What should I include in my website T&Cs?

Does your business rely on its website for sales? If so your website terms & conditions (T&Cs) are critical to get right: they are the legal agreement between your business and your customer for the sale.

In this blog, we will walk through what start-ups and SME owners should include in their Terms and Conditions (T&Cs) on their website to mitigate legal risks and maintain customer relationships. This article is geared towards businesses based in Melbourne, Victoria and other states of Australia, if you are looking for advice about T&Cs in another jurisdiction please reach out to us directly to discuss your needs.

But first, what are website T&Cs and why do you need them?

What are website T&Cs?

Website T&Cs are a legal agreement which set the conditions that users of your website must agree to when accessing your website or utilising your goods or services. These terms serve as a contractual agreement between your business and your potential customers, detailing the terms under which they can engage with and use your website. All legal agreements require both parties to agree to the terms, so it’s important you have a feature on your website recording the customer’s acceptance of the T&Cs. This is normally done via a tick-box acceptance. Your T&Cs should state clearly that the customer ticking the box is a record of their acceptance of the T&Cs.

Why have T&Cs on your website? 

Having T&Cs on your website serves multiple purposes. These include:

1.    Transparency and Clarity: T&Cs inform your customer about your business practices, the scope of services offered, and the terms of service. This transparency fosters a clear understanding of what users can expect.

2.    Provide protection and minimise risk of liability: One of the primary functions of T&Cs is to shield your business from potential legal liabilities. By outlining the terms under which users engage with your content, products and services, you can pre-emptively mitigate risks associated with disputes, damages or claims arising from misuse or misinterpretation.

3.    Comply with legal and regulatory requirements: T&Cs play a pivotal role in ensuring your website aligns with regulatory requirements specific to your jurisdiction. For instance, as detailed further below, you may be legally mandated to provide T&Cs on your website to comply with the Australian Consumer Law.

4.    Avoid complaints from consumers: A well-structured T&Cs can significantly reduce the likelihood of customer complaints and misunderstandings. By explicitly articulating your business practices and service terms, you set clear boundaries and minimise the potential for disputes.

What should you include in your website T&Cs?

If you sell products or services online, you are legally obliged to provide a website T&Cs in line with the Australian Consumer Law (ACL). The Australian Competition and Consumer Commission (ACCC) regularly reviews websites and may impose fines and penalties if your website T&Cs are non-compliant. Therefore, we recommend that you engage a lawyer when drafting T&Cs for your website to ensure you tailor your T&Cs to your business.

The ACL stipulates that your website T&Cs must include:

1.    A statement that you comply with Australian Consumer Law

2.    Refund policy for faulty goods or services: Outline a clear procedure for providing refunds, repairs or replacement for faulty products or services. This transparency fosters trust and ensures customers are aware of their rights in case of dissatisfaction.

3.    Details of your guarantee: Include a clause that you guarantee your goods and services against any faults or in cases where they do not perform as advertised.

4.    Details of your warranty (if you provide one, which is not obligatory): Include a clause on what warranty policies exist on purchases of products or the length of the warranty period.

In addition to these minimum requirements, we recommend your website T&Cs to also include the following provisions:

1.    Intellectual property clause: Protect your website’s creative assets by including a comprehensive intellectual property clause. Clearly state your rights over content, images, and any other proprietary materials that appear on your website.  Consider whether you need to apply watermarks to images. If you produce a significant amount of digital content you should also speak with an IT professional to understand technical barriers you can implement to avoid your content being harvested by third parties.

2.    Indemnity provision: Minimise financial risk by incorporating an indemnity clause that limits your liability for user misuse of website content. This measure offers an added layer of protection against potential legal claims, however you need to ensure your website has the ability to track user’s information in order to identify any wrongdoers. Also be aware of difficulties in enforcing your legal rights against wrongdoers who may be based in foreign jurisdictions.

3.    Limitation of liability clause: Define the extent of your legal liability, ensuring that it is in line with legal parameters. This clause limits the risk of legal claims from users of your website for any damages or losses associated with the use of your website or your goods and services beyond what is legally stipulated.

4.    Disclaimers: Establish disclaimers that delineate the permissible use of your website’s content. For instance, restrict the usage of content to non-commercial, personal purposes, enhancing clarity and avoiding potential misunderstandings.

5.    Third party relationships: Clarify your responsibility regarding information provided by third parties on your website. Limit your liability by specifying that your business is not accountable for the accuracy of any content provided by third parties — be mindful that these limitations need to be reasonable in light of how you are presenting that third party information. Generally, you should ensure your website and all content on it are not misleading the consumer.

6.    Governing law clause: Include a governing law clause that designates the legal jurisdiction governing your T&Cs. This ensures that any potential legal disputes are subject to the laws of your chosen governing law. This will normally be the state / country in which your business is registered.

7.    Delivery: Provide comprehensive details of shipping options, expected delivery times, delivery costs, and liability for damages or loss of goods during transit. Consider whether the shipping provider’s own T&Cs should be linked to in your own T&Cs.

8.    Payment terms: Provide details on payment methods for online purchases of your goods and services. If you’re using a third party payment provide include relevant details (including a link to the third party’s own T&Cs if they will bind the customer).

9.    Non-faulty refunds: Provide details on when a refund will be available for customers who change their mind about a purchase, including return cost responsibility, availability of free refunds, and entitlements for refunds (eg, cash or store credit). Make it clear who needs to pay for shipping and handling of returns.

10. Cancellation policy: If your business offers subscription-based products or services, provide a clear and fair cancellation policy that outlines the conditions for discontinuing subscriptions.  Be wary of trying to impose automatic renewals or lengthy notice periods which be considered unfair terms (depending on the circumstances including the price, type of goods and services and type of customer, ie consumer vs business).

How to draft an effective website T&Cs

While crafting your T&Cs, you could consider the following practical tips to ensure they are enforceable and user-friendly:

1.    Simplicity and clarity: Make sure to keep your T&Cs short and simple. Use plain language and headings where appropriate to allow users to easily navigate and understand your T&Cs. If you can’t understand them, your customer probably can’t either.

2.    Visibility and accessibility: Require users to scroll through your T&Cs before accessing your website content. This will provide support to you when a customer argues they never read the T&Cs.

3.    Highlight key clauses: Important or unusual clauses should be highlighted in your T&Cs to draw attention to crucial aspects that users need to be aware of. Each business is different but track what issues and complaints are recurring on your sales, these are the issues that you need to be flagging to customers in your T&Cs.

4.    Binding contract acknowledgment: Clearly state that your T&Cs is a legally binding contractual agreement. This helps dispel any ambiguity regarding the legal nature of your T&Cs.

5.    Acceptance acknowledgement: Compel users to acknowledge that they have read and understood your T&Cs before being able to purchase any goods or utilise your services through your website.

If you would like to discuss your website T&Cs with a lawyer from Dexterity Law, please reach out to contact us here.

The above article was written by Pippin Barry (BA; JD Unimelb, an Australian Legal Practitioner) and Hyein Kim (Paralegal).