In a previous post we looked at the issue of written terms and conditions so dense that it was practically impossible for consumers to understand them.
This issue was highlighted last month when Purple WiFi revealed that it had hidden community service requirements for free WiFi users inside its clickwrap terms. Only one person claimed the prize that was also concealed in the terms, while 22,000 agreed to clean toilets, hug stray animals and paint snail shells “to brighten up their existence”.
Screenshot – Lululemon website
What about when terms and conditions don’t actually match your customers’ rights at law?
The recent Lululemon issue provides a great example. Lululemon has agreed to pay $32,400 in penalties after the ACCC issued infringement notices relating to misleading representations about consumer rights.
The Australian Consumer Law provides guarantees for faulty consumer goods and services.
Lululemon listed sale items on its website under the heading “We Made Too Much” with the statement “We made a little extra – don’t be shy, help yourself. It’s yours for keeps so no returns and no exchanges”.
Lululemon’s return policy also said “Final sale items like underwear, water bottles + We Made Too Much gear are yours for keeps”.
In addition, staff were alleged to have stated that there was no refund right for faulty products.
The ACCC alleged that these statements were representations that customers were not entitled to a refund or replacement for faulty goods, which is not the case under the Australian Consumer Law. The consumer guarantee rights provide for refunds in the case of a major failure of goods or services. This applies equally to full price and sale price products.
Importantly, these guarantees cannot be excluded in consumer transactions, and it’s a contravention of consumer law to attempt to exclude them in your terms and conditions. However, they can be limited. Check your terms and conditions to see if they include an up to date statement of your customers’ rights under the Australian Consumer Law as well as any permissible limitations.
If you would like us to review your terms and conditions, contact us.