We all know them, but have we all read them? We're talking about general terms and conditions. Standard terms and conditions, as pre-formulated contractual terms, are widespread in business transactions. They've become indispensable, especially for contracts in mass business. But even though general terms and conditions are now often standard, businesses should pay attention to a few basic things when using them. Dr. Anna-Elisabeth Klein, legal advisor for civil and commercial law and business mediator at the Munich Chamber of Industry and Commerce, reveals in an interview what's important when using general terms and conditions.
Dr. Klein, when do “general terms and conditions” make sense for startups?
General terms and conditions are useful when you are dealing with a large number of recurring and similar contractual situations for which you want to specify the terms and conditions. They create a uniform, detailed regulation of your legal relationships, provide clarity for your contractual partners, and simplify business transactions. Furthermore, general terms and conditions offer the possibility of adapting them to the needs of your own company—at least where the law allows for flexibility.
Does every startup have to formulate its own terms and conditions?
They are generally not mandatory. Unless the parties specifically agree otherwise, the law generally applies (in this case, especially Sections 305 et seq. of the German Civil Code, which everyone should be at least roughly familiar with).
However, they have become an integral part of today's business world. In practice, it is usually advisable to formulate and use your own terms and conditions, for the reasons just mentioned.
What must be included in the terms and conditions and how do you formulate them correctly?
There is no prescribed "form" for general terms and conditions. What's important is that they are formulated in a way that even a non-lawyer can understand. They must be clear, legible, and perceptible.
Unclear and ambiguous clauses are always to the detriment of the user!
I also recommend structuring the contractual terms and conditions clearly, with appropriate headings and paragraphs, and logically (e.g., chronologically based on the order process). Unclear and ambiguous clauses always work to the detriment of the user! Furthermore, Sections 308 and 309 of the German Civil Code (BGB) contain an extensive list of dos and don'ts. Every business owner should read this at least once. At the very least, provisions should be made on the following topics: conclusion of contract, payment terms and prices, delivery/delay in delivery, liability for defects, limitation of liability, termination/term, etc.
What is the difference between general terms and conditions in business transactions with consumers and business customers?
Entrepreneurs now have numerous information obligations towards consumers, especially in the online business. Most information obligations (such as the right of withdrawal for consumers) must be reflected in the general terms and conditions if the entrepreneur uses general terms and conditions.
In addition, general terms and conditions in the B2C sector become part of the contract under much stricter conditions than in the B2B sector.
The rule applies: Better no terms and conditions than false ones!
How do you use terms and conditions correctly?
The rule applies: Better no general terms and conditions than false ones! The consequences of inadmissible terms and conditions should be understood: Firstly, the user cannot rely on them. Secondly, there is a risk of costly warnings under competition law if a company uses inadmissible terms and conditions.
Terms and conditions do not automatically become part of the contract. Rather, they must be effectively incorporated into the contract.
For consumers, this means that the entrepreneur must explicitly and clearly refer to the terms and conditions when concluding the contract. For example, it is not sufficient to simply print the terms and conditions on the back of an order without comment. The reference must also be made when the contract is concluded. This means that only indicating the terms and conditions on the invoice or delivery note would be too late. In addition, the terms and conditions must be handed over to the consumer customer without being asked to do so upon conclusion of the contract or made available for inspection. Whether the consumer actually reads them is up to the customer. If the aforementioned requirements are met, it is sufficient for the effective inclusion of the terms and conditions in the contract if the customer agrees to this. An explicit declaration is not mandatory.
In contrast, the requirements for including general terms and conditions in contracts with businesses are simplified. In this case, the commercial customer can generally be expected to obtain the general terms and conditions of their own accord. They do not have to be provided to them unsolicited. Under certain circumstances, a reference to the validity of the general terms and conditions at the time of contract conclusion, for example, by providing a link to the customer's own website where the general terms and conditions can be accessed, may be sufficient.
However, for reasons of legal certainty, it is advisable to refer to the general terms and conditions in every contract offer and thus offer the contractual partner the opportunity to accept the offer under the specified contractual conditions or to enter into negotiations.
Special features when using general terms and conditions on the Internet
Important: There are often special considerations to be taken when using general terms and conditions online. It is recommended to ensure that the other contracting party is required to review and confirm their acknowledgement before completing the order process. Consumer customers must also be given the opportunity to access the general terms and conditions upon conclusion of the contract and save them in a "reproducible format" (e.g., as a PDF).
You can also find further information in our Information sheet “General Terms and Conditions” – for download.
There you will also find sample terms and conditions. However, be careful not to use templates or examples without proper filtering! Depending on the industry and the contracting parties (B2B or B2C), individual clauses from templates may be permissible or impermissible. We therefore generally advise against adopting general terms and conditions from third parties without prior review (caution: risk of copyright infringement!) or even drafting them yourself without consulting legal counsel.
By the way: The IHK Startup Unit provides free, neutral advice for your startup. Learn more at http://ihk-muenchen.de/startup.
