READ THESE 9 TIPS FOR E-C OMMERCE BUSINESS
Power Sellers Center
What is e-commerce? Includes: • Online business to business transactions • Online business to consumer transactions • Digital delivery of products and services • Online merchandising • Automated telephone transactions eg phone banking • EFTPOS and other automated transfer systems
Contracts • Law of contracts • Issues for ecommerce
Contracts - the basics • Offer • Acceptance • Intention to enter legal relations • Consideration • Legal capacity • Genuine consent
Offer • Clear statement of terms • Person who makes it is prepared to be bound • Not just an “invitation to treat”
Acceptance • Unqualified agreement to terms of offer • Express or inferred by conduct • Can’t be forced on unwilling person
Time of creation of contract • Contract formed at time and place the acceptance is
communicated to offeror
Termination orRevocation of offer • Can be revoked prior to acceptance • Revocation must be communicated to offeror
Certainty • Essential parts of contract must be clear and complete • Courts may imply a meaning • Uncertain term can be “severed”
Consideration • Valuable consideration • Passing between parties to contract • Can’t be unlawful or immoral
Intention • Express • Inferred from the circumstances • Must be genuine consent not obtained under duress
Capacity • Age • Intellectual capacity
Terms and conditions • Express • Implied
Formalities • Oral or written • Writing required under statute eg for sale of land
Practical concerns for e-commerce deals • Identity and capacity of seller or buyer • Authenticity of offer and acceptance (digital signatures) • When and where contract formed • Governing law • Terms and conditions (click through)
Practical Concerns for e-commerce deals(2) • Agreement on electronic payment system • Security of information exchanges • Consequences on breach • Storing electronic data to prevent alteration
Electronic Transactions Act • Federal law with mirror State laws (NSW, VIC, WA) • To remove obstacles to electronic transactions,
communications, signatures and record keeping • 1 July 2001 applies to all federal laws unless exempted
Electronic Transactions Act(2) • Validates electronic transactions • Given in writing met electronically now • Govt can specify technology requirements • Business requirement valid only with consent • Signaturesparties free to agree on method • Production and retention of documents • Method must ensure integrity and accessibility • Time and place of dispatch and receipt of
communications
Electronic Transactions(3) • Time of dispatch is when it enters the first information system
outside control of sender • Time of receipt is when it enters an information system designated by the addressee for receiving it. • Place of dispatch and receipt taken to be respective places of business
Electronic Transactions (4) • Record keeping OK electronically if law says: • Information to be recorded in writing • A written document to be kept • An electronic communication to be kept • Records must be kept identifying origin, destination, time
of sending and receipt of electronic communication
Making a contract • What terms do you want to include? • What risks are you trying to avoid? • How will disputes about contract be dealt with? • What is the governing law? • Who will sign it?
Setting up a business entity • • • •
Sole trader Partnership Company Trust
Sole trader • All profits • All losses • All liabilities • Own name or choose business name • Register business name
Partnership • Carrying on a business • In common • With a view to profit • Established by written agreement, oral agreement or
conduct
Partnership • Partnership Act 1892 (NSW) • Corporations Law: Not more than 20 partners (except
doctors, solicitors and accountants)
Partnership • Profit sharing • Joint and several liability • Fiduciary duties to partners
Companies • Corporations Act • Artificial legal entity • Liability of members can be limited
Companies • Constitution • Directors duties • Limits on raising money from the public
Which structure? • Where are you getting your money from? • What is your risk/liability? • Who will be in control? • What are the ongoing costs?
Domain name registration in Aust ralia
• open and closed domains
• open - .com, .org, .net, .info, .biz • closed - .gov, .edu, .mil, .museum • auDA administers .com.au space • to register in .au space must be a commercial entity
registered and trading in Australia..
Domain Names (cont) • Licensed on a first come-first served basis • Domain Names never meant to confer property rights. • Clash with Trade Marks. • auDA has a dispute resolution scheme which applies to all
domain names registered or renewed from 1 August 2002. • ICANN has the UDRP for .com etc domains.
Domain Names and other business identifiers • Trade Marks • Personality Rights • Place Names • Tension with domain names • Reverse domain name hijacking • cybersquatting