Caitlin Bowman: Is your online business presence legally protected?

Hi, my name is Caitlin Bowman. I’m one of the lawyers here in the property and business team at Turnbull Hill Lawyers.

Today, I’m going to speak to you about having your business online, and is your presence online actually protected legally and adequately enough. Many businesses these days have both a physical store, but they also have a very big online presence. It doesn’t have to be that your e-commerce and all you have is your online website and sell through your website solely to your customers, but you can have obviously a component of your business online.

In addition to the responsibilities as a physical retailer of goods, online businesses also have additional components that they need to be thinking about when you’re setting up your business online, or alternatively, if you’ve been running a business online for a substantial period of time. These things include a certain number of additional legal obligations you need to think about including payment terms, privacy of your customers, how you’re going to handle and connect with your customers online, and also while still staying compliant with Australian Consumer Law. There’s a range of legal documents that you can have in place that will ensure that your business is protected for these particular things and these additional legal obligations.

Today, I’ll go through the three main documents that I’d suggest that you have put in place to ensure your business is protected online. One, terms and conditions. These can be used in multiple ways. Two, your website terms of use, and three, a privacy policy.

Terms and Conditions

What are terms and conditions? Essentially, it’s a contract between your business and your customers that sets out the obligations of each party. There can be a number of factors that are in them, and that can be as complex as you need for your particular business. They should cover a range of issues such as product delivery, payment terms, your ability to charge interest if the payment’s late, refunds, warranties and indemnities, limits on your liability, intellectual property, and certain things like that. Written business terms and conditions can also minimise the possible disputes that your business may have. The reasoning for this is it sets out with certainty the obligations of each party and when you’re going to contract with each other.

You can also use your business terms and conditions as a marketing tool. Ultimately, what they do is they set out both your rights but also the customer’s rights, which is a good thing for them to know prior to entering into transactions with you, and this way it can also give you some ability to utilise those for your professional image for your business.

There’s five key features that I’d like to see in your business’s terms and conditions.

  1. The first one is the products and services, what you’re providing, when it’s going to be delivered.
  2. The second one is when you’re going to charge, and whether if the payment is late, you can charge interest, and how that would work.
  3. The third one is your mandatory consumer guarantees and your refund policy that’s required under your Australian Consumer Law.
  4. The fourth one, a dispute resolution, and that’s just to ensure that if there is a dispute, it can be worked out cost-efficiently and as quickly as possible.
  5. The fifth one, limitations on your liability. That’s just to ensure that obviously if there is an issue with liability, it sets out who’s responsible at what particular point in time.

The next main point would be when you provide your business terms and conditions to your customers. It’s not actually required that your customers sign your terms and conditions every time, which is sometimes a misconception that businesses have. They can be referred to on your quotes. They can also be emailed out to your customers, or provided on your website with a click button, do you agree to the terms and conditions, which we see so often? Whether your clients read it or not, is not actually relevant. It’s up to them to utilise it if they want to read them, but you don’t need to confirm that they have.

Once your client’s actually accepted your quote or advised you to proceed or bought your product or service, they’ve actually accepted your terms and conditions, and at that point, the contract is formed between your business and your customer.

Terms of Use

The second document that you should have is your website terms of use. This is more important for some businesses if they’re carrying on a lot of their business online and have a lot of interaction with their customers through their website. It should also be utilised even if you’re just simply selling to your customers. This document outlines how users can interact with your website and what responsibilities are in using it. Not every person who visits your website is actually going to become a customer of your business. However, they will still interact with your website. It’s important to have this document to protect critical aspects of your business that’s online.

Some of the key clauses that should be included in your website terms of use will be disclaimers, how you can interact and they can interact with your website, limitations on your legal liability, protection of intellectual property.

Privacy Policy

Additionally, if your website collects personal information, or at any point in time, in the transaction you collect your customers’ or clients’ data, you will need to also have a privacy policy in place. The privacy policy should set out in an open and transparent way, how you’re collecting that data, and how it’s also being used moving forward.

With recent changes in legislation with the Privacy Act, it’s actually mandatory for businesses to have a privacy policy if they collect, at any point in time, information from their customers or clients. Your privacy policy must also include details about how your customers can contact you. If you’re sending marketing out to your clients via email or any other way, also how they can unsubscribe to that, and also how they can complain as well.

Website & Email Disclaimer

Lastly, a website and email disclaimer. You’ll see this on most websites that you visit, and if you’re getting promotional emails, you’ll probably also see the email disclaimer on the bottom of those emails. It just sets out that your liability is limited in relation to that information you are providing.

If you have any further questions about anything that I’ve discussed today, or you want a review of your current documents that are in place, please feel free to give me a call.

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