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E commerce
- 1. Doing Business in theDoing Business in the Information AgeInformation Age John CorkerJohn Corker GENL0230GENL0230
- 2. What is e-commerce?What is e-commerce? Includes:Includes: âșOnline business to businessOnline business to business transactionstransactions âșOnline business to consumerOnline business to consumer transactionstransactions âșDigital delivery of products and servicesDigital delivery of products and services âșOnline merchandisingOnline merchandising âșAutomated telephone transactions egAutomated telephone transactions eg phone bankingphone banking âșEFTPOS and other automated transferEFTPOS and other automated transfer
- 3. ContractsContracts âșLaw of contractsLaw of contracts âșIssues for e-commerceIssues for e-commerce
- 4. Contracts - the basicsContracts - the basics âșOfferOffer âșAcceptanceAcceptance âșIntention to enter legal relationsIntention to enter legal relations âșConsiderationConsideration âșLegal capacityLegal capacity âșGenuine consentGenuine consent
- 5. OfferOffer âșClear statement of termsClear statement of terms âșPerson who makes it is prepared to bePerson who makes it is prepared to be boundbound âșNot just an âinvitation to treatâNot just an âinvitation to treatâ
- 6. AcceptanceAcceptance âșUnqualified agreement to terms of offerUnqualified agreement to terms of offer âșExpress or inferred by conductExpress or inferred by conduct âșCanât be forced on unwilling personCanât be forced on unwilling person
- 7. Time of creation of contractTime of creation of contract âșContract formed at time and place theContract formed at time and place the acceptance is communicated to offeroracceptance is communicated to offeror
- 8. Termination orTermination or revocation of offerrevocation of offer âșCan be revoked prior to acceptanceCan be revoked prior to acceptance âșRevocation must be communicated toRevocation must be communicated to offerorofferor
- 9. CertaintyCertainty âșEssential parts of contract must be clearEssential parts of contract must be clear and completeand complete âșCourts may imply a meaningCourts may imply a meaning âșUncertain term can be âseveredâUncertain term can be âseveredâ
- 10. ConsiderationConsideration âșValuable considerationValuable consideration âșPassing between parties to contractPassing between parties to contract âșCanât be unlawful or immoralCanât be unlawful or immoral
- 11. IntentionIntention âșExpressExpress âșInferred from the circumstancesInferred from the circumstances âșMust be genuine consent - not obtainedMust be genuine consent - not obtained under duressunder duress
- 13. Terms and conditionsTerms and conditions âșExpressExpress âșImpliedImplied
- 14. FormalitiesFormalities âșOral or writtenOral or written âșWriting required under statute eg for sale ofWriting required under statute eg for sale of landland
- 15. Practical concernsPractical concerns for e-commerce dealsfor e-commerce deals âșIdentity and capacity of seller or buyerIdentity and capacity of seller or buyer âșAuthenticity of offer and acceptance (digitalAuthenticity of offer and acceptance (digital signatures)signatures) âș When and where contract formedWhen and where contract formed âșGoverning lawGoverning law âșTerms and conditions (click through)Terms and conditions (click through)
- 16. Practical Concerns forPractical Concerns for e-commerce deals(2)e-commerce deals(2) âșAgreement on electronic payment systemAgreement on electronic payment system âșSecurity of information exchangesSecurity of information exchanges âșConsequences on breachConsequences on breach âșStoring electronic data to prevent alterationStoring electronic data to prevent alteration
- 17. Electronic Transactions ActElectronic Transactions Act âșFederal law with mirror State laws (NSW,Federal law with mirror State laws (NSW, VIC, WA)VIC, WA) âșTo remove obstacles to electronicTo remove obstacles to electronic transactions, communications, signaturestransactions, communications, signatures and record keepingand record keeping âș1 July 2001 applies to all federal laws1 July 2001 applies to all federal laws unless exemptedunless exempted
- 18. Electronic Transactions Act(2)Electronic Transactions Act(2) âș Validates electronic transactionsValidates electronic transactions âș Given in writing met electronically nowGiven in writing met electronically now ï§ Govt can specify technology requirementsGovt can specify technology requirements ï§ Business requirement valid only with consentBusiness requirement valid only with consent âș Signatures-parties free to agree on methodSignatures-parties free to agree on method âș Production and retention of documentsProduction and retention of documents ï§ Method must ensure integrity and accessibilityMethod must ensure integrity and accessibility âș Time and place of dispatch and receipt ofTime and place of dispatch and receipt of communicationscommunications
- 19. Electronic Transactions(3)Electronic Transactions(3) ï§ Time ofTime of dispatchdispatch is when it enters the firstis when it enters the first information system outside control of senderinformation system outside control of sender ï§ Time ofTime of receiptreceipt is when it enters an informationis when it enters an information system designated by the addressee forsystem designated by the addressee for receiving it.receiving it. ï§ PlacePlace of dispatch and receipt taken to beof dispatch and receipt taken to be respective places of businessrespective places of business
- 20. Electronic Transactions (4)Electronic Transactions (4) âșRecord keeping OK electronically if lawRecord keeping OK electronically if law says:says: ï§ Information to be recorded in writingInformation to be recorded in writing ï§ A written document to be keptA written document to be kept ï§ An electronic communication to be keptAn electronic communication to be kept âșRecords must be kept identifying origin,Records must be kept identifying origin, destination, time of sending and receipt ofdestination, time of sending and receipt of electronic communicationelectronic communication
- 21. Making a contractMaking a contract âșWhat terms do you want to include?What terms do you want to include? âșWhat risks are you trying to avoid?What risks are you trying to avoid? âșHow will disputes about contract be dealtHow will disputes about contract be dealt with?with? âșWhat is the governing law?What is the governing law? âșWho will sign it?Who will sign it?
- 22. Setting up aSetting up a business entitybusiness entity âș Sole traderSole trader âș PartnershipPartnership âș CompanyCompany âș TrustTrust
- 23. Sole traderSole trader âșAll profitsAll profits âșAll lossesAll losses âșAll liabilitiesAll liabilities âșOwn name or choose business nameOwn name or choose business name âșRegister business nameRegister business name
- 24. PartnershipPartnership âșCarrying on a businessCarrying on a business âșIn commonIn common âșWith a view to profitWith a view to profit âșEstablished by written agreement, oralEstablished by written agreement, oral agreement or conductagreement or conduct
- 25. PartnershipPartnership âșPartnership Act 1892Partnership Act 1892 (NSW)(NSW) âșCorporations LawCorporations Law: Not more than 20: Not more than 20 partners (except doctors, solicitors andpartners (except doctors, solicitors and accountants)accountants)
- 26. PartnershipPartnership âșProfit sharingProfit sharing âșJoint and several liabilityJoint and several liability âșFiduciary duties to partnersFiduciary duties to partners
- 27. CompaniesCompanies âșCorporations ActCorporations Act âșArtificial legal entityArtificial legal entity âșLiability of members can be limitedLiability of members can be limited
- 28. CompaniesCompanies âșConstitutionConstitution âșDirectors dutiesDirectors duties âșLimits on raising money from the publicLimits on raising money from the public
- 29. CompaniesCompanies âșThe âcorporate veilâThe âcorporate veilâ âșLifting the veil: fraud, agency, paying moreLifting the veil: fraud, agency, paying more dividends than profit, incurring debts whendividends than profit, incurring debts when company insolventcompany insolvent
- 30. CompaniesCompanies Form a company by:Form a company by: âșRegistering nameRegistering name âșLodge application with ASICLodge application with ASIC âșRegistered officeRegistered office âșNames of directors and membersNames of directors and members
- 31. Which structure?Which structure? âșWhere are you getting your money from?Where are you getting your money from? âșWhat is your risk/liability?What is your risk/liability? âșWho will be in control?Who will be in control? âșWhat are the ongoing costs?What are the ongoing costs?
- 32. What is a domain nameWhat is a domain name âșHuman friendly form of an Internet addressHuman friendly form of an Internet address âșActual address is an Internet Protocol (IP)Actual address is an Internet Protocol (IP) numbernumber âșSystem globally administered by ICANNSystem globally administered by ICANN âșGeneric top level domains (gTLDs)Generic top level domains (gTLDs) ï§ .com, .org, .net, .edu, .gov, .biz.com, .org, .net, .edu, .gov, .biz âșCountry code top level domains (ccTLDs)Country code top level domains (ccTLDs)
- 33. Domain name registrationDomain name registration in Australiain Australia âșopen and closed domainsopen and closed domains âșopen - .com, .org, .net, .info, .bizopen - .com, .org, .net, .info, .biz âșclosed - .gov, .edu, .mil, .museumclosed - .gov, .edu, .mil, .museum âșauDA administers .com.au spaceauDA administers .com.au space âșto register in .au space must be ato register in .au space must be a commercial entity registered and tradingcommercial entity registered and trading in Australia..in Australia..
- 34. Domain Names (cont)Domain Names (cont) âșLicensed on a first come-first served basisLicensed on a first come-first served basis âșDomain Names never meant to conferDomain Names never meant to confer property rights.property rights. âșClash with Trade Marks.Clash with Trade Marks. âșauDA has a dispute resolution schemeauDA has a dispute resolution scheme which applies to all domain nameswhich applies to all domain names registered or renewed from 1 August 2002.registered or renewed from 1 August 2002. âșICANN has the UDRP for .com etc domains.ICANN has the UDRP for .com etc domains.
- 35. Domain Names and otherDomain Names and other business identifiersbusiness identifiers âșTrade MarksTrade Marks âșPersonality RightsPersonality Rights âșPlace NamesPlace Names âșTension with domain namesTension with domain names ï§ Reverse domain name hijackingReverse domain name hijacking ï§ cybersquattingcybersquatting