Many online shops are provided with terms and conditions, which must be accepted by a checkbox or button. AGB's are not mandatory for B2B business. If goods and services are sold to private customers, however, GTC's are already quasi obligatory, so that the legal information and instruction obligations can be fulfilled. We explain the most important basics of GTC's and show you what is important for GTC's for online shops.
General terms and conditions (AGB) for online shops
Operators of online shops are often not aware of the legal framework conditions for the operation of their shop. The question of whether an online shop requires general terms and conditions of business arises again and again. Much more important, however, are questions concerning the content of the AGB's. This includes in which kind of AGB's have to be included and to what extent clauses are allowed. AGB's are nothing more than pre-formulated contract terms, which are used for a multitude of similar business transactions. With each purchase in the online shop, the GTC's automatically work against the respective customer. The AGB's define the legal framework. In general, individual agreements have priority over AGB's. Of course, for contracts without GTC's, the legal regulations still apply, so that without GTC's one does not move in a legal vacuum. The problem with online purchases is that special questions are not yet regulated by law. The rapid change of the Internet has led to the fact that some questions have not yet been legally covered. Therefore AGB's can help to implement special projects. Through GTC's, various requirements regarding delivery, payment, conclusion of contract, delay and similar can be regulated. In general you should pay attention to the correctness of the AGB's. While some clauses can be used without any problems when dealing with entrepreneurs, they can lead to warnings for consumers in the worst case.
TERMS AND CONDITIONS: Mandatory information, necessity and design
AGB's are generally not binding. A warning because of missing AGB's cannot take place. Indirectly, however, there is an obligation to provide general terms and conditions for online shops, as there are numerous obligations to instruct and inform when selling goods and services to consumers, i.e. private customers. The implementation of the requirements can be done by e-mail or similar means of communication: However, a meaningful implementation of the legal requirements is only possible through GTC's. Mandatory information includes, for example, information on the type of contract, information on means of payment and information on the type of delivery. Furthermore, a revocation instruction must be transmitted. Due to the lack of the duty to inform, the two-week revocation period does not start to run: The customer can virtually revoke for up to one year. Online shops that do not sell their goods or services exclusively to entrepreneurs should therefore introduce GTC's. Most of the information is from distance selling law and concerns consumers. If the GTCs contain illegal clauses, the operators of the online shop can be warned. The background to the strict regulations is the EU consumer protection law, which sets extremely strict standards and leads to the inadmissibility of clauses which are permitted in the B2B sector but prohibited in the B2C sector. Before drawing up general terms and conditions, it should therefore be carefully considered whether they are to be used for entrepreneurs, consumers or both groups.
The inclusion of general terms and conditions in the contract
Many operators of online shops think that the mere existence of GTCs means that they are valid. An effective inclusion in the Contract However, this is only the case if the provisions of § 305 II BGB are fulfilled. According to this, the contractual partner must be expressly informed of the GTC's upon conclusion of the contract and must have the opportunity to obtain knowledge of them in a reasonable manner. This applies in particular to contracts concluded on the Internet. In the case of online shops, the general terms and conditions must be designed in such a way that they cannot be overlooked by an average customer when reading them. Unclear or hidden references lead to a non-inclusion of the GTC's, so that the legal regulations apply. These are often less favourable for operators of online shops than regulations in the GTCs. Ideally, the customer should be forced to take note of the GTCs before the contract is concluded. This can ideally be done by means of a button above which the sentence "I have taken note of the GTC's and accept them" is written. A conclusion of a contract or an order is only permitted if a tick is placed in the checkbox or the button is pressed. Another possibility is that the GTC's can only be marked as read when they have been scrolled through completely. It is important that GTC's are displayed in large font so that they can also be read by older persons. The text should be clearly formulated in terms of content, so that legal jargon should not be used. The GTCs must still be easy to read and have a proper structure.
Things to know about creation
AGB's do not always have to be created individually. There are numerous sites on the Internet, where you can download samples of general terms and conditions. For complicated projects a lawyer can be assigned with the production of the AGB's. It is not advisable to simply copy other AGB's. The creator can warn the operator of the online shop and assert claims under competition law. In addition, foreign AGB's can contain errors, so that their use is usually doubtful. Self-made or together copied terms and conditions of business usually do more harm than use: After all, their design is legally extremely complicated. Anyone who simply copies general terms and conditions must expect to be sued for damages and injunction. Incidentally, there is always the danger with third-party GTC's that they are not adapted to your own online shop and were designed for completely different purposes. Whoever operates an online shop with an innovative orientation should pay attention to the establishment of individual GTC's that correspond to the respective business model. Prefabricated AGB's of websites may still be the best choice. General terms and conditions that can be used for any online shop do not exist.
The correct design of AGB's
GTC's should be clearly adapted to the respective business model. In principle, a distinction can be made between general terms and conditions for the sale of goods, services or digital content. The respective GTC's can contain extremely different regulations. As before, it should always be remembered that GTC's for entrepreneurs, consumers or both groups are designed very differently. Many online shops sell not only "real" goods but also digital content. On the international level, however, completely different factors must be taken into account. The typical structure of AGB's is as follows:
I. Users of the AGB
II Scope of application of the GTC
III Conclusion of contract
IV. Payment
V. Default of payment and default of acceptance
VI. reservation of title and transfer of rights of use
VII Delivery and delivery restrictions
VIII. Warranty and guarantees
IX. Liability
X. Data Protection
XI Shop-specific details
XII. Place of jurisdiction
XIII Applicable law
XIV Severability Clause
