Website terms and conditions (also called Terms of Service or Terms of Use) are the legal rules that govern how people can use your website and interact with your products or services online. In Australia, any business selling goods or services through a website is required to have them in place.
Most founders set up their website, pick a free template from overseas, copy it across, and move on. It feels done. Then a customer dispute lands, or a lawyer reviews the site, and it becomes clear the T&Cs were never actually tailored to the business or compliant with Australian law. Fixing it after the fact is harder than getting it right upfront.
- Terms of Service and Terms and Conditions mean the same thing legally. The name you choose should match your business model: T&Cs for goods and standard B2C, Terms of Service or Terms of Use for software and SaaS.
- Your T&Cs must comply with the Australian Consumer Law. A blanket “no refunds” clause is illegal. Since November 2023, unfair terms in standard form contracts attract substantial penalties.
- Copying T&Cs from another website can make things worse, not better. Overseas templates often exclude ACL consumer guarantees, which means those clauses are unenforceable under Australian law, and your document provides false protection.
- A privacy policy is separate from your T&Cs, but often asked about together. If your business has an annual turnover above $3 million, a standalone privacy policy is legally required under the Privacy Act 1988 (Cth).
- How you present your T&Cs matters as much as what they say. A “clickwrap” agreement (ticking a checkbox) is much easier to enforce than a “browsewrap” (a footer link users never actively accepted).
Terms of Service vs Terms and Conditions: what’s the actual difference?
There is no material legal difference between Terms of Service (ToS), Terms of Use (ToU), and Terms and Conditions (T&Cs) under Australian law. All three are contracts. All three are legally binding if properly drafted and accepted. The distinction is mostly about convention and fit for purpose.
In practice, the naming tends to follow the type of business you run. A useful rule of thumb:
| Name | When it fits | Why |
|---|---|---|
| Terms and Conditions (T&Cs) | eCommerce, product-based businesses, B2C retail | Covers the sale of goods, delivery, refunds, and ACL consumer guarantees |
| Terms of Service (ToS) | Software, platforms, SaaS, B2B services | Focuses on service access, account rules, and subscription terms |
| Terms of Use (ToU) | Informational websites, blogs, tools | Governs how visitors use your content, not transactional |
In Lawpath consultations, advisors regularly see businesses use the wrong name for their model. A product seller who calls the document “Terms of Service” and forgets to include any delivery or refund clauses, for instance. The name signals to the reader what to expect. Get it right early and tailor the clauses to match.
One more important distinction: Terms and Conditions are different from a Privacy Policy and a Disclaimer. Your T&Cs govern the commercial relationship between you and your users. A Privacy Policy explains how you handle personal data. A Disclaimer limits liability for specific types of content (financial, health, or general information). Many businesses need all three, but they serve different purposes and should never be collapsed into a single document.
Does your website legally need terms and conditions?
If you are selling goods or services online in Australia, yes. The Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law (ACL) that sits within it place obligations on online sellers that need to be reflected in your T&Cs. A website without them is not a neutral position: it means no rules, no liability limits, and no agreed dispute resolution process.
Even informational websites benefit from T&Cs. For a more detailed breakdown by business type, see our guide on when website T&Cs are legally required. If your site contains advice (financial, health, legal), includes user-generated content, or has a contact form that collects personal information, you need to set out what people can and cannot do with your content and what you are not liable for.
Here is a breakdown by website type:
| Website type | T&Cs required? | What to include |
|---|---|---|
| eCommerce (selling goods) | Yes, legally | ACL consumer guarantees, refund policy, delivery terms, payment, dispute resolution |
| SaaS / software / subscriptions | Yes, legally | Access rules, subscription terms, IP ownership, cancellation, data use |
| Service business website | Strongly recommended | Scope of services, payment, IP, limitation of liability, dispute resolution |
| Informational / blog | Recommended | Content ownership, permitted use, disclaimer, links policy |
| Marketplace or platform | Yes, legally | User and seller conduct, payment, IP, dispute resolution, account termination |
What goes into Australian website T&Cs?
Most Australian websites should cover these areas. Not every clause applies to every model. Pull what fits, delete what does not, and make sure the document actually reflects how your business operates.
Acceptance of terms
State clearly when a user is taken to have accepted your T&Cs. Browsing the site is often not enough to create a binding agreement. A checkbox at checkout or sign-up (called “clickwrap”) is significantly more enforceable. Many advisors recommend this approach for any transactional website: if you need to rely on your T&Cs in a dispute, you want proof the user actively agreed.
Permitted use and prohibited conduct
Describe what users can do on your site and what they cannot: scraping, reverse engineering, uploading harmful content, infringing your IP, or attempting to bypass security. This gives you the contractual right to suspend or terminate access if someone breaches the rules.
Australian Consumer Law (ACL) guarantee clause
This is the clause most businesses get wrong. If you sell to consumers, the ACL gives them automatic guarantees: goods must be of acceptable quality, fit for purpose, and match their description. You cannot contract out of these. Your T&Cs need a specific ACL clause acknowledging this, not a general disclaimer that tries to exclude all liability, which will be void and potentially misleading.
In Lawpath consultations, our advisors consistently recommend naming this clause explicitly as “Australian Consumer Law Guarantee” rather than burying it in a general liability section. It makes your document cleaner and demonstrates to the ACCC (and a court) that you understand your obligations.
Intellectual property
State that your content, trademarks, images, code, and design belong to you. Specify what users can do with it (nothing, unless they have written permission) and what rights they grant you if they submit content to your site. For SaaS businesses, IP ownership is especially important. Make clear that your software that your software, interfaces, and underlying code remain yours.
Limitation of liability
You can limit your liability in T&Cs, but only to the extent permitted by law. A blanket exclusion clause that tries to disclaim all liability for everything is both unenforceable and a red flag for the ACCC. A well-drafted clause limits liability to the value of goods or services purchased, excludes consequential losses, and carves out the ACL consumer guarantees.
Payment, pricing, and refunds
For eCommerce sites, your T&Cs must include your refund policy. A blanket “no refunds” policy is prohibited by the ACL. You must explain when you will and will not provide a refund, replacement, or repair. If you use third-party payment processors (Stripe, PayPal, Afterpay), clarify that payments are processed through those platforms and that customers are bound by their terms too.
Dispute resolution
Specify how disputes are handled and where. Most Australian businesses nominate the laws of their state (typically NSW or VIC) as the governing law. If you sell overseas, a jurisdiction clause is important. Without one, a customer in California could theoretically sue you in a California court. Include a note that nothing in the clause limits the user’s right to lodge a complaint with the ACCC or state fair trading authority.
Amendments to terms
State that you may update the T&Cs from time to time and explain how you will notify users. Be careful here: a clause that lets you make unilateral changes without any notice to users may be challenged as an unfair contract term under the ACL. Reasonable notice (email or in-app notification) before material changes take effect is best practice.
Unfair contract terms: what changed in November 2023
This is the part most businesses have not updated their T&Cs for. From 9 November 2023, under reforms to the Competition and Consumer Act 2010 (Cth), unfair terms in standard form contracts are no longer just voidable. They are illegal and attract substantial penalties.
The definition of a “small business” for the purpose of these protections also expanded significantly. A contract is now a small business contract if one party employs fewer than 100 people or has an annual turnover under $10 million. That captures most businesses reading this article, meaning your T&Cs can no longer contain terms that create a significant imbalance in the parties’ rights without being legally justified.
Terms that are at risk under the expanded regime include:
- Clauses that let you unilaterally change the price, scope, or key terms without notice
- Automatic renewal clauses that are difficult or impossible to cancel
- Clauses that penalise a customer for exercising their legal rights
- Broad liability exclusions that go well beyond what the ACL permits
- Clauses that limit the customer’s right to take a dispute to the ACCC or Fair Trading
The ACCC has confirmed it is actively enforcing the new regime. In June 2025, it announced its first enforcement action under the expanded rules against an online platform with unfair terms in its standard form contracts. If your T&Cs have not been reviewed since early 2023, this is a priority task.
How to make your T&Cs legally enforceable
A T&Cs document sitting in your website footer is not automatically binding. Australian contract law requires offer, acceptance, and consideration. For your T&Cs to hold up in a dispute, users need to have clearly accepted them before transacting with you.
Two main acceptance methods are used on Australian websites:
Clickwrap: The user ticks a box or clicks “I agree” before completing a purchase or creating an account. This is the stronger option and the one advisors consistently recommend for eCommerce and SaaS businesses. It creates a clear record of acceptance.
Browsewrap: A link to the T&Cs sits in the footer and continued use of the site is deemed acceptance. Courts have found this to be enforceable in some cases, but it is weaker than clickwrap and can be challenged, particularly if the user had no realistic way of knowing the terms existed.
Three practical steps to improve enforceability:
- Add an active checkbox to your checkout or sign-up flow with a direct link to the T&Cs.
- Timestamp and record when users accept the T&Cs: your payment processor or CRM can often do this automatically.
- When you update the T&Cs materially, email users and ask them to re-confirm acceptance before they next transact.
Which template do you actually need?
Lawpath has three main website T&Cs templates, each built for a different business model. Advisors regularly see businesses grab the wrong one, particularly eCommerce founders who pick a services template because it looked more comprehensive.
Here is how to choose:
| Template | Use if you… | Key clauses it includes |
|---|---|---|
| Website Terms and Conditions of Use (Goods) | Sell physical or digital products online (eCommerce, Shopify, online retail) | ACL consumer guarantees, delivery, refunds, payment, returns |
| Website Terms and Conditions of Use (Services) | Sell services through your website (consulting, coaching, bookings) | Service delivery, payment, scope, IP, disputes |
| Website Terms and Conditions (SaaS) | Provide software, subscriptions, or platform access | Account rules, subscription terms, uptime, IP ownership, data use |
Once you have downloaded the right template, remove every clause that does not apply to your business. A services template with delivery clauses, or a goods template with software licence terms, creates confusion and can make the document harder to enforce. Clean documents are more credible documents.
What Lawpath advisors see in consultations
Across hundreds of consultations each year, our lawyers see the same T&Cs mistakes come up repeatedly. These are worth knowing before you finalise your document.
The overseas template problem. A consistent pattern in eCommerce consultations: a founder has downloaded a free T&Cs template from a US or UK template site, changed the business name, and published it. The problem is these templates are drafted for US consumer law or UK consumer rights legislation, not the ACL. Key protections (consumer guarantees, refund obligations, and ACL-compliant dispute resolution wording) are simply missing. The document looks legitimate but provides far less protection than the founder assumes.
The “copy from a bigger website” mistake. Advisors also regularly see founders copy T&Cs from a well-known Australian retailer or tech company. Two problems with this. First, it is copyright infringement: their T&Cs are their IP. Second, those T&Cs were drafted for that specific business model, with its specific payment arrangements, data handling practices, and service structure. Using them for a different business often means the document contradicts how the business actually operates, which can work against you in a dispute.
The “all-in-one” confusion. Many early-stage founders try to combine their T&Cs, privacy policy, refund policy, and disclaimer into a single document. For most businesses, this makes the document unwieldy and harder to update. Our advisors generally recommend keeping them separate and linking between them. It is also cleaner from a compliance perspective, since each document has different update triggers.
The privacy policy timing question. A common question in consultations: do you need a privacy policy if you are a small business? Under the Privacy Act 1988 (Cth), the obligation to have a compliant privacy policy applies to businesses with an annual turnover above $3 million, and to certain other categories (health service providers, businesses that trade in personal information). If you are below that threshold, a privacy policy is not legally required, but advisors frequently recommend one anyway, because collecting customer data without any disclosure of how you use it erodes trust and creates risk as you grow.
How often should you update your website T&Cs?
There is no fixed legal requirement for how often T&Cs must be updated. What matters is that your document reflects your current business practices and complies with current Australian law. A document drafted in 2020 may not address the November 2023 unfair contract terms changes, the expanded Privacy Act obligations, or changes to your own business model.
Review your T&Cs when any of these happen:
- You add a new product line, service type, or subscription model
- You start collecting new types of personal data
- You change your payment provider or add a buy-now-pay-later option
- You start selling overseas
- Australian Consumer Law or the Privacy Act changes materially
- You get a legal dispute or complaint that reveals a gap in your terms
Beyond those triggers, an annual review is good practice. It takes less than an hour with a lawyer and protects you against regulatory changes you may not have seen.
Frequently asked questions
What is the difference between Terms of Service and Terms and Conditions?
There is no legal difference between the two under Australian law. Both are contracts between a business and its users. The naming convention is a matter of preference and fit: Terms and Conditions is more common for product-based and eCommerce businesses, while Terms of Service is more common for software, platforms, and B2B services.
Do I legally need terms and conditions on my website in Australia?
If you sell goods or services online, yes. The Australian Consumer Law requires businesses to meet specific consumer protection obligations that need to be reflected in your T&Cs, including refund rights and ACL consumer guarantees. Informational sites do not have a strict legal requirement but benefit strongly from having T&Cs in place.
Can I copy T&Cs from another website?
No, for two reasons. First, copying another business’s T&Cs is copyright infringement. Second, their terms were drafted for their specific business model, payment arrangements, and legal structure. Applying them to your business often means the document contradicts how you actually operate, which can work against you if a dispute arises.
Can my T&Cs say “no refunds”?
No. A blanket “no refunds” policy is prohibited by the Australian Consumer Law. Consumers have statutory rights to a refund, repair, or replacement when goods are faulty, not as described, or not fit for purpose. Your T&Cs must explain your refund process and cannot attempt to limit or exclude these statutory rights.
Are website T&Cs legally binding?
Yes, if they meet the basic elements of a contract: offer, acceptance, and consideration (usually access to a product or service). The key issue is whether the user clearly accepted them. A clickwrap agreement (ticking a checkbox) is significantly more enforceable than a browsewrap agreement (a footer link users never actively acknowledged).
Do I need a separate privacy policy?
Usually yes, and it should be a separate document from your T&Cs. If your business has an annual turnover above $3 million, a compliant privacy policy is legally required under the Privacy Act 1988 (Cth). Below that threshold, it is strongly recommended, as collecting customer data without disclosing how you use it creates trust issues and risk as your business grows.
What are unfair contract terms, and do they affect my T&Cs?
Unfair contract terms are clauses in standard form contracts that create a significant imbalance between the parties’ rights and are not reasonably necessary to protect a legitimate business interest. Since November 2023, such terms are illegal under Australian law and attract substantial penalties. If your T&Cs include blanket exclusion clauses, uncapped unilateral amendment rights, or automatic renewal terms with no exit, they may need to be reviewed and updated.
Which Lawpath template should I use for my website?
If you sell physical or digital products, use the Website Terms and Conditions of Use (Goods) template. If you sell services, use the Website Terms and Conditions of Use (Services) template. If you provide software or subscription access, use the SaaS T&Cs template. Download in Word format and customise before publishing.
Getting your T&Cs sorted is one of those tasks that feels complex until you start. You do not need to read every clause in detail before you act. You need the right template, the right guidance on what to keep and what to remove, and a quick review from a lawyer who has seen your industry before. Most Lawpath customers get their website legal documents finalised in a single consultation.
Start with the right template for your business and get your website T&Cs in place today.
