Creating a GTC : What to consider - the overview

General terms and conditions ( GTC for short) are there to simplify your business life. You don't have to draw up a contract for each of your customers, but instead formulate standardized contractual conditions unilaterally. Unilateral means that one contracting party does not participate in the drafting of the contract. Strict requirements therefore apply to the GTC .nullThis article explains:

• Who needs GTC? GTC examples, advantages, legal obligations, alternative to GTC
• How do I create GTC? Features, content, content control, sample templates, part of the contract
• What is the difference between GTC GTC and GTC GTC? Distance selling law, EU consumer protection, inclusion
• What special regulations apply to the creation of GTC for online stores? Retrieval and storage of GTC, marking the right of withdrawal, inclusion
• When can GTC be warned? Reasons, costs, taking steps against it

When do we speak of GTC?

The characteristics of GTC are defined in Section 305 (1) BGB. This states that GTC are all pre-formulated contractual terms for a large number of contracts that one contracting party (user) imposes on the other contracting party when concluding a contract.

• Pre-formulated: The terms of the contract are not negotiated individually between the contracting parties.
• Multiplicity: the contractual terms apply to at least three contracts (for B2B customers, the intention to use them for at least three contracts is sufficient)

Who should create GTC ?

You have often come across GTC : Rental agreements, terms of use, GTC GTC or Facebook guidelines are all pre-formulated contractual terms and therefore GTC. They are common practice. But why? In Germany, there is no obligation to have general terms and conditions drawn up. We explain the reason behind this and the benefits it brings.

With GTC you fulfill your legal obligations

If you sell goods or services, you must fulfill numerous instruction and information obligations. These include, among others:

• Total price of goods and services including taxes
• Terms of payment, delivery and service
• Terms of termination
• Right of withdrawal
• Data protection information

The background to this is to inform end consumers in particular about the terms and conditions of the contract in advance. Legislation assumes that they are less familiar with business practices and therefore attaches great importance to consumer protection. GTC not only present your conditions in a sensible way, but above all clearly.nullIt is advisable to have GTC created for the following business models (selection):

• Online stores and trading platforms (more on this under Special regulations for GTC for online stores)
• Stores on platforms such as Ebay and Amazon
• Stores
• Brokerage portals
• Agencies

Apply laws in your favor with GTC

Legal regulations are sometimes imprecisely formulated. In the German Civil Code, for example, you will find information such as "reasonable deadlines". Here, GTC offer you the opportunity to structure these individually and to your advantage. Seek advice from a specialist lawyer on how you can use your leeway wisely. After all, the basic idea of the legislation must of course remain intact and you must not put your contractual partner at an unreasonable disadvantage. Therefore, do not proceed at your own discretion. You run the risk of a clause becoming ineffective or a warning letter being issued. You can read what happens then in the last chapter "When can GTC be warned?"

Do you not want to create GTC ?

GTC are a practical, voluntary means of formulating your rights. Concluding purchase and rental contracts without GTCs is theoretically possible. But where there are no contractual terms and conditions, laws apply. These do not necessarily work in your favor.nullInvest in legally compliant GTC now to avoid disputes with your customers in the future. Have GTC created at a fixed price - legally compliant from lawyer .

When can you do without GTCs?

There is a good reason not to create GTC . Namely, if you negotiate individual contracts with your customers. Here, both parties agree on specific regulations so that GTC are not necessary. Examples are

• Company or service agreements
• Collective agreements
• Inheritance contracts
• Framework agreements

Is a contract the better option for you? You can also discuss further questions about creating a GTC with an experienced lawyer from our team.

How do I create GTC?

Your GTC must be formulated in such a way that they satisfy formal and content-related aspects. They must not unreasonably disadvantage your contractual partners.

• Formulate GTC clearly, simply and precisely.
• Does not contradict the essential basic ideas of the legal regulation.
• Don't use too small a font and point out to your customers where your GTC are located. If you run a webshop, you will find more information on this point further down in the article.

What must be included?

• Regardless of what exactly you offer, this information should be included in your GTC :
• Provider and scope of application
• Prices
• Terms of payment
• Shipping conditions
• Conclusion of contract
• Warranty and exclusion of liability
• Arbitration procedure and final provisions

If you want to create GTCs to conclude contracts with end consumers (B2B GTC), the content check is based on Sections 305 to 310 BGB. Sections 308 and 309 BGB contain provisions that are inadmissible as GTC .
If you conclude contracts with companies (B2B GTC), the content review is limited to Section 307 BGB. However, case law has repeatedly shown that the assessment of Sections 308 and 309 BGB also applies to business transactions. Expert knowledge is therefore also required here.
Whether B2B GTC or B2C GTC: Together with your lawyer , you discuss further clauses and regulations that arise from the specifics of your business model.

Use GTC sample templates and GTC generators

You've probably already come across such tempting offers on the Internet: Be it software or a sample template - one click is all it takes and your GTC are ready. Unfortunately, as there is no such thing as a one-size-fits-all GTC, you need to understand such offers carefully and be able to assess whether they really do justice to the complexity of your activity. This is time-consuming and carries the risk of misjudgements. However, it is good preparation to study sample templates and use them as an example for your appointment with the lawyer .

Copy GTC from other stores

Has your former colleague also set up his own business as a programmer? Then you can use his GTC , can't you?nullNo matter how similar the activities are - do not copy GTC from other companies. Unfortunately, it is not enough to simply swap the provider's data. GTC need to be aligned with your business model. Does your current competitor offer the same programming languages? Do they have the same payment terms as you if they have been self-employed for a while? An experienced lawyer will be able to point out various areas that don't suit your business.nullThere are even greater uncertainties if you do not even know the entrepreneur behind the supposedly suitable GTC . Are the GTC even legally compliant? Do they even contain clauses that are ineffective or could lead to a warning?nullLast but not least, you should also know that copying GTC is already grounds for a warning. Not only by the entrepreneur, but also by the lawyers(s) responsible for the GTC . Because this is a violation of copyright law.nullIt is better to use other people's GTC only as a guide and leave the final drafting to a specialist lawyer.

How to make your GTC part of the contract

You have had your GTC created, now they must be effectively included in a contract. Three points are important for this. The chapters "Simplified inclusion of GTCGTC" and "Inclusion of GTC in online stores" show what this can look like in practice.

• You must expressly refer to your GTC when concluding the contract.
• You must give your contractual partner the opportunity to reasonably obtain knowledge of the content of your GTC .
• Your contractual partner must agree to the inclusion of your GTC .

Create GTC for B2B or B2C?

Are your contractual partners entrepreneurs, end customers or even both groups? The answer to this question influences your GTC - both its regulations and the way in which they are included.

Limited content control for B2B GTC

What may be included in your GTC is based on Sections 305 to 310 BGB in the B2C area. Furthermore, Sections 308 and 309 of the German Civil Code (BGB) - here the legislator defines provisions that are not permitted as GTC .nullYou have more leeway when creating B2B GTC . Only Section 307 BGB is relevant here.

Other laws that are relevant for GTC GTC

If consumers order goods from you via the Internet, telephone or catalog, distance selling law applies. This results in many information obligations for you. Article 246a EGBGB, § 1 defines the exact information that you must provide. Your GTC should therefore include information on the conclusion of the contract, retention of title, revocation, payment process, shipping costs and liability.nullAdded to this is the stricter consumer protection in the EU. With the Omnibus Directive issued in 2019, the EU is also calling for the introduction of fines to punish ineffective contractual clauses more drastically than is currently the case in Germany.nullConclusion: Many provisions that are permissible in the B2B sector are cautioned against in B2C business. If you want to switch to B2C business, you need to adapt your GTC . Let our lawyers advise you.

Simplified inclusion of GTC GTC

In the B2B area, the legislation assumes that the contracting parties are on an equal footing and have a similar level of knowledge. The inclusion of GTC between entrepreneurs is much easier. It is therefore sufficient to refer to your GTC . It is usual, for example, to do this in offers with a short note such as "Our General Terms and Conditions apply". The contractual partner may be required to take initiative here. For example, they can look up your website on their own to read your GTC . If he does not object, the GTC are deemed to be included (tacit agreement).

Special rules for creating the GTC for online stores

Retrieval and storage of GTC for online stores

A special feature arises from the obligations in electronic commerce (Section 305 i BGB). You must offer your buyer or user the option of retrieving your GTC and saving it in a reproducible form. For example, you should make your GTC available as a download.

Clearly separate the right of withdrawal from the rest of the content in the GTC

According to § 355 BGB, your customers have a 14-day right of withdrawal. This must not only be reproduced correctly in terms of content. Cancellation notices must stand out clearly from the rest of the text. For example, by increasing the font size, making it bold or highlighting it in color.

Inclusion of GTC in online stores

To ensure that your GTC are effectively included in a contract, you can proceed as follows, for example:

1. Clearly inform your contractual partners about your GTC . You can do this by including a link on the order page - preferably near the order button.
2. Give your customer the opportunity to take note of your GTC in a reasonable manner. This means not only the way to get there, but also the information itself. One conceivable solution is a link that leads to a PDF or to a separate HTML page with a well-structured text in an appropriate font size.
3. The declaration of consent of your contractual partner can be obtained, for example, via a field below the order form. The contractual partner agrees to your GTC by clicking on it. In the explanatory text, you should again offer to download your GTC .

Consequences of legal violations: What happens if the GTC is faulty?

GTC simplify your day-to-day business and give you legal certainty when dealing with your customers. The prerequisites for this are that you draw up your GTC conscientiously and regularly check whether they comply with the current state of the law and your business practices. This is because incorrect GTC have (costly) consequences.

Clause is invalid

If a clause in your GTC is invalid, it will be deleted. The statutory regulation applies as a replacement. However, the contract remains in force.

Compensation for damages

The use of ineffective GTC constitutes a breach of duty and may lead to claims for damages.

Warnings

GTC can be warned under competition law, as the Federal Court of Justice considers GTC to represent "market conduct rules".

What are the reasons for a warning?

There are numerous sources of error with self-created or outdated GTC. The most frequent warnings arise because:

• GTC violates the BGB
  According to §§ 305 BGB, your contract clauses may not be ambiguous. They must be easy to understand and precisely worded. There must be no unusual clauses that the business partner does not expect. Likewise, your GTC must not be unreasonably disadvantageous.
• GTC are incomplete
  Check whether the following content is fully covered and legally compliant: Information on the user and the conclusion of the contract, scope of application, subject matter of the contract, payment terms, guarantee, delivery periods, cancellation policy, reminder, limitations of liability, place of jurisdiction
• Content requirements are not met
  Are the needs of your business model fully mapped? Depending on whether you work for private or business customers, different GTC need to be created. If you operate internationally, it must be adapted to foreign law and made available in the respective national language. Is your business subject to distance selling law because you sell goods to end customers via an online store? Then you have to deal with numerous regulations and information obligations regarding the right of withdrawal and return. These vary depending on the type of sale and product. The latter again influences the design of the GTC: digital goods are treated differently from physical goods in legal terms.

As a result, there are still many clauses in circulation that could lead to a warning. If you run an online store, for example, you should not have these examples in your GTC :

• The consumer bears the transportation risk
• Non-binding delivery times
• Consumer is obliged to inspect and report defects immediately
• Acceptance of freight collect parcels is refused
• Inadmissible limitation of liability and indemnity clauses
• Inadmissible restriction of the right of withdrawal
• For work abroad: blanket agreement under German law

How expensive is a warning for incorrect GTC?

The risk of being "caught" with incorrect or carelessly formulated GTC should not be underestimated. The majority of warning letters are issued by associations that want to make a quick buck rather than contribute to law-abiding competition. The law against warning letter abuse has been in force since December 1, 2020. It restricts cost claims and contractual penalties in some cases. For example, in the case of breaches of statutory information and labeling obligations on the internet. Legal and association fees may not be charged for this.nullHowever, if you receive a justified warning letter from a law firm, you will incur legal fees. A value in dispute is also determined. It is important to check the derivation carefully, as this is often set too high. Depending on the infringement and the number of infringements, the costs can be between 1,000.00 and 3,000.00 euros. Does your first check show that everything is worded correctly and there is no suspicion of abuse of rights? Be sure to consult an expert instead of immediately submitting the cease-and-desist declaration and paying. He can apply for an extension of the deadline, specify the cease-and-desist declaration or try to reduce the contractual penalty.nullIf there is another infringement after the declaration to cease and desist has been signed, the average contractual penalty is € 3,500.00.nullHave you received a warning letter?
Get in touch with us and don't let the deadlines pass under any circumstances. We can advise you on what to do now.

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