In short
Online terms of sale govern the contract formed when a customer places an order through your website — covering price and payment, dispatch and risk in transit, and returns — but they can never exclude, restrict or limit the consumer guarantees under the Australian Consumer Law for goods or services supplied to a consumer, and any clause attempting to do so is void and can itself be a penalty-attracting breach.
Consumer guarantees can't be drafted around
The most common defect we see in online terms of sale is a clause purporting to limit the business's liability to 'replacement or store credit only' or to exclude warranties beyond a stated return window. Under the Australian Consumer Law, consumer guarantees — that goods are of acceptable quality, fit for purpose, match their description, and that services are provided with due care and skill — apply automatically to most consumer purchases and can't be excluded by contract. A term that tries to exclude or limit these guarantees isn't just unenforceable, it can constitute a false or misleading representation about consumer rights, which is itself a breach the ACCC actively pursues. We draft terms that state the guarantees accurately rather than attempting to contract out of them.
When title and risk actually pass
Terms of sale need to specify clearly when risk in the goods passes to the customer — typically on dispatch to a third-party carrier, or on delivery, depending on the commercial model — and this needs to align with what actually happens operationally. If a business tells customers risk passes on dispatch but its practice (or its carrier contract) suggests otherwise, that inconsistency becomes a dispute point when goods are lost or damaged in transit. We also address retention of title until payment clears, particularly for higher-value orders or where chargebacks are a live risk, so the business retains a contractual basis to pursue recovery of goods if payment is later reversed.
Pricing, payment and order acceptance
We draft the point at which a binding contract is formed — usually not at the moment an order is placed, but on acceptance or dispatch — so a pricing error or stock unavailability doesn't leave the business contractually bound to fulfil an order at an incorrect price. Terms also need to address currency, GST treatment, and how payment processing and refunds for cancelled or incorrect orders are handled, particularly where a third-party payment gateway is involved and its own terms interact with the sale contract.
Delivery timeframes and service-level exposure
Advertised delivery timeframes create expectations that can amount to representations under the Australian Consumer Law if they're not genuinely achievable, so we draft delivery clauses that are accurate about estimated (not guaranteed) timeframes unless the business is prepared to stand behind a guarantee, and we address what happens — refund, replacement, or store credit as an option, not a substitute for statutory rights — where delivery fails altogether.
Chargebacks and disputed transactions
Terms of sale should set out the business's process for responding to a chargeback or payment dispute, including what evidence the business will provide to the payment processor and the customer's obligation to raise a dispute with the merchant first under the terms, though this contractual process doesn't override the customer's rights under their card scheme rules or the Australian Consumer Law — it simply gives the business a documented, consistent internal process to follow when disputes arise, which materially improves outcomes with payment processors that assess chargeback ratios.
What the fixed fee covers
- Drafting of terms of sale covering order formation, price and payment
- Consumer guarantee statements compliant with the Australian Consumer Law
- Dispatch, delivery and risk transfer clauses
- Retention of title and chargeback response provisions
- Coordination with your refund and returns policy for consistency
Mistakes we see
- Including a clause purporting to exclude or limit statutory consumer guarantees
- Stating risk passes on delivery while operationally treating dispatch as the risk transfer point
- Failing to specify when a binding contract is actually formed, exposing the business to pricing-error claims
- Advertising 'guaranteed' delivery timeframes the business can't reliably meet
- Having terms of sale that contradict the separate refund and returns policy
Who this is for
- Online retailers and DTC brands selling directly to consumers
- Subscription box and repeat-purchase e-commerce businesses
- B2B suppliers also running a direct-to-consumer online channel
- Businesses migrating from a marketplace to their own online store
Frequently asked questions
- Can I limit my liability to a refund only, with no replacement or repair option?
- No — under the Australian Consumer Law, the remedy for a failure of a consumer guarantee depends on whether the failure is major or minor, and the consumer (not the business) generally chooses between repair, replacement or refund for a major failure. A clause forcing one remedy is void to that extent.
- When should risk pass to the customer for goods sold online?
- It's a commercial choice within limits — most online sellers pass risk on dispatch to the carrier, but this needs to be clearly stated and consistent with how the business actually operates and insures its shipments, otherwise the clause won't hold up if disputed.
- Do I need separate terms for business customers versus consumers?
- Often yes — consumer guarantees under the Australian Consumer Law apply differently (and some exclusions become available) for goods acquired for business use above certain thresholds, so B2B-facing terms can validly include limitations that consumer-facing terms cannot.
- Can my terms require customers to dispute issues with me before raising a chargeback?
- You can include a process encouraging this, but you can't contractually prevent a customer from raising a chargeback with their card issuer or exercising Australian Consumer Law rights — the clause operates as a preference, not an enforceable bar.
- What happens if I advertise a price by mistake?
- If your terms make clear that a contract forms on your acceptance or dispatch of the order rather than at the point the customer submits it, a genuine pricing error can generally be corrected before that point — but this depends entirely on the order formation clause being properly drafted.
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