As people browse your online store, it is important to clarify your terms of use through well-drafted terms and conditions. Terms and conditions will govern the relationship with your website visitors and encourage appropriate behaviour. They can also limit liability and protect your business against future legal action. Therefore, you want to make sure you optimise your terms and conditions to complete this task. If you write your own, you need to be certain you have covered all the necessary aspects in sufficient but understandable detail. For some guidance, this article will explain whether you can write your own terms and conditions for your online store in New Zealand.
What are Terms and Conditions?
Terms and conditions are a legal document(s) between you and your consumers. Their contents will vary depending on what you need to protect. For your online store, a key area to clarify in your terms and conditions would be how visitors can use your website appropriately. Hence, you might include rules and disclaimers.
Often, terms and conditions operate as a take-it-or-leave-it contract, where customers automatically agree to their conditions when they use your site or buy your products. Customers do not get to negotiate their terms. Likewise, you need relevant terms and conditions so that:
- you can protect your business against liability;
- customers know exactly what they agree to when purchasing from your business;
- you have a contract to rely on if there are future problems; and
- you can comply with any relevant legal obligations.
Writing Your Own Terms and Conditions
If you do not have previous business experience, writing your own terms and conditions may be difficult. Whether you should write your own depends on your personal knowledge and confidence to write a document that will sufficiently protect your business.
Writing your own terms and conditions is better than copying another business’ word for word because:
- you may run into intellectual property problems if you do so;
- their terms and conditions may not suit your business needs;
- they may operate under a different country’s laws;
- you can lose customer trust doing so;
- they may not be comprehensive enough; or
- they may be too vague or confusing to be useful.
Seeking Legal Advice
If you do write your own terms and conditions, be sure to conduct the relevant research to know what you need to include. However, it is crucial that you receive legal advice at some point in the writing process. A lawyer can help you:
- identify what your terms and conditions need to cover to protect your business;
- write in a way that is clear and not misleading;
- write clauses that will limit your liability; and
- inform your customers of their responsibilities.
A lawyer can draft a terms and conditions document for you, or they can look over and add to what you have already written.
What Should My Terms and Conditions Include?
When you write your terms and conditions, use bullets and subheadings to break up your points. Do not use too much legal jargon, as you want to avoid confusing your readers. Try to cover all the information you need, but portray it in a straightforward and readable way. If things change within your business, be sure to update your terms and conditions when necessary.
Your terms and conditions should cover your stance on the risks when customers engage with your business and what you will do if something should go wrong. Specific clauses you can use include:
- product descriptions and coverage;
- prices and payment terms;
- cancellations;
- warranties;
- extra costs, such as delivery or supply costs;
- delivery terms;
- privacy and security;
- specific laws that may apply;
- intellectual property rights;
- how customers can complain; and
- your contact details.
Acceptable Use
You might consider adding an acceptable use clause outlining appropriate and prohibited behaviour, such as:
- online bullying or harassment;
- breaching intellectual property rights; and
- copying or stealing user data.
Depending on your website, having an acceptable use clause is essential, particularly if you allow users to upload content onto your website. Through your terms of use, you can regulate the content being uploaded to ensure your website is a safe space for everyone.
Additionally, if you let users sell their products and services on your website, you can regulate the types of products they sell. For example, you can prohibit the sale of firearms and dangerous goods.
Rights and Ownership
In your rights and ownership clause, you can inform your users of your intellectual property rights. For example, you can outline your:
- copyright;
- trade mark registrations;
- design rights; and
- any other intellectual property rights.
You can further detail the consequences and penalties for a user breaching your rights. Note that keeping accurate records of your intellectual property ownership is vital in case you need to provide evidence.
Our free Trade Mark Essentials in New Zealand guide explains how to register and defend your trade mark registration.
Privacy Issues
Even if you have a privacy policy in place, it can be valuable to include privacy clauses in your terms of use. Specifically, you can inform users of the information you share with third parties, why you do this and how you handle customers’ personal information. This will help you comply with your obligations under the Privacy Act 2020. Furthermore, if you share information with third parties, you can clarify whether giving this information is optional.
Amendment of Your Terms of Use
It is vital to inform your users of when and how you can amend your terms of use. By establishing this, you can avoid users feeling frustrated when you change your terms. It is best to review your terms every few months and after any new law amendments. This ensures your terms of use is legally compliant and still up-to-date with your business interests.
Key Takeaways
You can write your terms and conditions for your online store, but you should seek legal advice at some point before you start using them. An experienced lawyer can help you write a document that protects your business and clearly informs your customers of what they agree to when they make a purchase.
For assistance writing your online terms and conditions, our experienced ecommerce lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 0800 005 570 or visit our membership page.
Frequently Asked Questions
Terms and conditions are a set of clauses that detail the contractual relationship between you and your customers.
Your online store needs terms and conditions to set out your requirements when selling to your customers and the general terms of what customers accept when they purchase from you.
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