Website terms and conditions

Three different documents, often confused

• Website terms of use. Govern the use of the site itself: acceptable use, your ownership of the content, any user-generated content licence, accuracy disclaimers, third party links and liability for the site being unavailable.
• Terms of sale. Govern the transaction: when the contract is formed, price and GST, payment, delivery and risk, returns and refunds, cancellation, and what happens if an item is out of stock or mispriced.
• Privacy policy and collection notice. Govern personal information. The policy is the standing document required by Australian Privacy Principle 1. The collection notice is what you tell someone at the point you collect their information under Australian Privacy Principle 5.

A single page trying to do all three usually does none of them well. Separate them, and link each from the point where it matters.

Selling online under the Australian Consumer Law

The consumer guarantees apply to online sales exactly as they do in a shop. Goods must be of acceptable quality, match their description, and be fit for any purpose you were told about. Services must be supplied with due care and skill. None of that can be excluded, restricted or modified by your terms, and a statement suggesting otherwise can itself breach the law as a misrepresentation about consumer rights.

Two areas cause most of the trouble.

Refund wording. "No refunds", "all sales final" and "store credit only" are the classic offenders. You are entitled to have a policy about change of mind returns, because change of mind is not a consumer guarantee failure. You are not entitled to suggest that a customer has no remedy when a product is faulty.

Pricing and availability. Displayed prices must be accurate and must include GST for consumer sales. Say clearly when the contract is formed, because if it is formed on your acceptance rather than on the customer clicking pay, a genuine pricing error can be handled without breaching the contract. Also make sure any claim on the site, including reviews you publish and comparisons you draw, can be substantiated. Section 18 of the Australian Consumer Law prohibits misleading or deceptive conduct, and it applies to marketing copy as much as to contract terms.

Subscriptions, marketing and data

If you run a subscription or a recurring charge, the terms need to state the billing cycle, how to cancel, when cancellation takes effect and whether any period is refundable. Automatic renewal combined with a short cancellation window and a long minimum term is precisely the pattern the unfair contract terms regime was strengthened to address in November 2023.

For email and SMS marketing, the Spam Act 2003 (Cth) requires three things: consent, which may be express or in limited circumstances inferred, accurate identification of the sender, and a functional unsubscribe facility that is honoured promptly. Buying a list is almost never a defensible basis for consent.

On data, decide what you actually collect. Analytics, advertising pixels, session recording and chat tools all collect information about visitors, and some of it will be personal information. Your privacy policy should describe cookies and analytics in plain terms, explain what a visitor can do about them, and be accurate about whether any of that information leaves Australia. Ours is published at our privacy policy.

Making the terms actually bind the user

Terms displayed passively at the bottom of a page bind almost nobody. Terms that a customer must positively accept, with a record of the acceptance and the version accepted, bind them.

1. Require a tick box at checkout or on account creation, unticked by default, referring to the terms by name with a working link.
2. Log the date, time and version accepted against the customer record. This is the evidence you will need if it is ever argued.
3. Keep dated archives of every version you publish, so you can prove what applied on the day of a particular order.
4. Give notice of changes rather than relying on a clause saying continued use constitutes acceptance, which is a weak position and a candidate for being an unfair term.
5. Include an Australian governing law and jurisdiction clause. A template that nominates a foreign jurisdiction is worse than having no clause at all.