If your webshop does not have general terms and conditions, then you are most definitely in the wrong. However, research by theJurists has shown that no less than 11% of the 500 webshops examined is already making this mistake!
But even if your webshop has general terms and conditions, there are still several things that might go wrong. The following is a top 5 of the most common mistakes in general terms and conditions of webshops.
Copycats
Your terms and conditions are a copy of (parts of) other general terms and conditions.
Copying content from other websites is a violation of copyright. Therefore, you are not allowed to simply copy other people’s texts. The original author can claim compensation for this.
However, it is also just a bad idea. After all, every webshop is different, and therefore needs its own specific terms and conditions. If you just pluck general terms and conditions from the internet, you risk including provisions that are not applicable at all, or even worse: that are not legal at all. Besides using these invalid provisions, you can also simply forget to include mandatory or necessary provisions. All this can have very negative consequences.
For example
Imagine: you have a webshop that sells second-hand goods. Such webshops can in principle reduce the statutory guarantee period of two years for consumers to one year. The condition is, however, that you explicitly include this reduced guarantee period in the general terms and conditions on your website. By blindly copying other general terms and conditions, you could forget this. In that case, the consumer will still be entitled to a guarantee period of two years, although you would have liked it to be shorter.
Disregard for consumer rights
Webshops which only have companies as customers (B2B), have less to worry about. Between entrepreneurs there is a more extensive contractual freedom than in the relationship with consumers.Although you now have to take into account forbidden clausesin a B2B relationship as well, this is still less strict and far-reaching than in consumer law.
This means that as the owner of a B2C webshop, you must comply with many consumer rightswhen drawing up your general terms and conditions.
Withdrawal period for consumers
First of all, as a webshop owner you are required to state the legal withdrawal periodof 14 days. Within this period the consumer can notify the company that he wants to return the product. After the notification, a new period of 14 days starts to actually return the product.
If you get this withdrawal period wrong or simply forget to mention it, there will be consequences. The term will then be extended by 12 months as a punishment!
In some circumstances, such as for personalised products, the right of withdrawal does not apply. You should therefore state explicitly in the general terms and conditions when this right does not apply.
Unlawful clauses
Furthermore, it is not permitted to include clauses in the general terms and conditions that are on the blacklistof unlawful clauses.
For example, it is prohibited to set an unreasonably short deadline for reporting defects in the delivered product, or to unilaterally change the delivery period of a product.
ODR clause
It is essential that you inform the consumer sufficiently about the possible complaint procedure. The consumer can file a complaint with the Belgian Consumer Ombudsman Service or on the European Online Dispute Resolution platform (ODR).
Offering online arbitrationis therefore also an obligation for the entrepreneur. The aim is to reach an amicable solution between both parties. This way you avoid possible high legal costs. Correct general terms and conditions therefore contain at least a link to the ODR platform. Please note, however, that only the inclusion of a link is compulsory. As an entrepreneur, you are not obliged to actually solve your dispute out of court.
You don’t meet the language requirements.
In comparison with other (legal) documents, there is no strict regulation on the use of language in general terms and conditions. The golden rule is that the general terms and conditions must be clear and understandable for the other party. Of course, this vague description still leaves room for discussion.
Which language is needed now?
The safest option is to write your general terms and conditions in the language of your customers. For example, a company focused on the Benelux market would be best advised to draft its general terms and conditions in both Dutch and French. In the EU it is assumed that a French and English translation suffice. It is wise, however, to have a specific German translation if your webshop is specifically aimed at the German market.
For the purpose of transparency, you can clearly indicate in your general terms and conditions and on your website which countries your webshop is aimed at. Conversely, you also have the option of explicitly stating the countries to which you do not deliver. In such a case, it is of crucial importance that you keep your word.
The consumer has the right to consult the general terms and conditions in his language if the entrepreneur also addresses him in that language. So think carefully before offering your website in different languages!
Be careful with translations!
Therefore, it is a realistic scenario that you, as an entrepreneur, have your general terms and conditions translated, and then provide different language versions on your website. In this case, it is smart to add an extra clause that states that the original version always prevails over the translated version(s).
An example of such a clause is the following: “The terms and conditions of sale can be consulted in Dutch, French and English. In the event of contradiction between the different versions, the Dutch version shall prevail.”
The conditions are not enforceable
If you want your general terms and conditions to be part of the deal with your customer, you have to fulfil 3 criteria.
Firstly, there must be a reasonable possibility of becoming acquainted with the general terms and conditions. Moreover, this possibility must exist prior to the conclusion of the contract. And finally, these conditions must also be accepted by your counterparty. So, if one of these criteria has not been met, you will not be able to rely on your general terms and conditions.
More concretely: if you only give your terms and conditions on the invoice, they will not be enforceable, because it was not prior to the contract. Or when you do have general terms and conditions, but their content is not included anywhere on the website, so that your customer cannot read them. In that case too, your general terms and conditions will not apply.
General terms and conditions are not up to date.
The relevant legislation for webshops changes frequently. This means that a webshop that is legally in order today, may not be so tomorrow. Think, for example, of the privacy legislation that is constantly evolving, the new B2B law or the modernisation of warranty regulations.
As a company, it is difficult to be constantly aware of all the legal changes concerning webshops. However, staying up to date is of the utmost importance!
Conclusion
Without proper guidance and support, you risk being stuck with incomplete, incorrect and/or outdated general terms and conditions. If discussions subsequently arise with your customers, you start from a weaker position from the outset.
If you want to be able to focus on your business in your e-commerce activities with peace of mind, the experts at deJuristen can help you with the correct legal support. You can always contact them at hallo@dejuristen.be.
Written by Romeo Van Overbeke, Trainee theJurists, Chloë Vanderstraeten, Legal Adviser theJurists and Kris Seyen, Partner theJurists
