These terms and conditions are a set of rules about use of a website or application. They set out how users may use the site or application, and what they can and cannot do on the site or application. For example, if a user posts offensive or defamatory content on a website, the owner of the site will want to have terms and conditions to fall back on which clearly state that the owner of the site does not permit or take responsibility for that offensive content, and that any liability (such as a defamation claim) should therefore sit with the user. In addition, the owner of the site may want to have the ability to terminate the user's account - and this also will need to be explained in the terms and conditions.
As well as creating these legally binding rules, the terms and conditions are a valuable opportunity for the owner of the site or application to set out their expectations and to ensure that the site or application continues to operate smoothly.
How to use this document
In order for the terms and conditions to be legally binding on a user of the website or application, the user will have to actually be aware of them, and will have to agree to them. So firstly, they will need to be published on the website or application.
Some websites or applications simply make the terms and conditions available somewhere on the site or application respectively (usually on a separate page, accessible via a hyperlink) and claim that by using the site, users agree to the terms and conditions. This is known as a "browsewrap" agreement.
Other websites or applications make the user take positive steps to confirm that they have read, understood and accepted the terms and conditions. For example, sites might have a popup box that contains the entire terms and conditions. The user has to scroll to the bottom of the terms and conditions and then check a box (that is otherwise unchecked) to say "I have read and understood these terms and conditions and agree to be bound by them". This is known as a "clickwrap" agreement.
Websites or applications that use clickwrap agreements often also make sure that the "I agree" box appears on the same page as the entire terms and conditions (so that the user cannot argue that although they checked the box, they did not actually see the terms and conditions). It is also common for websites or applications to bring specific terms to the user's attention if those terms might be seen as particularly unfair on the user.
Terms and conditions for a website or for a mobile application, once accepted by a user, constitute a contract between the website or application owner and the user. As such, ordinary principles of contract law apply. These principles are derived primarily from common law.
In addition, depending on the nature of the website (and in particular, whether the goods or services being sold are for personal or domestic use), the Australian Consumer Law may also apply.
The owner of the website or application has the opportunity to nominate the governing law for the website. However, if users can access the site from other locations, then laws from other jurisdictions may also become relevant. This document is prepared for use in Australia and other legal systems have not been considered.
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