A simple guide to help you understand who needs website Terms of Use and a Disclaimer, what they actually do and why they’re worth the investment.
Not to freak you out or anything, but if you have a website and you don’t have professionally prepared Terms of Use and/or a Disclaimer on there, you’re exposing yourself to some massive risks.
What do Terms of Use and Disclaimers actually do?
The most important things your Terms of Use and Disclaimer do are let your visitors know what they can do with your website and limit your liability for anything that goes wrong if your visitors rely on information or links on your website.
You can also use your Terms of Use to protect your intellectual property by letting people know how they can (and more importantly, how they can’t) use your website content.
Depending on what you use your website for, you might include your Terms and Conditions of Sale in your Terms of Use, however, if selling is the primary purpose of your website you might want to have a separate, more prominent Terms and Conditions document closer to your point of sale.
What risk do Terms of Use and Disclaimers protect against?
Even if your website seems harmless enough, giving advice online can pose a massive risk.
You might be thinking “well, I don’t give any risky advice”, so here are some examples of seemingly harmless advice going wrong:
- aggravating a chronic health condition by following an online diet and fitness plan
- falling prey to a computer virus after following a hacked link
- getting concussed after falling from a ladder while following online instructions on how to take the perfect flat-lay photograph.
Are Terms of Use really necessary?
If you are selling goods or services to consumers or small businesses, you are required by law to let your customers know their rights. The ACCC (the government body in charge of making sure that sellers comply with the Australian Consumer Law, or ACL) is cracking down on sites that don’t. Serious fines apply.
If you’re not selling anything on your website, but you are providing information or links to information, you will at the very least need a Disclaimer.
Will Terms of Use or a Disclaimer make a difference to my bottom line?
Yes! Good Terms of Use can help you to establish trust with your customers, by showing that you are operating within the law. And we all know that in online business, trust is number one.
What are the chances anyone will even notice my Terms of Use or lack thereof?
It’s more common than you think. The ACCC received more than 20,000 complaints from consumers last year.
That’s 20,000 reasons to make sure your website is up to scratch.
Can I just use a template Disclaimer or Terms of Use?
The trouble with template Terms of Use and Disclaimers is that they are essentially models or guides. They are not designed to be used in every case without amendment.
You know that your business is unique. So why would you use a standard legal document?
It’s not worth the risk when you’re operating online because of the strict regulation in this area. The ACCC inspects sites to make sure their websites properly notify customers of their rights. How do you know that the template you’re using complies?
What’s wrong with copy and pasting Terms of Use and a Disclaimer from a similar site?
Would you use someone else’s financial models, advertising campaigns, or business plan? Of course not! What applies to one person’s business won’t apply exactly to another – no matter how similar.
Not convinced? Keep in mind that copying Terms of Use or a Disclaimer from another site amounts to a breach of copyright and can come with some heavy penalties of its own.
What if my customers are small businesses?
The majority of complaints to the ACCC come from small businesses, who are particularly concerned with misleading and deceptive practices.
In November 2016, the ACL was expanded to make the unfair contract protections available to small business consumers. This means you need to be very careful about what your terms of use say, and whether any of the terms might be considered unfair. A lawyer can go through your terms with you to help you figure out if your terms comply.
Click here for some guidance on what amounts to an unfair contract term.
Do I really need to use a lawyer to draft my Terms of Use and Disclaimer?
Unless you’re completely up-to-date and conversant with all of the consumer legislation currently in place, you really should see a lawyer.
If your terms of use don’t comply with the legislation, or if your disclaimer falls foul of what is allowed by law, the ACCC could pursue you for misleading or deceptive conduct. Significant (and we mean, REALLY significant) penalties apply. Read here about an online gaming company that was recently ordered to pay $3 MILLION in penalties for misleading terms and conditions on its website.
Who can help me with my Terms of Use and Disclaimer?
We can. At Her Lawyer, we offer website terms of use and disclaimer package that is within reach of even the earliest stage entrepreneur. We pride ourselves on offering excellent legal services to entrepreneurs at a price they can afford in a way that makes sense to them. Don’t wait – book in for your free consultation now.
