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Assisting on whole of government technology agreements November 2, 2017

Maddocks advised the Commonwealth Government’s Digital Transformation Agency (DTA) on its whole of government purchasing agreement with SAP. The DTA was set up in 2015 to assist government departments and agencies with digital transformation and … Continued

Latest News

Construction and Projects special counsel joins Maddocks January 17, 2018

17 January 2018 Maddocks has appointed Sefton Warner as a special counsel in the firm’s Construction and Projects team. Sefton brings to Maddocks extensive front-end construction projects experience, having worked on a number of major … Continued

Latest Article

2017: In Review – The biggest tech trends and events of the year January 17, 2018

2017 has been another frenetic and significant year for the technology sector. In keeping with Commvault and Maddocks’ joint mission to deliver you practical guidance, our end of year wrap-up highlights the most significant technology … Continued

Educating ourselves about the B2B unfair contract term laws

Heralded as the single biggest change to the way parties do business in decades, there has been much said about the impending ‘business to business’ unfair contract term laws. What is clear is that the new laws are here to stay, and all businesses will need to turn their minds to the new provisions when entering into contracts, enforcing their rights under contracts, and when contractual provisions are being enforced against them.

Here is a snapshot of the new laws:

  • The laws will apply to contracts entered into on, and from, 12 November 2016
  • The laws only apply where a contract is in a standard form, and meets the definition of a ‘small business contract’. A contract will be a small business contract if:
    • at the time the contract is entered into, at least one party to the contract is a business that employs fewer than 20 persons; and
    • either of the following applies:
      • the upfront price payable under the contract does not exceed $300,000; or
      • the contract has a duration of more than 12 months and the upfront price payable under the contract does not exceed $1 million.
  • If you have a small business contract that is in a standard form, any ‘unfair term’ will be void.  A term will be unfair if it:
    • would cause a significant imbalance in the parties’ rights and obligations arising under the contract; and
    • is not reasonably necessary to protect the legitimate interests of the party who would be advantaged by the term; and
    • would cause detriment if it were to be relied on.

The laws apply to government bodies to the extent that they are carrying on a business.

The new laws will apply to a myriad of contracts, such as standard supplier terms, the terms under which independent contractors are engaged and licencing agreements. Businesses should be taking stock to determine which of their standard form contracts may be caught by the laws, and reviewing and revising those that will fall within the law’s ambit. Many will already be dealing with the counterpart business to consumer laws that have existed for some time, and will now need to develop strategies to deal with its application to small business dealings.

Heralded as the single biggest change to the way parties do business in decades, there has been much said about the impending ‘business to business’ unfair contract term laws. What is clear is that the new laws are here to stay, and all businesses will need to turn their minds to the new provisions when entering into contracts, enforcing their rights under contracts, and when contractual provisions are being enforced against them.

Here is a snapshot of the new laws:

  • The laws will apply to contracts entered into on, and from, 12 November 2016
  • The laws only apply where a contract is in a standard form, and meets the definition of a ‘small business contract’. A contract will be a small business contract if:
    • at the time the contract is entered into, at least one party to the contract is a business that employs fewer than 20 persons; and
    • either of the following applies:
      • the upfront price payable under the contract does not exceed $300,000; or
      • the contract has a duration of more than 12 months and the upfront price payable under the contract does not exceed $1 million.
  • If you have a small business contract that is in a standard form, any ‘unfair term’ will be void.  A term will be unfair if it:
    • would cause a significant imbalance in the parties’ rights and obligations arising under the contract; and
    • is not reasonably necessary to protect the legitimate interests of the party who would be advantaged by the term; and
    • would cause detriment if it were to be relied on.

The laws apply to government bodies to the extent that they are carrying on a business.

The new laws will apply to a myriad of contracts, such as standard supplier terms, the terms under which independent contractors are engaged and licencing agreements. Businesses should be taking stock to determine which of their standard form contracts may be caught by the laws, and reviewing and revising those that will fall within the law’s ambit. Many will already be dealing with the counterpart business to consumer laws that have existed for some time, and will now need to develop strategies to deal with its application to small business dealings.