IT Lawyers of Brisbane

We speak bits, bytes and blockchains

When you need a technology lawyer in Brisbane to take your business venture to the next level, talk to Rouse Lawyers with confidence – we take pride in our knowledge of the IT landscape.

Over many years of commercial law experience across industries, states and countries, we’ve handled everything from platform integrations to telco services, launched SaaS products and everything in between.

We are the team that won’t skip a beat when you tell us you need an End User Agreement for your new SaaS platform, or that you’ve built the next disruptive technology. There are plenty of commercial law firms in Brisbane, but we offer specialist IT lawyers who speak your language. We can’t wait to help you launch the next Big Thing.

IT Lawyers Who Speak Your Language

If you spend every day at the cutting edge, in the fast-paced environment of innovation and tech solutions, you don’t want to waste time and money educating your legal team.

The technical aspects of your business should be a given and your commercial lawyers are there to protect, expand and maximise your opportunities.

At Rouse Lawyers, there’s no need to teach us about code or what language or infrastructure you use. Our IT lawyers are technology specialists and some are even software developers in their own right.

And we don’t just talk the talk. It’s part of our ethos to implement the latest technologies in-house. We love a good Trello board here and automation is our friend. It’s what makes us lean, mean and efficient as well as putting the firm in the best possible position to offer expert solutions.

What Can Our IT Lawyers Do for You?

How do we know so much about the developing world? We keep it close. Aside from our dedication to in-house applications, we’ve worked with clients in areas including:

Our technology lawyers also work closely with specialists in other teams like:

With a local, national and global client network, we ensure your confidence that we have all your legal bases covered.

Rouse Lawyers Guarantee: Fee Certainty

We know software development can be full of surprises but we don’t think your legal costs should be. That’s why we offer fixed fees whenever possible.

We provide a number of engagement models to suit different business structures but they all have one thing in common: whether we are charging a fixed fee or a case-based estimate, you can be sure that you will always have cost certainty.

Your software isn’t a boiler plate and your legal team shouldn’t be either. Come speak to the lawyers that will get excited about your projects and want to build a lasting relationship to see you through the cycles of your business.

Give us a call, we’d love to hear about your work. Or maybe we will run into each other at the next pitch night in the city?

Software Development

In most respects, a contract for software development is the same as any other services contract. There are, however, certain issues specific to software development that should be covered.

Changes to the Scope of Deliverables

Software development projects are particularly susceptible to “changes of scope” mid-stream. Development clients will often change requirements as the concept for an application evolves.

Developers should include mechanisms in their contracts that:

  • define what a “change of scope” is; and
  • handle changes to the scope.

It’s hard to avoid relying on adjectives like “minor” or “major” when describing what constitutes a “change of scope”. The nature of the project will ultimately dictate what language is best suited to the situation.

It’s a good idea to agree on how changes of scope will be priced before they happen. A common method is to include an hourly rate in the contract such that if there is a change, any extra work done by the developer as a result will be charged at the hourly rate.

Testing and Acceptance

Every software project has bugs but sometimes it takes a while for them to be discovered. Most developers build a “testing and acceptance” period into a contract for development services so it’s clear that they’re not responsible for minor bugs discovered months after they have delivered the finished product.

A typical period for testing is 10 business days after the developer provides the product.

In other words, after 10 business days of testing, the client will be “deemed to have accepted” the product and any bugs that appear after that will not be the responsibility of the developer.

This kind of obligation has the effect of making sure that the client concentrates on finding and notifying a developer of bugs within a reasonable time period.

Intellectual Property

A Development Agreement needs to have clear provisions about what intellectual property is transferred to the client by the developer.

Most developers license their “background intellectual property” as opposed to assigning ownership.

Background IP is usually defined as slabs of code for certain kinds of functionality that a developer re-uses for multiple clients.

If a developer doesn’t take this precaution, they will be in a position where they have assigned intellectual property to a client and by using it with subsequent clients, they will be infringing on the intellectual property of their previous client.

Mobile Device Applications

It’s crucial to release software with a set of Terms and Conditions.

Apple’s System

Apple has a legal framework in place for developers publishing software through its App Store.

When a developer releases software through the App Store, unless the developer specifies otherwise, the software will be subject to Apple’s standard Licensed Application End User Licence Agreement (Apple EULA).

The Apple EULA does have some benefits for developers. In reality though, it’s mainly there to protect Apple.

If you’re an Australian developer, the Apple EULA does not take your interests into account.

The most obvious problem is that the Apple EULA is governed by Californian law which means that disputes under the agreement would be ruled by a foreign body of law.

There are also questions about whether or not certain provisions of the Apple EULA would survive scrutiny under the Australian Consumer Law.

Apple offers the option for developers to release software with customised terms (Customised Terms).

While Apple offers the freedom for developers to use Customised Terms, by using the App Store, developers agree to make sure that their Customised Terms take care of certain issues.

iOS developers should be familiar with:

From the perspective of an Australian developer, there are issues with Apple’s EULA. When you release an app, it’s a good idea to use Customised Terms.

The Android System

Apple’s app store has a heavily prescribed process for displaying your terms – the app stores for Android applications are less prescriptive.

The major app stores for Android applications are:

Google Play

A brief outline of the Google Play legal framework for developers is available here.

The main agreement between developers and Google Play is the Developer Distribution Agreement which is supplemented by the Google Play Developer Program Policies.

These terms should be reviewed to ensure that your Google Play’s EULA is not inconsistent with your obligations to Google.

To publish an EULA in association with an App on Google Play, market standard practice seems to be the simple inclusion of a link in the App’s “Description” and “Contact Developer” fields.

Android developers should be familiar with:

Amazon App Store

The relationship between developers and Amazon’s Appstore for Android is governed by the Amazon Mobile App Distribution Portal Terms of Use and the Mobile App Distribution Agreement.

Again, these terms need to be reviewed to ensure that they’re consistent with the EULA that you want to use with your App.

Like Google Play, market practice for displaying an App’s EULA seems to be adding a link to the app description.

Software as a Service (SaaS)

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 “Why Software Is Eating the World”.

The legal terms in SaaS are more involved than those in a standard End User Licence Agreement (EULA) since the provider hosts data and provides the infrastructure to operate the software (often provided through a web browser).

Let’s look at some of the areas particular to SaaS that need attention.

Hosting Data

A SaaS provider is in possession of their customer’s data. As a result, certain issues must be covered.

  • There must be clear provision in the agreement for the “data liberation process” upon the termination of the SaaS Agreement. It is preferable for the costs of such a process to be clear.
  • Providers must be clear about what liability they are willing to assume for maintaining the customer’s data. Whether or not the provider assumes liability for data loss is an issue that must be covered as well as what backup regime the provider undertakes to subscribe to.
  • Providers need to be clear about which third parties might have access to their customer’s data. SaaS is often hosted on Infrastructure as a Service (IaaS) and IaaS providers like Amazon Web Services often reserve the right to review data hosted by their customers.
  • Providers need to understand what kind of data they will be collecting and take appropriate measures if any of it is categorised by the Privacy Act 1988 (Cth) as “sensitive information”.

Term of Contracts

SaaS is always provided in the context of an ongoing commercial relationship between the provider and customer as opposed to the one-off grant of a perpetual licence to use under the traditional software model.

As a result, the agreement’s period is critical. Particularly in the enterprise space, agreements tend to be based on automatically renewing contractual periods which either party can end with a specified notice period.

This approach fits the model of fees based on a continuing subscription.

SaaS Accessibility

SaaS providers need to be crystal clear about whether or not they will be responsible for “down time” particularly if they are providing mission critical software.

Many providers take an “all care and no responsibility” approach, other SaaS providers guarantee certain levels of uptime and provide refunds if they do not reach those levels.

Many SaaS providers operate on IaaS services which usually refuse to accept liability. In other words, if downtime liability is not parsed away, the SaaS provider is stuck with it.

Another reason that software (or certain parts of it) can become inaccessible is that the vendor chooses to remove them on purpose.

In a software design environment increasingly governed by rapid iteration and “less is more”, it is important for vendors to reserve the right to make changes to the software if a feature does not get traction and ends up “getting in the way”.

They may find that a small number of customers have come to rely on that feature and are damaged by its removal.

Website Terms & Conditions

A website is the primary medium for interacting with customers for most technology businesses. Website terms form the basis for the agreement between the website operator and any website user.

Advantages of Website Terms

You need to have Website Terms – they allow you to control and exclude risks by defining the relationship with customers to your advantage.

It’s easy to find website terms to copy and paste but it’s very unlikely that they’ll cover all the issues that your particular business needs covered. In fact, you may inadvertently put yourself at higher risk.

We have seen clients operating online businesses in Australia where the jurisdiction for disputes in their ‘pasted’ terms and conditions was California.

Limiting Liability

One of the most important clauses in your terms is the one that excludes and limits liabilities if you breach your obligations under the contract formed by the website terms.

With the exception of certain legislative mandates that you can’t exclude, you can often limit your liability to the cost of replacement of the goods or services that you provide a user.

If you don’t limit your liability in this way, your liability will be unlimited and any dispute could make your company insolvent.

Jurisdiction for Disputes

Another important consideration is clearly defining the jurisdiction for any dispute between you and your users to the most convenient Courts.

This is a significant disincentive for a customer in another country to start legal action against you since they would need to litigate in a foreign jurisdiction.

Without such a clause, there is no reason that a user cannot sue you under the laws of the United States, obtain a judgment in their favour and then enforce the judgement against you in Australia.

New Business Models

Every business model is based on relationships between transacting parties who have certain rights and obligations.

It’s important to critically assess the relationships created by your business model, particularly if it’s a new kind of business.

The Internet is a vast laboratory for experimentation with new business models but the corollary of such opportunity is that businesses need to pay attention to unusual legal risks that they might be exposing themselves to when they put up their website.

You should ask your lawyer to assess the risks of your business model. It’s important to do this because it is not unusual for legislation to impose rights and obligations on parties that they themselves never actually agree to.

To sum up, you should always get a lawyer to draft website terms for a website because:

  • your company needs to limit its liability; and
  • the risks of new business models should be examined.

Online Privacy

If your business collects information about customers or users and stores it electronically (almost all businesses do), you need to consider privacy law.

Personal Information

The storage and use of “personal information” is covered in Australia by the Privacy Act 1988 (Cth).

The definition of personal information in the Act is very broad (and imprecise): personal information is any information that identifies a person or could be used to identify a person.

This includes obvious categories of information like names and addresses but reaches as far as information like dates of birth and post codes in circumstances where data can be cross-referenced to deduce someone’s identity.

It’s worth noting, the Privacy Act requires businesses dealing with personal information maintain a “Privacy Policy”.

Recent Changes

The recent changes to Privacy Law make it a far more pressing consideration for Australian businesses – a regime that has been criticized as “toothless” now includes fines of up to $1.1 million for breaches.

It is likely that your business is legally obligated to maintain a Privacy Policy especially if it is operating a website that collects information about users.

Latest Articles – Technology Law
Matthew Paul

Associate - Corporate and Commercial

Matthew Shearing

Lawyer - Commercial & Technology

Client Reviews

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Rouse Lawyers acted for us in the sale of our software business, Precision Mining, to Micromine, a global mining software company. It was a substantial transaction and one in which we (the founding owners) relied on the Rouse M&A team to guide us through the process. We were very impressed with their efforts and tenacity in what was a complex and extensive negotiation process. We highly recommend Rouse Lawyers not only for their M&A expertise but also generally for growing SME’s in the technology space.”

“It’s hard to find good lawyer that understands a “tech” business – Rouse Lawyers are that firm…

“A Big Thank You” to Matthew & the Team at Rouse Lawyers – have assisted me & my business in so many different legal items – from wills to buying property/structuring our business/trademarks/negotiating large deals/spam/privacy issues/lease on our 4 different offices… It’s hard to find good lawyer that understands a “tech” business – Rouse Lawyers are that firm… so skilled in many areas.”

“We have relied on good advice from Rouse Lawyers.

We believe software is driving the world forward. Disruption is happening in every industry and it is our clients who are proactively integrating software into their businesses, to set a whole new standard around the way business is done. We are a business that is growing rapidly and know the importance of good legal advice, which is why we have relied on Rouse Lawyers. Focusing on creating digital platforms on which our clients can innovate to ensure they are the ones modernising, is what gets us out of bed in the mornings.”

“I would recommend Rouse Lawyers for any business.

Young Guns has engaged Rouse Lawyers for all legal requirement/advice for the past 10 years. They have been on our business journey from 10 employees to 450 employees. Matt and Peter have always showed a personal interest in our business success and therefore made many recommendations for short term and long term strategies. I would be happy to recommend Rouse Lawyers for any business looking for a legal partner who they can trust and can provide ongoing, up to date advice.”

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