The CTIA statistics indicate that 80% of the audited entities were found to have some kind of defect and the most frequent source of problems was the commercial and complaint conditions. What mistakes in e-shop terms and conditions do we encounter almost every day and what should you look out for?
The terms and conditions are a document that every e-shop must have readily available on its website. They do not constitute the actual purchase contract – this is concluded in the e-shop by ordering the goods and then confirming receipt of the order. In order for the purchase contract to be valid, it is sufficient to identify the parties, the goods and to set the price. For the sake of brevity, it is necessary to supplement it with general terms and conditions.
These fulfil a number of information obligations that businesses have by law towards their customers (consumers) and may also cover other important aspects:
The law also requires that all information in the terms and conditions is 100% true and unambiguous.
All of the above points will vary depending on the specifics and diversity of your business. For this reason alone, it is clear that the model terms and conditions will not be sufficient for an e-shop. But unfortunately, they are the most common mistake we encounter in practice.
The aim of general terms and conditions for an e-shop should be to ensure that they provide the best possible legal position for you, as the seller, while maintaining statutory consumer protection. It stands to reason that each business will have different specific requirements that you won’t find in the model terms and conditions. In practice, we have seen that many anonymous model terms and conditions also contain unlawful provisions and omit new obligations arising from amendments to the Civil Code and the Consumer Protection Act, for example for digital content or updates to goods with digital elements. The outdated templates also often use terms that are no longer used in the legislation – for example ‘warranty’ instead of liability for defects.
Many start-up e-shops or companies choose a strategy where they copy terms and conditions from their competitor. What they fail to realise is that the terms and conditions do not fit their case, which may differ in detail. This often leads to mistakes. In addition, the competitor who wrote the terms and conditions may challenge their use and thus harm the start-up e-shop marketing-wise.
It is not an exception that e-shops often add invalid or prohibited information to their terms and conditions that curtail consumers’ rights. For example, if you make it difficult to withdraw from the contract by means of a penalty in the terms and conditions, this would be a breach of the law and the provision would not apply even if the customer agrees to the terms and conditions. This is because it would contravene the provisions of the Consumer Protection Act and the Civil Code, which prohibit any restriction of the consumer’s legal rights. Moreover, you could easily get into considerable trouble with the Czech Trade Inspection Authority.
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I want to be sure of the terms and conditions
The fact that consumers have the right to withdraw from an off-premises (i.e. most often online) contract within 14 days without giving a reason is a well-known fact that perhaps does not need to be repeated. However, you should also beware here – if you do not properly and clearly inform the consumer of this right in the general terms and conditions, the withdrawal period is extended by one year from the expiry of the original 14-day period.
The withdrawal period generally starts from the date of conclusion of the contract, but for sales contracts it is only from the date of receipt of the goods. In cases where several types of goods or the delivery of several parts are involved, then the 2 weeks for withdrawal starts from the receipt of the last delivery of the goods. For contracts for the regular delivery of goods over a set period of time (for example, cosmetics or food parcels), the withdrawal period starts from the receipt of the first delivery.
Tip: The 14-day deadline applies to the sending of the withdrawal, not the delivery.
Consumers must be provided with a withdrawal form, but they are not obliged to use it, nor can they be required to do so in the terms and conditions.
Here, the consumer is obliged to send the goods back no later than 14 days after withdrawal. Let’s debunk the myths we often encounter about returning goods in terms and conditions:
Tip: If you manufacture or sell customised goods, be sure to mention the impossibility of returns in the terms and conditions.
Be sure to include the specific terms and conditions of withdrawal in the terms and conditions and make it clear that the consumer is responsible for the costs of returning the goods, unless you have expressly agreed otherwise. Otherwise, he has the right to claim them from you. All monies (including the cost of delivering the goods to the customer) must be returned to the consumer within 14 days of the date of withdrawal. However, the refund may be delayed until the seller receives the returned goods or the consumer proves that they have been sent, whichever is sooner. The money must be returned in the same way it was received, unless the parties agree otherwise.
There are a few exceptions when a consumer cannot withdraw from a contract. This is also worth bearing in mind when drawing up general terms and conditions. The consumer cannot return goods that have been made to order (for example, monogramming on clothing) or that are perishable (medicines, flowers, food). Goods which have been irretrievably mixed with other goods after delivery or which have been delivered in sealed packaging and have been removed from the packaging by the consumer and cannot be returned for hygiene reasons (e.g. underwear or cosmetics) cannot be withdrawn.
It is a different matter if the consumer chooses from an existing range of goods that have yet to be manufactured but which do not interfere with the final design or undergo any customisation – such goods can be returned.
In the general terms and conditions for e-shops, you must inform your customers about the possibilities and methods of claiming goods – i.e. include a complaints procedure. Consumers have the right to make a claim if the defect in the goods they have purchased is apparent within two years of receipt. Customers can make a complaint by phone, e-mail, in writing or by sending a complaint form. What they can claim depends on the type of defect:
In practice, however, it is a good idea to deal with the matter in a tailored way and perhaps find ways to avoid complicated rules from the perspective of the business.
This point will particularly concern those selling alcohol or tobacco products, for example. In the case of tobacco products – which includes e-cigarettes, nicotine sachets, vaporisers and other smoking aids – it is essential that the e-shop has a technical solution that allows the age of the buyer to be reliably verified before the order is completed. The law requires active prevention of sales to those under the age of 18.
Although the system for electronic age verification is not explicitly provided for in the case of e-shops selling alcohol, the seller is still obliged to ensure that the sale does not take place to persons under the age of 18. Therefore, at least an informative declaration or affidavit of age by the user is recommended. In practice, however, technical verification of age is also often preferred for alcohol, in particular for the purposes of control by the Czech Trade Inspection Authority.
Tip: Don’t forget that you must also inform people under the age of 18 about the prohibition on selling alcohol in the GTC.
In practice, we have encountered that an e-shop offered alcohol as part of a promotion even though it did not have a business license to do so. This is also considered as a major misconduct, which can be fined by the CTIA in the amount of hundreds of thousands.
In practice, we often see that businesses lack information in their terms and conditions regarding out-of-court dispute resolution, which is required by the Consumer Protection Act. Make sure that you inform the customer clearly and comprehensibly about the consumer dispute resolution body that is materially competent for the type of product or service.
The trader is obliged to provide not only the name of the body, but also its postal address, e-mail address and website.
Remember that the terms and conditions should also include the internet address of the body.
In the event that a consumer dispute arises between us and a consumer under a contract of sale or a contract for the provision of services that cannot be resolved by mutual agreement, the consumer may submit a proposal for out-of-court settlement of such a dispute to a designated consumer dispute resolution body, which is
The Czech Trade Inspection Authority
Central Inspectorate – ADR Department
Štěpánská 15, Prague 2, 120 00
E-mail: adr@coi.cz
Website: adr.coi.cz
In any case, be sure to inform your customers about how you process their personal data. However, after the introduction of the so-called GDPR regulation, it is better to deal with this part outside the terms and conditions, i.e. to dedicate a separate place on the e-shop or website. We have discussed the most important requirements of the regulation on the protection of personal data of natural persons in a separate article.
What are your obligations regarding cookies? Find out in the next article.
If you are going to change the general terms and conditions, we recommend that you inform your customers at least a few weeks in advance. Information about how customers will be notified of the changes should be explicitly stated in the terms and conditions – for example, by posting it in the “News” section of the website or by sending an email to registered customers.
In the case of contracts concluded for a longer period of time or for recurring performance (e.g. subscriptions, regular deliveries of goods), the law requires that the consumer has the possibility to disagree with changes to the terms and conditions and to terminate the contract without penalty.
Be sure to put the date from which it applies at the end of the terms and conditions and, if possible, the previous version for archiving, to avoid inconvenience in case of inspection by customers or the Czech Trade Inspection Authority.
Tip: Keep in mind that if you change, the customer has the option to opt out of the new rules and cancel the contract.
We will write new business terms for you, or check the existing ones. We guarantee the correctness of the document according to the new Civil Code. We act quickly, throughout the country. You will know the price in advance and you can pay only after the service has been provided.
Ondřej is the attorney who came up with the idea of providing legal services online. He's been earning his living through legal services for more than 10 years. He especially likes to help clients who may have given up hope in solving their legal issues at work, for example with real estate transfers or copyright licenses.
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