Crisis breeds innovation, and the Covid-19 pandemic is no exception. Despite numerous lockdowns, COVID-19 has led a lot of existing businesses to shift to e-commerce for survival and has also prompted a surge in e-commerce startups.
This article outlines the three key legal documents you must have in place before you go live with your website.
Likewise, you must notify users of your website if you store any personal data overseas.
In addition to registering your trademark, your terms and conditions can also protect your website’s intellectual property from unauthorised use. A copyright and trademark clause informs your users that you are the owner of all content contained on your website.
Terms of Sale
Online agreements allow businesses to transact with customers without having to negotiate or interact with each user individually. It is therefore important that your Terms of Sale are tailored specifically to your business. We often find that many businesses have copied or based their Terms of Sale off another website. Not only is this a breach of copyright, but it often leaves a business exposed as the copied Terms of Sale may not be consistent with Australian law or consistent with a business’ own policies and procedures.
It is critical that your Terms of Sale creates a legally binding contract between you and your customers. Simply stating this in the Terms of Sale and having those Terms on your website will not be enough. Australian courts will only recognise agreements that have been created online if the basic elements of a contract can be established. Generally, this includes acceptance of contractual terms by both parties, a meeting of the minds, and an intention to create legal relations.
This is best achieved by including your Terms of Sale as a ‘clickthrough agreement’. A clickthrough agreement is created when a user ‘clicks’ or ‘checks‘ a box (or simply takes a positive step) to indicate acceptance of the terms and conditions displayed online. The positive step substitutes a real signature. After the user has given their consent, they can continue to place their order. If the user rejects, or chooses not to agree to the terms, the online agreement and their interaction terminates.
Australian courts are more likely to recognise a clickthrough agreement as legally binding if the following conditions are satisfied:
- Reasonable Notice: The user must have enough notice and opportunity to read the terms of the agreement before accepting the terms. Ideally, users will be required to read the terms by scrolling through the text before proceeding.
- Positive Step: The user must take a positive step (such as clicking ‘agree’ or ‘accept’) to confirm that they have read and consent to the terms of the agreement. The box should not be pre-ticked.
- Unusual Terms: Any unusual or onerous terms should be displayed in bold or highlighted in some manner to draw the user’s attention to the terms. This point is particularly important when the user is a consumer or small business, as they have the benefit of consumer protections contained in the Australian Consumer Law (ACL) which prohibit ‘unfair’ terms in consumer contracts.
The above is general information only and should not be taken as legal advice.
If you want more information on this topic or you’re planning to start an online business, get in contact with your commercial lawyer.