In the commercial world there are many printed forms used to create contractual commitments as well as many bulkier contract documents. Order forms and acceptance forms are relied upon to form contractual relationships, and the crucial elements of offer and acceptance can be demonstrated.

It is not uncommon to find that the terms of these forms favour the person or company which has provided them. Difficulties arise in a situation where the party accepting a form of offer may have done so on terms which may differ in material ways from those stated on the order form.

Sometimes the acceptance of the order can differ so significantly from the offer that the so-called acceptance may be construed as a counter offer and then one needs to look carefully at subsequent correspondence and negotiation to find if there is evidence that there has been clear acceptance of this counter offer or not. Has there been agreement or not? If there is doubt as to the effectiveness of terms and conditions in such documentation then it is wise to seek professional legal advice.

Of course there are many contracts formed between or among parties who show their agreement within a single document called the Agreement or Contract. In other situations there may be several documents forming the Contract including variations pursuant to the base Agreement. This may occur where there is an ongoing agreement for supply of goods and services. There may be terms and conditions annexed to the base Agreement and which form an important part of the Agreement.

Other types of agreements are licence agreements which may need to have various clauses protecting intellectual property rights in respect of say an invention. Copyright ownership needs to be asserted in relation to agreements involving recordings or films, Trademark or patent ownership may need to be asserted in relation to agreements involving special industrial designs or types of structures, equipment or accessories in respect of which a licence is granted. The consequence of infringement of terms and conditions as well as relevant statutory provisions, needs to be understood and reflected in the contract.

A special category of agreement is the franchise agreement. There are certain obligations of disclosure under the Franchise Code of Conduct which must be met in relation to these types of agreements. The franchising code of conduct is found in the Trade Practices (Industry Codes in Franchising) Regulations 1998. The parties to a franchise agreement should be made aware of this code. Before entering into any agreement one should clearly understand the terms and take the opportunity of having those terms fully explained by an experienced commercial lawyer. Trying to negotiate changes once the parties have signed the agreement is like closing the gate once the horse has bolted.

Our firm is happy to assist in clarifying aspects concerning such agreements, whether they be loan agreements, licences, or contracts for works, franchise agreements or other kinds of agreements and to take instructions in relation to negotiating and preparation of such agreements.

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