Last updated: 11 August 2023
How to Write Terms and Conditions – Here’s pretty much everything you need to know about “Ts&Cs” for your online business website in Australia.
We sell a great, all-in-one website legal package that includes a Terms and Conditions template for Australia, so there is no need to discuss specific legal wording in this article. However, we will explain their ins and outs and pass on some of the lessons learned from over 10 years of writing your Terms for Australian online businesses.
TLDR: Quick Summary of this Legal Guide
- Website Terms & Conditions are legally binding notices which set out the terms that visitors, users and customers of your website must agree to before browsing your website or purchasing your products and services.
- Having a set of Website Terms & Conditions helps you meet Australian regulatory requirements and inform users and customers of the limitations of the website, which in turn can deter complaints, provide protection, and limit liability.
- Your Website Terms & Conditions must also comply with the latest Australian Consumer Law and explain your guarantee, warranty, replacement and refund policies.
- Australian Consumer Law forbids your Website Terms & Conditions from having a blanket “no refunds” policy – you need to explain when you will and will not provide a refund instead.
- To sell overseas, it is important that you state that the governing law is Australian, or you may have to deal with foreign courts and legal systems.
Legal issues covered in this guide
Click on any of the questions below to jump to that section of this legal guide.
- Importance of Terms
- Differences in Legal Notices
- Standard Clauses
- Legally Binding
- Generators and Templates
If after reading this guide you still have a question, get in touch as we’d love to keep adding your questions to this comprehensive guide.
Importance of Terms
What are Website Terms and Conditions?
Website Terms & Conditions are a legal notice which states the terms that visitors, users and customers of your website must agree to in order to browse your website or use your products and services.
It protects you from customers claiming to have suffered loss from your content or using your products or services. It also protects you from visitors to your website copying your content, claiming damages from viruses, etc. It is intended to cover visitors, users, purchasers of your products and subscribers to your services.
Website Ts&Cs are intended for users, subscribers and customers of your website. By contrast, a Website Disclaimer is less comprehensive and just intended for general website visitors.
Why have Terms and Conditions on my website?
Website Terms clarify to consumers the Terms under which they are purchasing goods and services from you and have the following objectives:
- Inform visitors on the website’s use, service and limitations: Informing potential customers about your terms of service and business practices.
- Provide protection and minimise risk: From users of your website copying and selling material that you have produced and provided on your website.
- Meet Australian regulatory requirements: Privacy legislation, visitor and customer data collection, etc.
- Help avoid customer complaints: Explicitly stating terms of your services and business helps avoid misunderstandings and potential customer complaints.
- Limit liability: For claims for damages from purchasers of your products or services or subscribers to your website.
In addition, they show potential customers you are a professional operation. Website visitors will often check your refund policy or shipping options before purchase – and if you don’t bother to explain these, then you’ll never get the sale!
Do I need Terms and Conditions for my website?
If you are selling online, then Yes. And selling online includes:
- Transacting sales via an Ecommerce or online store website
- Advertising products and services for sale via telephone or physical store, or
- Advertising products and services for a 3rd party (e.g. Classifieds website)
All of these types of websites need to post Terms. If you are selling goods and services to Australian consumers (either yourself or on behalf of others) and you do not have Ts&Cs posted, then you may be breaching Australian Consumer Law. And the Australian Competition and Consumer Commission (ACCC) is getting more aggressive about catching sites that are not complying and fining them.
What risks are there in not having Website Terms and Conditions?
Plenty of businesses operate quite nicely without Website Terms or Conditions. There are also plenty of people without home contents or business continuance insurance! It’s an easy step to take and it may prevent against claims for:
- Inappropriate advice
- Consequential loss
- Online viruses, etc.
Do Ecommerce websites need Terms and Conditions?
Yes, Ecommerce websites and online stores are at greater risk of things going wrong – compared to a simple online brochure-type website or blog. They, therefore, need to have comprehensive website Ts&Cs.
Website Terms explicitly state the terms that visitors, users and customers of your website must agree to in order to browse your website, buy your products or to use your services. They protect you from customers claiming to have suffered loss from your content or using your products or services. They also protect you from visitors of your website copying your content, claiming damages from viruses, etc.
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In addition, certain types of websites are inherently more “risky” and so need Terms to protect their owners, for example:
- Personal training, fitness and exercise websites
- Medical and health advice-type websites
- Food, diet and sports supplements websites
- Financial transaction and financial advice-type websites
- Online dating and meet-up websites and apps
- Website design, data storage and IT services
Use this simple Infographic to check: What Legals Do I Need for My Ecommerce Business?
I sell overseas. Do I need worldwide Terms and Conditions?
Unfortunately there is no such thing as “worldwide” Terms and Conditions. It would be almost impossible to write Terms for every legal jurisdiction in the world – or at least it would be a mammoth task (and no one would read them).
But there are two things you can do if you sell to both Australian and overseas consumers:
- Include a Governing Law clause in your “Ts&Cs” that states where your business is located and the law under which your Terms of business are governed, or
- Start with Australian Terms and Conditions and once your business grows, have your Terms reviewed to ensure compliance in your other major markets, such as the UK and US
Your Governing Law clause means any customer claims must be made in the Australian State you nominate. There’s more detail about this issue in one of our recent blog posts, so go check out worldwide Terms and Conditions here.
Differences in Legal Notices
A Website Disclaimer is generally less detailed and offers limited protection unlike full Website Terms and Conditions.
The two expressions (Disclaimer and Terms) are often confused or used interchangeably. However, an online standard is emerging with the use of Website Disclaimer for non-commercial websites (i.e. providing information only such as a company brochure-type website) and the use of Website Ts&Cs which is associated with commercial websites (i.e. providing a paid-for product, service or subscription service).
Not necessarily. If your website is an online company brochure-type, notifying visitors of your business or just a simple blog, then Website Ts&Cs may be too much. However, if you run an Ecommerce website, selling products or services, you definitely need full Website Terms for Australian Consumer law purposes.
For more information, we have written this simple infographic explaining the difference between Ts&Cs, Disclaimers and Privacy Policies.
What should a Website Terms and Conditions notice cover?
If you sell products or services online you MUST have Terms and Conditions that comply with the latest Australian Consumer Law. The Australian Competition and Consumer Commission (ACCC) checks websites and issues penalties if you’re non-compliant.
Australian Consumer Law stipulates that you must include the following details in your website Terms:
- A statement that you comply with Australian Consumer Law
- How you will provide a refund, repair or replacement of faulty products
- Details of your guarantee, and
- Details of your warranty (if you provide one, which is not obligatory)
So those are the minimum legal requirements that your website needs to include. In addition, we recommend your Terms include:
- Details of shipping options and expected delivery times
- Payment terms if payment is not immediate (e.g. “net 30 days”)
- Cancellation policy if you offer a subscription payment product or service
- Limitation of liability clause for potential claims of damages by your customers
- Notifications about privacy and data collection policies
- Warnings about stealing your website content or copying your ideas
- Details of any third party relationships and who has responsibility for what
- Any other Terms specific to your business and important to you
- Governing Law clause stating your business location and the State law under which your business is governed
Do I need to include a Refund Policy in my Terms and Conditions?
You can’t just say “No Refunds”.
You need to include a statement about your Refund Policy on your website. This is one of the most frequent questions we get here at Legal123. The issue is particularly tricky if you sell digital products, like software or eBooks. In these cases, once the product is sold there is no way of “returning” it and guaranteeing that the product has not been or is not being “used”. In these instances, often an online business owner would prefer to have a blanket “no refunds” policy to avoid the issue entirely.
However, Australian Consumer Law explicitly states you cannot have a blanket “no refunds” policy. You have to offer some kind of refund in some instances, since you are required by law to guarantee your goods and services against faults or if they do not perform as advertised. So we recommend you explain when you will and will not provide a refund, for example:
- You are given an opportunity to fix technical issues (e.g. downloading)
- Refund requests have to be made within a specified limited time period, or
- Refunds will not be given if the customer has changed their mind, etc.
Do I need to get legal advice when writing my Terms and Conditions?
We are lawyers, so of course we’d suggest you always get legal advice when writing your Terms. However, we also believe that 80% or more of online businesses can be protected with a standard template. But if the product or service you are offering is unusual in any way or you are trying to mitigate a specific kind of risk, or you are unsure, then of course you should consult a lawyer.
Do I need to worry about updating my Terms and Conditions?
Yes and No. Legislation affecting online businesses in Australia does change from time to time and your Website Terms and Conditions need to be kept up to date. However, if you are a customer of Legal123 and there is a major change in the legislation, we will endeavour to contact you and provide you with the latest version of our Website Legal Package for free.
Are my Terms and Conditions legally binding?
Yes, your Terms and Conditions are legally binding if you have had them drafted by an Australian law firm. Be aware that copying terms from other sites leaves you exposed to copyright claims and also not ensuring they are Australian legal terms.
Having Terms on your website will not stop you from being sued – either in Australia or overseas. However, they will certainly help your case, provide protection and, in some situations, may help exempt you from or at least limit your liability. They may also deter a person from attempting to seek legal compensation from you or your business.
Always live up to and honour your business Terms. If you have clear business terms then there’s a good chance that your customers will abide by them also. But if you cut corners and do not respect your customers and honour your terms, then it’s only a matter of time before you will run into problems.
IMPORTANT NOTE: Persons under the age of 18 years are not considered adults and therefore are not able to agree to a legally binding contract. This means they can be released from the obligations agreed to, such as agreeing to purchase goods or paying for them. To avoid this, when selling products online, ensure that your customers are over the age of 18 years. But beware, they still may not be telling the truth and you cannot be certain. This is one of the risks of doing business on the Internet that cannot be avoided however, at least you can evidence you made an effort to ensure customers were able to make a legally binding contract.
Should I get “active agreement” to my Terms and Conditions?
If you are particularly concerned about the use of your website by customers and fully protecting yourself, you might wish to make acceptance of the website Terms and Conditions a condition of sale or entry into your website. Ticking a checkbox is called “active agreement” and gives you an extra level of protection. It is not required but it makes the argument that they were ‘not aware of your Terms’ a difficult one.
In general, there are 3 options for checkbox placement:
- Checkbox with link saying “I agree to” or “I have read” your Terms and Conditions next to your “Add to Cart” button
- A popup window or page during the checkout process where a customer can read your Terms and Conditions and click an “Agree” button at the bottom, or
- To enter the website your customer is presented with the Terms and Conditions of the website and needs to agree before entering and browsing
Whether you choose to get “active agreement” is a business decision. It can add “friction” to the purchase process. If you’re selling simple products – like keychains or ringtones – you may think it is less necessary. But if you’re selling higher risk products – like health or food related, financial or life coaching advice – then it’s probably a good idea.
In addition, if you plan on selling any customer or subscriber data to 3rd parties (so they can market to your customers and subscribers) then you’ll need to get “active agreement” via a checkbox.
How visible do my Website Terms and Conditions need to be?
It is important that your Website Terms are clearly visible and easily found. At the very least, they should be accessible from every page on your website.
If you don’t make your Terms obvious and easily found, customers who sue you might argue that your business terms were not disclosed to them, were ambiguous or were intentionally ‘hidden’.
Can I still be sued even though I have Website Terms and Conditions?
Yes, you can still be sued. However, having comprehensive Website Terms will certainly help your case and, in some situations, may help exempt you from liability. It may also deter a person from attempting to seek legal compensation from you or your business.
Additionally, you may be protected in Australia but there is always the potential that you may still be sued in another country. Even though you have a statement on your website under Governing Law that requires litigation to be in Australia, you still may be required to defend a claim in another country.
Depending on the country, international use of your site, products and/or services means you have an increased risk and resulting cost of future litigation. Some countries may apply their local laws and chose to permit litigation in their country, depending on the country involved and despite any condition or term stating the jurisdiction to be Australia on your website. This will increase your costs considerably should this be the case but due to the international aspect of the potential audience, it is almost impossible to avoid.
That is one of the problems with website businesses – the Internet is international and you have no way of limiting who visits, uses or accesses your website, product or services with the exception of the protections and requirements of use in your Website Terms and Conditions. However, there are limits to your protection, no matter how strong the language or how robust your terms may be.
Generators and Templates
Should I use a free Terms and Conditions generator?
Of course not! We sell the best, inexpensive, all-in-one-website legal package in Australia. So why would you take the chance with your business?
Here are 4 reasons to avoid a free Terms and Conditions template in Australia:
- You don’t know if the Terms are up-to-date and compliant with the latest Australian Law
- The Terms are unlikely to relate to your specific business (e.g. personal training, photography, etc.), and
- What if you have a question – who do you call?
- Free is free for a reason – there is usually a catch (e.g. they want your email address, to up-sell you, may be from another country, etc.)
Should I use a paid Terms and Conditions template?
We believe that 80% or more of online businesses can be protected with a standard template, particularly when additional clauses are added for specific business types like Ecommerce, Personal Training, Dietary Supplements, Photography, etc. And that’s why we wrote the Legal123 Website Legal Package.
A template solution is also much less expensive than seeing a lawyer. We’ve seen quotes of between $3,500 and $6,000 for standard website Terms and Conditions from solicitors. These quotes are the result of most local solicitors not being familiar with online businesses and online law – so they need to “get up to speed”. Plus face-to-face meetings, office premises, secretarial staff, etc. are expensive overheads they need to recoup.
With our Legal123 Terms and Conditions template we guarantee it is up-to-date with the latest Australian legislation and we email you free updates when there is a significant change.
In the online template you can select from different types of business, including:
- Ecommerce/Online store
- Fitness/Exercise website
- Dietary/Sports Supplements website
- Food/Catering website
- Education/Life Coaching website
- Classifieds website
- Photography website
- Financial Broker website
- Consulting website
- Copywriting website
- Home Design/Renovation website, etc.
Plus if your business has specific characteristics or risks, we can help you by writing additional clauses to cover these. And you can call us with any questions you have.
Is it OK to copy Terms and Conditions from someone else’s website?
Absolutely not! And there are three reasons why:
- You are putting your business and yourself at risk by potentially posting Terms that are not related to your business or copied from another country or business on your website
- The Australian Competition and Consumer Commission (ACCC) is now checking Ecommerce websites randomly and issuing penalties to non-compliant sites, which includes sites that have duplicate Terms that don’t relate to the website, and
- You’re breaching someone else’s Copyright by re-posting their work
Here at Legal123 we’ve seen it all. One business didn’t understand what Governing Law or Jurisdiction meant and ended up having to fly to California to defend a dispute in a Californian court for products sold in Australia. All because they copied their Terms from a US website and left in the Californian Jurisdiction clause.
Someone even copied our Terms and Conditions and left our name, Legal123, in their Terms!
What best practice suggestions do you have for writing Terms and Conditions?
Finally, some best practice suggestions. Terms and Conditions are an important part of running a professional online business. Don’t forget:
- Make sure your Terms are easy to understand (iTunes is longer than Macbeth)
- Lay out your Terms with clear headers and put important clauses in bold
- Use a consistent set of Terms on your website, quotes and invoices
- Put yourself in your customers’ shoes and make your Terms fair and reasonable
- If you have an App, you’ll need Terms for that too.
We hope you found this guide on How to Write Ts&Cs for your website helpful.
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