Website terms and conditions
Access to, and use of, the website
Your business’ website is invaluable for promoting your brand and reputation to customers. It’s likely that when you sell overseas you may not have a personal relationship with your customers. Your website will act as the face of your business. Therefore, it is important that customers know where to find your terms and conditions, which regulate the use of your website.
Most websites have a hyperlink, usually at the bottom of the home page, to “website terms” or “terms and conditions”. This is where the contract between the website provider and each website user can be found. On a marketing website (where you can’t actually buy any products) the terms may be limited to:
- the process of contract formation (generally, by using the website the user will be deemed to have accepted the terms and conditions and will be bound by them)
- how amendments will be made to the terms and conditions (usually by posting a notice on the home page of the website stating that amendments have been made and that by continuing to use the website the user is deemed to accept those amendments)
- ownership, and restrictions on the use of, website content and data collected from website users
- a limited licence for the user to view the website content.
Purchase of products
If your business is selling products online you will also need to consider additional terms which cover the sale of those products. Generally these will focus on payment, delivery, the passing of title and risk in products, liability, and product warranties. Some key terms to consider are:
- acceptable methods of payment, along with any circumstances where you would be willing to refund payment
- the delivery process - including whether you will bear the risk of delivering the products up until they reach the customer’s door, or if the customer will bear the risk from the point the products leave your warehouse door. The terms should also set out whether title to the products will pass on payment or delivery. Typically if you require payment up front – as is normal for website sales – title will pass on payment
- warranties – you may wish to offer the customer comfort that the product is of a particular quality, or is fit for a particular purpose (even if you do not, these warranties may be implied by the law of the country that you are exporting to). In addition you should consider limiting your liability for any product defect – it is common to limit liability to the cost of repair or replacement of the defective product
- security – if your website is going to allow users to “log in” using a unique name and password, or users will be submitting sensitive payment information, consider whether the risk that such information is lost, stolen or corrupted should lie with you or the customer. Customers usually expect this information to be encrypted.
General points to consider
Whether you are selling products on your website or simply marketing, consider including some other general terms such as:
(a) limit on liability - limit your liability to a user’s direct loss from use of the website (such as the customer purchasing one product but being billed for two)
(b) indirect loss - exclude any indirect or consequential losses such as loss of use of the internet if your website causes a customer’s computer to crash
(c) governing law – what country’s laws will govern the website terms and conditions, and in what country court action can be taken. Most New Zealand-based exporters have New Zealand law governing the terms and conditions.
How to ensure the terms are effective
In online contracts one of the key hurdles is “enforceability” – whether buyer and seller can be forced to perform the contract. To achieve this the terms of the contract should be understood and agreed to by both parties.
If your site's terms and conditions are the kind that a user might expect – like how the site operates, and that you own the intellectual property rights in the website – putting a prominent hyperlink on the home page may be enough to obtain the user’s agreement to them. However, if the terms and conditions try to do something unusual – like giving you the right to amend the terms and conditions without any notice to the user, you should obtain specific agreement to those terms. This could be by requiring the user to click a box to show they accept before they can finalise their purchase.
Privacy policy
Every website should contain a privacy policy that meets the requirements of New Zealand’s Privacy Act 1993. The Privacy Act regulates the collection, storage, use and disclosure of “personal information”, like names, addresses, credit card details and even IP addresses - likely to occur when you operate a marketing website or collect details when customers order a product from the website.
A well-drafted privacy policy sets out:
- the reasons for collecting personal information – such as completing a product order, marketing and research, or to improve the website
- where personal information is stored, and with what level of security
- how personal information will be used – for example sending information about available products
- what will happen to any personal information collected if your business is taken over by another company – such as the transfer of that data to the new business and your rights to request that the information be deleted or corrected
- who personal information may be disclosed to – for example to law enforcement authorities or marketing partners
- a user’s right to access and correct the personal information you hold.
Email marketing and spam
Used correctly, email can be a useful tool to build and maintain your brand. Your business can use email to maintain contact with your customers and market your products and services.
If you email customers regularly you are likely to develop a large email and contact database. This can be a valuable asset for your business and can be used to generate future sales. You can compile a list of previous customers and email them details of promotions, new products and business updates.
Email dramatically reduces the cost of sending marketing material overseas and will reach your target market much faster than a paper brochure.
If you are sending generic marketing emails, you need to comply with the Unsolicited Electronic Messages Act 2007 (UEMA). Under UEMA it is illegal to send unsolicited commercial electronic messages (including email, SMS and instant messages) to, from, or within New Zealand. An email will be considered "commercial" if it:
- promotes or markets goods, services, land or a business or investment opportunity
- assists a person to obtain a dishonest financial advantage from another person; or
- provides a link, or directs a recipient to, information that does one or more of the things listed above.
When sending any commercial email you should ensure that:
- the recipient has consented to receive emails from you:
- expressly (eg by completing a form or ticking a box on your website); or
- by conduct or the recipient’s business relationship with you (eg a customer provides its email address when purchasing goods and expects further communications)
- the message enables the recipient, at no cost, to unsubscribe – telling you they do not wish to receive similar messages in the future. The facility must be presented in a clear and conspicuous manner, and be functional for at least 30 days after the message is sent
- the message adequately identifies you as the sender – such as by including your business logo and full contact information.
If you send marketing emails to customers who have not given their consent to receiving them you risk losing customers and damaging your brand.
This guide is provided subject to our terms of use.
Use of the information contained in this guide is at your own risk and we are not responsible for any adverse consequences arising out of such use. This is a complex area and we recommend that you seek legal advice before taking any related action.
