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So often we hear that a formal contract is not necessary because of the existing relationship between the contracting parties. Too often, that is later regretted.
So why do you need a contract and what does a contract do?
A contract should set out in clear and unambiguous terms what each party must do, what each party receives (usually money in exchange for services or products and the delivery of the service or product), the time and manner of delivery, and the consequences of failure by either party. For some, contemplating the consequences of failure at the outset is said to be damaging to the working relationship. What is more damaging is when, in the course of the contract, one tries to determine what is precisely the nature and scope of the contract in the absence of a formal contract. Irrespective of the "comfort" of the relationship, human nature, differences in recollection, sorting out differences in timing or quality, and changes in contract administrators may all lead you to a point where clarification is necessary – in order for the contract to be advanced or completed. If that is needed, you can bet you don't need the additional tension of trying to decipher what was actually agreed to "some months" ago.
Contracts can be sculptured to reflect a particular approach and to avoid parties being "offended" when presented with a contract to reflect what has been agreed. It's a question of balance and of risk management. Commercial interests properly documented should not damage or interfere with a commercial relationship. Risk should be allocated appropriately. Care in drafting should avoid using expressions or terms which dilute or threaten to dilute legal obligations. An example of a potential "dilution" would be the blanket obligation on both parties to "act in good faith". This is a contract term which has crept into more and more contracts without proper regard for its impact on the workings of the contact itself and, in particular, its impact on certain provisions (liquidated damages, the requirement to give notices within so many days of the happening of nominated events and so on).
It is true that we may learn as much from failed experiments as successful ones and it is on that basis that, as lawyers, we encourage our clients to join the ranks of the "successful". There are many examples in our filing cabinets and in the court lists of the "failed experiments."
For further information about issues covered in this article, please contact Celine McInerney on (61 8) 8210 1206 or e-mail: cmcinerney@normans.com.au.
Many businesses have never conducted an IP audit. They don't know what assets they hold and they don't give proper consideration to registration (if it applies), or protection or defence of their IP. In effect, they "give away" value. If it were money, we would think differently and conduct an IP audit tomorrow.
Its similarity with a financial audit is that an IP audit is also an examination and verification of business assets by reference to original documents and other evidence. What is important about an IP audit is the process of identifying mostly intangible assets and applying the right approach(es) and applicable law – locally and globally.
There are four steps involved:
Most organizations have little or no idea of the extent or value of the IP they hold and have no system of identifying and protecting that IP. Indeed for most contemporary businesses the greatest asset they hold (their knowledge and IP) is the only factor not shown on balance sheets.
Further, because the nature and existence of IP is not immediately apparent, it is necessary to find compartments relevant to you into which those mostly intangible assets fit - at least for the purpose of the investigative approach. I would recommend:
Reconsider your balance sheet and deal with your IP as if it were money: it is.
For further information about issues covered in this article, please contact Celine McInerney on (61 8) 8210 1206 or e-mail: cmcinerney@normans.com.au.
The Minister for Industry, Science and Resources, Senator Nick Minchin, has announced the formation of a national steering group to advance opportunities for the Australian Spatial Information Industry.
The spatial information industry encompasses the broad disciplines of remote sensing and photogrammetry, mapping and surveying, land administration and geographic information systems. Practical applications include environmental monitoring as well as the management of natural resources, assets, land and emergencies. Spatial information is also a vital decision-making tool for activities in defence, national security, minerals exploration and infrastructure planning.
Norman Waterhouse is the strategic legal advisor to Spatial Australia and one of the local industry leaders, Mr Jim Curnow of Alexander & Symonds, is a member of the national steering group.
We look forward to the growth of the spatial information industry facilitated and stimulated by this Government initiative.
For further information about issues covered in this article, please contact Ted Byrt on (61 8) 8210 1201 or via e-mail; ted.byrt@normans.com.au.
Do you have a policy? Does it reflect current trends in security and recent amendments to Commonwealth legislation? Do you have a template for signature clauses and notice of potential confidentiality and legal or other professional privilege?
If a virus were transmitted to your network could the sender claim that you were contributorily negligent? Do you in fact voluntarily assume the risk of infection simply because you open an infected attachment?
What level of security should you have? Do you have any at all? Legal regulation is one thing but prudent risk management of information systems security is not the province of parliamentary draftspersons. It's your system – secure it.
For further information about issues covered in this article, please contact Celine McInerney on (61 8) 8210 1206 or e-mail: cmcinerney@normans.com.au
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