Terms And Conditions For Pre-Order Products

Yes, you can take payment for pre-order products in Australia - but your customer terms need to be very clear about timing, delays, refunds and cancellations.

The tricky part is that pre-orders sit in an awkward space. You're selling something you don't yet have in stock, often before your supplier has confirmed every detail. That's common in eCommerce, but it also means your Australian Consumer Law obligations matter from day one.

If your launch goes well, pre-orders can help you fund production, test demand and build momentum. The goal is to make sure your terms support the launch, rather than leaving you exposed if shipping dates move or stock doesn't arrive as planned.

Can You Take Payment For Pre-Order Products In Australia?

Yes, you can take payment upfront for pre-orders, as long as you're honest about what the customer is buying and when they can expect it.

Under the Australian Consumer Law, you shouldn't accept payment if you know, or should know, that you won't be able to supply the product within the timeframe you've promised. If you don't give a specific timeframe, you still need to supply the product within a reasonable time.

For an online store, this means your pre-order page should make the pre-order status obvious. Customers shouldn't discover after checkout that the product isn't ready to ship.

For example, instead of saying ships now or leaving the delivery date vague, you might say:

• Pre-order item: this product isn't currently in stock.
• Estimated dispatch: from 15 October 2026.
• Payment: your card will be charged when you place the order.
• Delays: we'll contact you if the estimated dispatch date changes materially.

You should also make sure your advertising, product page, cart, checkout page and order confirmation all say the same thing. If your Instagram post says arriving next week but your product page says estimated delivery in 8 weeks, that inconsistency can create customer complaints and legal risk.

What Does The Australian Consumer Law Require For Pre-Orders?

The Australian Consumer Law requires you to avoid misleading customers, honour consumer guarantees and be careful about accepting payment when supply is uncertain.

The key risks for pre-orders usually come from three areas.

Misleading Or Deceptive Conduct

You can't create a false impression about availability, delivery timing, product features or stock levels. This applies across your website, ads, emails, SMS campaigns and social media.

For example, saying limited stock ready to ship when the products are still being manufactured overseas is risky. So is using a countdown timer that pressures customers to buy when there isn't a genuine limit.

Accepting Payment Without A Realistic Supply Plan

The ACL has rules about accepting payment for goods or services you don't intend to supply, or can't supply within the promised or reasonable time, so your product supply arrangements need to be realistic. A genuine supplier delay won't automatically mean you've breached the law, but you need to have a reasonable basis for the delivery estimate you gave.

Keep records of supplier confirmations, production schedules and freight updates. If the ACCC or a state consumer affairs regulator ever asks why you advertised a particular date, you want to be able to show how you arrived at it.

Unfair Contract Terms

Your pre-order terms are likely to be standard form consumer contracts, so an unfair contract terms review can be important. Since 9 November 2023, unfair contract terms in standard form consumer and small business contracts can attract penalties. For companies, maximum penalties for certain ACL breaches can be the greater of $50 million, three times the benefit obtained, or 30% of adjusted turnover during the relevant period.

Practically, this means your terms shouldn't be one-sided. A clause saying all pre-orders are non-refundable for any reason, even if we never deliver isn't going to protect you.

What Should Your Pre-Order Terms And Conditions Say?

Your pre-order terms should clearly explain the deal: what the customer is paying for, when you expect to deliver it, what can change and what happens if there's a problem.

These terms can sit inside your broader business terms and conditions, or in a separate pre-order policy linked from the product page and checkout. What matters most is that customers see them before they pay.

Pre-Order Terms Outline

Here is a practical outline you can use when briefing a lawyer. This isn't a finished legal document - it should be tailored before you rely on it, because your refund position, supply chain and sales model may be different from another store's.

1. Pre-order status: state that the product isn't currently in stock or not yet released.
2. Product description: describe what is included, and flag any features, colours, packaging or specifications that may change.
3. Price and payment timing: explain whether customers pay in full upfront, pay a deposit, or are charged when the item ships.
4. Estimated dispatch or delivery date: give a realistic estimate and explain whether it's a dispatch date or arrival date.
5. Delay process: say when you'll notify customers, what information you'll provide and what options they will have.
6. Customer cancellations: explain whether customers can cancel before dispatch and whether any limits apply.
7. Business cancellations: explain when you may cancel, such as if stock can't be sourced, and how refunds will be handled.
8. Refunds and Australian Consumer Law rights: make it clear that nothing in your terms limits rights under the ACL.
9. Mixed carts: explain whether in-stock items and pre-order items ship together or separately.
10. Contact details: tell customers how to ask about their order or request a refund.

Try to write these terms in the same plain language you use with customers. If the policy is easy to read, it's more likely to reduce support tickets and disputes.

How Should You Handle Delays, Cancellations And Refunds?

You should handle delays by communicating early, offering clear options and avoiding blanket no refund wording.

A pre-order refund policy in Australia can say you don't offer refunds for simple change of mind, if that's your business position. However, you can't use your policy to remove customer rights under the ACL.

Customers may be entitled to a remedy if:

• you can't supply the product within the promised timeframe, or within a reasonable time if no timeframe was given;
• the product is materially different from what was advertised;
• the product has a major problem; or
• your delay is so significant that the customer wouldn't have ordered if they had known.

Your terms should separate change of mind cancellations from ACL refunds. For example, you might allow customers to cancel for change of mind up until the order is packed for dispatch, but not after that unless the ACL applies.

Worked Example

Say Mia runs a Sydney fashion label and takes 300 pre-orders for a jacket at $120 each. The product page says estimated dispatch from 1 May, and customers pay in full at checkout.

On 20 April, Mia's manufacturer confirms the shipment will be delayed by 4 weeks because a fabric batch failed quality checks. Mia emails customers within 2 business days and offers three options:

• keep the pre-order and receive the jacket in the new dispatch window;
• cancel for a full refund, processed within 5 business days of the request; or
• switch to another in-stock item and receive a refund or pay the difference.

That approach is much safer than staying silent until customers complain. It also shows that Mia had a process for managing the delay fairly.

What Should You Do If Your Supplier Misses The Delivery Date?

If your supplier misses the delivery date, your first step is to verify the new timeline and update affected customers before the delay becomes a bigger issue.

Your supplier problem is usually not your customer's problem. You may have rights against your supplier under your supplier agreement, but your customer is still dealing with you.

A good response plan looks like this:

1. Get the facts from your supplier: ask for the reason for the delay, the revised dispatch date and whether the whole order is affected.
2. Check what you promised customers: review your product page, checkout wording, ads, order confirmation and terms.
3. Pause or update new sales: don't keep taking orders using an old delivery estimate if you know it has changed.
4. Email affected customers: explain the delay in plain English, give the new estimate and set out their options.
5. Record customer choices: keep a clear record of who chose to wait, cancel, swap products or receive a refund.
6. Review your supplier contract: check whether you can claim costs, cancel future orders or require better delivery commitments next time.

Keep copies of supplier emails, freight tracking, customer updates and refund records. If a customer complains to a regulator, your records can show that you acted promptly and transparently.

This is also where your supplier agreement matters. If your launch depends on one manufacturer or distributor, your supplier contract should deal with delivery dates, quality control, stock shortages, chargebacks, refunds and who covers costs when things go wrong.

Common Mistakes To Avoid When Selling Pre-Orders Online

The biggest mistake is treating pre-orders like ordinary in-stock sales when your risk profile is different.

Here are the issues we see most often.

• Hiding the pre-order status: customers should see that the item is a pre-order before they add it to cart, not just in a footer policy.
• Using exact dates without backup: if your supplier has only given a rough window, don't promise a guaranteed delivery date.
• Confusing dispatch with delivery: dispatch means you send the item. Delivery means it reaches the customer. Be clear which one you're estimating.
• Copying a generic template: templates often miss details like mixed carts, deposits, staged production, international freight delays and customer cancellation cut-offs.
• Saying all sales are final: you can limit change of mind refunds, but you can't exclude ACL rights.
• Forgetting your marketing channels: your pre-order policy won't help much if your ads, influencer captions or email campaign create a different impression.

It also helps to build your operations around the promises in your terms. For example, if your policy says you'll update customers within 3 business days of a material delay, make sure someone in your team is responsible for sending that update.

Good legal terms won't fix an unrealistic launch plan, but they can give you a clear framework for what happens when things change.

Key Takeaways

• You can take payment for pre-orders in Australia, but customers need to know the product isn't ready to ship and when you expect to supply it.
• Your pre-order terms should cover payment timing, estimated dates, delays, cancellations, refunds and what happens if stock can't be supplied.
• You can't use a no refunds policy to remove customer rights under the Australian Consumer Law.
• If delivery dates change, update customers early and give them clear options, especially where the delay is material.
• Your product pages, checkout, ads and customer emails should all tell the same story about availability and timing.
• A tailored set of terms is safer than a generic template, especially if your launch depends on suppliers, deposits or overseas shipping.

If you'd like help with your pre-order terms, online store terms, refund wording or supplier contracts, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.