If your company’s terms and conditions are more than 2 years old, chances are they are out of date and not offering your company adequate protection. Worst still, you are potentially subjecting your company to substantial fines and penalties. For example, on 15 September 2012, the Australian Competition and Consumer Commission (ACCC) conducted a one-day “swoop” targeting business websites and looking for confusing and/or misleading terms and conditions and in breach of the Australian Consumer Law.

The Australian Consumer Law contains broad requirements governing both the content of business websites and terms and conditions generally and the fines for non-compliance are substantial:

  • up to $200,000 for individuals; and
  • up to $1.1 million for companies and other entities.

We are expecting other regulators to follow a similar approach to the ACCC. Accordingly, we are advising all businesses to conduct an urgent review of their website and terms and conditions generally. This should be done as a prudent risk management strategy. The consequences of non-compliance can be extremely costly both from a financial and reputational perspective.

We are recommending that an appropriate review will need, at the very least, to consider the following:

  • privacy;
  • terms of use;
  • refund, exchange and repair policies;
  • terms of purchase, supply and/or the provision of services;
  • shipping and other costs;
  • disclaimers for access to third party content; and
  • the new legal framework imposed under the Personal Property Security Act 2009 (Cth) regime.

If your company’s terms and conditions or website content have not been reviewed in light of the above areas, we suggest urgent attention is needed. Mills Oakley has developed a streamlined process for conducting the requisite reviews. We would welcome the opportunity to discuss this process with you and/or your clients.

Please feel free to contact Ilan Kraus, Senior Associate for further information.

Ilan Kraus

Ph: +61 3 9605 0827

Mob: +61 403 334 237

Em: ikraus@millsoakley.com.au

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