Our clients often ask us how how they should deal with their new general terms and conditions with their existing customers. The question is justified, because even when incorporating the GTCs for new customers the questions arise.
Including your GTC in new B2B contracts is quite simple. You state in your offer, ideally on the first page or directly before the signature field, that your T&Cs apply or are included (if necessary, state the status of the T&Cs). Please do not do this in the confirmation email or in the order acceptance, but before the contract is concluded.
But now some time has passed, case law has evolved and you want to change one or two clauses in your general terms and conditions.
Your initial situation
Take a look at your general terms and conditions and and check whether they already contain an amendment clause.
The following scenarios are possible:
- No, there is no amendment clause
- Yes, there is a clause according to which we can unilaterally change our GTC
- Yes, there is a clause according to which the change becomes effective if there is no objection from the customer
Digression
General Terms and Conditions are part of to your contract. They themselves constitute contractual provisions. If you do not have general terms and conditions then the law applies. If you have general terms and conditions, you therefore have contractual provisions that deviate from the law (otherwise you do not need GTCs).
You conclude a contract by offer and acceptance. So if you want to agree new general terms and conditions with the customer, you make an offer and require the customer's acceptance.
- How can I introduce new general terms and conditions introduce?
Scenario 1
So if you do not have an amendment clause in your general terms and conditions and want to change the existing contract with your customer, you need an acceptance of their new offer. You can therefore only introduce the new GTC into the contract only if the customer agrees.
Scenario 2
You have reserved the right to unilaterally unilaterally. The customer has no opportunity to intervene or to react in any other way. That sounds like an ineffective clause. However, you can unilaterally change the contract under certain circumstances if the following conditions are met:
- After conclusion of the contract unforeseeable and uncontrollable circumstances have arisen (e.g. the legal situation has the legal situation regarding a matter has changed) and
- As a result disturbed the relationship between performance and consideration or the performance can no longer be provided without the change or only with disproportionate effort (note: the criteria for this are very high),
- The contractual partner must not be placed in a worse position by the amendment than at the the time of the conclusion of the contract,
- The amendments to the GTC may not affect the main performance obligations of the contract between the parties.
As you can see, your options are considerably limited. But still. If one of the criteria is not met, you should grant the customer an extraordinary right of extraordinary right of termination.
Scenario 3
This scenario has now been declared invalid by the BGH has declared this scenario invalid for contracts between banks and consumers. There are many voices who believe that there is now also a considerable risk for B2B that this risk that this clause will be declared invalid.
In order to minimize this risk, you should at least explicitly point out the changes to the GTC to the customer and make it much easier for them to decide whether or not to object to their inclusion. Particularly in the event that the criteria of scenario 2 could apply here, there is at least the possibility that a silence on the amendment could be effective, as no disadvantage has arisen for the customer and the relationship between performance and consideration is balanced by the amendment.
Conclusion
Depending on which scenario you should always weigh up the risks and check once, what would happen if the amendment to the GTC were not to be effective. Are there only a few customers, or do you have a good relationship with them? Or are many customers affected and it is not foreseeable how the customers will react? What What are the notice periods for terminating a contract with the customers in order to conclude a new contract?
Be aware of your situation and then decide.
If you have any questions, please do not hesitate to contact us.
