Terms and Conditions. Do I really need them?
We now live in the digital age, and having a website for your business is essential, so it is more important than ever to ensure that your business has a set of website terms and conditions (website T&Cs). The Australian Consumer Law requires any business with an online presence to have a set of website T&Cs.
What are website terms and conditions?
Website T&Cs act as an electronic contract that governs the relationship between your business and visitors to your website.
Are website terms & conditions legally binding?
When a visitor chooses to enter and use a website, they are taken to have accepted the website T&Cs disclosed, creating a legally binding agreement between the parties.
Why do I need website terms and conditions?
Requirement under the Australian Consumer Law
First and foremost, website terms and conditions are a legal requirement under Australian Consumer Law. The Australian Competition and Consumer Commission regularly reviews websites and may impose fines and pecuniary penalties on a business whose website T&Cs are non-compliant with the current Australian Consumer Law regime. For this reason, it is important to engage a lawyer when creating website T&Cs for your website. As tempting as it may be to use a set of T&Cs from another website, it is imperative that your website T&Cs are suitable for the business you are operating.
Limit your liability
Website T&Cs can provide a means of safeguarding your business from liability that may arise from visitors engaging with your business online, or misusing any content displayed on your website to the detriment of themselves or third parties. It is imperative that your website T&Cs limit your liability for any loss or damage that a website visitor may suffer from using your website.
Regulate the use of your website
By including clauses in your website T&Cs that regulate the use of your website, you can help to ensure that you protect your business against people using your website in an unlawful manner.
Protect your intellectual property
A well drafted set of website T&Cs should also include an intellectual property clause, which acts as protection for your website’s intellectual property, including the content and imagery that appears on your website.
Crucial terms that should be included in your website terms and conditions
Indemnity: Limiting the risk of financial loss resulting from a visitor’s use or misuse of any content displayed on the website.
Liability: Limiting the risk of exposure to legal claims from the visitor or any third parties, to the extent permitted by law.
Disclaimers: Restricting the use of the website’s content to non-commercial, personal use.
Intellectual property and copyright: Specifying that website content is protected by intellectual property and copyright laws.
Third party relationships: Limiting the responsibility of the entity or website provider as to the accuracy of any information provided by third parties.
Applicable law: Stating the jurisdiction of the laws that govern the terms and conditions and agreement between the parties.
What about trading terms and conditions?
If your website operates an e-commerce platform it is equally important to include the trading terms and conditions of your website (trading T&Cs). Your trading T&Cs should provide comprehensive information on how your business conducts its business online for the website visitor, to help ensure they are aware of any rights or obligations that may exist before choosing to purchase goods and/or services from your website.
Crucial terms that should be included in your trading terms and conditions
Trading T&Cs will be specific from business to business, but e-commerce websites should typically consider including the following in their trading T&Cs:
Refunds: What instances a refund will be available to a customer who changes their mind about at purchase, who will bear the cost of returning the product, when a ‘free’ refund will be available or what a customer may be entitled to for a refund (for example, cash or a store credit).
Delivery: Who bears the delivery costs, what delivery method the business uses, what locations the business delivers to and who bears the liability for damage or loss of product during and after delivery.
Warranty: What warranty policies exist on purchases of products or the length of the warranty period.
Payment: How payment will be completed for purchases online and when a customer is entitled to a full refund of their payment.
Tips when preparing your terms and conditions
In reality, website and/or trading T&Cs are often ignored by website users. Despite this, if your T&Cs are properly drafted and used, you should still be able to enforce your T&Cs. Set out below are some practical considerations to take into account when preparing your T&Cs to ensure they are enforceable:
Keep your T&Cs short, simple and present them in plain English using headings where appropriate to ensure visitors are able to easily navigate, read and understand your T&Cs.
Make users scroll through your T&Cs to ensure, at the very least, that they have seen them. This also demonstrates that your business has taken active steps to ensure and encourage its visitors to read its T&Cs.
Ensure that any important, unusual or demanding clauses are highlighted in the T&Cs since these clauses are likely to have significant impacts on visitors.
Notify visitors that your T&Cs are a binding contract that is being entered into. This will help ensure that there is no misunderstanding regarding the legality of your T&Cs.
Require visitors to give an acceptance that they have read and understood your T&Cs before being able to purchase a good or use a service on your website. This requires the visitor to take a positive action to acknowledge that they accept the T&Cs.
Do you need a set of terms and conditions? Learn more about AGH Law’s Online Business Pack
The AGH Startup Hub is a dedicated place for startups and entrepreneurs to access legal services in a way that works for them.
Within the AGH Startup Hub we offer a range of fixed price Document Packs to suit your startup. Each Document Pack has been carefully curated by our lawyers to give you the high quality essentials that you need, at an affordable fixed price. We understand that you may not want or need overly complex legal documents. You also don’t want to risk it by using a template document you found online. You just want quality legal essentials to protect you and your business, and to help you get back to business.
Our Online Business Pack includes a set of tailored website terms and conditions or trading terms, a website privacy policy and a 30 minute consultation with a dedicated lawyer.
Get in touch with our team to get started or learn more about our fixed price Document Packs.
Important
The contents of this publication should not be relied upon as legal advice, but instead as commentary and general information. Specific legal advice about your circumstances should always be sought separately before taking any action based on this publication.
Contact the authors
Angus Henderson
angus.henderson@aghlaw.com.au
+61 432 023 750
Hugo Shervington
AGH Law 2020 Winter Vacation Clerk