• Home
  • Imprint
  • Privacy policy
  • Terms
  • Agile and lean law firm
  • Ideal partner
  • Contact
  • Videos
ITMediaLaw - Rechtsanwalt Marian Härtel
  • en English
  • de Deutsch
  • About lawyer Marian Härtel
    • About lawyer Marian Härtel
      • Ideal partner
      • About lawyer Marian Härtel
      • Video series – about me
      • Why a lawyer and business consultant?
      • Principles as a lawyer
      • Focus on start-ups
      • Nerd und Rechtsanwalt
      • Ideal partner
      • How can I help clients?
    • Über die Kanzlei
      • How clients benefit from my network of colleagues, partners and service providers
      • Quick and flexible access
      • Agile and lean law firm
      • Team: Saskia Härtel – WHO AM I?
      • Price overview
    • How can I help clients?
    • Sonstige Informationen
      • Einwilligungen widerrufen
      • Privatsphäre-Einstellungen ändern
      • Historie der Privatsphäre-Einstellungen
      • Privacy policy
    • Testimonials
    • Imprint
  • Leistungen
    • Focus areas of attorney Marian Härtel
      • Support with the foundation
      • Games law consulting
      • Advice in e-commerce
      • Support and advice of agencies
      • Legal advice in corporate law: from incorporation to structuring
      • Legal compliance and expert opinions
      • Streamers and influencers
      • Cryptocurrencies, Blockchain and Games
      • Outsourcing – for companies or law firms
    • Arbeitsschwerpunkte
      • Games and esports law
        • Esports. What is it?
      • Corporate law
      • IT/IP Law
      • Consulting for influencers and streamers
        • Influencer & Streamer
      • Contract review and preparation
      • DLT and Blockchain consulting
        • Blockchain Overview
      • Investment advice
      • AI and SaaS
  • Artikel/News
    • Langartikel / Guides
    • Law and computer games
    • Law and Esport
    • Law on the Internet
    • Blockchain and web law
    • Online retail
    • Data protection Law
    • Copyright
    • Competition law
    • Copyright
    • EU law
    • Law on the protection of minors
    • Labour law
    • Tax
    • Kanzlei News
    • Other
  • Videos/Podcasts
    • Videos
    • Podcast
      • ITMediaLaw Podcast
      • ITMediaLaw Kurz-Podcast
  • Knowledge base
  • Contact
Kurzberatung
  • About lawyer Marian Härtel
    • About lawyer Marian Härtel
      • Ideal partner
      • About lawyer Marian Härtel
      • Video series – about me
      • Why a lawyer and business consultant?
      • Principles as a lawyer
      • Focus on start-ups
      • Nerd und Rechtsanwalt
      • Ideal partner
      • How can I help clients?
    • Über die Kanzlei
      • How clients benefit from my network of colleagues, partners and service providers
      • Quick and flexible access
      • Agile and lean law firm
      • Team: Saskia Härtel – WHO AM I?
      • Price overview
    • How can I help clients?
    • Sonstige Informationen
      • Einwilligungen widerrufen
      • Privatsphäre-Einstellungen ändern
      • Historie der Privatsphäre-Einstellungen
      • Privacy policy
    • Testimonials
    • Imprint
  • Leistungen
    • Focus areas of attorney Marian Härtel
      • Support with the foundation
      • Games law consulting
      • Advice in e-commerce
      • Support and advice of agencies
      • Legal advice in corporate law: from incorporation to structuring
      • Legal compliance and expert opinions
      • Streamers and influencers
      • Cryptocurrencies, Blockchain and Games
      • Outsourcing – for companies or law firms
    • Arbeitsschwerpunkte
      • Games and esports law
        • Esports. What is it?
      • Corporate law
      • IT/IP Law
      • Consulting for influencers and streamers
        • Influencer & Streamer
      • Contract review and preparation
      • DLT and Blockchain consulting
        • Blockchain Overview
      • Investment advice
      • AI and SaaS
  • Artikel/News
    • Langartikel / Guides
    • Law and computer games
    • Law and Esport
    • Law on the Internet
    • Blockchain and web law
    • Online retail
    • Data protection Law
    • Copyright
    • Competition law
    • Copyright
    • EU law
    • Law on the protection of minors
    • Labour law
    • Tax
    • Kanzlei News
    • Other
  • Videos/Podcasts
    • Videos
    • Podcast
      • ITMediaLaw Podcast
      • ITMediaLaw Kurz-Podcast
  • Knowledge base
  • Contact
ITMediaLaw - Rechtsanwalt Marian Härtel
Home Online retail

B2B contracts: Link reference to GTC is sufficient

27. March 2023
in Online retail
Reading Time: 3 mins read
0 0
A A
0
20200427 Eugh Diskr o Person
Key Facts
  • The ECJ ruled that a link to the GTC in the contract is sufficient.
  • No checkbox required for acceptance of the GTC.
  • An important note must be included in the contract.
  • GTC must be accessible by the other party.
  • GTC can also be viewed before signing the contract.
  • The storage option is sufficient to fulfill formal requirements.
  • Consumer protection rights were not examined, but BGB regulations remain applicable.

Since I create many software contracts, the question arises again and again whether and how GTC can be included in such contracts, for example whether they have to be attached to the contract. Surprisingly, the ECJ has to deal with this issue and has ruled under case number C-358/21 that it is sufficient for the inclusion of GTCs if the contract contains a link to the website where the relevant GTCs can be viewed and downloaded. This is therefore sufficient for the possibility of reasonable notice. In the present case, the question was whether a specific place of jurisdiction had been agreed.

A separate checkbox, which would have documented the inclusion of the GTC, is not required. The ruling thus corresponds to what I have been communicating to clients for years, namely to finally only refer to T&Cs in online stores and not to still demand the “acceptance” of the T&Cs. Indeed, the latter have been shown to reduce the rate of successful contracting.

The court on this:

In the present case, it is apparent from the documents before the Court that the clause conferring jurisdiction at issue in the main proceedings is contained in Unilever’s general terms and conditions, to which express reference is made in the written contract concluded between the parties. Since the situation is one in which, as in the present case, the general terms and conditions in which the jurisdiction clause is contained are not directly attached to the contract as an annex, it must be stated that such a clause cannot be considered as a jurisdiction clause under the rule set out in para. 37 to 45 of the present judgment, if the text of the contract itself, signed by both parties, expressly refers to these general terms and conditions containing this clause.

And further

However, this only applies in the case of a clear indication that a party can follow up by exercising normal diligence and only if it is established that the general terms and conditions containing the jurisdiction clause were actually received by the other party (judgment of 7 July 2016, Hőszig, C-222/15, EU:C:2016:525, para. 40). In the present case, it is not in dispute that the text of the contract at issue in the main proceedings contains such a clear indication, which the plaintiff in the main proceedings is entitled to pursue, but that is a matter for the referring court to determine. Therefore, it is necessary to verify whether the General Terms and Conditions have actually been received by this contracting party.

This was the opinion of the court:

Since pursuant to Art. 23 para. 2 of the Brussels I Regulation, as interpreted by the Court of Justice, the transmission of the information in question takes place when it can be made visible via a screen, the reference in the written contract to general terms and conditions by indicating the hyperlink to a website via which it is in principle possible to take cognizance of those general terms and conditions, provided that that hyperlink functions and can be opened by a party with normal diligence, must a fortiori be regarded as proof that that information has been received. In such a case, that result cannot be called into question by the fact that there is no box on the website in question that could be clicked to declare that those general terms and conditions are accepted or that the page containing the general terms and conditions does not open automatically when that website is accessed (cf. in this sense, judgment of 21 May 2015, El Majdoub, C-322/14, EU:C:2015:334, para. 39), since it is possible to access these general terms and conditions before signing the contract and the acceptance of these terms and conditions takes place by means of signature by the contracting party concerned.

Moreover, since the mere possibility of saving and printing out general terms and conditions prior to the conclusion of the contract is sufficient to satisfy the formal requirements, it is irrelevant whether the information transmitted has been “issued” by the company concerned or “received” by the contractual partner.

The provisions of Art. 23 para. 1 of the Brussels I Regulation is based on the desire to take into account commercial practices, but to deprive such jurisdiction clauses of their effect, which could be introduced unnoticed into the contractual relationship, such as such clauses that are found on business correspondence forms or on invoices, if they have not been accepted by the party to whom they are referred (cf. in this sense, judgments of 24 June 1981, Elefanten Schuh, 150/80, EU:C:1981:148, para. 24, and of 7 July 2016, Hőszig, C-222/15, EU:C:2016:525, para. 36).

 

This should be a nice relief for contractors and also make contracts a bit shorter.

Although the ECJ has also made it clear that it has not examined and did not have to examine the requirements of consumer protection law, the fairly clear provisions in the German Civil Code do not give any reason to view this legal issue differently for consumers, at least not as long as it is not a matter of concrete indications in the area of gambling and the like.

Tags: AGBCase lawConsumerGeneral Terms and ConditionsInformationJudgmentsLegal questionRegulationSoftwareVerträge

Beliebte Beträge

Automated pricing and dynamic pricing in e-commerce

automatisierte preisgestaltung und dynamic pricing im ee28091commerce 1
2. April 2025

In the digital economy, automated pricing and dynamic pricing strategies are now part of everyday life. Whether for online shopping,...

Read moreDetails

Cancellation buttons in focus: a recent ruling and its impact on online retail

abmahnung
8. February 2025

I have already reported several times on the requirements for unsubscribe buttons. This topic is particularly important for SaaS providers...

Read moreDetails

Internationalization of SaaS products

9f8d6fee06ef9f57635cfc2792644595
9. November 2024

International expansion is a natural growth step for many SaaS start-ups. However, entering new markets brings with it complex legal...

Read moreDetails

Avoid legal pitfalls when founding an online start-up

Avoid legal pitfalls when founding an online start-up
10. October 2024

Founding an online start-up requires not only entrepreneurial skill, but also a solid legal foundation. Company founders are confronted with...

Read moreDetails

E-commerce law: legally compliant design of online stores for the self-employed

E-commerce law: legally compliant design of online stores for the self-employed
10. October 2024

Creating an online store offers self-employed people enormous opportunities, but also harbors numerous legal pitfalls. A legally compliant design is...

Read moreDetails

Cancellation button must be possible without login

Online services: Don’t forget the cancellation button!
24. September 2024

In its final judgment of 30.07.2024 (Ref. 3 U 2214/23), the Nuremberg Higher Regional Court made important clarifications regarding the...

Read moreDetails

When is the contract concluded in the online store or with SaaS services

2b14342543cc4e965f96a23212cffb88
26. June 2024

The time of the conclusion of the contract in online stores and for SaaS services is for providers of largehe...

Read moreDetails

Prepayment in the online store: Attention to your own terms and conditions

GTCs are not invalid solely because of their length!
14. June 2024

As a lawyer specializing in IT law and contract law, I regularly draft general terms and conditions for various SaaS...

Read moreDetails

ECJ: Online order button also mandatory if consumer only enters into payment obligation under one condition

Lego brick still protected as a design patent
31. May 2024

Online orders: The order button or the corresponding function must clearly indicate that the consumer enters into a payment obligation...

Read moreDetails
  • Home
  • Imprint
  • Privacy policy
  • Terms
  • Agile and lean law firm
  • Ideal partner
  • Contact
  • Videos
Marian Härtel, Rathenaustr. 58a, 14612 Falkensee, info@itmedialaw.com

Marian Härtel - Rechtsanwalt für IT-Recht, Medienrecht und Startups, mit einem Fokus auf innovative Geschäftsmodelle, Games, KI und Finanzierungsberatung.

Welcome Back!

Login to your account below

Forgotten Password? Sign Up

Create New Account!

Fill the forms below to register

All fields are required. Log In

Retrieve your password

Please enter your username or email address to reset your password.

Log In
  • Contact
  • Leistungen
    • Support with the foundation
    • Focus areas of attorney Marian Härtel
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Games law consulting
    • Support and advice of agencies
    • Legal advice in corporate law: from incorporation to structuring
    • Cryptocurrencies, Blockchain and Games
    • Investment advice
    • Booking as speaker
    • Legal compliance and expert opinions
    • Legal advice in corporate law: from incorporation to structuring
    • Contract review and preparation
  • About lawyer Marian Härtel
    • About lawyer Marian Härtel
    • Agile and lean law firm
    • Focus on start-ups
    • Principles as a lawyer
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Why a lawyer and business consultant?
    • Focus on start-ups
    • How can I help clients?
    • Team: Saskia Härtel – WHO AM I?
    • Testimonials
    • Imprint
  • Videos
    • Video series – about me
    • Information videos – about Marian Härtel
    • Videos on services
    • Blogpost – individual videos
    • Shorts
    • Third-party videos
    • Podcast format
    • Other videos
  • Knowledge base
  • Podcast
  • Blogposts
    • Lange Artikel / Ausführungen
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Labour law
    • EU law
    • Corporate
    • Competition law
    • Copyright
    • Tax
    • Internally
    • Other
  • en English
  • de Deutsch
Kostenlose Kurzberatung