A good part of what makes a business worth having sits off the balance sheet: the software it runs on, the website that brings in work, the brand, the customer data and the know-how in people’s heads. Quite often some of it belongs to someone else, because a contractor built it and nobody signed an assignment, or because it runs on a licence that ends when the business changes hands.
We help businesses get ownership and use rights right early, so they can protect what they have built and so the business is easier to invest in or sell later.
Who owns what is often assumed rather than checked. Under Australian copyright law, an employer generally owns what its employees create in the course of their jobs, but a contractor or agency generally owns what it creates for you unless there is a written assignment. That catches websites, software, logos, marketing material and reports. Registering a business name or a domain name doesn’t give you ownership of the brand either.
We prepare assignments, ownership clauses and licences for IP that comes into the business and goes out of it, so you know what you own, what you only have permission to use and on what terms. In construction and development the same question applies to designs, drawings and models prepared by consultants. Trade mark and patent applications are best handled by an IP attorney, and we work with yours.
Know-how is protected by confidence, and confidence is protected by contract and by habit. People move on, and the obligations that bind them need to be in place before they leave, not after.
We prepare confidentiality agreements and the confidentiality provisions in contractor, supply and collaboration agreements. We also advise on what needs to be marked, restricted and recorded so the business can show later that the information really was confidential.
Most businesses buy more software than they build, usually on the supplier’s standard form. The points that matter are the ones that surface at the worst time: who owns the data in the system, what the service levels are and what happens when they are missed, how the liability cap compares with the cost of an outage, and how you get your data out if you leave. For custom development, add ownership of the code, acceptance testing, milestone payments and what happens when the requirements change halfway through.
We negotiate software development, implementation, support, SaaS and licensing agreements, for customers and for the businesses that supply them.
A website that takes orders needs terms that fit how the business actually sells: pricing, delivery, returns, cancellations, liability and what happens when something goes wrong. The Australian Consumer Law applies to online sales, and a blanket statement such as “no refunds” can be misleading where a customer is entitled to a remedy.
We prepare website, platform and e-commerce terms that are consistent with consumer law and that the people running the business can apply in practice.
The Privacy Act applies to many Australian businesses. Its exemption for small businesses has limits and is under reform, so whether it applies depends on turnover, what the business does with personal information and who its customers are. Even where the Act doesn’t apply directly, larger customers, government agencies and suppliers commonly impose privacy and data-security obligations by contract, and a breach of those is a contract claim.
We prepare privacy policies, data-use and data-sharing provisions and the privacy terms in customer and supplier contracts. We also help you work out which obligations actually apply to the business before it signs up to them.
Buyers look at IP and technology because it often carries a large part of the price, and sellers should look first. The usual findings are IP created by contractors with no assignment, software built on open-source or licensed components with restrictions, key licences that can’t be transferred or that end on a change of control, and domain names or social media accounts registered in an employee’s name.
We run IP and technology due diligence for buyers and sale-readiness reviews for sellers, and we fix what can be fixed before a sale goes to market.
