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What is the Difference Between Terms of Use and Terms and Conditions? 

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Understanding the difference between terms of use and terms and conditions on your website can be confusing at first. The best way to tell them apart is to know who they apply to and their purpose. Terms of use apply to every visitor to your website. On the other hand, terms and conditions apply to specific users, such as those purchasing from your business. This article will explain what these different legal documents are and why they are important for your website and business.

What are Terms of Use? 

Terms of Use inform users of your website what they can and cannot do. They often come in two forms: browsewrap or clickwrap. 

Browsewrap means that the terms of use are shown on the website via a hyperlink that users can choose to click on and read.

No action is required by the user to deal with the terms. On the other hand, clickwrap terms require action. It allows the user to read the terms of use before proceeding, such as in the form of a pop-up that the user must interact with before closing. 

What is the Purpose of Terms of Use?  

Terms of use permit some conduct and prohibit other conduct by setting the boundaries of what is acceptable use. Generally, this will exclude behaviour that is unlawful, inappropriate or which might bring you, your website or your business into disrepute. These terms also function to limit your liability.

It is important to ensure you and your business are not legally responsible for users’ actions or outcomes they experience during their use. For instance, if your platform allows users to make comments, your terms of use may include a statement that you are not responsible for the content users publish.

Terms of use also play an important role in protecting your intellectual property (IP). Your terms of use should specify that all of the content available on your website belongs to you and cannot be exploited by users. 

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What are Terms and Conditions? 

Terms and conditions will apply to a website user who is making a purchase of goods and/or services from your site. They may include similar terms as the terms of use but will be much more detailed and customised to your business needs.

What is the Purpose of Terms and Conditions? 

Terms and Conditions will include information about: 

  • your products, goods or services;
  • how customers pay, when payment is expected and how you will enforce payment collection;
  • the delivery process, methods and estimated times; 
  • policies on refunds, returns or exchanges; and
  • dispute resolution information to help you avoid unnecessary costs and stress.

Terms and conditions are governed by the Australian Consumer Law (ACL). This document should outline your rights and the rights of your customers under the ACL. The rights of your customers include consumer guarantees, which you cannot exclude.

For example, a key consumer guarantee is the consumer’s right to a refund, repair or replacement where the goods or services are not of reasonably acceptable quality. Thus, your terms and conditions ensure both you and your consumers have clarity. Furthermore, it will help make sure you are compliant with the ACL. 

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Key Takeaways

Even though these two legal documents seem very similar, they perform very different functions. Having both is important to protect your business. They will help give your users and customers a better understanding of what to expect from you and their use of your website. At its core, the terms of use document applies to all website users. In comparison, terms and conditions apply only to those acquiring your goods and services on a once-off or an ongoing basis. 

If you need help with terms of use or terms and conditions documents, our experienced contract 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

Do terms and conditions or terms of use deal with privacy issues? 

Not usually. Some terms and conditions and terms of use do contain privacy provisions. However, it is common for websites to also have a privacy policy that will be referenced and linked somewhere on the website. 

I sell services. What kind of terms and conditions do I need? 

You may need specific terms and conditions drafted, otherwise known as a client agreement. It is similar to terms and conditions but goes into more detail about the services you provide, how you provide them and what the obligations of you and your client are.

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