The Contract Nobody Reads (But Everyone Signs)
Somewhere in the architecture of every website lurks a document that virtually no one reads but nearly everyone accepts. It goes by various names—Terms of Service, Terms and Conditions, User Agreement—and it governs the relationship between the site operator and every person who clicks, scrolls, or purchases anything within its digital walls. The document is, in legal terms, a contract. That most users treat it as an obstacle to be cleared rather than an agreement to be understood doesn’t diminish its binding force.
What should diminish its force—and what frequently does, in courtrooms across Europe—is the presence of provisions that overreach. Terms of service drafted without attention to consumer-protection law often contain clauses that sound authoritative but carry no legal weight whatsoever. The business believes itself protected; the protection is illusory. Meanwhile, the absence of required disclosures creates liabilities the business never anticipated.
The gap between what website operators think their terms accomplish and what those terms actually accomplish is, in many cases, vast.
The Nature of the Beast
A terms-of-service document functions as what lawyers call a “standard form contract” or, in Polish legal terminology, a wzorzec umowy—a template that one party prepares and the other accepts or rejects wholesale, without negotiation. This take-it-or-leave-it quality triggers special legal scrutiny. Courts recognize that consumers clicking “I Agree” haven’t genuinely agreed to anything; they’ve merely performed the ritual necessary to access something they want.
This recognition has consequences. Throughout the European Union, and certainly in Poland, standard-form contracts face content restrictions that negotiated agreements do not. Provisions that would be perfectly enforceable between sophisticated commercial parties become void when imposed on consumers through boilerplate. The business that copies a competitor’s terms, or generates them through an automated template service, or drafts them based on what “seems reasonable,” frequently ends up with a document whose most important provisions are legally meaningless.
The irony is sharp: the very clauses businesses care most about—limitations on liability, restrictions on returns, procedures for handling disputes—are precisely those most likely to fail judicial review.
What Terms of Service Must Contain
Polish law, implementing EU directives on electronic commerce and consumer rights, mandates specific disclosures for anyone providing services online. The requirements are extensive, and the website’s terms are the natural vehicle for delivering them.
Identity and contact information. The operator’s full legal name, registered address, tax identification numbers, and—for companies—commercial registry details. Users must know with whom they’re contracting and how to reach them. A contact form hidden three clicks deep doesn’t suffice; an actual email address and phone number are expected.
Service description. What, precisely, does the website offer? For an online store, the answer seems obvious—goods for sale—but the platform itself provides electronic services (browsing, account management, order processing) that require their own description. For subscription services, content platforms, or software-as-a-service offerings, the description becomes more complex and more important.
Pricing transparency. Every cost the user might incur must be disclosed upfront: product prices, shipping fees, taxes, subscription charges, premium feature costs. The practice of revealing additional fees only at checkout—what regulators call “drip pricing”—violates consumer-protection norms and exposes operators to enforcement action.
Contract formation. When exactly does a binding agreement come into existence? This seemingly technical question has enormous practical significance. If clicking “Place Order” creates a contract, the business must honor that contract even if its website displayed an erroneous price. If clicking “Place Order” merely submits an offer that the business may accept or reject, the business retains flexibility to catch errors before committing. The terms must specify which model applies.
Withdrawal rights. Consumers purchasing online enjoy a fourteen-day cooling-off period during which they may return products for any reason or no reason. The terms must explain this right, describe how to exercise it, and identify any exceptions (custom-made goods, sealed hygiene products, digital content after download begins). Failure to provide this information extends the withdrawal period to twelve months—a costly oversight.
Complaint procedures. How does a dissatisfied customer seek redress? What information must they provide? How quickly will the business respond? Consumer law sets minimum standards (fourteen days for initial response in Poland); the terms may elaborate but cannot restrict.
Data protection. The General Data Protection Regulation requires comprehensive disclosure about personal-data processing: what data is collected, for what purposes, on what legal basis, with whom it’s shared, how long it’s retained, and what rights users have regarding their information. While many operators address this in a separate Privacy Policy, the terms should at minimum acknowledge data processing and direct users to the detailed disclosure.
The Unfair-Terms Minefield
Consumer-protection law doesn’t merely require disclosure; it prohibits certain contract provisions outright. The Polish Civil Code, echoing EU directives, declares that standard-form terms violating “good customs” and “grossly harming” consumer interests simply don’t bind the consumer. They exist on paper but not in law.
The catalogue of presumptively unfair provisions runs to twenty-three numbered categories, but certain patterns recur with particular frequency in website terms.
Unilateral modification rights. “We reserve the right to change these terms at any time.” This formulation, ubiquitous in American terms of service, fails European scrutiny. Businesses may modify terms, but only for specified, objectively verifiable reasons, with adequate notice, and with the user’s right to terminate rather than accept changes. Open-ended modification rights are void.
Liability exclusions. “We are not responsible for any damages arising from use of this website.” Blanket disclaimers of this sort cannot eliminate liability for personal injury, for intentional misconduct, or for failure to perform contractual obligations. They can, at most, limit liability for certain consequential damages under narrow circumstances—and even then, proportionality matters.
Jurisdictional manipulation. “All disputes shall be resolved exclusively in the courts of [business’s home city].” Imposing inconvenient forums on consumers violates fundamental access-to-justice principles. So do mandatory-arbitration clauses embedded in standard forms.
Return restrictions. “Items may only be returned in original, unopened packaging.” Consumers have the right to inspect products as they would in a physical store, which necessarily involves opening packaging. Conditioning returns on pristine packaging negates the statutory withdrawal right.
Complaint limitations. “Claims must be submitted within seven days of delivery using our official form.” Consumers may complain in any format; statutory warranty periods (two years in Poland) cannot be shortened by contract; procedural hurdles that effectively bar legitimate complaints are unenforceable.
The penalty for including such provisions isn’t merely their unenforceability. Regulators may investigate, impose fines reaching ten percent of annual revenue, and publish findings that damage business reputation. The asymmetry is notable: including an unfair clause costs the business its protection, while failing to include required disclosures costs the business in extended liability periods and regulatory exposure.
Digital Content and Its Peculiarities
Websites offering digital goods—streaming media, downloadable software, online courses, e-books—face additional complexity. The withdrawal right that applies to physical goods creates obvious problems for content that can be consumed or copied instantly.
The resolution involves a specific choreography. Before providing digital content, the business must: (1) inform the consumer that beginning delivery will terminate withdrawal rights, (2) obtain the consumer’s explicit consent to immediate delivery, and (3) secure the consumer’s acknowledgment that consent means forfeiting the right to withdraw. This three-step process must be documented—a checkbox confirming that the user “requests immediate access and understands this waives the right to cancel” typically suffices.
Licensing terms present their own challenges. Users purchasing digital content rarely acquire ownership; they receive a license whose scope the terms must define. May the user access the content on multiple devices? Download for offline use? Share within a household? Transfer to a new account? Retain access if the service terminates? Each question demands an answer, and answers that unduly restrict user rights face the same unfair-terms scrutiny as any other provision.
Implementation: The Technical Side of Legal Compliance
Drafting compliant terms accomplishes nothing if users don’t encounter them properly. Implementation matters.
Accessibility. Terms must be available for review before any transaction occurs. A footer link is minimum; for e-commerce, displaying terms (or a link) during checkout is advisable. Users must be able to save and print the document—a static PDF serves this purpose better than dynamic HTML that might change.
Affirmative acceptance. Passive acceptance (“by using this site you agree…”) has limited enforceability. Active acceptance—an unchecked checkbox requiring deliberate action—provides stronger evidence of agreement. The checkbox should not be pre-selected, and proceeding without selection should be impossible.
Version control. Each iteration of the terms should bear a clear effective date. Prior versions should be archived and retrievable—when disputes arise about historical transactions, the applicable terms are those in effect when the transaction occurred, not current terms.
Modification procedure. Changes require notice to existing users, a reasonable implementation period (fourteen to thirty days is common), and the opportunity to terminate rather than accept modifications. Simply posting updated terms and expecting users to notice doesn’t suffice.
The Business Case for Doing It Right
Legal compliance isn’t merely about avoiding penalties; it’s about operational effectiveness. Properly drafted terms reduce disputes by setting clear expectations. They provide frameworks for handling the problems that inevitably arise—returns, complaints, delivery failures. They allocate risks in ways that sophisticated businesses actually intend, rather than leaving allocation to default rules that may prove unfavorable.
Consumer trust, moreover, correlates with transparency. Studies consistently find that clear return policies increase conversion rates even when they also increase actual returns. Customers who understand their rights and see those rights respected become repeat customers. Customers who feel trapped by fine print become vocal critics.
The terms of service, in short, are a business document as much as a legal one. They communicate values, set expectations, and shape the customer relationship from its inception. Getting them wrong isn’t just a legal risk; it’s a missed opportunity.
This article provides general information about European and Polish e-commerce law and does not constitute legal advice. Businesses operating websites should consult qualified counsel regarding their specific circumstances.
