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eCommerce Agreements

e-commerce agreements

eCommerce Agreements 

eCommerce Agreements + Free Samples includes the formation of legally binding contracts which are now possible over the internet.  This has led to a proliferation of online trade and commerce.  The term ‘electronic commerce’ was coined to describe transactions carried out in an online environment.



All Australian federal, state and territory jurisdictions have enacted legislation relating to electronic communications to effect transactions.  The effect and purpose of the legislation is to confirm that a transaction will not be invalid because it took place by electronic communication.

When drafting contracts for use in an online environment, consider the formation of the contract.  In cases where parties intend to negotiate the terms and conditions of a contract and execute hard copies, then these contracts are considered ‘offline’ regardless of their content.

Many online consumer contracts are formed by acceptance of terms and conditions by the end user.  These types of contracts might include shrink-wrap and click-through agreements when purchasing on-line goods and services (e.g. online shopping).

It is for the supplier to ensure that online consumers are aware of not only the terms and conditions, but any changes to those terms and conditions. We will be publishing an online practice guide shortly. Subscribe to our website to be notified as soon as it’s available.

Co-branded website agreement

An agreement between two web-based businesses allowing them to cross-market to each other’s database.  Includes provisions relating to:

  • Use of trademarks and brands;
  • Creation and operation of a co-branded site;
  • Reporting;
  • Mutual indemnities;
  • Termination;
  • Privacy;
  • Ownership of jointly created database; and
  • Intellectual property rights.

The agreement creates a temporary alliance rather than a permanent structure. Clauses cover:

  • Definitions
  • Co-branded site
  • Further responsibilities
  • Licenses
  • Fees
  • Media and marketing
  • Exclusivity
  • User database
  • Disengagement plan
  • Audit
  • Intellectual property rights
  • Confidentiality
  • representations and warranties
  • indemnity
  • Limitation of liability
  • Term and termination
  • Effect of termination
  • Privacy
  • Notices
  • Force Majeure
  • General
  • Schedule 1 – Launch Date
  • Schedule 2 – Reports

18 pages long.

Online Advertising Agreement

A company places its ads on a ‘provider’ company’s site in exchange for fees.  The agreement covers:

  • Terms Of Payment
  • GST
  • Positioning And Display Criteria
  • Trademarks And Logos
  • Limitation Of Liability
  • Indemnification
  • Representations, Warranties
  • Provision Of Advertising Materials
  • Right To Reject Advertisement
  • Cancellation And Termination
  • The Advertiser Right To Terminate For Cause
  • The Advertiser Right To Cancel The Contract
  • Construction
  • Confidentiality
  • Public Statements
  • Miscellaneous
  • Schedule – Term Sheet

Contract self-renews unless terminated.

 10 pages long.

Search Engine Optimisation (SEO) Agreement

A company agrees to do search engine optimization work for a client company.  The agreement covers:

  • SEO Obligations
  • The Client Obligations
  • Relationship Of The Parties
  • Commencement Date,
  • Term And Termination
  • Confidentiality
  • Publicity And Media Communications
  • Payment And Fees
  • Warranties
  • Indemnity
  • Limitation On Liability
  • Disclaimer
  • General
  • Conflict Of Interest
  • Dispute Resolution
  • Variation
  • Severability
  • Survival
  • Entire Agreement
  • Legal Advice
  • Governing Law
  • SEO Employees
  • Property
  • Force Majeure
  • Schedule

The SEO company handles all the work of search engine optimization for a client in exchange for fees

 8 pages long.

eCommerce Agreements

Sale of Online Business

The Sale of Business Practice Manual NSW has been updated with a new precedent. The Practice Manual now contains a Contract for the Sale of an Online Business. It is  based on  a foreign company buying an Australian based online business. The contract includes:

  • Definitions and interpretation
  • Assets to be sold
  • No encumbrances
  • Passing of title and risk
  • Consideration
  • Deferred Consideration
  • Certification of Net Revenue
  • Acceptance procedure
  • Dispute resolution
  • Basis of preparation of the Management Accounts
  • Vendor protections
  • Timing of payment
  • Completion
  • Where completion takes place
  • What happens on Completion
  • Warrantors’ indemnity
  • Post Completion
  • Enquiries in respect of the Business
  • Preservation of books and records
  • Receipt of monies following Completion
  • Rights under the Contracts
  • Assignment of Contracts
  • Contracts that are not able to be assigned
  • Employees
  • Vendor’s Indemnity
  • Vendor to pay Employees
  • Reimbursement of remuneration
  • Liabilities
  • Contracts not assigned
  • Restrictive covenants
  • Form of covenants
  • Separate undertakings
  • Warranties
  • Grossing up
  • Reduction of consideration
  • Limitations on Vendor’s liability
  • Disclosure
  • Limitations of liability
  • Restrictions on claims
  • Mitigation
  • Contingent matters
  • Recovery from third parties
  • Conduct of Warranty Claims
  • Notification
  • No liability for delay
  • Conduct of claims
  • Entire Agreement
  • Assignment
  • Variation
  • Effect of Completion
  • Invalidity
  • Releases and waivers
  • Further assurance
  • Counterparts
  • Confidentiality
  • Default interest
  • Set-off
  • Announcements
  • Costs and expenses
  • Notices
  • Form of Notices
  • Deemed service
  • When deemed service does not apply
  • Proof of service
  • Delaying service
  • Governing law and jurisdiction
  • Schedule 1 – Warranties
  • Schedule 2 –Shareholders
  • Schedule 3 – Apportionment
  • Schedule 4 – Moveable assets
  • Schedule 5 – Contracts

28 pages long. This precedent is available for immediate download.

Disclosure Letter

Referred to in Sale of Online Business Contract. The purpose of this document is to limit the scope of the Warranties by disclosing exceptions.  Discloses:

  • Number of users /customers/clients on database;
  • Information held on database;
  • Accuracy of database;
  • Moveable assets;
  • Licensed software used to run the business; and
  • Known competitors of the business being sold.

A useful accessory to the sale of online business.

3 pages long.

eCommerce Agreements

Service agreement

Referred to in Sale of Online Business Contract.  This agreement retains key staff in the business that has been purchased to assist in the day to day running.  This enables the business to continue as usual and provides much-needed local knowledge, as the purchaser is frequently from a foreign jurisdiction.  The agreement is an independent contractor agreement that also:

  • Appointment
  • Term of appointment
  • Consultancy services
  • Commitment
  • Fees and expenses
  • Termination of appointment
  • Copyright etc
  • Conflict of interest
  • Office facilities
  • Sale of Business
  • Schedule 1 – Initial fee
  • Schedule 2 – Individual employee job descriptions

8 pages long.

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