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Data Availability and Retention – Managing Consequential Loss Risks

Introduction In this article, with database technology consultant Rob Nicholson from Nicholson SQL, we examine how consumer guarantees and consequential loss liability applies in the context of data storage, retention, and overall system availability. We’ve written recently about consumer guarantees and consequential loss. In a previous article, we addressed: who counts as a ‘consumer’ (the…

Calculating the consumer guarantee threshold

Introduction Sometimes it is not immediately clear whether a customer is a ‘consumer’ for the purposes of consumer guarantees, particularly in the context of business to business transactions. In certain situations, it can be difficult to know if the amount payable for a good or service triggers the application of consumer guarantees. Generally, if the…

How the Australian Consumer Law Interacts with Exclusions and Limitations of Liability

1. Introduction Exclusions and limitation clauses are a common way to manage and allocate risk in contracts. Exclusion clauses state what obligations a party to a contract can avoid, or what potential costs or losses that party will not cover. Limitation clauses state that the party will only pay for such losses or costs up…

Exclusions and Indemnities

1. Introduction Contracts are legal tools that individuals and organisations use to exchange promises. One function of contracts is to clarify which party pays (or doesn’t pay) for certain eventualities. This can include the cost of losses or liabilities that parties risk by doing business together. The main provisions in contracts that deal with payment…

SaaS Agreements

Software as a service (SaaS) is defined by wikipedia as a “software delivery model in which software and associated data are centrally hosted on the cloud.” Notable examples include Dropbox, Google Apps, Evernote and MailChimp. The efficiency and rapid growth of SaaS is in large part why Marc Andreessen wrote his influential article entitled “Why…

An Idea to Improve the Website Terms of Use Situation

This article briefly outlines an idea for an approach to making electronic terms and conditions approachable for the “man on the Clapham Omnibus” (the way that English courts refer to a hypothetical “reasonable” person).1 To keep this article brief, we will refer throughout to a succinct paper by the people at CommonTerms.net (Common Paper).2 The…

Software as a Service (SaaS) Agreements

Software as a service (SaaS) is a defined by wikipedia as a “software delivery model in which software and associated data are centrally hosted on the cloud.” The SaaS model stands in contrast to the perpetually licensed “software in a box” of a few years ago. Notable examples of Saas include Dropbox, Google Apps, Evernote…

Issues to Consider When Contracting with Minors

Many technology businesses provide services to teenagers under the age of 18 (Minors). If that’s the case with your business, there are a number of issues to consider. Contracting with Minors There are a few exceptions, but under Australian law, contracts made with Minors are mostly “voidable”. A voidable contract is one that can be…

End User Terms for Android Applications

When you release a software application (App), it’s crucial that you release it with terms and conditions to limit your liability. In the context of software, terms and conditions are often known as “End User Licence Agreements”, or “EULAs” for short. Apple’s app store has a heavily prescribed process for displaying your terms – the…

The Australian Consumer Law and Technology Businesses

The Australian Consumer Law (Competition and Consumer Act 2010 (Cth)) (ACL) compels businesses to provide guarantees over goods and services, even if the business and customer do not agree to the guarantees. In short, if you are selling services that fit the criteria of the ACL, you are providing the guarantees outlined below whether you…

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