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This business support module discusses the benefits and importance of Terms and Conditions on your business' website including:
Today we're going to answer the question. Do I need terms and conditions on my website?
First, I want to tell you a little bit about Onyx Legal. So we are a local law firm. We're a boutique commercial law practice looking after people who mainly do business online. And we're based at North lakes in Moreton Bay. We're a small team and all of the senior members of the team have run their own businesses, so they understand what it's like for you and the pressures that you face as a small business owner. We've all done lots of years of study. We all have lots of letters after our name, but we are very practically focused and we try and make life as easy as we can for you in any of the legal issues that you're dealing with.
I've also written a book called ‘Cover Your Arse Online’ to give you some tips and hints on how to look after your business while doing business online.
Do you need terms and conditions on your website? But before we get to that - this is only general legal information. This is not specific to your circumstances, so please don't go and take action on the basis of this information. If you need advice, please get advice from a lawyer specific to your circumstances. If you share this information with other people don't advise them what to do on the basis of this information. You can certainly alert them to what's important to them, but then suggest they get advice as well.
So what we're going to look at is:
You get to set the rules of the game. Think about Facebook, or Google, or Amazon, or any of the really big platforms. eBay is another great one. They've created those platforms. Those platforms are their spaces and they set the rules of the game within those spaces.
Now the rules of the game are consistent with applicable laws. So for Google, if it's the entity based in Ireland, then it will be based on Irish law. But apart from the Irish law, the rules of engaging with Google are they what they set and what they make.
That's your opportunity as well. With your website you can set the rules of the game or the terms of engagement of other people coming to your website, and how they use your website and the information available there.
You get to tell people what you do and what you don't do. Now, that can be very important, particularly if you're in a regulated industry. So for example, we've worked with people in financial services previously. In that instance, you want a really clear disclaimer on your website explaining what your financial services license details are, and what the limits of financial services that you can provide in accordance with that license.
You can also use terms and conditions to help manage your intellectual property. So people with creative or artistic works on their website, you can include a specific license in your terms of use to say “If you use any of our material, these are the conditions under which you use that material”.
Some other things you can do is add credibility. Another example in financial services. A few years ago, I had a client who wanted to use a payment provide, and it was a local Australian payment provider. I went and researched them because they wanted to check that they were legitimate. Now they looked legitimate. And they'd been around for a couple of years, but when I went to their website, there was absolutely no information. There was no terms and conditions. There was no details around their business. And there was nothing about their financial services license. I found the owner of the website on LinkedIn and sent them a little message, which unfortunately they were terribly offended at, because they came back to me and they said, ”Oh, but we're legitimate, and where we comply with all of these things and all of that now”. I explained to them, the only reason that I had raised it and contacted them was that they had missed the opportunity to demonstrate that credibility and to demonstrate all of that history by including it in their website and not long after that they did. So adding to your credibility, showing the legitimacy of your business is a really good reason to do it.
Showcasing your qualifications and experience is another opportunity. I know that a lot of people will do that in their about pages, but you can use disclaimers and you can use terms and conditions to specify either limitations or ring fencing exactly what you do or what you don't do for people.
You can set the rules of engagement. You control the environment. You have the ability to ensure people can't come to it. For example, you can geo-fence your website, which means that you could create settings to your website so it's not visible in certain countries in the world. That's the benefits of terms and conditions.
Some typical current terms and conditions that if you download a template (of terms and conditions from a website that helps generate templates) the kind of things that you're looking at for terms and conditions through our website are addressing:
In terms of finding your terms and conditions the convention is to have a link in your footer. That's just the convention. If people are looking for terms and conditions, that's the first place they look. I have seen people put it in normal menus. I did see one retailer try and hide them in the back end somewhere. If you hide your terms and conditions on your website, because you think it's important you have them. It doesn't benefit you.
The whole point of terms and conditions is that people have the opportunity to see them before they make a decision about your products or services. That means before the point of purchase, even if the purchase is for free. If you hide them somewhere on their website and they're hard to find, then you're defeating that purpose because it will be presumed - if you ever had to go to a court action - that they weren't found, and that they weren't read. Whereas if they're very obvious, then it’s more likely to be presumed that they were seen and they were read. So convention footer of the website, and that's every page of the website.
When we start looking for what's relevant to your business, what we're looking for is the relationships that are generated through your website. If your website is a brochure website (so you're just confirming that you're a legitimate business, and this is where people find you and gives a little bit of information about your business, but doesn't allow for any other interaction) then you would have basic terms of use. You may not need privacy because you may not be collecting any personal information. Now there's a caveat there. If you don't have privacy terms, you can't use things like Google ads or, Facebook ads, or ads on any of those sorts of platforms. So you may still need privacy terms.
Apart from people who come to your website for free, the other relationships will depend on how you use your website. Very sophisticated websites will have multiple, multiple relationships and they'll have more detailed terms and conditions. So if you've ever read Facebook terms and conditions, and I do from time to time (some of them, NOT all of them).
I did find a fantastic article, sometime in the last year, which said the readability of Facebook terms and conditions is actually more difficult than one of Stephen Hawking's books. That says something about how bad they are.
But if you read those sorts of terms and conditions, they're actually quite detailed and they're under a multiple of headings and they're dealing with all those different types of relationships. eBay's another example, their terms and conditions are quite extensive.
So if you're running a competition, you'll have terms and conditions about that. If you are selling products, you'll have e-commerce terms, which I talked about before. If you are selling services, you might have booking terms.
There are different sorts of terms and conditions. If you're allowing people to advertise on your website, like you're selling banners, or spaces, or advertorials or anything like that, then you'll have terms and conditions around that. If you run a directory site, you'll have specific terms and conditions to do with that directory.
If you sell programs, for example, a lot of our clients sell programs and education. And people purchase a subscription that allows them to log in and access that information. Then you'll have terms and conditions. And depending on whether you have one type of program or multiple types of programs, you might have different terms and conditions that fit across different programs.
We have a client who also operates an app. So we put the terms and conditions for the app on the website because apps have to be hosted somewhere and that data is all linked from it. So we put those terms and conditions on the website and they link the app back to the terms and conditions on the website for that.
You mind have staff access and you might have some rules around that, for example, not sharing passwords.
Different types of customers, different members, programs, and advertisers, anything that happens on your website that engages people other than your business, even within your business, that may have different terms and conditions.
So that's the first thing we do when we sit down with you or we work with someone working on a website. Normally if you're developing a new website, we'll ask people to give it to us when it's 75% complete so that we can actually see what the user interface is going to be like and how people are going to interact with that website. And then we can more accurately identify what terms and conditions you may need for that website.
Other sorts of examples. We've had attendance at webinars for members of the public, attendance at webinars or podcasts for guests, those kinds of things. So there's quite a variety of things that you can do with terms and conditions.
When we deal with companies that have multiple websites, so they might have different branding around the way they sell different products. Then we generally look at how do we create a consolidated set then can sit on one of the websites and be linked back from the other websites. And the reason for that is you've only got on one place to change things. So when you need to do updates, you only need to worry about doing it in one place instead of across multiple places.
Another thing we suggest is that when people have membership sections that the membership terms and conditions are not on one of the public facing pages. So they're there on a no index, no follow page where they're not going to be found accidentally. And they're linked through so when a person fills in their details to join up to a program, they have access to the terms and conditions before they joined the program. And they can click that link and say that, read them, and then say they agree to those terms and conditions.
Other things that we suggest, particularly if you're selling products or services, is having those terms and conditions on again and no index, no follow page where they're not going to be accidentally found or automatically found. And then linking the terms and conditions in your invoicing, so that not only do people have the opportunity to see them before the point of purchase, but then they also have repeat opportunities throughout their relationship with you to access them again and again. That helps you to ensure that people are always having the opportunity to check them and see them, and also allows you the opportunity to update.
However, when you do update terms and conditions, don't assume that new ones are going to apply to existing customers. What you want to do with existing customers is let them know, give them notice that changes are going to come into effect. And when they're going to come into effect, and tell the customer that they have the opportunity to opt out before they come into effect. But if they don't opt out, the new terms and conditions will apply. So you have to give people that opportunity.
From what I understand a high percentage of people just continue. They don't worry about changes. You think about it when you get notice from your bank, any social media provider, any other subscription service that you're part of saying we're updating our terms and conditions. Do you read the updates? Do you check them? Often I do. Do you even bother to pay attention. Once you see that heading, do you just delete the email? Your clients are going to have a very similar behavior to you. Don't be afraid to make sure that those communications do actually happen. It is important that you give people the opportunity. You don't have to make sure people do read things before they tick a box. Ticking a box is that action that has been taken to form a click rep agreement. So people agree once they tick that box, they agree to those terms and conditions, whether they've read them or not.
And unfortunately, often people only read terms and conditions when they have a problem. It's just the way things happen. But as long as you've got them in place, they're easy to find, they're easily accessible and you can demonstrate that you have given people every opportunity to access them before the point of purchase, then you can rely upon them.
If you have terms and conditions on your website and you have copied and pasted them from someone else, please be careful with that. We have seen them where somebody copied and pasted something from a crematorium and didn't change any of the references and their business had nothing to do with the crematorium.
So it can be a problem. If you have copied and pasted, you don't know what jurisdiction that applies to and whether it's actually applicable in Australia. You don't know if the terms and conditions may or may not be directly relevant to your business and you may have adopted something that has nothing to do with protecting your business.
So please just check what you've got, and make sure that you're happy with those terms and conditions.