In practice, we notice that the parties most often decide to include their dispute resolution clauses in the general terms and conditions (also referred to as the GTCs) they send to each other via emails. An effective introduction of this clause should yet leave no room for interpretation. In a conflict situation an opposing party might use every possible means to torpedo the case and prevent the other party from enforcing its rights. This results in a substantial number of chargeable hours spent on deciding on the dispute resolution route rather than solving the matter as to its merits. The situation becomes even more critical if the party has an urgent need to directly assign the case for its definite resolution, e.g. due to the statute for limitations issues or others.
Clause in the GTCs
If you decide to introduce a dispute resolution clause to the general terms and conditions you send to the other party via email, please note the following.
From the Polish law perspective, for the GTCs used in an electronic version sent via email:
a. they should be made available for the contracting party before the contract is concluded
This means that the other party should have access to them before, for instance, the parties put their electronic signatures. However, this also applies, among others, to the situations in which the parties put their wet signatures on the contract while at the same time they are using the GTCs in an electronic form.
and
b. they should be made available in a way which allows to keep them/store them and have access to them even after the contract is executed.
Although it might be a disputable issue, the mere reference made in the offer to the website might not be sufficient. In particular, this will be difficult to be acknowledged by the court in a situation when, at a time of the dispute, the parties need to refer to the GTCs which might no longer be available online or a revised version is present there.
Feel free to contact us.
CONTACT
Lidia Węcłowicz, Partner
lidia.weclowicz@ngllegal.com
Przemysław Tacij, Counsel
przemyslaw.tacij@ngllegal.com