eCommerce Start Up

If you are considering starting or taking an existing business online you will have a few legal considerations to make. Our ecommerce lawyers can assist in providing an outline of a few requirements you should be aware of and how to start and protect your online business.

Getting the right legal advice can help you to start on the right foot and set you up for success. The elements of starting a bricks and mortar business are similar, however there are few nuances in online business.

If you are just starting out as a small business – staging some of these things can be done, however some key legal advice and documentation should be set up correctly from the outset.

Here are some of the legal requirements for starting an online business:

• Company Setup
• Business Name Registration
• Registering a Trading Name
• Domain Name Registration
• Registering for an ABN

There are several considerations when starting a business about the structure of the company.

You firstly need to decide what type of business structure you will have ie sole trader, company, partnership and there are others. Read more on business structures here.

There are also other documents or agreements that form the basis of your company’s structure.

There are foundation documents for your business and this key documentation and should be properly drafted to suit your business.

Some of these are:

• Company Constitution
• Partnership Agreements
• Shareholder Agreements
• Loan Agreements
• Trusts
• Asset Protection
• Succession & Estate Planning

It is important to ensure that if you are going into business with other people or raising capital to start your online business that these documents exist and are properly drafted by competent commercial lawyers. Cheap poorly drafted agreements often give rise to disputes.

Having them correctly drafted will go a long way to preventing disputes arising in the future and provide a clear framework if they do. Asset protection is key to your financial protection if the worst-case scenario in business, insolvency, does happen.

There are many different ways to protect your ecommerce business and intellectual property.

Here are just a few things to consider:

• Trade marks
• Designs
• Confidentiality Agreements
• Employment Agreements (which contain non-compete clauses and strong restrictions on the use of confidential information)
• Contractor Agreements

Trademarks

To ensure that your brand is protected there are two basic trademark protections we recommend all businesses to have

The essentials to protect: Yes people will copy you!

• Business Name
• Slogans
• Domain names
• Unique Products or Designs

Confidentiality Agreements

If you are considering a unique offering or product you should protect your trade secrets and ideas with confidentiality agreements. These are of importance when dealing with third parties especially contractors or developers to ensure that your confidential information remains confidential.

Contractor Agreements

Contractors and employees are treated differently under the law in terms of employment and intellectual property. To ensure that you retain the rights to work they perform for you must have this in writing. Otherwise they could potentially develop a product for you and resell the same product over and over to your competitors.

Website and Consumer Terms & Conditions

Cutting and pasting terms and conditions is plagiarism and a breach of someone else’s copyright. Copied or online templates quite often have the wrong wording and meaning and may not relate to your product which leaves you exposed to disputes with customers, which no business wants. Having clear terms of engagement with your clients is a pillar in your business as it is can provide a fast resolution to any disputes.

Privacy Policy

This is a must. Consumer information must be protected or you could suffer brand damage.

Consumer Law and the Product

The online consumer can be situated anywhere in the world and across many jurisdictions, but many of the same principles still apply.

Consumer Protections

It is important that what you represent or offer for sale is in fact what customers are going to receive. Not to do so, whether intended or inadvertently, may amount to misleading and deceptive conduct under the Australian Consumer Law. This can give consumers not just a right to a refund but also damages as a consequence of the loss that flows from those misrepresentations. Well drafted, tailored terms of trade can go a long way to preventing any issues here.

Return to Sender

This has been a sore point for many online businesses and can diminish the returns of your business. Not having clear guidelines and/or understanding of consumer law can lead to customer complaints to the ACCC and potentially subsequent investigations. We can provide advice before and after an issue may arise.

Warranty Items

Australian consumer law can have minimum warranty periods on certain products. Do you know what applies to your products? It is good to have a policy in place for your consumers to understand.

There are many ways of getting paid. Electronic payments and other third-party providers such as After Pay have certain legal requirements attached. Making sure that you comply with the legislation is critical.

However, for many businesses some form of customer/client credit is a necessary part of doing business.

The legal mechanisms for recovering are typically extremely effective – provided the correct method is chosen. We can provide advice on debt collection and payment disputes involving both your clients and, where you are being alleged of non-payment, with your suppliers.

Supply and distribution agreements are critical to forming a good framework for your ecommerce business. Having the right terms and conditions in place is where we can assist and ensure that the agreements are enforceable and are able to protect your business if the need arises.

Data Hosting, Website Developers & IT

Where and how your website is hosted and developed is important and will become of more importance if you collect and store personal data of your customers. It is also the fundamental IT real estate from where your organisation operates.

Having certainty about the ownership of your online business is critical especially if you wish to change providers.

Being properly advised with IT service providers and web hosting providers agreements will protect you especially if your website is custom built.

Ensuring that your intellectual property and trade secrets remain confidential is key when dealing with other organisations. Developing confidentiality agreements and contractor agreements this can add a layer of protection.

Supply & Manufacturing Agreements

Having a product you offer to market is key to your businesses success in online retail. If you require advice on a supply agreement or have a dispute with a supplier we can assist. Our commercial lawyers understand commercial agreements and we regularly handle disputes on behalf of clients. Depending on the nature of the dispute and the result you are seeking we can advise you on a range of options you have when something does go wrong in the supply of your goods.

Particularly if you have products specifically manufactured it can be quite crippling to your business to have disputes with manufacturers and suppliers. We understand the commerciality of businesses and provide high quality advice to help resolve your issues.

Licences and Permits

Some products are licenced products or require certain licences. Products such as alcohol can only be sold online with a liquor licence. If you need assistance with advice on licencing or have disputes relating to your licence, we can help.

Housing your goods

If you have a warehouse or premises you will need advice if you are entering into a lease. Having the correct terms in your lease and ensuring that your business can operate smoothly is critical to the proper functioning of your business.

Selling on Consignment

If you going to be selling goods on consignment, then you should have the appropriate agreements in place to ensure that all parties understand their rights and obligations and associated liability is clearly outlined. It is critically important to the arrangement in a properly drafted agreement. The issues surrounding retention of tile and ownership should be clear and unambiguous.

PPSR Registrations

Depending on what goods you are selling or buying you may need to register or search the PPSR register for any interests registered against personal property. We can provide advice and assist in registering an interest on the PPSR. PPSR registrations are critical in the supply of goods to have the proper registrations in place to protect your interests.

Shipping products is the lifeline of an ecommerce business and having the right agreements in place along the supply chain will give you the best chance of success. It will ensure that if your supply chain operates effectively and without disruption and if an issue does arise you have options.

If you require advice or assist to resolve disputes. We can assist in providing commercial legal advice for the following and more:

• Freight Forwarding
• Couriers & Transport Contracts
• Importing & Exporting
• Damaged Goods Disputes
• Insurance Claims for goods in Transit

Employment Agreements are a fundamental element of all employee/employer relationships. Ensure that you have a properly drafted agreement that ensures your business is protected and your employees rights and terms are clearly defined. Don’t rely on cheap versions that don’t offer the right protection for your business. Our employment lawyers are experienced and understand the differences in industries and we can also tailor agreements to suit your business.