In short
Website terms and conditions govern access to and use of a website itself — content licensing, acceptable use, intellectual property and liability for site availability — and are legally distinct from terms of sale, which govern the purchase of goods or services through the site. Any limitation of liability clause must be drafted so it doesn't purport to exclude the consumer guarantees under the Australian Consumer Law, because a clause that tries to do so is void and can itself expose the business to penalties.
Website terms are not terms of sale
A common and costly conflation is treating 'website terms and conditions' as a single document that also covers product sales. Website terms should govern use of the site itself — browsing, account creation, content you publish (like reviews), intellectual property in the site's design and content, and acceptable use restrictions such as prohibitions on scraping or reverse engineering. If the business sells goods or services online, a separate terms of sale document should sit alongside it addressing pricing, delivery, returns and payment, because bundling everything into one document tends to produce sale terms that are either buried or contractually inconsistent with the consumer guarantees that actually apply.
Intellectual property and user content
We draft clear ownership statements over site content, trademarks and any proprietary tools, plus a licence back from users for any content they submit (reviews, comments, uploaded material), scoped to what the business actually needs rather than an unnecessarily broad worldwide perpetual licence that creates its own disputes down the track.
Limitation of liability against the Australian Consumer Law
The Australian Consumer Law implies consumer guarantees — acceptable quality, fitness for purpose, matching description — into supplies of goods and services to consumers, and section 64 of the ACL makes void any term that purports to exclude, restrict or modify those guarantees where the ACL applies. A limitation of liability clause in website terms can still validly limit liability for things outside the consumer guarantees (like liability for site downtime, or for third-party links), but drafting a blanket 'we exclude all liability to the maximum extent permitted by law' clause without carving out the consumer guarantees is sloppy and can attract regulator attention under the ACL's unfair contract terms regime if the site's terms qualify as a standard form small business or consumer contract.
Unfair contract terms exposure
Since the unfair contract terms regime was strengthened with civil penalties, standard form website terms that a user can't negotiate are squarely in scope, and terms that give the business unilateral rights to vary terms without notice, or broad indemnities from the user with no reciprocal obligation, are the kind of clauses regulators and courts have found unfair. We draft variation, indemnity and termination clauses with enough balance and notice mechanics to withstand this scrutiny.
Governing law, dispute resolution and enforceability
We include Australian governing law and jurisdiction clauses, a mechanism for the terms to be accepted (browsewrap is weaker evidence than clickwrap acceptance, and we advise on which is appropriate to the site's risk profile), and a clear process for updating terms that doesn't itself fall foul of the unfair contract terms concerns above.
What the fixed fee covers
- Website terms of use covering IP, acceptable use and user content licensing
- Liability clause drafted to avoid voiding under ACL section 64
- Unfair contract terms review of variation, indemnity and termination clauses
- Advice on clickwrap versus browsewrap acceptance for your site
- Governing law, jurisdiction and dispute resolution clauses
Mistakes we see
- Merging website terms and terms of sale into one inconsistent document
- Using a blanket liability exclusion that doesn't carve out the ACL consumer guarantees
- Granting the business unilateral variation rights with no notice mechanism
- Taking an unnecessarily broad perpetual licence over user-submitted content
- Relying on a footer link with no acceptance mechanism for higher-risk transactional sites
Who this is for
- Businesses launching or relaunching a website with user accounts or submitted content
- E-commerce businesses needing terms separate from their terms of sale
- SaaS and content businesses with significant user-generated content
- Businesses reviewing terms after ACL unfair contract terms reforms
Frequently asked questions
- Do I need separate website terms and terms of sale?
- If you sell goods or services through the site, yes — website terms should cover use of the site itself, while terms of sale should separately address pricing, delivery, returns and the consumer guarantees relevant to the actual transaction. Combining them tends to produce weaker, less specific terms on both fronts.
- Can I exclude all liability in my website terms?
- No. Section 64 of the Australian Consumer Law voids any term that purports to exclude the consumer guarantees where they apply, so a blanket exclusion clause is both ineffective for that purpose and can draw regulatory scrutiny. Liability can still validly be limited for matters outside the consumer guarantees.
- What's the difference between clickwrap and browsewrap acceptance?
- Clickwrap requires an active step — ticking a box or clicking 'I agree' — before proceeding, which gives much stronger evidence the terms were accepted, while browsewrap relies on a footer link and continued use, which is weaker evidence in a dispute. We advise on which fits your site's risk level.
- Are my website terms a 'standard form contract' for unfair contract terms purposes?
- If users can't meaningfully negotiate the terms — which describes almost all website terms — they're likely to be standard form, meaning the ACL's unfair contract terms regime can apply if the counterparty is a consumer or eligible small business, exposing unbalanced clauses to being void and penalised.
- How much content can I take from users under a content licence?
- Only as much as you actually need for the purpose — a licence to display a customer review on your site is very different from a broad worldwide perpetual licence to use content commercially, and drafting broader than necessary just creates unnecessary user pushback and legal risk.
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