Terms and Conditions are Crucial to Your Business. Learn Why!

Date: November 19, 2018 By:

Terms and conditions drafted for your unique business will fulfil numerous functions. They will

Women's hand holding a white card with the words - Terms and conditions

Do you have your T & C’s reviewed regularly? Do you use them as a business tool?

protect your business
act as a tool to keep disputes to minimum
keep your business running smoothly

The Power of Terms and Conditions

Daniel owns a business manufacturing stainless steel kitchens for restaurants.

Crystal and Andre fit out restaurants.

Crystal and Andre send Daniel an email requesting a quote. They want Daniel to build the benches and shelves for a new restaurant they are fitting out. At the bottom of the email are Crystal and Andre’s standard terms and conditions.

Daniel sends Crystal and Andre a quote to supply the benches and shelves. On the quote are his standard terms and conditions.

Daniel negotiates with Crystal and Andre, and they agree on

price,
quantity,
quality and
time for delivery.

They didn’t think about the rest of the T & C’s in their documents.

Crystal and Andre send Daniel a Purchase Order again including their standard T & C’s.

Daniel delivers the shelves and benches to Crystal and Andre, and they accept them.

Chef in stainless steel restaurant kitchen. Did the kitchen installer provide the chef with a warranty for the benches. Did it have terms and conditions

If the stainless steel benches in the kitchen are faulty who will the chef have a claim over? The installer or the manufacturer? It should all be in the T & C’s.

Daniel didn’t discuss the T & C’s on the Purchase Order with Crystal and Andre. Did Daniel accept Crystal and Andre’s terms and conditions? Did he assume his terms and conditions still governed the transaction? Whose terms and conditions govern the transaction?

The T & C’s on Daniel’s quote benefited him. The T & C’s on Crystal and Andre’s Purchase Order benefited them. Both sets of terms and conditions are inconsistent with each other.

Luckily, nothing went wrong with this transaction. Daniel continued to work with Crystal and Andre. But, this behaviour is dangerous, and one day something might go wrong.

What Could Have Gone Wrong

Many things go wrong with transactions. For example:

the products could be defective
the customer might not pay
the customer might be late paying
damage might occur to the goods during delivery

Terms and conditions should cover all these problems and more.

What other terms could have been in conflict?

When did the title of the goods transfer to the buyer?
Who carried the risk for the goods during the delivery phase?
How long does the defect warranty last?

The uncertainty of whose T & C’s apply makes solving the issues more

Hour glass with pink sand and money - coins and notes blurred n the the background

It takes more time, money and effort to resolve an issue than it does to have T & C’s drafted and negotiated in the first place.

difficult
time-consuming and
expensive to resolve.

Time spent negotiating terms and conditions for a transaction far outweigh the

time,
effort and
money

spent resolving whose terms apply.

Terms and Conditions = A Contract

T & C’s of trade are a contract. For there to be a contract:

someone must offer to sell or do something
Someone must accept the specific offer.
if the exact offer is not accepted, then there may be a counter offer, i.e. the customer offers up their T & C’s.
By the parties continuing with the transaction, the contract is formed by conduct. Even though no one formally accepts an offer. It doesn’t matter which offer, that of the seller or the buyer.

What steps can you take to avoid T & C’s Uncertainty?

Don’t be in a position where you do not know which terms and conditions govern the transaction. Know what the T & C’s of the transaction mean.

Send each customer a “New Terms and Conditions of Trade”. Do this for both new and old customers. Make sure you have had these T & C’s drafted in clear, plain English. Use proactive contracts with examples, images, diagrams and timelines to help make them easier to understand. Send reminders to your customers about your terms and conditions especially when you update them. When you update your T & C’s put a notice on the front page of your website.

Get your customers to sign a copy of the T & C’s. Keep the signed copy of the terms and conditions, note when, where, how and who sent it to you. This note then becomes evidence if there is ever a dispute.

Refer regularly to your terms and conditions. During the transaction ensure they are followed. Sometimes your staff will think of an easier way around something. However, it may contradict your T & C’s and may cause a dispute. Use your terms and conditions. Don’t put them in a bottom drawer.

Put a copy of your terms and conditions on your website. Put the URL of the T&C’s on sales materials and other documents. Anything you give to customers and prospective customers should have a link to your T & C’s.

Draft a clause that states explicitly only your terms and conditions are acceptable. Any T & C’s put forward by the customer are excluded.

Make sure your

- order confirmations,
- delivery slips and
- tax invoices

all refer to your terms and conditions in some way. Have delivery slips signed by the person accepting delivery.

Australian Consumer Law and Terms and Conditions

Take into account the Australian Consumer Law as unfair terms maybe unenforceable against:

consumers
small businesses.

Draft your clauses with your customers in mind.

Safety First. Avoid the T & C’s Risks

Knowing the terms and conditions of trade for a transaction can avoid disputes. Even though they do not have the word Contract at the top of the page, T & C’s are still a contract. Pay attention to the exchange of documents and emails with your customers. They might try to sneak their T & C’s under the radar.

Using your terms and conditions as a tool and knowing what the T & C’s of each transaction are will make running your business easier and safer.

When was the last time you updated your Terms and Conditions?

Download our e-book Six Signs Your Terms and Conditions Need a Makeover. 6 Signs Your T&C's Need a Makeover

FICPI 17th Open Forum Venice October 27

Date: October 29, 2017 By:

FICPI has invited Steven Brown to speak at the 17th Open Forum on Trademark Valuation. The FICPI 17th Open Forum is being held in Venice at the Molino Stucky Hotel.
FICPI Logo 17th International Forum - Trademark Valuation October 27

Over 1000 Patent and Trademark Attorneys attend the conference from October 25 – 28. FICPI will host over 20 seminars covering all aspects of Patent and Trademark law.

Steven Brown

Steven Brown has over 30 years’ experience in the Law. He practices in the areas of

Intellectual Property
Misleading and Deceptive Conduct
Trademark Valuation

and advises public and private sector clients on all aspects of business law.

Steven has authored articles in the areas of

Intellectual Property
Banking and Finance
Contract Law
Business Law

as well as chairing and speaking at many legal and business conferences.

Steven Brown will speak on trademark valuation at FICPI 17th Open Forum

Steven Brown said “It is an honour to be invited to speak again at the FICPI Open Forum. I have chaired and spoken at many legal conferences.

Each one provides a fabulous opportunity to showcase my work and the work of the firm. Also, I hear up to date legal issues from the experts in their field from many countries. Such as: Qatar, Singapore, United Kingdom, United States and Switzerland.

Being with the myriad of experts allows me to

broaden my knowledge and
gain skills

that would take years to otherwise perfect.”

Venice is the perfect place for a conference on Intellectual Property.

Venice itself is a brand and within it some of the largest brands in the world sell their wares.

The brand of Venice is about its DNA it’s

history
experience
beauty
landscape
food

The brand brings 30 million tourists a year to Venice. Because of the DNA of the brand of Venice other brands benefit. The DNA of Venice is unique. This is not the same for most other brands where the DNA can be copied. It is important to protect the DNA of your brand.

Launch PDF file.

Find Out More About Intellectual Property

Employment Law Changes 2017

Date: September 19, 2017 By:

The employment law changes 2017 will affect all employers. Although, franchisors are the focus of the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017.

Call Etienne Lawyers NOW on 1800 882 032 to talk to one of our friendly and helpful lawyers about how the employment law changes 2017 will affect you and your business

In 2016, several Franchisee’s of high profile Franchises were underpaying staff:

7-Eleven
Pizza Hut
Domino’s
Bakers Delight

Employees working around a table. Employment Law Changes 2017

“Businesses that don’t keep the right records, dont give proper payslips, or who make false or misleading records and payslips face higher penalties.”

Natalie Jones – Fair Work Ombudsman

The Fair Work Act has not changed the obligations of employers significantly. But, the changes to the penalties are significant.

There are new obligations for Franchisors and holding companies. they may be liable for breaches of the law made by franchisees or subsidiaries. These workplace laws start October 27, 2017.

Record Keeping

There are now hefty penalties for employers breaching recordkeeping responsibilities. Keeping accurate records for at least 7 years is the key:

Details of employee’s name
Commencement date
Employment Status
Pay
Hours Worked
Leave
Superannuation Contribution

Employers must give payslips to employees within 1 working day of payment.

I Am Not a Franchisor. I am a Licensor

Fair Work has changed the definition of “Franchise”. Licensing of intellectual property by agreements may make you liable under these amendments. You may not be a franchise according to the Franchising Code but you may be liable according to Fair Work.

Exposing you to these new laws and making you responsible for your licensee’s breaches of the law.

Higher Penalties

There are now much higher penalties for serious contraventions of the Act, such as not paying employees in full without setoff and at least monthly. The Act considers serious contraventions to be such acts that are:

deliberate or intentional; and
form part of a systemic pattern of conduct, where such conduct occurs in relation to at least one person.

These penalties are up to 10 times higher than previous penalties. Individuals can face penalties of up to $108,000 and companies can face penalties of up to $540,000.

New penalties exist for providing false and misleading information to Fair Work inspectors. As well as prohibitions on hindering or obstructing them.

Ban On Employees Paying Back Wages

The changes to the Fair Work Act ban employers requiring employees to pay back part of their salary in cash. 7-Eleven made some of their employees pay back a part of their wages in cash. This is now expressly prohibited in the new Act.

Employment Law Changes 2017 – What Should I Do Now?

It is important that employers, franchisors, and licensors do not panic. Get proper legal advice that suits your particular circumstance.

“All You Need to Know about Hiring and Firing.”

Steven Brown presenting a seminar on employment law.

Would you like to have your franchisee’s or licensees trained on the employment law changes 2017. Click on the link below to go to our training page to learn more.

Training

Misleading and Deceptive Conduct – What Happened to Get Qualified Australia

Date: April 5, 2017 By:

Get Qualified Australia (GQA) is a defendant in legal proceedings brought by the ACCC. The ACCC allege GQA engaged in misleading and deceptive conduct, unfair contract terms and unconscionable conduct. They also alleged GQA made false or misleading representations to its customers.

Some Background

GQA was a company that matched its customers with Registered Training Organisations. This helped them to get formal qualifications. They were then able
to apply for jobs holding recognised certificates and qualifications.
GQA offered money back guarantees to its customers.
GQA is now in liquidation.

Legal Actions

The ACCC used the Australian Consumer Law to take legal action against GQA.

The ACCC alleged that GQA had:

engaged in misleading and deceptive conduct in contravention of s18
engaged in unconscionable conduct in contravention of s21 and
its agreements contained unfair contract terms within the meaning of ss23 and 24.

Freezing Order

Section 137F allows for a freezing order. This means that a company cannot chase customers for outstanding payments.

The court stated that s137F:

“is not available for the purpose of preserving assets to meet pecuniary penalties”.

The section is available to:

“preserve assets to meet orders for compensation”.

The freezing order isn’t to make sure a company has the funds to pay a fine. The order ensures the company pays compensation to those who have suffered damages.

If a court grants a s137F order then usually the Applicant (person seeking the order) has to undertake to pay damages. If the respondent defends the Applicants allegations and due to the freezing order sustained damages the Applicant has to pay the damages for the losses incurred.

The court granted the ACCC a freezing order pending the final outcome of its legal action. The ACCC didn’t have to give the usual undertaking in this case. The ACCC didn’t have to give the undertaking. The Court believed the ACCC was acting in the public interest.

The orders prevented GQA “commencing or progressing debt collection activities”. The orders also froze several of GQA’s bank accounts

ACCC Alleged

According to the ACCC, GQA engaged in misleading and unconscionable conduct by:

not honouring its “100% money back guarantee”;
assuring customers they were eligible for qualifications when they weren’t;
GQA used unfair sales tactics;
GQA insisted on up-front payments and providing important terms and conditions after payment;

“The ACCC alleges that Get Qualified targeted vulnerable consumers with conduct that was clearly unfair and unreasonable, including providing them with false or misleading information about eligibility and refusing refunds,” ACCC Chairman Rod Sims said.

The Results of Alleged Misleading and Deceptive Conduct

GQA is now in liquidation

“As a result of the freezing orders and the ACCC’s and ASQA’s actions, GQA has been starved of funds, placing [it] in a difficult financial position:” Get Qualified CEO Adam Wadi.

The ACCC proceeds with the prosecution even though the company is in liquidation.

The ACCC will no doubt win the prosecution as there is no defence. The Court will grant the pecuniary fines asked for by the ACCC. Another precedent will be set.

How would your business cope if it were in this situation? You may not intend to engage in misleading and unconscionable conduct. But the law does not take into account your intentions.

Misleading and deceptive conduct can occur in any business communication:

advertising – online and offline
brochures
telephone conversations
business proposals
contracts
terms and conditions
emails…….etc.

Avoid engaging in misleading and deceptive conduct.

Contact our expert Steven Brown on 1300 882 032 or email

To learn more about misleading and deceptive conduct watch the video below.

Steven Brown presenting to Parramatta Chamber of Commerce eNRGy 3 Networking Group on Misleading and Deceptive Conduct.

12 Ways to Use Photos Legally on Your Website or Social Media

Date: March 28, 2017 By:

To Use or Not To Use Photos Legally

Have you received a letter for using images without permission? Do you want to know how to use photos legally on your website and social media profiles?

Page views, likes and clicks are what we all want to help grow our businesses. So, we look for ways to increase our online presence.

Social media and websites are fabulous marketing tools. We use social media and websites to sell product and get new customers for little or no money. It’s never been this easy to market ourselves, our products or our services.

Every SEO post and guru tells us that we need to tell a story. So, what better way than ‘with a thousand words’ – how do we get our thousand words but with a picture of course. Images and graphics are powerful tools. Images will convert more customers and sell more product than text alone. As a result, we task ourselves with finding the perfect image.

What To Do

12 Ways to Use Photos Legally on Your Website

Now comes the tricky bit. Where can we get that elusive picture to tell our thousand words, exactly as and when needed.

Oh, that’s right, there’s this thing called the internet and it is full of pictures. We can browse the internet and find the exact image we need. Don’t worry we’ll credit the person who took the photo or created the image. They’ll love the extra publicity we are giving them. WRONG.

You need to make sure that you use photos legally. So, the first task should be to make sure you know what is legal and what isn’t.

Can I Use Those Photos Legally?

Photographers and artists own their images. The images have rights attached to them, even if there is no copyright listed. It’s very easy to copy and paste from a website page. But, a letter may arrive stating that you have committed copyright infringement. You could end up paying significant amounts of money, far more than you can imagine.

What’s The Cost

Getty Images seems to be on a crusade to stop image theft. We have had several clients come to us with letters they have received from Getty Images.
Getty Images has tools to crawl websites and social media posts. They match the image they find to copyrighted images. Then they send out those offending letters that nobody wants to receive.
While most of us aren’t professional photographers we need a solution to the problem. While, the solution may seem unattainable with knowledge and care you can get that image you need.

Download our FREE ebook – Is Your Website Legal – 12 Ways to Use Photos. It will help you understand how to use images without fear of prosecution.

DOWNLOAD HERE – 12 Essentials for Using Photos Legally

Keep Your Advertising Message Legal

BLAB Small Business Talk Australia Websites

Date: November 5, 2015 By:

BLAB featuring Steven Brown

BLAB SMALL BUSINESS TALK AUSTRALIA WEBSITES

Don’t miss Etienne Lawyers’ next BLAB Small Business Talk Australia Websites at 4pm AEDT Sunday 8 November 2015. This week we will be discussing all things website related.

In case, like we were a couple of weeks ago – completley oblivious to BLAB, it is an app in which up to four people have a video conversation whilst others watch and are able to interact by making comments or asking questions. We have jumped feet first into this new app and are loving it. Don’t be shy come and join us.

Now down to the matter of what will we be discussing in BLAB Small Business Talk Australia Websites?

Websites – Any thing and everything including:

Does every business need a website?
How is the best way to get a website?
What should a website cost me and how should I expect to pay for it?
SEO – what is it and why do I need it?
Marketing – a very big topic, having a website is great but unless people know you have one it is just a waste of money.
Breach of Copyright
Defamation – Your website makes you a publisher.
Are you responsible for the content users leave on your website?
Terms and Conditions of Use of Your Website
Website Privacy
Contracts
Trade Mark Infringement
Misleading and Deceptive Conduct

The points above are a general guide to our conversation but feel free to jump in and ask questions. We will BLAB for about an hour and it will be recorded. If you miss the live the stream it will be available at the same link. If you have questions that weren’t answered in BLAB Small Business Talk Australia Websites please contact our BLABbers offline for further information.

This weeks BLAB features James Cooke – Cooke Consulting @CookeConsulting, Julie Sanderson – Jacaranda Grove Consulting @jacarandagrove, Steven Brown – Etienne Lawyers @SteveBrown_ and Suzanne Brown – Etienne Lawyers @tbearetienne. Don’t forget to follow our BLABbers on Twitter.

BLAB Small Business Talk Australia Websites – Join the BLAB Here

DOWNLOADS

Etienne Lawyers FREE download – Is Your Website Legal? – 12 Ways to Use Photos Legally on your Website will help you to understand how to use photos on your website without fear of prosecution.

Images and graphics are powerful tools in your business. They will convert more customers than text alone. But if you are using those images illegally you could end up paying significant amounts of money, far more than you can imagine.

Is Your Website Legal? BLAB Small Business Talk Australia Websites

Get Your Free Download Now!

Buying Off The Plan – Filming for ICLE

Date: October 27, 2015 By:

Buying Off The Plan

Etienne Lawyers was again asked to film a presentation for ICLE. Steven Brown’s presentation was focused on purchasers buying off the plan and developers selling off the plan. Steven has many years experience acting for both developers selling off the plan and purchasers buying off the plan. He understands the benefits and pitfalls from both the purchaser and developers point of view. Steven’s extensive experience in this area made him the logical choice for ICLE in presenting this area of law as training for other lawyers.

This is a very topical subject at the moment. With the Sydney skyline having more cranes than any other in the world except Dubai. Most of the buildings are new apartments. With interest rates low and overseas buyers being restricted to mostly new properties – new apartments are very popular. Also peaking interest in NSW is the First Home Owner Grant and First Home – New Home scheme offered by the State Government. New apartments can be cheaper than houses and land making them easier to satisfy the rules of the government schemes.

With property prices rising sometimes 10% a year developers can sell a property off the plan and not complete the building for 5 years. In that 5 years the selling price may have increased by $100,000.00 making it advantageous for the developer to decide not to sell to the original purchaser and put the property back on the market and sell for a higher price.

Buying off the plan has advantages for the purchaser but also disadvantages. There have been many examples recently in the media of developers withdrawing properties from sale, changing the size of lots, changing the fixtures and fittings, even reducing the number of bedrooms. All of this was discussed in Steven’s presentation.

There are proposed updates to laws being proposed by several State Governments.

To find out more about Buying Off the Plan, download our free reference here.

Linkedin for Lead Generation

James Cooke from Linkedin Success gave a fabulous presentation on using Linkedin as a Lead Generation Tool for Lawyers. James is passionate about using Linkedin as a lead generation tool and he conveys this passion in his presentations. His presentation was not only educational but practical and fun. James’ vast experience using Linkedin to generate leads for his Debt Collection business has enabled him to develop a proven formula that he now shares both online and in live presentations.

If you would like to learn about using Linkedin as a Lead Generation Tool for your business, why not try James’ free Udemy course

As always Alice from ICLE and Tristan from BAM Studios made the day of filming fun and productive.

Is Your Website Legal?

Date: October 14, 2015 By:

Steven Brown of Etienne Lawyers is presenting a FREE seminar on Who is Responsible for the Content on Your Website at the BREED Business Centre Wednesday 21 October, 2015.

What is Defamation?;
What is Misleading and Deceptive Conduct?;
What is Trademark Infringement?;
What is Breach of Copyright?

KNOWLEDGE

You will gain concise, practical knowledge and useful tips from Steven as he has advised businesses from micros to multi-nationals on the legalities of website content over his many years giving business advice and is a Registered Business Specialist with the Law Society of NSW. With his extensive experience lecturing at the Institute of Company Directors, UTS, Finsia and Macquarie University this seminar is bound to be as enjoyable as it is educational. Steven’s seminar will be peppered with real life examples of how other businesses protect their websites and don’t get caught out with illegal content on their website due to others. This will allow you to learn from other peoples mistakes and successes.

If you have a website, social media accounts or are thinking about getting a website this is the ideal opportunity to come along and learn from Steven about the importance of protecting your website. He will be available to answer questions you may have about what is on your website.

NETWORKING

As part of the evening, Breed provides a warm and inviting atmosphere to facilitate networking amongst the attendees before and after the seminar. Meeting new people at events like this is a great way to grow your business. Either by connecting with new potential customers, finding new suppliers or just connecting with people who know people you might want to know.

Don’t miss out on this FREE event to increase your business skills, learn from an expert and make new business connections.

Use this seminar to find out if your website content is legal and how to protect your website to ensure your business grows.

DOWNLOADS

Etienne Lawyers FREE download Is Your Website Legal – 12 Ways to Use Photos Legally on your Website will help you to understand how to use photos on your website without fear of prosecution.

Get Your Free Download Now!

The Importance of Having a Good Brand – Susan Jones, Living Lines

Date: August 5, 2015 By:

Susan Jones from Living Lines gave an informative and engaging presentation at eNRGy 3 on the importance if having a good brand.

Susan provided a great take home exercise and examples of before and after branding.

Thank you Susan for sharing your expertise with us.

If you would like more clients and to network with vibrant businesses come along to Parramatta Chamber of Commerce eNRGy 3 Network Meeting, Tuesday 10.00am, Parramatta. Contact Etienne Lawyers for more details, 8845 2400.

Life and Times of a Mortgage Broker – Sze Chuah

Date: August 3, 2015 By:

eNRGy 3 was entertained and educated by one of our members Sze Chuah from Yellow Brick Road about the life of a mortgage broker. He was informative and gave us all an insight into what happens when we borrow money. Thanks Sze you were fabulous as always.

If you would like to connect with vibrant local businesses come and visit us at eNRGy 3 10am Parramatta every Tuesday. Please contact Etienne Lawyers 8845 2400 for further information.