A customer protection clause is a contractual agreement that prohibits one party from poaching the other party’s customers or entering into business contact with them. Such clauses are often found in contracts between companies, particularly in cooperation, distribution partner or service agreements. In the IT and media industry, customer protection clauses are of particular importance due to the often close cooperation between different players.

Legal basis:

1. contractual freedom: customer protection clauses are based on the contractual freedom of the parties.

2. antitrust law: customer protection clauses must be compatible with antitrust law, in particular with the prohibition of agreements restricting competition (Art. 101 TFEU, Section 1 GWB).

3. general terms and conditions law: When used in general terms and conditions, customer protection clauses are subject to content review in accordance with Sections 305 et seq. BGB.

Typical areas of application:

1. IT service contracts: Protection against poaching of customers by external IT service providers.

2. sales partnerships: preventing the manufacturer from approaching customers directly.

3. company sales: protection of the buyer against solicitation of customers by the seller.

4. freelancer contracts: Preventing freelancers from directly approaching the client’s customers.

5. agency contracts: Protection of the agency against direct commissioning by the client.

Design aspects:

1. scope of customer protection: It must be clearly defined which customers are protected (e.g. all current customers or only those with whom business relationships existed in a certain period of time).

2. time limit: the duration of customer protection should be defined, whereby excessively long periods can be legally problematic.

3. geographical scope: the geographical area to which the customer protection applies should be defined.

4. prohibited actions: It should be specified exactly which actions are prohibited (e.g. active approach, acceptance of orders, etc.).

5. exceptions: Exceptions can be defined, for example for existing business relationships or public tenders.

6. contractual penalty: A contractual penalty is often agreed in the event of infringement.

Legal limits and risks:

1. limits under antitrust law: Customer protection clauses that are too far-reaching may be inadmissible under antitrust law as agreements that restrict competition.

2. time limit: As a rule, customer protection clauses of a maximum of two years are considered permissible.

3. proportionality: the clause must be proportionate to the need for protection and must not unduly restrict the freedom of economic activity.

4. control of general terms and conditions: Customer protection clauses used in general terms and conditions may not unreasonably disadvantage the contractual partner (Section 307 BGB).

5. specificity: the clause must be sufficiently specific to be enforceable.

Special features in the IT and media industry:

1. project-related cooperation: In the IT industry, project-related cooperation between different service providers is common, which can make it difficult to delimit customer contacts.

2. fast pace: The rapid pace of technological development can mean that long customer protection periods appear disproportionate.

3. network effects: In the media industry, network effects can lead to customer protection clauses having particularly far-reaching effects.

4. open source: In the area of open source software, customer protection clauses may conflict with the principles of open cooperation.

Strategic considerations:

1. balancing of interests: Companies must carefully weigh up the protection of their customer relationships against flexibility in working with partners.

2. differentiation: It can be useful to differentiate between different customer groups or project categories.

3. reciprocity: customer protection clauses are often mutually agreed, which can increase acceptance.

4. alternative protection mechanisms: In addition to customer protection clauses, other instruments such as exclusivity agreements or commission models can also be considered.

5. enforceability: The practical enforceability of the clause should be considered, particularly with regard to the ability to prove breaches.

Conclusion:

Customer protection clauses are an important instrument for protecting business relationships in the IT and media industry. They can protect companies from losing valuable customer relationships and promote the stability of collaborations. However, they must be drafted carefully and in compliance with legal limits.

The effectiveness of customer protection clauses depends heavily on their concrete form and the specific circumstances of the individual case. Companies should therefore develop a holistic strategy to protect their customer relationships that takes into account other aspects such as customer loyalty and quality leadership in addition to contractual regulations.

Overall, customer protection clauses remain a relevant element in the drafting of contracts in the IT and media industry, but require careful consideration of interests and precise legal wording.