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Gold Coast ICT Capability Study 2011

Thursday, September 29, 2011
If you are on the Gold Coast, or have been involved with IT Forum Gold Coast, then commun-iT will be contacting you shortly to ask you to take part in the IT Forum Gold Coast ICT Capability Survey. By completing the survey your company will go into the Gold Coast ICT Capability Study, promoting your company to the market and helping to inform IT industry development policy for the Gold Coast.

About the Survey

The IT Forum Gold Coast (ITFGC) has engaged commun-iT to work with the Forum in conducting the 2011 Gold Coast ICT Capability Study.

The gathering of information (business profiles and survey data) will be achieved through both this website (
www.commun-it.com.au) by commun-iT (the trading name of Maat Solutions Pty Ltd), developer and owner of the site, and the Gold Coast ICT Forum website (www.itforumgoldcoast.com.au), developed independently by Maat and ITFGC respectively. 

Each entity is separately owned and operated, however commun-iT will be sharing common data relating to the Gold Coast IT related businesses.  Survey data will not be shared with other parties other than in an aggregated form so as to not identify individuals or individual businesses.  Only publicly disclosed non-confidential information and data for which consent has been given, will form the business directory.  All data will be collected and used only in accordance with the privacy statements of the respective websites and privacy legislation.

How will data be collected?

Gold Coast businesses will be contacted by commun-IT, inviting them to complete details of their business and to complete the capability survey.  This data shall be used to compile a final report into the Gold Coast ICT capabilities.

Completing the above details will not cost Gold Coast businesses anything.  All such businesses that complete all of the data will be placed with a full business listing on the ITFGC Business Directory at their website.  In addition all Gold Coast businesses that are IT suppliers will receive a free basic listing on “commun-IT”.

How will it benefit ITFGC members?

Existing financial members of ITFGC at the time of survey launch will receive a free “bronze” level membership in “commun-IT” for 1 year. Non-members of ITFGC may choose to take up a “commun-IT” paid membership at their will.

What will happen to the data?

In order to ensure that all Gold Coast business’ data that is available from the ITFGC and commun-iT is consistent and up to date, all data collected in relation to Gold Coast businesses in the IT industry or any related service provider, will be commonly shared between the “commun-IT” and ITFGC databases for a period of 12 months.  Anyone choosing to extend or take up a membership with “commun-IT” will be shared with the ITFGC database for a further 12 months.

Under the terms of Agreement between the Forum and the GCCC and the Queensland State Government, the Forum will provide to each party a copy of the business directory data with aggregated anonymous survey data provided to Gold Coast City Council upon request and approval from ITFGC.

Keep abreast of developments with the IT Forum Gold Coast (ITFGC) Capability Study 2011, where updates will be posted of their progress, outcomes and final results.  If anyone wishes to make comment or provide input to this project then they should contact the Forum’s project Manager, Greg Tomkins, through this website, or contact him on (07) 5526 4014.


Mike Pym, Director, Pym’s Technology Lawyers. A member of the Panel of Expert Bloggers on commun-iT and an expert on www.aiia.biz 

Corporations Law - Common Compliance Issues

Wednesday, September 28, 2011

We consistently see some fundamental ways in which proprietary or pty limited companies are failing to meet the requirements of the Corporations Act. Here are just a few for you to think about. Does your company comply?

ACN – on registration each company in Australia is issued with an Australian Company Number or ACN. There are a few rules about how you must use your ACN.

  • It must be set out on ALL your public documents (e.g. contracts, business letters, invoices, orders, receipts) and negotiable instruments (e.g. cheques, letter of credit).

  • Unless the ACN is part of your company name, you must set out the ACN with the name or with one of the references to its name – note: if the last nine digits of your ABN is the same as the ACN you can substitute the ABN.

  • If the document or instrument has more than one page this must be done on the first page.

  • If you have a common seal the ACN must be set out on the common seal.

Name – the company name and the words “Registered Office” must be displayed at:

  • the registered office of the company.

  • each place of business in a prominent position.

Business names – if you use a name in conjunction with your business which is not the company name, then you may have to register this as a business name. Although it is changing, currently each State and Territory has its own registration process for business names (and fees). You need to be registered wherever you carry on business.

Directors solvency resolution – every company has a review date. This is generally the anniversary of the date of incorporation or registration. Every year within 2 months of the review date the directors MUST pass a solvency resolution. If the resolution is negative (i.e. you company is not solvent; additional steps MUST be taken.

Directors and secretaries consentsBEFORE being appointed as a director or secretary a person must provide a written consent to the company. The written consents must be kept with the company's records.

Changes to particulars – if there are changes to certain particulars you must advise ASIC. These include:

  • A change to the ultimate parent company.

  • A change to the name of the ultimate parent company.

  • A change (appointment or resignation) to an officeholder (director or secretary).

  • Appointment or resignation of an alternate director.

  • Changes to the details of directors or secretaries – this includes a change of residential address or name of the officeholder.

  • Changes to shareholdings.

  • Change of name or address of a top 20 shareholder.

Note: Generally there are prescribed deadlines for notice to be given to ASIC. However, even where there may be no specific fee for lodgement of a notice to ASIC, late fees may still apply.

Registers - Your company must keep up to date:

  • registers of members (shareholders).

  • registers of option holders (if you have them).

  • minutes of general meetings.

  • minutes of meetings of directors.

  • registers of charges created by the company over company property, and

  • financial records that enable an assessment of the company’s financial position and performance and are sufficient for financial statements to be prepared (and audited if necessary) for at least seven years after the transactions are completed.

Pym’s Technology Lawyers has provided advice to many IT suppliers on the issues associated with Corporations law issues, compliance, documentation and ASIC filings.

Author: Peta Maloney, Pym’s Technology Lawyers. A member of the Panel of Expert Bloggers on commun-iT and an expert on
www.aiia.biz 

Disclaimer: This is general information only. It is not legal advice, and is not a substitute for legal advice. Specific advice should be sought to take into account your particular circumstances. Pym’s Technology Lawyers Pty Ltd is a specialist IT and commercial law firm. It has liability limited by a scheme approved under Professional Standards Legislation.

Procure IT v3.0 Expert Review

Tuesday, September 27, 2011

Procure IT v 3.0 - NSW Government's new standard ICT contract: A new direction

Procure IT version 3.0 is the new standard contract that will be used by NSW Government Departments and Agencies to buy nearly 2 billion dollars of ICT products and services each year.  Version 3.0 is a significant departure from the previous standard contract, in that NSW Government has taken a policy decision to make the terms and conditions more commercially acceptable to IT suppliers.  This contract represents a new direction in government procurement of ICT products and services.

IT suppliers will be asked to accept its terms and conditions without amendment in future tenders. 

New Contract Positions


The new Procure IT version 3.0 contract reflects new Government policy positions, including that the IT supplier retains ownership in newly created intellectual property (IP), narrower indemnities, more commercially acceptable warranties and clauses that deal with the new Australian Consumer law.  

New Business Models


The new contract also provides clauses that allow open source software and related services to be provided to NSW Government, and clauses that allow for resellers to sell ICT products and services without taking extra contract risk over and above the limited warranties that get from their Original Equipment Manufacturer. 

Check out the Article


Our AIIA.biz IT contract law expert, Mike Pym, Director of Pym's Technology Lawyers has attached an article on what the new Procure IT includes, and why it is of huge importance to both IT suppliers, and NSW Government Department and Agencies alike.  The article is based on Mike's recent publication in NSW Computers and Law Journal, "Good Governance generates best practice Module Form contract".  Check out Mike's article here.

If you sell ICT products or services to NSW Government you need to read this article.  And if you are in a NSW Government Department or Agency and are involved in government procurement of ICT products and services you should read it too!

Mike Pym represented the peak IT industry association, the Australian Information Industry Association (AIIA) over the past 18 months in their discussions and drafting of the new version of Procure IT. 


commun-IT is about to launch a Travel Club with more than 300,000 travel products

Monday, September 26, 2011

Launches this week!


commun-iT has teamed up with Travel Agents Nexus to bring you a new online travel service crammed with discounted travel products.  With more than 300,000 travel products in our database, you can choose from more than 240,000 hotels and thousands of transfers, tours and attractions.  Book for business or leisure travel. 

Low or no transaction fees!

Not only do we have great prices on all our travel products, but the credit card fees are a low 3.5% for Amex and less than 1% for Mastercard and Visa.  And, of course, there are no booking fees.

Extra discounts for paid subscribers to a commun-iT directory


And if your company has a paid subscription to a commun-iT directory, all its employees can get an extra 5% discount off all hotel rooms (other than the special "hot deals" which are already too hot to be able to discount further!) 

Upgrade to a Gold membership of the IT suppliers directory or directory for IT providers and the listed company and all its employees not only receive 5% off hotel rooms but 5% off transfers and tours as well, (other than those special hot deals!)

More discounted travel for all employees of organisations with a paid listing in commun-iT.

Employers can let their employees know what a great employer they are.  Just let them know that they can get discounts on their personal travel.  And of course if they use the service for business travel, you can keep your expenses down too!

Try commun-iT Travel Club - No joining fees

Huge range, low prices, low credit card fees and no booking fees. Join up, its quick and free.  Go on, give it a go, you know you want to! 

Another great service from commun-iT.

Published by Mike Pym, commun-iT

Cleaning up can be complicated

Thursday, September 22, 2011
Under-insurance can have wider ramifications than some business owners realise, particularly when it comes to cleaning up after a catastrophic event.



Even before you start to repair or rebuild, cleaning up is costly. But it’s all covered by insurance isn’t it?

After going through the trauma of a natural disaster or other significant event such as a major fire, many business owners are surprised to find that there is a cap on the amount they can claim for the cost of removing debris. 

These are known as sub-limits and can be a set figure, say $100,000, or a percentage, usually 10% of the sum insured.  Neither of these may be adequate for a business which is under-insured.

In a recent example following the floods in Queensland, a building owner was surprised to learn that the cost of pumping out an underground carpark was $500,000.

The Managing Director of risk assessment advisers, LMI Group, Dr Allan Manning, warns that many sums insured may not be sufficient to cover clean-up, particularly if the debris includes toxic or dangerous waste such as asbestos products.

“In recent claims involving a paint manufacturer in one case, and a supplier of agricultural chemicals in another, the relevant State Environmental Protection Authority (EPA) insisted on very stringent procedures to remove the debris including the burying of the contaminated material in large concrete canisters.  This resulted in the cost of removing the debris exceeding the cost of rebuilding the damaged building,” he said.

Dr Manning said the location of the building, for example on a main road, may also have an impact on cost. 

“This may involve traffic diversions or special parking permits. All this adds to the cost. In more remote locations the expense of removing environmentally dangerous debris can be considerably increased if there is no tip nearby that is licensed to receive the waste material.

“There have been reported cases where the EPA is not certain themselves on how to best dispose of some debris. This can mean the storage of the material for an extended period until agreement can be reached on how disposal is to take place, which again involves more cost.”

Another problem arises if a tenant abandons their debris leaving the landlord to meet the cost of removal. “An allowance for this eventuality is recommended as the time taken to track down and seek recovery from the tenants often slows down the reinstatement process. This is particularly the case where the tenant elected not to insure, not insure adequately or not insure for flood where the loss was caused by flood,” he said.

Dr Manning said an important aspect of typical packaged policies was that cover for the removal of debris usually included the insured’s liability to clean up nearby property as well as roadways, railways, and waterways.

“What many people do not appreciate is that Environmental Protection Authorities have the power to order an insured to remove the debris that escapes from their premises as a result of a fire regardless of what caused the fire. Remember that the soot and smoke from a fire does not necessarily go straight up and come straight down where it started. Similarly, water used to fight the fire will not necessarily be confined to the insured’s property.” 

Talk to us about adequate cover for cleaning up after a disaster.

Publisher: Alex Bodnar - Authorised Representative of Insurance Advisernet. A member of the Panel of Expert Bloggers on commun-iT and an expert on www.aiia.biz

Disclaimer: The information in this publication is of general nature as a service to interested parties. This article is not intended to provide a complete discussion of the subject and should not be taken as advice. While the information is believed to be correct, no responsibility is accepted for any statements or opinion or error or omission.

Are SMEs Under-Insured

Monday, September 12, 2011
The natural disasters that have hit Australia over the summer have led to a number of hard luck stories about businesses finding they were under-insured. It’s too late to check your policy after a disaster strikes, whether it is caused by Mother Nature such as a storm, a devastating fire caused by an electrical fault, or man-made, like theft or vandalism. 

Experience shows that many small and medium enterprises which do not have adequate insurance protection do not survive these setbacks.

A survey by the Insurance Council of Australia of the small to medium sized enterprise sector found that less than two thirds have adequate insurance. According to the survey, 26% of all small to medium enterprises do not have any general insurance and sole traders are the most exposed with 40% having no cover.

Many SMEs are not aware of all the cover they might need. For example, of those insured businesses which had lodged a claim in the previous 12 months, 19% were for business motor insurance, 16% for burglary and theft and 13% for machinery breakdown.

Machinery breakdown covers equipment such as freezers, refrigerators, ovens and mixers and loss of stock as a consequence of the breakdown. Yet despite this being the third highest type of claim, only 43% of those insured felt this type of cover was applicable to their business.   

If you have a number of individual policies covering different risks, you should get advice on how to pull it all together in a package tailored to your type of business.

The advantages include simplicity, a wider range of covers, including some you may not get by taking out individual policies, and some cost advantages because of the reduced number of transactions.   

The typical covers in a package include:
  • Fire, storm and malicious damage to your business premises and contents; 
  • Business interruption is another essential cover which helps you stay afloat by protecting against loss of profits if your operations are disrupted by damage to your business by specific events such as fire or storm damage;
  • Machinery breakdown as mentioned above;
  • Fidelity covers theft by an employee of money or stock;
  • Public liability covers you for unintended death or injury to a member of the public or damage to their property while they are on your premises;
  • Product liability comes into play in the event of an unintended death or injury caused by a product which you supplied, sold, serviced or repaired;  
  • Personal accident and illness cover is particularly important if you are a sole trader or your business has a small number of partners. 
Publisher: Alex Bodnar - Authorised Representative of Insurance Advisernet. A member of the Panel of Expert Bloggers on commun-iT and an expert on www.aiia.biz

Disclaimer: The information in this publication is of general nature as a service to interested parties. This article is not intended to provide a complete discussion of the subject and should not be taken as advice. While the information is believed to be correct, no responsibility is accepted for any statements or opinion or error or omission.

Half Price membership offer from AIIA

Friday, September 09, 2011
The Australian Information Industry Association (AIIA) has today announced a special half price membership deal for small and medium ICT businesses that newly join the AIIA by 30th September 2011.

To learn more, please see this:
 AIIA Membership Discount Promotion September 2011

Scrutiny of Insurance heralds Sweeping Changes to Flood Cover

Thursday, September 08, 2011
Unprecedented scrutiny of insurance since the catastrophic flooding which hit south-east Queensland and Victoria in December and January will determine how policyholders are protected in future disasters.

Following widespread confusion amongst owners of inundated properties about what they were covered for, and a range of definitions of flood being used by insurers, the Federal Government initiated reviews to develop a standard definition and to examine the availability of cover to individuals and businesses for damage and loss associated with flood and other natural disasters. 

The Federal Treasury issued a discussion paper on a uniform definition of flood to be used by all insurers to either cover it or exclude it in their policies:
    
    "Flood means the covering of normally dry land by water that has 
    escaped or been released from the normal confines of:
  • any lake, or any river, creek or other natural watercourse, whether or not altered or modified; or
  • any reservoir, canal, or dam."

Brokers Support Standard Definition 

Brokers’ views have been represented by the National Insurance Brokers Association (NIBA). In its submission NIBA agreed that a standard definition will go a long way towards ending policyholder confusion, but questioned whether an alternative form of words should be used.

“The difficulty with the term ‘flood’ is that a consumer’s understanding of what the term may or may not mean...is very broad, as is the case with the typical dictionary definition,” the submission said. NIBA also suggests that policyholders could be advised on where to obtain information on the flood risk of their area, for example from the local council, and encouraged to seek advice about what cover they need from a licensed expert if they are unsure.

NIBA warned that the standard definition and other proposals would not address some issues that commonly arise in relation to flood claims, notably, what is the cause of the damage if there is a mixture of flood water and storm water, yet flood is excluded in the policy. 

A solution could include making an independent expert’s opinion as to the cause of damage binding on both parties and legislative changes clarifying what happens to claims when flood water and storm water combine. 

“Appropriate advice from professionals such as insurance brokers can assist in reducing confusion and the proposed change will make it easier for insurance brokers to advise their clients,” NIBA said in its submission.

Disaster Insurance Paper Released

Meanwhile, the Natural Disaster Insurance Review, established by Assistant Treasurer and Minister for Financial Services and Superannuation, Bill Shorten, has just issued a discussion paper looking at a range of issues, including how to make flood cover more widely available to property owners.

The options in the paper are full flood cover, with all insurers compelled to offer cover for all insured properties, an opt out provision that allows property owners to insure without taking flood cover, and the status quo in which insurers are free to offer or not offer cover.

The paper notes that under the first option disputes over whether the damage was caused by storm or flood water would be eliminated, but property owners in flood prone areas would pay substantially higher premiums unless there was some form of subsidy or discount.

Funding for such a subsidy would need to come from governments (taxpayers), councils (ratepayers) or insurance (other policyholders), all of which required further examination.

Issues for Small Business

The paper also looked at the specific problems facing small businesses, the majority of which do not have flood cover.  Small business owners, who are more likely to use a broker, have more specialised insurance requirements, are more price sensitive and less likely to purchase additional cover such as flood insurance.

The number of insurers providing small business insurance is limited, and any compulsion for them to provide insurance cover could see some withdraw from the market, reducing competition and pushing up costs.
 
NIBA CEO, Noel Pettersen, said anecdotal feedback from brokers with clients in flood affected areas showed the lessons learned were much the same as for householders -- be aware of the likely impact of flood on your business, heed warnings from the authorities and be prepared, if possible, to move stock and equipment.

“Brokers have said they would welcome flood cover being more widely available, but priced separately so the client could decide whether they wanted to pay the additional cost,” he said.

Insurers want Broader Debate

Insurers have also expressed concern that a requirement to include flood cover in all policies would override individual underwriters’ appetite for risk and would not discourage householders and businesses from building in 
flood-prone areas.

They have called for a broader debate on how governments at all levels deal with mitigating flood risk, including mapping, planning, zoning and building standards.

The Federal Attorney General, Robert McClelland touched on these issues when he recently told a conference that perhaps the Federal Government should consider putting more funds into mitigation and resilience measures rather than just doling out relief payments after each disaster.

“Put simply it is counter-productive if government assistance acts as a disincentive to people taking steps to build their own resilience – such as taking out insurance. I believe we need to be more strategic and more ambitious than 
just getting people back on their feet – only to be knocked down again.

“We need to look at minimising our exposure to disaster risks over the short, medium and long term – and this means focussing as much on prevention and mitigation as on recovery,” he said.


Publisher: Alex Bodnar - Authorised Representative of Insurance Advisernet.  A member of the Panel of Expert Bloggers on commun-iT and an expert on www.aiia.biz

Disclaimer: The information in this publication is of general nature as a service to interested parties.  This article is not intended to provide a complete discussion of the subject and should not be taken as advice.  While the information is believed to be correct, no responsibility is accepted for any statements or opinion or error or omission.




What are Moral Rights? And are they Dangerous?

Tuesday, September 06, 2011
Moral Rights are the rights of the author of certain "works" (which includes software and documentation), performances and films.  These rights include the right:
  • of attribution of authorship (i.e. to have your name stated next to the work as being created by you);
  • against false attribution (i.e. the right not to have someone else credited with creating your work);
  • integrity of authorship (i.e. the right not to have a work subject to derogatory treatment that is prejudicial to the author's reputation or honour).

These rights were created in 2000 by amendments to the Copyright Act 1968.  Importantly, they are owned by the individual author and cannot be waived, assigned or transferred.  They are not usually owned by the same entity that owns the underlying work!

Can Moral Rights be Dangerous?

Although there has only been one decided case on Moral Rights (Meskenas v ACP Publishing Pty Ltd [2006] FMCA 1136), it is clear that an author potentially has a very powerful right that can be exercised in circumstances where many people would not contemplate that a problem could arise.  If an author's Moral Rights are infringed, not only is the infringer likely to be liable to pay damages on a similar basis as for other infringements of copyright, but also the infringer may be prevented from completing its project as intended.

Examples of where Moral Rights have been asserted include:

  • the principal architect of the National Gallery of Australia, Col Madigan, objected to an extension to the front entrance of the NGA.
  • the landscape designer of the Garden of Australian Dreams, Richard Weller, objected to proposed alterations and additions to various parts of the garden, claiming they infringed his Moral Rights.
  • similarly Harry Seidler took legal action over the proposed changes to the Pig 'n' Whistle pub in Brisbane, claiming that the changes were offensive to the geometry of the building and the new signage was 'vulgar'.
  • where a painting was attributed to the wrong painter by a magazine (the Meskenas case above). 

[Note:  An architect/designer usually owns the copyright in his/her plans and drawings, and so also owns the copyright in the building, as the building is a three dimensional representation of those plans or drawings.  Accordingly any change to the building would be subject to the architect's/designer's Moral Rights in the underlying building].

In each of these cases, the parties either agreed a settlement (or in the Meskenas case the infringer was found liable and had damages awarded against it), or the project was varied or abandoned. So yes, infringing Moral Rights can be dangerous!

How to Avoid Infringing Moral Rights

It is not easy to avoid infringing Moral Rights, particulary as these rights belong to individuals, and are seperate to the copyright in the work.  In other words, whilst you can usually deal with the copyright in a work by getting a licence or a transfer of ownership from the company that owns the work, you also should get a legally valid consent from every author of the work, consenting that the author will not assert his or her Moral Rights to your use, modification or exploitation of the work.  There is a defence to infringing an author's rights of attribution or integrity (but not to false attribution), which is that it was "reasonable in all the circumstances" not to attribute the author or performer or to subject the work or performance to derogatory treatment, but this defence is subjective.  What you may consider to be acceptable treatment (simply building an extension to your own property) may not be seen in the same light by the architect who designed your property.

However there are a number of practical steps that you can take to minimise the risks of infringing a person's Moral Rights, including:

  • understanding the law on Moral Rights, and being aware of when Moral Rights need to be a consideration.
  • considering when the defence of "reasonableness" may be used.
  • obtaining legally valid written "consents" from those who have Moral Rights at the time that you engage the author to create the work. 

 

Pym’s Technology Lawyers has provided advice to many IT suppliers on the issues associated with Moral Rights, IP ownership, licensing, copyright and assignments.

Author: Mike Pym, Director, Pym’s Technology Lawyers. A member of the Panel of Expert Bloggers on commun-iT and an expert on www.aiia.biz

Disclaimer: This is general information only. It is not legal advice, and is not a substitute for legal advice. Specific advice should be sought to take into account your particular circumstances. Pym’s Technology Lawyers Pty Ltd is a specialist IT and commercial law firm. It has liability limited by a scheme approved under Professional Standards Legislation.

 


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    Mike is an entrepreneur and lawyer who leads two SMEs, one in the IT software industry, and a firm of lawyers specialising in IT law.


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