App Terms and Conditions Lawyers Adelaide: Terms of Service, EULAs, In-App Purchases and User Content
App terms and conditions in South Australia
An app’s terms of service and privacy policy govern every download and in-app purchase, and the consumer law limits what they can say. Talon Legal drafts and reviews terms of service, end user licences, in-app purchase terms, community rules and privacy policies for Adelaide businesses launching or running mobile and web apps, and for app developers. Book a same-day free 30-minute consultation or call (08) 7094 2021.
App terms key facts
| Issue | Position in South Australia |
|---|---|
| Software is goods | Goods include computer software (ACL section 2(1)). Games supplied by download under a licence were goods (ACCC v Valve (No 3) at [137], [144]). |
| Refunds | Terms cannot exclude the consumer guarantees (section 64(1)). Booktopia was ordered to pay a $6,000,000 penalty for misstating customers' rights (section 29(1)(m)). |
| Accepting terms | A transaction is not invalid because it took place electronically (Electronic Communications Act 2000 (SA) section 7(1)). |
| Unfair terms | An unfair term in a standard form consumer or small business contract is void (section 23(1)). |
| User posts | Page owners who facilitated and encouraged third-party comments were publishers of them (Fairfax Media v Voller at [55], [105]). |
| Privacy | APP entities need a clearly expressed and up-to-date privacy policy (APP 1.3). Businesses with turnover of $3,000,000 or less are generally exempt, subject to exceptions (Privacy Act section 6D). |
| Recreational services | A waiver for recreational services must meet Fair Trading Act 1987 (SA) section 42 and use the prescribed form. |
| App design from 1 July 2027 | From 1 July 2027, unfair trading practices, including design elements in digital interfaces that obstruct a consumer's decision, will be prohibited (section 28B). |
| Maximum penalty | Body corporate: the greater of $100,000,000 and three times the benefit (or 30% of adjusted turnover if the benefit cannot be determined). Anyone else: $2,500,000 (section 224). |
| First step | Same-day free 30-minute consultation. Call (08) 7094 2021. |
Need an app terms and conditions lawyer in Adelaide?
Our app terms and conditions lawyers in Adelaide act for businesses launching or running mobile and web apps, from booking and shopping apps to fitness and community apps, and for app developers. The Australian Consumer Law (ACL), in Schedule 2 of the Competition and Consumer Act 2010 (Cth), the Privacy Act 1988 (Cth) and the Defamation Act 2005 (SA) limit what app terms can say. This page states the law current to 7 November 2026.
This guide is part of our online business practice. Related guides cover subscription and membership terms, website terms of use and software and SaaS agreements.
If your app has AI features or a chatbot, see our guides to AI and privacy and AI contracts and data licensing.
Free Consultation. Send us your app’s terms and sign-up screens before launch. Book a same-day free 30-minute consultation or call (08) 7094 2021.
On this page
- What should app terms and conditions cover?
- Is an app licence a supply of goods?
- How do users accept app terms?
- Can an app refuse refunds on in-app purchases?
- Can app terms let the business change terms or close accounts?
- Can app terms limit liability?
- Is an app responsible for what users post?
- What privacy documents does an app need?
- Do fitness apps need a waiver?
- What changes for apps from 1 July 2027?
- How similar matters tend to play out
- How we act on app terms
- Case law
- Frequently asked questions
What should app terms and conditions cover?
The relationship from download to deletion. Mobile app terms of service cover accounts, acceptable use, payments, suspension, user content and liability. The end user licence agreement (EULA) says what the user may do with the software. The privacy policy explains how personal information is handled. Apps that sell subscriptions also need subscription terms.
App store developer terms bind the developer by contract and platform policy, and the app’s own terms remain subject to the ACL, including the ban on misleading or deceptive conduct (section 18(1)). Check the two against each other at each release. Developers building apps for clients need a separate contract, covered in software development agreements.
An app terms and conditions lawyer reads the terms with the sign-up, purchase and cancellation screens.
Is an app licence a supply of goods?
Yes, for consumer law purposes. Goods include computer software (ACL section 2(1)). In ACCC v Valve Corporation (No 3) [2016] FCA 196, Edelman J held that Valve, which supplied games by download, supplied goods to consumers ([137]). Its licence agreement and subscriber agreement conferred a contractual licence ([144]), and at the heart of its supply was computer software ([157]). The finding that Valve supplied goods was not challenged on appeal ([83]), and the Full Court dismissed the appeal (Valve Corporation v ACCC [2017] FCAFC 224 at [225]).
So an app supplied to a consumer must be of acceptable quality, which includes being free from defects, safe and durable (section 54). Services delivered through the app must be rendered with due care and skill (section 60).
A EULA still sets the scope of use and protects the business’s intellectual property. It cannot cut down the guarantees (section 64(1)). A term limiting the exceptions for back-up copies, interoperability, error correction or security testing has no effect (Copyright Act 1968 (Cth) section 47H).
How do users accept app terms?
By a clear act of agreement after the terms are made available. The general rule is that a person who signs a document known to contain contractual terms is bound by them, read or not, absent a vitiating element or a claim for equitable or statutory relief (Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 at [57]). In an app, a tap on “I agree” usually does the work of the signature. A transaction is not invalid because it took place wholly or partly by electronic communications (Electronic Communications Act 2000 (SA) section 7(1)).
Acceptance holds up best when the app shows the terms before sign-up or payment, asks for a positive step such as an unticked box, records which version each user accepted, and flags material changes for fresh acceptance.
Transparency matters too. A court deciding whether a term is unfair must consider whether it is in reasonably plain language, legible, presented clearly and readily available (ACL section 24(2) and (3)). Dense small print on a phone screen works against the business.
Can an app refuse refunds on in-app purchases?
Not where the consumer guarantees give a remedy. A term is void to the extent it purports to exclude, restrict or modify them (ACL section 64(1)). The Full Court said parties cannot contract out of the guarantees (Valve Corporation v ACCC at [107]), and rejected the argument that a foreign proper law displaced them ([103]).
A person acquiring goods for $100,000 or less is a consumer of them (section 3(1)(a) and regulation 77A), which covers almost every app purchase. For a major failure, the consumer can reject the goods (section 259(3)) and choose a refund or replacement (section 263).
Misstating those rights is a separate risk (section 29(1)(m)). In ACCC v Booktopia Pty Ltd [2023] FCA 194, Booktopia accepted that its term requiring faulty items to be reported within 2 business days represented that customers had no remedy otherwise ([15], [18]). Burley J ordered a $6,000,000 penalty. “All purchases are final” carries the same risk.
In-app purchase refunds for change of mind are a matter of policy, if the wording keeps faulty purchases outside the refusal. App terms should not say that a store’s refund process is the user’s only remedy.
Can app terms let the business change terms or close accounts?
Yes, if the terms are fair. An unfair term in a standard form consumer or small business contract is void (ACL section 23(1)), and a contract alleged to be standard form is presumed to be one (section 27(1)). A term is unfair if it would cause a significant imbalance, is not reasonably necessary to protect the business’s legitimate interests, and would cause detriment if relied on (section 24(1)). The business must prove that the term is reasonably necessary (section 24(4)).
The statutory examples of terms that may be unfair read like a list of common app clauses. They include a right for one party alone to vary the terms (section 25(d)), change the characteristics of the service (section 25(g)), avoid or limit its performance (section 25(a)), terminate (section 25(b)), or decide whether the other is in breach (section 25(h)).
In ACCC v Fujifilm Business Innovation Australia Pty Ltd [2022] FCA 928, the supplier of office equipment, software and support services conceded that terms in its small business template contracts were unfair ([1], [3]). Stewart J declared them void, including unilateral variation, liability limitation, disproportionate termination and termination payment terms.
Since 9 November 2023, making a standard form contract with an unfair term the business proposed, or relying on one, is a contravention (section 23(2A) and (2C)). For a body corporate, the maximum penalty is the greater of $100,000,000 and three times the benefit or, if that cannot be determined, 30% of adjusted turnover during the breach turnover period. For anyone else it is $2,500,000 (section 224(3) and (3A)).
Can app terms limit liability?
Only so far as the law allows. A limit that cuts down the consumer guarantees is void to that extent (ACL section 64(1)). A liability limitation term was among those declared unfair in Fujifilm, and a term limiting a party’s right to sue may be unfair (section 25(k)).
Business users are treated differently. For goods or services not ordinarily acquired for personal, domestic or household use, liability can be limited to repair, replacement or resupply, or the cost of it, unless relying on the limit is not fair or reasonable (section 64A). App terms should separate consumer users from business users, and state the guarantees plainly rather than relying on “to the extent permitted by law” alone.
Is an app responsible for what users post?
It can be. In Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27, media companies that ran public Facebook pages were publishers of comments third-party users posted there. Kiefel CJ, Keane and Gleeson JJ said that by facilitating, encouraging and thereby assisting the posting of comments, the companies became publishers ([55]). Gageler and Gordon JJ reached the same conclusion ([105]), and the appeals were dismissed. An app that invites reviews or posts may be in a similar position.
The Defamation Act 2005 (SA) defines a digital intermediary as a person, other than the author, originator or poster, who provides or administers the online service by which digital matter is published (section 4). The innocent dissemination defence requires the defendant to prove it published merely as a subordinate distributor, did not know and ought not reasonably to have known the matter was defamatory, and that its lack of knowledge was not due to negligence (section 30(1)).
A court can order preliminary discovery to identify a poster (section 21A). Once a judgment, injunction or order is obtained against a defendant, it can order a digital intermediary that is not a party to take access prevention steps (section 37A).
Users own the copyright in what they create, subject to exceptions such as employment (Copyright Act section 35(2) and (6)), so the terms need a licence to host and reuse it. An app can also infringe by authorising users’ infringements (section 36(1)). The court weighs its power to prevent the act, its relationship with the user and the reasonable steps it took (section 36(1A)).
What privacy documents does an app need?
A privacy policy, for any app business bound by the Australian Privacy Principles. An organisation must have a clearly expressed and up-to-date policy about how it manages personal information (APP 1.3), with the contents APP 1.4 lists. A breach of either can attract an infringement or compliance notice, under a civil penalty provision with a maximum of 200 penalty units (Privacy Act section 13K). A short notice at sign-up, linking to the policy, is good practice.
Small businesses with annual turnover of $3,000,000 or less are generally exempt (sections 6C and 6D(1)). The exemption is lost by a business that provides a health service and holds health information, discloses personal information for a benefit, or provides a benefit to collect personal information from others (section 6D(4)(b) to (d)). Apps that sell user data, reward users for inviting contacts or collect health information should check those exceptions.
An APP entity must take reasonable steps to protect personal information from misuse, interference, loss and unauthorised access (APP 11.1), and to destroy or de-identify information it no longer needs (APP 11.2).
From 10 December 2026, a privacy policy must contain specified information where the entity has arranged for software to make, or do things substantially and directly related to making, decisions using personal information that could reasonably be expected to significantly affect an individual’s rights or interests (APP 1.7 and 1.8). Section 26GC requires the Commissioner to develop a Children’s Online Privacy Code. The data protection and privacy guide covers privacy policies in more detail.
Do fitness apps need a waiver?
Only where the business also supplies recreational services, and only a waiver that complies with section 42 of the Fair Trading Act 1987 (SA). Recreational services are participation in a sporting activity or similar leisure time pursuit, or any other activity involving a significant degree of physical exertion or physical risk undertaken for recreation, enjoyment or leisure (section 42(7)). Classes or sessions sold through a fitness app may qualify.
A term may exclude, restrict or modify the guarantees in ACL sections 60 and 61 only if it is limited to personal injury, is in the prescribed form, is brought to the consumer’s attention before supply, is agreed to in the prescribed manner, and any other prescribed information is made available (section 42(1) and (2)). It does not cover significant personal injury caused by reckless conduct (section 42(3)).
The prescribed form, Form 1 in the Fair Trading Regulations 2025 (SA), is signed, dated and witnessed. It states that a child under 18 cannot legally agree to exclude, restrict or modify their rights, and nor can a parent or guardian for a child. A click-through screen has no witness, so general app terms are unlikely to work as a waiver. The personal services agreements guide covers waivers in detail.
What changes for apps from 1 July 2027?
From 1 July 2027, the Competition and Consumer Amendment (Unfair Trading Practices) Act 2026 (Cth) brings in rules that reach app design. From 1 July 2027, a person must not engage in unfair trading practices: conduct in connection with supplying goods or services to a consumer that manipulates the consumer, or unreasonably distorts the setting in which they decide, and causes or is likely to cause detriment (section 28B(1) and (2)). From 1 July 2027, one statutory example is using design elements in digital interfaces to put a consumer under unreasonable pressure, or to obstruct them, in making or fulfilling a decision (section 28B(6)(d)).
Before 1 July 2027, apps should review defaults that favour the dearest option, timers that reset, purchase buttons styled like dismiss buttons and cancel paths buried in settings. Misleading purchase screens can already contravene sections 18 and 29(1)(i). Section 28B applies to conduct on or after 1 July 2027, whatever the date of the offer (section 311).
From 1 July 2027, in-app subscriptions that renew automatically or follow a free trial will be subscription contracts (section 48B), and a consumer or small business subscriber who signed up in the app must have an online way to cancel (section 48F(2)). From 1 July 2027, an app showing a base price for goods or services ordinarily acquired for personal, domestic or household use must also show any transaction based charge, such as a booking fee, close to that price (section 48A).
How similar matters tend to play out
Illustrations of how the law on this page combines on ordinary facts, not predictions. Outcome depends on the documents, the evidence and the court.
Lower range. An Adelaide-built plant identification app sells a premium upgrade. After an update, the upgrade’s main feature stops working, and support replies that all purchases are final. Software is goods (section 2(1)), and the upgrade likely fails the acceptable quality guarantee (section 54). The term cannot exclude it (section 64(1)), and repeating it risks contravening section 29(1)(m). Fixing the feature and rewriting the refund clause resolves it.
Middle range. A local events app lets users review venues. A user posts that a named cafe owner poisons customers. The owner complains, and the app does nothing for weeks. Having invited the review, the app may be a publisher of it (Voller at [55], [105]). After the complaint, the innocent dissemination defence is hard to run, because the app arguably knew, or ought reasonably to have known, that the post was defamatory (section 30(1)). The owner can seek preliminary discovery to identify the poster (section 21A). A prompt takedown process lowers the risk.
Upper range. A fitness booking app sells a 7-day free trial that rolls into a monthly plan, and books group running sessions. Its click-through terms exclude liability for injury, the cancel option sits behind screens of offers, and the privacy policy ignores heart rate data from wearables. The click-through clause is not in the prescribed form (Fair Trading Act section 42(2)), so it does not exclude the guarantees for the sessions (ACL section 64(1)). If the business provides a health service and holds health information, it is not a small business operator (Privacy Act section 6D(4)(b)). From 1 July 2027, the trial will be a subscription contract (section 48B(5)), online cancellation will be required (section 48F(2)), and the buried cancel option risks the unfair trading practices ban (section 28B(6)(d)).
How we act on app terms
Our app terms and conditions lawyers act for businesses launching or running apps and for the developers who build them. For a business, the aim is terms and screens that hold up now and are ready for 1 July 2027.
| Stage | What happens | What we do |
|---|---|---|
| Planning | The app's features, payments and data flows are mapped. | Advise which documents the app needs and where the risks sit. |
| Drafting | The terms, EULA, community rules and privacy policy are prepared. | Draft documents that state the guarantees accurately and fit the store's requirements. |
| Screens | Sign-up, purchase and cancellation screens are designed. | Check acceptance, price displays and cancellation paths, including against the rules that start on 1 July 2027. |
| Updates | The app or its terms change. | Advise on notifying users and recording acceptance. |
| Problems | A refund dispute, a defamatory post or a privacy complaint arises. | Advise on remedies, takedown and the response. |
We cannot promise an outcome, and no lawyer can. We can make sure the terms and screens are checked before users or the regulator test them.
Every hour matters. Book a same-day free 30-minute consultation, or call (08) 7094 2021 now.
App terms case law
Valve concerned games sold by download, the closest of these decisions to an app; the others each decided a point that applies to app terms.
| Case | Court | Principle | Pinpoint |
|---|---|---|---|
| ACCC v Valve Corporation (No 3) [2016] FCA 196 | Federal Court | Downloaded software supplied under a licence is goods | [137], [144], [157] |
| Valve Corporation v ACCC [2017] FCAFC 224 | Full Federal Court | No contracting out of the consumer guarantees | [83], [103], [107] |
| Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 | High Court | A signed contractual document binds, read or not | [57] |
| ACCC v Booktopia Pty Ltd [2023] FCA 194 | Federal Court | A term misstating consumers' rights contravened section 29(1)(m) | [15], [18] |
| ACCC v Fujifilm Business Innovation Australia Pty Ltd [2022] FCA 928 | Federal Court | Variation, liability and termination terms in template contracts declared unfair | [1], [3] |
| Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 | High Court | Facilitating third-party comments made page owners publishers | [55], [105] |
Case notes
ACCC v Valve Corporation (No 3) [2016] FCA 196
Edelman J held that Valve supplied goods to consumers ([137]). Its licence and subscriber agreements conferred a contractual licence ([144]), and at the heart of its supply was computer software ([157]).
Valve Corporation v ACCC [2017] FCAFC 224
The Full Court rejected the foreign proper law argument ([103]), said parties cannot contract out of the guarantees ([107]), and dismissed the appeal ([225]).
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52
The joint reasons stated the general rule that a person who signs a document known to contain contractual terms is bound by them, read or not ([57]).
ACCC v Booktopia Pty Ltd [2023] FCA 194
Booktopia accepted that its 2 business day notice term represented that customers needed to give that notice to have a remedy ([15], [18]). Burley J ordered a $6,000,000 penalty under section 29(1)(m).
ACCC v Fujifilm Business Innovation Australia Pty Ltd [2022] FCA 928
The supplier conceded that terms in its small business templates were unfair ([3]). Stewart J declared them void, including unilateral variation, liability limitation and termination payment terms.
Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27
Media companies that facilitated and encouraged comments on their public Facebook pages were publishers of them ([55], [105]). The High Court dismissed their appeals.
Frequently asked questions
What legal documents does an app need?
Usually terms of service, a EULA and a privacy policy, plus community rules if users can post. Organisations bound by the Australian Privacy Principles must have a clearly expressed and up-to-date privacy policy (APP 1.3).
What is a EULA?
An end user licence agreement: the licence setting out what a user may do with the software. It cannot exclude the consumer guarantees (ACL section 64(1)).
Are click-to-accept app terms binding?
Generally yes, if the user takes a clear step to accept terms made available first. An electronic transaction is not invalid for that reason alone (Electronic Communications Act 2000 (SA) section 7(1)).
Do apps have to refund in-app purchases?
Where a purchase has a major failure, the user can reject it and choose a refund (ACL sections 259(3) and 263), and the terms cannot exclude that (section 64(1)). Change-of-mind refunds are a matter of policy.
Can an app ban users or delete accounts?
Yes, under clear terms. But a right for one party alone to terminate, or to decide whether the other is in breach, may be unfair (ACL section 25(b) and (h)).
Can app terms be changed at any time?
Only under a term that is not unfair. A right for one party alone to vary the terms is a statutory example of a term that may be unfair (ACL section 25(d)).
Is an app liable for defamatory reviews or comments?
It can be. In Voller, page owners who facilitated and encouraged comments were publishers of them ([55], [105]), and the innocent dissemination defence is unavailable to an app that knew, or ought reasonably to have known, the matter was defamatory (Defamation Act 2005 (SA) section 30(1)).
Does a small app business need a privacy policy?
Not always. A business with annual turnover of $3,000,000 or less is generally exempt (Privacy Act section 6D(1)), unless an exception applies, such as trading in personal information (section 6D(4)).
Can a fitness app use a waiver?
Only for recreational services, and only a waiver that meets Fair Trading Act 1987 (SA) section 42 and uses the prescribed form, which is signed, dated and witnessed.
What changes for apps from 1 July 2027?
From 1 July 2027, unfair trading practices, including design elements in digital interfaces that obstruct a consumer’s decision, will be prohibited (ACL section 28B), and in-app subscriptions will need an online way to cancel (section 48F(2)).
Do I need an app terms and conditions lawyer?
For an app that takes payments or hosts user content, yes. An app terms and conditions lawyer can align the terms, screens and privacy policy with the law before launch. A free 30-minute consultation will tell you where you stand.
Related online business guides
Related guides
- Online business and e-commerce lawyers Adelaide
- Subscription and membership terms
- Online marketplace and platform terms
- Online course terms and disclaimers
- Online sales terms and consumer law
- Website terms of use
- Software and SaaS agreements
- Software development agreements
- Data protection and privacy
- Personal services agreements