Overview

An interactive business website should outline the legal policies, terms, conditions and privacy guidelines under which your business operates with its users. The published terms and conditions limit the business risks and liabilities as best possible to those your business is prepared to operate by.

This article will provide you an insight on what are website terms and conditions, the risks and possible liabilities of not having these conditions in place and the benefits of engaging a legal professional to draft this complex document.

Website Terms And Conditions

Your website should outline the terms and conditions governing the use of the website. At a minimum, the terms of use should deal with:

the basic disclosure obligations;
a disclaimer of liability; and
provision of providing for the licensing of the website content to users.

Website terms and conditions are not legally required, but having a page on your website and outlining the terms and conditions of use, provides some limitation of risk. Terms and conditions pages are especially important when you are transacting business of any kind directly from the website.

These pages can limit your liability, as well as protect your rights to the content of the website. Most importantly, these pages serve as a guide for users on how to properly use the website, and they also appropriately manage expectations of those users with regard to the website’s performance.

Therefore, taking into consideration the best interests of the owner of the website, the following key clauses should be included in your website terms and conditions:

Visitor’s agreement to the website terms and conditions

If a visitor or user to your website does not agree to your website terms and conditions then they should not use your website.

Details of the website’s ownership

Website terms and conditions should specify the URL address of the website and full details of who owns and operates it.

Reference to and other relevant policies

Your relationship with visitors to your website is governed by your website terms and conditions and any other policies of your business that are accessible on your website. This generally means a privacy policy, as websites often collect personal information about visitors to the website (for example, by using cookies).

Policy regarding cookies

If your website uses cookies to monitor visitors’ browsing preferences then personal information may be stored by your business for use by third parties. In such a case the visitors to your website should be made aware of this through your website terms and conditions.

Any limitation placed on your liability

Your website terms and conditions should clearly specify that visitors should use your website at their own risk.

Reference to third party material

If your website contains third party material, then such material should be appropriately acknowledged on your website and your website terms and conditions should state that visitors to your website are not permitted to reproduce any such material without the consent of the owner of that material.

Clear consequences of use of the website

Your website terms and conditions should require visitors to use your website only for lawful purposes and it should be mentioned that any unlawful use of your website can give rise to an offence.

Ability to amend the terms and conditions

Your website terms and conditions should also state that the content of your website, including your website terms and conditions, may change without any prior notice and that the visitors’ continued use of your website will be deemed as an acceptance to those changes.

Clear refund policy

The website terms and conditions should clearly mention the refund policy in case you sell goods or services through your website.

The Risks And Possible Liabilities

If the terms and conditions on your website are properly framed, it will minimise and/or eliminate various risks, protect and limit your liability in the following ways:

you can inform the visitors about the usage policy of your website, their rights and the preventions;
you can protect the intellectual property of your website including but not limited to the content, design, images and website look and appearance;
your liability for the information and material available on your website;
your liability for the links provided by any third party; and
your obligations under Australian law and regulations.

Privacy policy

If you are gathering information from your customers, including credit card information, you must have a privacy policy which must be in accordance with the Privacy Act 1988 (Cth) and must comply with the Australian Privacy Principles (APPs) contained in the Privacy Amendment (Enhancing Privacy Protection) Act 2012.

With the rise of internet use and social media websites, in particular, people are freely sharing their personal data. This does not mean, however, that they are not sensitive to its proper use. Taking these concerns into consideration, your privacy policy should clearly address your purpose for gathering private data, as well as how you collect it, use it, and store it. The idea here, in regard to the terms and conditions, is that you make your customers and prospects comfortable with the expectations you set.

Benefits Of Engaging A Legal Professional

Drafting of website terms and conditions along with the privacy policy is in itself complex in nature. You need an experienced legal professional to draft the intricate clauses as there are many legal aspects to your websites.

Legislation requires that specific categories of information should be disclosed on your websites. There are procedural hoops that some kinds of website must jump through. The law also regulates the kinds of content that can be published on a website, and controls the legal nature of the publication itself.

Legal documents on your website can help to deal with these issues in various ways. A well-drafted website legal notice, policy or terms and conditions documented by your lawyer can, amongst other things:

help a webmaster to comply with the legal disclosure obligations;
ensure that the webmaster does not improperly abridge customers’ (especially consumers’) rights;
ensure that website content is licensed to users on an appropriate basis;
limit (or at least attempt to limit) your liability in relation to the website;
set out the legal basis upon which products and services are supplied to customers;
help you to be aware of the procedural obligations that the law places upon you; and
show that the webmaster is serious about legal compliance (important from a marketing perspective)

While there are no specific requirements set out by law for your website’s terms and conditions, you should consult your lawyer to tailor them to the specific business needs of your company and the industry in which it performs, as well as what you intend to do with people as they visit your website, irrespective of whether it is transacting business or simply marketing your business to them as they visit.

Owen Hodge Lawyers can help you to have a clear understanding of the entire procedure and can assist you through the process considering your best interest.

Feel free to contact our team at Owen Hodge Lawyers on 1800 770 780 to get advice on website terms and conditions.

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