What goes in Terms and Conditions?

Do You Actually Need Terms and Conditions?

Unlike a Privacy Policy, Terms and Conditions (also called Terms of Service or Terms of Use) aren't always legally mandated in Australia. However, they're strongly recommended if you:

• Sell products or services online
• Run a SaaS, subscription, or membership service
• Allow users to create accounts, post content, or upload files
• Want to limit your liability for service downtime, third-party content, or user errors
• Need clear rules about what you can and cannot be held responsible for

Without T&Cs, you have almost no legal protection if a customer disputes a refund, blames you for losses, or misuses your service. T&Cs create a binding contract that protects your business.

What Distinguishes T&Cs from a Privacy Policy

These documents serve different purposes:

Privacy Policy: Explains what personal data you collect, how you use it, and how you protect it. Focuses on data rights.

Terms and Conditions: Defines the legal relationship between you and your users. Covers payment, refunds, liability, account termination, and usage rules.

You may need both. A Privacy Policy addresses data; T&Cs address everything else. Many small businesses include both in their T&Cs, or keep them as separate documents.

Key Decisions Before You Generate

Before creating your T&Cs, decide these fundamental things:

Payment and refunds:

• Are all sales final, or do you offer refunds within 30 days?
• For digital products, do you allow refunds after download?
• For SaaS: can users cancel anytime, or is there a commitment period?
• Do you offer free trials? How long?

User-generated content:

• If users post content (reviews, comments, uploads), who owns it?
• Can you republish or modify their content?
• Are users liable if their content violates copyright or is defamatory?

Your liability:

• Are you liable if your service is down or has bugs?
• Are you responsible for third-party links or content?
• What's the maximum you'll refund or compensate for losses?

Account termination:

• Can you suspend or ban users? On what grounds?
• Must you provide notice before terminating?
• Do users get refunds if you terminate their account?

Governing law and jurisdiction:

• Which Australian state's law governs the agreement?
• If disputes arise, will they go to court or arbitration?

Governing Law: Choosing Your Australian State

T&Cs must specify which state's law applies if disputes arise. Choose the state where your business operates or where you're based.

Common choices:

• New South Wales (NSW): Most common choice for Australian businesses; courts are well-established and business-friendly
• Victoria (VIC): Melbourne-based; similar to NSW, slightly more formal
• Queensland (QLD): Growing business hub; courts are increasingly experienced in commercial disputes

Specify the governing law clearly in your T&Cs, e.g., "These terms are governed by the laws of New South Wales." This removes ambiguity if a dispute arises.

What Your T&Cs Must Include

Your Australian T&Cs should cover:

• Your business details — company name, ABN, address
• Product or service description — what you're selling or providing
• Price and payment terms — cost, payment method, when payment is due
• Refund policy — if applicable; be specific about timeframes and conditions
• User rights and responsibilities — what users can and cannot do
• Limitation of liability — what you're not responsible for (downtime, lost data, indirect losses)
• Intellectual property — who owns content, code, and trademarks
• Dispute resolution — how disputes are handled (negotiation, arbitration, court)
• Governing law — which Australian state's laws apply
• Changes to terms — you can update T&Cs with notice (e.g., 14 days)

Common Pitfalls to Avoid

• Too vague: "Liability may be limited" doesn't work. Be specific about what you're not liable for and any monetary caps.
• Conflicting with ACL: You can't waive consumer rights guaranteed by Australian law (e.g., products must be of merchantable quality).
• Hidden in tiny print: Important terms should be visible and easy to find. Courts will challenge unfair, hidden, or unreasonable terms.
• Changing without notice: If you update T&Cs, notify users in advance. Don't silently change terms mid-subscription.
• Overly one-sided: T&Cs must be fair and reasonable. Courts will strike down terms that unfairly favour you.

Regular Updates to Your T&Cs

Review and update your T&Cs annually or whenever:

• You change your refund, payment, or cancellation policy
• You add new services or products
• You expand to a new market or add new user types
• Australian law changes (e.g., new consumer protection rules)

Always date your T&Cs and keep a version history. When you make updates, notify existing users and give them time to accept the new terms.