Model website terms and conditions that will protect your business
We know from experience that when you create a website, writing the legal information pages sits on the backburner compared to other tasks. However, having website terms and conditions are not only required by law if you sell online, but provide you, as a website owner, with recourse you wouldn't otherwise have without them.
A website terms and conditions document tells your website visitors what their legal responsibilities and legal rights are.
We have over 45 website terms and conditions templates (also know as online terms and conditions, terms of website use, user agreement), each designed to suit a different type of website or business model. The majority of these are free website terms and conditions templates, provided you attribute our copyright in them.
Terms for retailers of physical goods
These website terms and conditions templates are for businesses that sell physical products through their website.
Some or all of your products could be made to order, designed by your customers or come with software.
For example, you might sell clothes, toys, sports equipment, IT hardware or food.
Terms for offline service providers
These are terms for businesses that supply services - whether delivered online or offline.
For example, you might provide a tax return preparation service, or psychotherapy.
They include a templates for businesses that principally sells a service, but that also sells related products, for ticketing retailers, for event organisers and for hotel businesses.
Terms for software and SaaS providers
These are terms for services provided online, such as Software as a Service providers ('SaaS'), and End User Licence Agreements for software providers.
Terms for retailers of digital products
These are T&C that include a licence agreement to use downloaded products such as photographs and music.
Terms for blogs, news and information sites
Websites that simply publish information don't require the terms of sale that ecommerce sites need.
If you run a blog, a reference website, an online magazine or newspaper or a community site, your terms should cover ownership of content and rules regulating visitor behaviour.
Terms for sites that connect buyers and sellers
We call sites that connect buyers and sellers marketplace websites.
The market may be for goods or services of any type, and may require either side to register as a member before being allowed to trade.
Therefore these terms include rules for transactions to which your site is not party, and behaviour as a registered buyer or seller.
Terms for sites that require membership or subscription
Websites that foster a community - whether online or offline - require additional terms relating to behaviour as part of that community.
Whether you operate a sports club that allows members to book facilities and arrange matches online, or a fan site that encourages discussion, we provide you with protection from misbehaviour.
What are website terms and conditions?
Website terms and conditons are the legal contract between you and your site visitor, and if you sell online, your customers.
Without a document that outlines the rules and regulations of using your website, it is much harder to protect your business if your site visitors behave in a way that is detrimental to it.
If you are trading online, particularly if your customers are consumers, without good website terms and conditions, at best you may forfeit your rights in law, and at worst you may break the law and become liable for significant fines.
Getting your website terms and conditions right might not be your most pressing task when you are building or redeveloping a site, but good terms are critical to the success of your business in the long term.
You need to cover the minimum, whether you are a start-up or have been trading for a long time.
What you will find in our website terms and conditions templates
If visitors also transact, then we also include terms of sale and/or terms of service as applicable to the business model you have. These set out further rights and obligations of both sides.
No term appears in every website terms template we sell. Each document has been drawn to be relevant to the type of business we intend to protect.
Use of plain English strengthens the document
Our terms are easy to understand. Our consistent use of plain English and minimal 'legalese' throughout helps because:
- you can set out clearly how your business works and what your website visitors can expect
- it prevents misunderstandings and makes solving disputes easier
- it presents a professional image of your business
- it helps ensure customers do not feel intimidated by overly formal or legalistic language
- it makes a document easy for you to edit
Extensive guidance to help you edit the template
With each website terms and conditions template we include extensive guidance notes that explain each paragraph.
Despite our efforts to draw documents relevant to common business models, there will be paragraphs in the document that you will want to add to or edit because your business is different. That is fine, and we can check your edits as part of our additional review service if you would like confirmation that they fit.
Site security and restrictions on what your user may post to your website
Having strong security terms in a website terms and conditions document is not going to stop crime, but it does:
- provide a deterrent to any misuse for which you could sue in court
- prevent you being blamed for a criminal or nuisance activity
- reduce the chance of your being the subject of some damaging social media campaign - particularly important if your members can contribute content to your site that you might not moderate in real time
- present your site in a strong and purposeful way, giving out a message that you are not a 'soft touch'
- assist in protecting you from a civil or criminal offense for which you may otherwise be liable as a result of what someone else posts to your website
- provide permission for you to remove offensive content and generally stay in full control of what happens on your website
By using these provisions, we give you the best possible defence against anyone who claims they have been insulted, injured, or defamed.
Particular terms which are included where relevant
Basis of Contract
You can only impose rules within a contract.
A contract can only be formed if you know the identity of a visitor and if they explicitly agree to be bound by the terms.
The mechanism for agreeing to the terms is usually a check box at checkout or registration. If there is no explicit agreement, there is no contract.
To bind the visitor to your contract, you cannot tick a check box in advance for them (they actively have to do this), nor can you simply have a statement that by continuing to use your website, they agree to the terms.
So, if you have a site that is entirely open to use, or even pages than can be explored before registration, it cannot be fully protected by your website terms and conditions.
Despite that principle, there are circumstances in which you could claim that your terms and conditions apply, so it is always worth having them.
Your confidential information is defined at length. We help you safeguard all your secrets.
We provide disclaimers. They are not always legally binding because you can disclaim only so far as the law allows. The law is complicated and much depends on the facts of each case. If you overstep the mark, your disclaimer could be void.
We use disclaimers strongly but we use words that we hope will avoid upsetting your clients and customers.
For example, the terms disclaim liability for:
- the content of third party websites, and what happens when a user clicks on third party links
- for website content uploaded by users (user generated content) that other users might find offensive
Intellectual property protection
We include intellectual property clause that provides the strongest protection for your intellectual property rights, whether your business owns much or little IP.
For instance, if you run an information site that includes images and written content, you will want to make sure that your terms set out that your copyright in such content cannot be used by anyone else, anywhere else without your permission.
Suitable for sites with international visitors
Even if your target audience is located in Australia, your website is likely to attract visitors from around the world.
Particularly if you might sell to customers abroad, we give you terms that protect you as strongly as possible.
Our website terms and conditions templates are drawn under Australian law, but much is likely to be enforceable in many other legal jurisdictions as well.
Your business model might include displaying advertising in some way.
Our website T&C do not regulate the terms of any advertising contract with a third party. The deal between you and the advertiser should be the subject of a separate contract, rather than one between you and your visitors as your website terms and conditions are.
But we do include general terms intended to protect you from a claim by a site user in respect of anything they might claim against you in respect of what an advertiser might show.
Customer data storage
We make sure your user does not expect you to keep their personal data indefinitely, or at all. We also cover you against any claim that you are in breach of any customer right covering their personal data.
A termination clause sets out the circumstances and consequences of termination of the agreement either by you or by your user.
While you are entitled to terminate services with a user if they commit a serious breach of the terms, there may be other circumstances in which you want to control who uses your website (such as in cases where you need to terminate accounts of abusive users quickly, but it is not clear whether the breach is serious or not). You can give yourself the right to terminate at your sole discretion.
The termination clause also usually sets out the procedure that is followed.
Terms for sale of goods and services
The basis of a set of T&Cs is common law, covering: offer, acceptance, price and payment, delivery, provision of service, liabilities, returns, retention of title and risk.
Then there may be further acts and regulations on trading in your particular industry.
Price and payment
We give you options on every part of the charging process, from straight unit price to royalty, to payment on running credit account, to commission on sales. Like all other terms, we make it easy for you by limiting options to what is appropriate for a site like yours.
Consumer protection, order cancellation and returns
If you sell to consumers, you must adhere to Australian Consumer Law ('ACL') and you need to include certain information in the contract terms.
The information provided in our guidance notes for every relevant document include an extensive explanation and instructions as to how to comply given your business type.
We provide sensible terms. However, the law everywhere provides that if you sell defective goods or services you are obliged to pay for all foreseeable resulting loss and expense.
We define a marketplace site as one where the website operator is an intermediary, providing a platform from which someone else sells products or services to buyers who come to the site.
Because each marketplace website has its own business model, we provide separate legal agreements for terms with buyers and sellers. You should therefore buy a pair of documents: one dealing with terms for your sellers and one dealing with terms for the buyers.
We offer several options for sale of services because services vary enormously in what is provided.
We try to avoid you being an agent in law, but rather a platform provider. However, the range of services you offer and the fact that you collect payment may well categorise you as an agent.
We do our utmost to insulate you from problems between a seller and a buyer. We push seller obligations onto your sellers and direct a buyer to their seller, leaving you as clean as possible.
However, as an intermediary, you still have to comply with the consumer laws.
All market place documents cover:
- a framework of rules as to how a seller places a product or service with you
- the fact that you do not hold stock
- e-commerce: prices, your remuneration options, return of goods, taxes
- your payment options: a commission basis, a transaction fee basis, through advertising, or not at all
- upload by sellers of their own product pages or product advertisements
- joint advertising to sellers
- options for regular sellers (for example, ones that operate their business entirely from your site), and one-off sales
Membership sites vary widely. You can use a membership business model not only to sell goods or services but also to provide information or regulate a free service.
A key point in paid membership sites business models is how and when to obtain payment. You cannot unilaterally renew a contract - both sides need to agree to it. However, if you continue a course of action and your customer accepts or acquiesces, they cannot later complain if they have continued to enjoy the services. In reality many Internet contracts are continued from year to year. We cover this thoroughly of course.
The best way to deal with this issue is to provide a warning to a customer or member about four weeks before you take payment, with a copy of the invoice against which payment will be taken. You then take the payment on the due date and send a new message to your customer or member to confirm.
Why a licence might be relevant to what you sell
If you own a car, you can sell it only once. Not so with intellectual property. In law, you sell a right to sing your song (or use your legal document template) by way of grant of a licence. Every website terms and conditions document drawn for a site that allows use of its intellectual property includes a licence in some form.
So whenever in these website terms and conditions documents we consider the sale of software or soft-copy goods we are dealing with a licence, not an outright sale.
Limitations and permissions on licences
Permissions concern simple expressions of duration, territory, market, timescale, and so on. Limitations generally cover what your customer is not allowed to do.
Examples are: transfer ownership of their licence to someone else; copy text; allow anyone else to use the software.
A licence is infinitely variable. You can decide on the length of the term, exclusivity, market, transferability, extent and many more variables. Other options include: sub-licensing, removing ID references and prohibited uses.
Every licence in these documents contains appropriate limitations and permissions. The extent and terms of the licence varies from simple to extremely thorough. What we provide in each licence varies according to the requirement of the product. You can delete what you do not need and add anything referable to your particular business.
Licence terms in these documents are:
- professionally drawn and tough in law
- useful for both business to business or business to consumer transactions
- easy for you to adapt if you need to do so
The law in these terms and conditions documents
The governing law in these website terms and conditions is largely Australian common law that deals with the basics of contracts: offer, acceptance, price and payment, delivery, returns, dispute resolution, liabilities and risk. Provided you comply with this law, you can set the commercial terms you like.
Where your end customer is a consumer, you need to comply with the consumer laws. Therefore, whether you are a marketplace site or a direct seller, we have included relevant provisions in our templates that enable you to comply with the law and run your online business seamlessly.
Where your customer is a business person, our templates allow you to comply with the Sale of Goods Acts.
Why not copy terms from another website?
There are two principal reasons why copying the terms of another website can be a bad idea.
The first is that they might have a slightly different business practices - a different delivery procedure or cancellation policy.
Your terms not only allow you to comply with legal requirements, but also the expected user or customer experience. Your business might be much more different in this regard.
The second is that the terms of your competitor might not be legally binding or compliant. They have to be written under state law or national law applicable to you.
It is also possible that your competitor knows that some of their terms are not enforceable or are misleading statements, but include them anyway because, in their opinion, their customers are unlikely to challenge them. You need to know what these are in case you are challenged. You also might want to present more favourable business terms to your customers.
Presenting your terms
You are legally required to present your website terms and conditions openly and legibly on your site.
If they are not easily readable (for example, because of a small font size or poorly contrasting colour scheme) or easily located, then they may not be enforceable.
You can choose whether they are be made available on a single page, or across a number of pages. If they are across multiple pages, it is a good idea to link to all of them from each separate page.
Policy documents, such as a refund policy, tend to form part of your terms.
As well as website terms, you will need to display a website privacy notice in a prominent place - usually linked in your website footer.
This covers how your business uses personal information. This may be their name, email address and postal address, but could also include data that hints at their sexual orientation, ethnicity and gender.
- what personal information you collect
- how you do so
- why you do so, and
- what you do with it.