity of any of the partiesInvalidity of the arbitration agreementNotice of proceedings or arbitrators’ appointment not given to the losing partyNon-arbitrability of the subject-matter of disputeImproper composition of the arbitral panelThe award has been set aside by the relevant court or not binding on the partiesThe subject-matter in dispute was not covered under the arbitration agreementEnforcement of the award will be contrary to public policy
This list is enshrined in Australian legislation, but it is actually taken straight from the New York Convention—which means that other nations who have ratified the New York Convention will have a similar list in the law books.
This is the beauty of international arbitration as businesses from around the world can do commerce with each other under the same rules.
Need Help Drafting An International Arbitration Clause?
Drafting an international arbitration clause requires a lot of painstaking efforts and, if not properly managed, could put you in a fix.
If you need guidance in negotiating or drafting an arbitration clause in your transnational contracts, we are here to help! Get in touch with our team on 1800 730 617 or [email protected] for a free, no-obligations chat about your situation.
The post Drafting An Internationally Enforceable Arbitration Contract appeared first on Sprintlaw.

In any business, contracts will be everywhere you go — from your customers to suppliers, contractors, employees, graphic designers and even your monthly subscriptions!
However, contracts generally are signed between two parties.
So, what happens if one party wants to transfer or assign their rights and obligations under a contract to another party?
This is where a Deed of Assignment comes in.
What Is A Deed?
In the legal world, there are two main types of legal documents: agreements and deeds.
Agreements are generally the most common contracts you’ll see. However, deeds work a little differently.
Put simply, a deed needs to be physically signed and witnessed in person. This means that it’s difficult to sign deeds with international parties.
So, it’s important to understand that a deed has specific requirements for execution.
What Is A Deed of Assignment?
A Deed of Assignment is a legal document that transfers or assigns the legal rights and obligations to another party.
And it varies depending on your situation.
For example, an assignment could work for simple things like intellectual property. When a graphic designer creates a logo for you, you might want to make sure that logo is owned by you. In this case, the graphic designer would “assign” that copyright to you.
Or, if you’re selling your business, you might want to transfer your contractual relationships to whoever is purchasing your business. 
For example, if you have existing contracts with suppliers to your cafe business, you might look at transferring these to the buyer. Here, you’d sign a Deed of Assignment to transfer the rights and obligations of that contract to the new owner of your business.
A Deed of Assignment makes sure that you no longer have continuing obligations and rights as a signatory to that contract. The last thing you want is to be liable or accountable for a contract you forgot to assign to someone.
Need Help?
If you need help putting together a Deed of Assignment, let’s chat!
You can reach out to our friendly team on 1800 730 617 or [email protected] for a free, no-obligations consultation about your specific situation and the legal documents that are right for you.
The post What Is A Deed of Assignment, Anyway? appeared first on Sprintlaw.

Are you thinking of starting up an online subscription business? Or does your website accept payment on a regular basis as part of a subscription service? 
Online subscription-based services are rapidly growing in popularity, with streaming services, media outlets, and editing software companies leading the way. 
Before you start your business, though, you need the right legal documents in place. One of the key legal documents you’ll need is a set of Online Subscription Terms and Conditions. 
It’s a good idea to have these terms and conditions in place because the way people use your website is often out of your control. Unlike ordinary Website Terms and Conditions, if you’re running a subscription service, there are certain provisions in your terms and conditions that must be strongly emphasised to ensure you’re protected. 
What Should Be Included In The Terms & Conditions For My Online Subscription Service?
Generally, the terms and conditions for your online subscription service should address important matters such as:
User conductYour right to terminate the customer’s accountUse of intellectual propertyLiabilityWarrantiesNon-refundable feesPayment termsRestrictions on use What happens when the subscription is terminated
Need Help?
At Sprintlaw, we have expertise in drafting Online Subscription Terms and Conditions, and have drafted them for a variety of subscription-based businesses.
Feel free to contact us at [email protected] or on 1800 730 617 for a free, no-obligations chat about setting up your online subscription service and the legal documents you’ll need.
The post How To Start An Online Subscription Business: Legal Tips appeared first on Sprintlaw.

Loans are quite common between businesses — whether that be with a bank or with another business.
There are two main types of business loans: secured and unsecured.
Secured loans, however, are seen as a lot safer for lenders. This is because a secured loan holds a security over the debt. 
And, to effect that security in writing, you’ll need a General Security Agreement.
Why Do I Need A General Security Agreement?
A General Security Agreement sets out the terms by which your personal property can be held as security for a loan.
Typically, you should also have a proper Loan Agreement in place. And, in some cases, that Loan Agreement would have terms around security (if it is a secured loan).
However, on a practical basis, some businesses prefer to have an entirely separate General Security Agreement to be extra safe.
A General Security Agreement gives the lender the right to register their security interest on the Personal Property Securities Register (PPSR) and make a claim over the secured property in the event the borrower defaults on the loan.
So, if you’re ever providing a business loan with security, it’s a good idea to have a General Security Agreement in place.
Need Help?
If you need help with a General Security Agreement, our experienced lawyers are here to help. 
You can reach out to our friendly team on 1800 730 617 or [email protected] for a free, no-obligations chat about your specific situation.
The post General Security Agreements: What You Need To Know appeared first on Sprintlaw.

There are several different ways to structure a company. Some people like to set up a unit trust.
Often, a unit trust might simply be set up with a Trust Deed. However, in some situations it could be a good idea to have a Unitholders Agreement.
What Is A Unitholders Agreement?
A Unitholders Agreement is a contract between the different unitholders or the owners of a trust (and sometimes between the trustees themselves).
Put simply, it sets out how that trust will be managed — setting out the rights and responsibilities of each owner. 
For example, you might want to establish whether a unitholder needs to approve certain types of decisions. This is particularly important when the company has investors!
Why Do You Need A Unitholders Agreement?
While not a legal requirement, it’s always a good idea to have a Unitholders Agreement in place.
Unitholders Agreements typically address:
How decisions are madeWhat happens when a unitholder wants to leave the trustHow disputes are handled
…and anything else you might want to include!
An experienced lawyer can help you put together a contract that works for you and your needs.
Need Help?
If you need help putting together a Unitholders Agreement, we’re here to help!
It can be quite a complex process, so it’s a good idea to speak with an experienced lawyer.
You can reach us on 1800 730 617 or at [email protected] for a free, no-obligations consultation about your specific situation.
The post I Have A Unit Trust: Do I Need A Unitholders Agreement? appeared first on Sprintlaw.

In any business, branding is really important — especially if your business has been in the game for quite some time. The last thing you want is a competitor using your brand name that you’ve worked very hard to build.
Often, the first step in making sure your brand is protected is by applying for a trade mark.
However, sometimes there may be complications with your trade mark application, causing you to receive an adverse report from IP Australia. 
In some cases, your application might have difficulties because there is already a registered trade mark similar to yours.
At first, this can be very frustrating. Especially if you’ve been using that brand for many years.
If this is the case, there is a way for you to challenge this adverse report. We do this through preparing what’s called an Evidence of Prior Use Report.
What Is Evidence Of Prior Use?
Preparing an Evidence of Prior Use Report means putting together evidence to prove that you have been using that trade mark already, and have built a brand around it, for many years prior to the other trade mark’s registration. 
However, preparing this report can involve a lot of work. 
First, you’ll have to collect a significant amount of evidence to demonstrate that your trade mark has been recognised by consumers as an indicator of your business.
And, on top of that, you’ll need a lawyer to prepare submissions to support this evidence. 
Together, these form your Evidence of Prior Use Report that will be examined by IP Australia.
What Happens If I’m Successful?
If all goes well and IP Australia accepts your report, your trade mark can successfully co-exist with the other trade mark.
However, this entire process can be quite costly and a bit of a headache. And, if you’re unsuccessful, you’ll have to re-brand your business entirely.
To avoid this risk, it’s always a good idea to think about trade marks as early as possible. This is why we recommend that businesses apply for a trade mark as soon as they can, before it’s too late.
Need Help?
If you need help putting together an Evidence of Prior Use Report, or want to speak to a lawyer about your options, let’s chat!
You can reach us on 1800 730 617 or at [email protected] for a free, no-obligations chat about your situation.
The post Preparing An Evidence Of Prior Use Report appeared first on Sprintlaw.

In any business, contracts are at the heart of most transactions you make.
But if your business grows and you’re dealing with more people, or if you’re changing the way you do things, you might want to change the contract you originally agreed to.
Rather than diving deep into the contract and making adjustments yourself, there’s a more simple way to do this.
This is where a Deed of Variation comes in. 
What Is A Deed of Variation?
Put simply, a Deed of Variation is a legal document that “varies” or changes one or more clauses of a former contractual agreement.
It will set out the details of what changes are being made, and any other legal formalities required to put that variation into effect.
However, it’s still a good idea to make sure you get a lawyer to assist you in doing this.
Why?
While it sounds easy to just “vary” a contract, you want to make sure that you can actually do this. For example, you want to check whether the contract you want to change has a clause that allows you to vary it.
Some contracts set out specific processes for changing terms of a contract. For instance, some parties to a contract might require written notice and prior approval before varying a contract. And, as some contracts are quite intricate and cleverly drafted, changing one term of the contract might affect the entire document. 
This is why it’s a good idea to have a lawyer guide you through this process.
Need Help?
If you need help varying an existing contract, come and talk to us!You can reach out to our friendly team on 1800 730 617 or [email protected] for a free, no-obligations chat about your situation.
The post Changing A Contract With A Deed of Variation appeared first on Sprintlaw.

Everyone’s talking about what the “new normal” will look like, especially in terms of how our professional lives will change as a result of the Coronavirus pandemic. We’ve seen that working from home in Australia is possible in most cases, so why can’t that home be in another country? 
When you run a lean business, hiring contractors —as opposed to permanent part-time or full-time employees — can often be a smart, cost-efficient business choice. 
However, you might be wondering how the legals work when engaging contractors who are located overseas. What laws will apply? How do you protect yourself and your business? How do you pay foreign independent contractors? 
In this article, we’ll cover the key legal issues you need to be aware of when considering engaging overseas contractors.
What Is The Difference Between Employees and Contractors?
Your legal obligations as an employer depend on whether you employ someone as an employee or as a contractor. 
It’s crucial that you understand the difference between employees and contractors to avoid entering into a sham contracting arrangement that can result in a hefty penalty.
There are common factors that, when considered together, contribute to whether an individual is an employee or an independent contractor. In most cases, overseas workers will likely be considered an independent contractor according to the factors listed below and, in particular, based on the degree of control and autonomy they exercise in relation to how work is completed. This is not always the case, however, so it is still important to exercise some diligence when engaging workers overseas.
Degree of control over how work is performed
Whereas the work completed by an employee is performed under your direction on an ongoing basis, independent contractors have autonomy over how they complete their work.
Hours of work
An employee will generally work standard or set hours. 
In contrast, independent contractors will, according to an agreement, decide what hours to work in order to complete a specific task.
Expectation of work
While an employee will usually expect that they will have ongoing work, independent contractors are engaged for a specific task.
Tools and equipment
As the employer, you will provide the necessary tools and equipment (may include uniform) to your employee. 
Contractors will provide most, if not all, of the tools and equipment required to complete work. They do not receive an allowance or reimbursement for this.
Method of payment and leave entitlements
Employees generally receive regular payments and leave entitlements. Where they do not receive leave entitlements, they may receive casual loading. 
Contractors have their own ABN and will provide you with an invoice for work completed.
Risk
Employees bear no financial risk. Instead, as the employer, you will be held legally responsible for any actions your employee performs under their employment contract.
In contrast, contractors bear the risk for profit or loss on each task, responsibility and liability for poor work or injuries sustained. As such, they will generally have their own insurance policy.
Superannuation and tax
As the employer, you have an obligation to withhold PAYG tax and make superannuation contributions for your employees. 
In most cases, independent contractors will generally manage their own superannuation and tax affairs. However, there are some circumstances in which they will be entitled to paid superannuation contributions.
The correct classification of an individual as an employee or contractor will depend on the working relationship as a whole. You can read more on this topic here.
What Is A Contractor Agreement?
If you wish to engage a contractor to provide your business services, it is recommended that you enter into a Contractor Agreement. 
This is especially important when it comes to hiring a foreign contractor as language barriers and cultural differences can lead to miscommunication. 
The agreement should also consider the local laws of both countries; what may be the case in Australia is not necessarily the case in another country, and vice versa. 
A Contractor Agreement is drafted to protect your interests and will set out important details such as: 
Scope of the workTime requirements Price, payment method and currency of paymentConfidentialityIntellectual propertyUse of equipmentExclusivityConflicts of interest Liability and indemnityDispute resolution mechanismsGoverning law and jurisdiction
How Can You Protect Your Business’ Intellectual Property?
As set out in the list above, Intellectual Property (IP) is one of the items that should be dealt with in a contractor agreement — and a really important one, too!
Without the right clauses, generally an independent contractor will, by default, own and retain the IP and copyright of any work they create, even if it is something you engaged them to do. So it is important to ensure that your Contractor Agreement contains a clause stating that IP and copyright of any work created under the agreement will be transferred to you.
For example, if your business engages an independent contractor to design your logo, the Contractor Agreement should include a clause stating that they will transfer their rights in IP to the business. This will make sure that you can use the logo as a brand asset without risking copyright infringement.
When engaging an independent contractor, you will also want to ensure that all information you provide to them, such as businesses materials and assets, remains confidential. Getting a contractor to sign a Confidentiality Agreement or a Non-Disclosure Agreement (NDA) is an effective way to protect private information from becoming public. 
Which Country’s Laws Will Apply?
Your Contractor Agreement will need to include a clause that sets out the jurisdiction and governing law. Governing law refers to which country’s laws will apply to the agreement, and jurisdiction establishes which country’s judicial and court system will handle any disputes. 
If you’re an Australian business, it will probably make sense for you to have everything under Australian law as you’ll have easier access to the legal services and the courts in Australia. 
You may still face difficulties where your overseas contractor is subject to local laws. When engaging an overseas contractor and drafting your Contractor Agreement, you should check for any local laws that may apply, and whether there is any conflict with Australian standards.
How Do You Bind Foreign Entities?
Where the contractor is an Australian company, a contract is generally executed under s 127 of the Corporations Act 2001 as it gives you as the client the assurance that the directors, representing the contractor, have the authority to bind the company. 
However, there can be some uncertainty if your contractor is a foreign company, as every jurisdiction has its own rules about how companies can execute documents.
The best way to make sure you create an enforceable binding agreement is to seek the advice of a lawyer from the appropriate jurisdiction. However, this can be an expensive process and may not be worth it depending on the work you’re engaging the contractor for.
How Do You Pay Foreign Contractors?
So long as you have the correct information, paying contractors located overseas doesn’t need to be difficult. 
The main things to consider here are whether you will need to withhold tax from payments, if you are required to make a superannuation contribution and, of course, how the payment should be made. 
Tax and superannuation obligations 
Generally speaking, contractors will take care of their own tax and superannuation affairs. 
Note: Australia has tax treaties with some countries which may affect the amount of tax that contractors will need to pay.
Making the payment
The currency and method of payment should be outlined in the contractor agreement. Although using your bank may be the most convenient option, transaction costs can be expensive. It may be worth researching businesses that specialise in providing low cost money exchanges at a good rate. Some examples include Transferwise, PayPal, World First and OFX.
Need Help?
Navigating the world of hiring overseas can appear tricky, especially if you need to look into the employment laws of another country. 
If you’re looking to engage an overseas contractor, we’re here to help! Feel free to get in touch with us at [email protected] or 1800 730 617 for a free, no-obligations chat.
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