Terms and conditions for software, websites and online stores

Software terms and conditions

Software is usually a copyrighted work, which is protected under copyright law in the legal system, and the right to use it is generally granted to third parties by means of a licence under a licence agreement. The licence agreement is regulated by the provisions of Section 2358 et seq. of the Civil Code. By a licence agreement, a licensor grants to a licensee an authorisation to exercise intellectual property rights (usually the use of software) within the stipulated limited or unlimited extent, and a licensee undertakes to pay remuneration to the licensor. The licence agreement must be made in writing if:

1. an exclusive licence is granted
2. the licence is to be registered in the relevant public register

In the case of software, the licence is non-exclusive in most cases and its granting does not require the licence agreement to be concluded in writing. Moreover, software is nowadays usually provided “online” without the need for the licensor and the licensee to meet in person. In most cases, the licence agreement is concluded remotely using electronic means of communication. In such a case, the ideal way to define the contractual relationship between the licensor and the licensee is to use software terms and conditions or terms and conditions for the provision of software. The licensor does not have to negotiate the content of the licence agreement with each interested party (licensee) separately since its content is already laid down by the software terms and conditions issued by the licensor, which the client accepts by creating an order and paying the licence fee. The software terms and conditions thus become a document containing the rights and obligations of the parties, with the contracting process taking place in accordance with Section 1731 et seq. of the Civil Code.

The above cases cannot be confused with the delivery of software made to an interested party’s order. Such a contract is a contract for work pursuant to Section 2586 et seq. of the Civil Code under which the software is developed “to order” for the client. Such a contract for work is sometimes referred to as a software development contract. Under the software development contract, the client acquires ownership rights to the software, which represent a sufficient legal title to use it, and therefore, there is no need to conclude a licence agreement.

If you seek legal advice in this area, do not hesitate to contact us and we will be happy to develop a tailor-made solution for you.

Terms and conditions for websites and internet domains

“Website terms and conditions” is a generalised term as it is not a uniformly standardised category of documents. Website terms and conditions, or their content, will always depend on the business (activity) of the website owner.

Website terms and conditions must always be drafted with regard to the specific activities of the website owner, while always taking into account whether the client is a consumer or an entrepreneur. The nature of the other party is crucial in determining which provisions are permissible in the terms and conditions and which are not. For example, the consumer protection provisions contained in Section 1810 et seq. of the Civil Code prohibit certain arrangements in the entrepreneur-consumer relationship. In relation to the consumer, website terms and conditions cannot contain, for example, provisions which, contrary to the requirement of proportionality, establish a significant imbalance in the rights and obligations of the parties to the detriment of the consumer (Section 1813 of the Civil Code) and other provisions referred to in Section 1814 of the Civil Code. This can be resolved by creating one version of the website terms and conditions for entrepreneurs and one for consumers.

Our law firm has extensive experience in drafting terms and conditions and will be happy to assist you if needed.

SaaS terms and conditions

In IT, we often see the abbreviation SaaS, meaning “software as a service”. Software is usually a copyrighted work, which is protected under copyright law in the legal system, and the right to use it is granted to third parties by means of a licence under a licence agreement. However, this option is often very expensive for those interested in using the software. The SaaS model allows the software to be provided as a service through cloud computing instead of a licence agreement, which is economically more advantageous for interested parties, saving them a one-time investment of a larger amount of funds. To use the software, the interested party needs basically nothing but an internet browser because the interested party uses an application of the software owner (author), who also provides technical support and updates. Therefore, the software is not reproduced and distributed among other interested parties, but the interested party only uses the software owner’s application.

If you own such software and consider providing it under a SaaS model, we recommend drawing up appropriate contractual documentation, including in particular a contract or SaaS terms and conditions. Every piece of software is unique and so are the needs of each person interested in using it. However, in business relations, it is usually not possible to negotiate the entire content of the contract regarding the terms of its use with each interested party (e.g. due to the number of interested parties and enormous costs associated with such a procedure). Therefore, the software owner usually uses a model contract and SaaS terms and conditions.

Terms and conditions for e-shops and online stores

An e-shop is established by an entrepreneur offering his products or third-party products to end customers on the market. The vast majority of e-shops use the institute of a purchase contract in their business activities. Due to the large number of buyers as end customers, it is usually not possible to define the full scope of the obligations in the purchase contract as it is overwhelmingly concluded remotely by electronic means of communication, which does not allow the verification of the customer’s identity without the customer’s cooperation.

The rights and obligations of the parties are therefore included in the e-shop terms and conditions issued by the seller (e-shop owner). When drawing them up, it must always be taken into account whether the client (buyer) is a consumer or an entrepreneur. The nature of the other party is crucial in determining which provisions are permissible in the e-shop terms and conditions and which are not. For example, the consumer protection provisions contained in Section 1810 et seq. of the Civil Code prohibit certain arrangements in the entrepreneur-consumer relationship. In relation to the consumer, e-shop terms and conditions cannot contain, for example, provisions which, contrary to the requirement of proportionality, establish a significant imbalance in the rights and obligations of the parties to the detriment of the consumer (Section 1813 of the Civil Code) and other provisions referred to in Section 1814 of the Civil Code. This can be resolved by creating one version of the e-shop terms and conditions for entrepreneurs and one for consumers.

The distance method of contracting also plays a crucial role, placing additional demands on the e-shop owner (seller) in terms of information obligations towards the consumer prior to the conclusion of the contract and thus also indirectly on the content of the e-shop terms and conditions.

If you intend to establish and operate an e-shop or otherwise get involved in e-commerce, do not hesitate to contact us. Our law firm will be happy to provide you with the services of our experts, who have extensive experience in drafting e-shop terms and conditions and will guide you through the entire process, from the establishment to the launch of the e-shop. We will also gladly assist you in revising the existing e-shop terms and conditions and updating them to comply with the current legislation.

What situations do we typically handle for our clients regarding the terms and conditions of software, websites and online stores?

• What are the terms and conditions for purchasing software
• Who can supply software
• How to file a complaint about delivered software
• The supplier refuses to accept a complaint concerning the delivered software
• Illegal use of my software
• The software supplier did not meet the terms of reference
• How to lease software use rights
• How to draw up e-shop terms and conditions
• Obligatory content of e-shop terms and conditions
• Enforcement of e-shop terms and conditions
• The shop did not comply with the terms and conditions
• In which language should the terms and conditions be written
• How to use the terms and conditions of another e-shop for my shop?
• What you need to do when setting up e-shops
• How to provide software using the SaaS method
• Consultation of terms and conditions
• Model general terms and conditions