Website Terms of Use, Terms and Conditions and Privacy Policy

• Terms of Use: These terms set the rules for all website visitors. It helps to protect your website. It includes what users can do, what is prohibited, and a disclaimer to limit your liability when they access your website.
• Terms and Conditions: This document is between you and each purchaser/customer/client. It addresses consumer law requirements and helps to protect your business.
• Privacy Policy: As required by the Australian Privacy Principles (APPs), your business must have a privacy policy to state how a business will deal with and store personal information.

All three legal documents must be written specifically for your business or operation. While it is tempting to copy from another website, this is a breach of copyright, and you could end up in hot water if you face a breach of privacy law or the ACL.

For large or complex entities, consider whether you need to have more than one policy (for different parts of your operation or business or different functions or activities).

1. Terms of Use

If your business has a website, ideally, you should have terms of use document to inform your users how they can and cannot behave while on your website. This legal document protects your IP and limits your liability. It also sets out permissible and prohibited conduct, including excluding competitors. Your terms of use will apply to every person who enters your website and cover protections, such as: 

• the protection of your original content, including prohibiting the reproduction of any content; 
• ensuring that you have the rights over any User Content on your website; and
• limiting liability for any information available on your website. 

2. Terms and Conditions

In general, most terms and conditions documents have basic similar features. The five features of terms and conditions are:

• description of products or services and how your business will deliver these for clarity and certainty;
• payment terms, including the right to charge interest and use a debt collector or a solicitor to enforce payment;
• to the extent applicable, clauses addressing the mandatory consumer guarantees and your refund policy;
• dispute resolution to help you resolve disputes and avoid the cost and uncertainty of going to court; and
• disclaimers and limitations on your liability to protect your interests.

However, your terms and conditions may require further information. There are three key types of online business, and each requires different terms and conditions. Let us explore these below. 

Service Business: Client Agreement

If your business sells services, you need a client agreement. Your client agreement sets out:

• the services you provide;
• how you will provide them; and
• you and your client’s obligations.

Shop or E-Commerce: Sales Terms and Conditions

These terms and conditions set out the information you need to provide and that customers seek when they buy products from you. This includes information regarding:

• delivery;
• refund and exchange policy;
• limiting liability; and
• compliance with the Australian Consumer Law.

Well-drafted sales terms and conditions can be the difference between clients not paying or raising disputes.

Marketplace: Marketplace Terms and Conditions

Marketplaces are a business model where the marketplace owner (typically the platform provider) will connect buyers and sellers. 

Marketplaces require a comprehensive set of terms and conditions that address both the issues in usual terms and conditions documentation and additional issues, such as:

• users providing correct information to the site;
• user content;
• IP;
• legal relationships between the parties;
• your obligations; and
• users upholding their obligations.

Software as a Service: SaaS Terms and Conditions

Software as a Service Terms and Conditions set out the terms and conditions of using your online software and heavily focus on protecting your intellectual property.

3. Privacy Policy

You should have a privacy policy if your website collects or uses personal information and your business is an APP entity. A privacy policy is a vital tool in meeting the APPs. Regardless of whether the law compels you to have one, it is best practice to have a Privacy Policy on your website. This lets customers understand where your business holds information and how you use it. Furthermore, it ensures your business handles personal information openly and transparently. Your privacy policy must set out the topics you cover and state the practices, procedures and systems an APP entity must implement to ensure it complies with the APPs.

Specifically, your privacy policy needs to address:

• the personal information you collect;
• how you use and disclose this information; and
• how you store the information.

Furthermore, it must set out a client’s right to:

• contact you;
• unsubscribe; and
• complain.

If you are an APP entity, there are sizable fines for breaching the Privacy Act. Therefore, it is essential to comply. Suppose you plan on sending promotional material to users. In that case, it is prudent to let them know you will add them to your mailing lists. This prevents your business from unintentionally breaching spam legislation and maintains a high customer service level.

Key Takeaways

When setting up a website for your business, you should ensure you draft a terms of use document, a terms and conditions document and a privacy policy. Doing so will help your business meet its legal requirements and provide guidelines for you and your customers. 

If you require assistance drafting your business’s website documents, our experienced e-commerce lawyers can assist as part of our LegalVision membership.  For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

Frequently Asked Questions