Terms and Conditions

PayPal blocks against the sales within Kuba, Zalando obliges frequently returning buyers to pay in advance. Chip interviews lawyer Hagen Hild, certified lawyer in IT Law and in Protection of Industrial Property about that topic.

The Member States hat time until January 20, 2011 to implement the new directive 2009/48/EC of the European Parliament and of the Council on the safety of toys – these implementing regulations should be applied from July 20, 2011. We have compiled for you the important innovations mentioned in the toys directive and also in the second regulation of the equipment and product security law and which should be followed by manufactures and online sellers.

According to the recently published police criminal statistics of the year 2010, the number of the recorded crimes regarding computer and Internet criminality has continued to grow strongly. 60.000 cases have been known last year, 20 percent more than a year before. The estimated high number of unknown and not registered crimes should not be underestimated. The increasing number of criminals feel safe from the law within the supposedly anonymous “legal vacuum” Internet.

With the growing number of Smartphone users is also increasing the interest from companies to remain present in the mobile business. Applications for mobile phones - so-called apps - are already an important economic factor, which should not be underestimated. Through these apps, it is possible more than order rail tickets through mobile phones, full web pages are optimized for Smart phones including complete ordering processes. As in ecommerce, numerous statutory duties must be considered by those companies. 

Judgement of LG Darmstadt (Regional Court Darmstadt) of 06/04/2011, file number: 25 S 162/10

Following clause of the terms and conditions “The special price is only valid with full payment at the shipping and billing date. In case of late or incomplete payment, the special price is not longer valid” has been declared invalid by the Regional Court Darmstadt. First, the term “billing” is too vague. For the customer is not clear whether this date refers to the invoice date or to the delivery date. Additionally, the statutory right of retention of the customer is so limited through the clause that an exclusion of the...

Judgement OLG Köln (Higher Regional Court Cologne) of 02/03/2011, file number: 6 U 165/10

A clause in the general terms and conditions of a parcel and postal service provider, which allows an alternative delivery is not admissible without the inclusion of a commitment, which assures that the addressee will be informed about the alternative delivery.

Press release of BGH (Supreme Court) No. 31/2011 about the judgement dated 17/02/2011, file number: III ZR 35/10

The clause on the general terms and conditions of a mobile operator stating that the SIM card will be blocked as soon as the customer has an outstanding payment of € 15.50, disadvantages the customer in an inappropriate manner. According to the legal regulation regarding the fixed network connection (§ 45k para. 1 TKG – German Telecommunication Act) a SIM card should not be blocked before the customer has an outstanding payment of over € 75.

Judgement of BGH (Supreme Court) of 13/01/2011, file number: III ZR 78/10

If a vehicle owner commissioned a car dealer for a commission with the sale of his vehicle, he must not pay an additional fee for the allocation and advertising of the vehicle. A contractual agreement to that effect is invalid, since it disadvantages the contractor unreasonably. He does not receive anything in return, the expenses for the successful presentation serve the interest of the dealer to come quickly to mediation and these are already included in the commission.

In the two-day event “IT Law – organise and manage contents, communication and business legally steady on the Internet” within the lecture series “JuraBasics – Law for non-lawyers” of the University of Augsburg, certified lawyer Hagen Hild will impart practise-oriented knowledge. Lawyer Hild is a certified lawyer in IT-Law and in Protection of Industrial Property and daily advises clients in this area for almost 10 years. The event will take place on Friday 16/07 and Saturday 17/07 from 9 am to 5:30 pm.

Judgement of OLG Koblenz (Higher Regional Court Koblenz) of 30/09/2010, file number: 2 U 1388/09

In a recent judgement, the Higher Regional Court has dealt with the general terms and conditions of a provider of web hosting contracts.

Thus, hereafter, a clause is particularly ineffective. This states that an alteration of the contract with the user of the terms could be possible if this is reasonable for the customer and the costumer does not disagree. The limitation that the alteration of the contract must be “reasonable” for the parties is too vague.

Judgement of BGH (Supreme Court) of 20/05/2010, file number: Xa ZR 68/09

a) Following clause, found in the general terms and conditions of an airline, which offers its services almost exclusively as distant sales, has been reviewed:

“Since security and administrative costs have increased, Ryanair will not accept any cash payments for the tickets, fees and costs for the excess luggage and sport equipment.”

b)  Following clause of the general terms and conditions of a company of that kind disadvantages the passenger inappropriately, contrary to the principle of equity and good faith and is, therefore, invalid:

"(1) credit card fee per...

The computer magazine CHIP recently published our large terms and conditions test, in which lawyer Hagen Hild (Terms and Conditions Law) and lawyer Martin Bachmann (Privacy Policy) examined dozens of terms of use, licence agreements and privacy policies of the major providers such as Microsoft, Google and Facebook. This study has now been mentioned in the FOCUS magazine.

Important Terms and Conditions Check and interview with lawyer Hild in the CHIP September 2010 edition

“Im AGB-Dschungel” (“In the jungle of Terms and Conditions”) is the title of the wide terms and conditions check of CHIP. The law firm Hild & Colleagues has checked, for the well-known computer magazine CHIP, hundreds of pages containing terms and conditions, terms of use, licence agreements and privacy policies in the field of Internet and IT. The law firm has also legally tested numerous clauses for CHIP. For this purpose, certified lawyer Hagen Hild (certified lawyer in IT-Law and certified lawyer in Protection of Industrial Property) has analysed...

Judgement of OLG Köln (Higher Regional Court Cologne) of 27/04/2010, file number: 3 U 160/09

The delivery company DHL may not provide in his terms and conditions that customers must give notice in writing in case of (partial-) loss or damage within seven days after delivery. This clause excludes inadmissibly writings such e-mail or fax. Additionally, the clause clears insufficiently up, that to meet the deadline, timely sending of the damage notice shall suffice.

Judgement of LG Düsseldorf (Regional Court Dusseldorf) of 28/08/2009, file number: 38 O 34/09

In a community of registered consumers, the invoices for the use of the network are charged after being informed about a change in the general terms and conditions which allows the chargeability. For the dishonesty of this demand it is not enough that this is based in a contract which is created by unfair methods. Through the sending of the unjustified demand, also the consumer has been used in his lack of experience or gullibility or in a dilemma.

Decision of OLG Schleswig-Holstein (Higher Regional Court Schleswig-Holstein) of 14/05/2009, file number: 6 U 41/08

A terms and conditions clause which enables a mobile phone provider to change clauses before the contract period expires is ineffective. Moreover, also an inadmissible clause is the one which allows the provider to block the connection, immediately and without previous notice, in case of default. Terms and conditions should not cause disproportionate disadvantages for the customers.

Judgement of OLG Hamm (HRC Hamm) of 10/12/2004, file number: 11 U 102/04

The seller cannot require the return of the product in the original packaging under use of the return adhesive label and returning certificate. The buyer merely obliges to pack the purchased good protecting it against typical transport dangers. Also a bulk discount and stock delivery reservation of “rare top wines” are illegal, § 307 BGB (German Civil Code).

Judgement of OLG Köln (HRC Cologne) of 27/02/2009, file number: 6 U 193/08

General terms and conditions are to be looked as a linguistic work and therefore as a copyright personal intellectual creation. Consequently the unauthorised use by third parties shows an infringement to the detriment of the in copyright matters amended.

Judgement of the EuGH (ECJ) of 04/06/2009, file number: C-243 / 08

The ECJ has decided that abusive contract clauses are not obliging for consumers and an appeal is not necessary. Contract clauses are to be checked by the courts officially; the audit also applies to own local competence. It is a case of the court to ascertain the misuse of the clause. This is given, if such a clause, without being negotiated, assigns exclusive competence to the court in whose district the businessman has his seat. 

Judgement of AG München (Local Court Munich) of 18/02/2009, file number: 6 W 4/09

If an Internet site promotes an inexpensive “test membership”, a clause about monetary compensation which is hidden in the following continuous text would be considered as astonishing.
The same applies to a lengthening clause which is hidden in the heading “Payment and Prices” and is not mention under the category “Contract Period” or “Contract Lengthening”.